in deciding all Maritime Controversies Insomuch that the Emperour Antoninus who though Imperious enough in styling himself Totius mundi Dominus yet in all Nautical Controversies subscribed to the Rhodian Law acknowledging that though himself was Lord of the world yet the other was of the Sea There were also very Ancient Laws made and published by those of Rhodes who were most expâ—rt at Sea as well touching Navigation as Merchant-affairs where the use thereof was of no less Consequence unto then of Antiquity in that Mediterranean Isle The Assertions upon Historical Record touching the Excellency of their Sea-Laws their incomparable skill in Navigation and the Trophies of their Naval Victories are almost incredible But this so famous Isle being at length reduced from the glory of a Splendid to the Eclipse of a Decaied Merchant by reason of the many irruptions and incursions made thereon by several Nations specially by the Turks a little before the Reign of Charles the Great when about the same time the Turks also possessed themselves of several other Isles in the Mediterranean the Gallantry of the Rhodian Navies soon after vanished which at length as some German Authours would have it was thence translated to the Oriental Ocean or Baltick Sea For that Wisby in Gotland anciently prescribed the Sea-Laws to Merchants and Mariners whereunto as afterwards to Lubeck the Neighbouring Cities did usually appeal in all affairs of Maritime Cognizance The word Admiralius from the Eastern Empire was first transported into Italy and Sicilia thence into France and from thence into England The first high Admiral in France as supposed was one Rutlandus so called by Aeginardus in the Life of Charles the Great others called him Rolandus he was Constituted high Admiral of France about the time of King Pipin or Charles Martel Yet others are of opinion that the office of Ameral that is Admiral was known to the French first in the daies of Lewis the seventh from whose time till Philip the fourth there was only one Admiral After that there were two Admirals in France at the same time And afterwards more then two at one and the same time each dividing his Jurisdiction according to the Coasts of their several Provinces respectively This high Officer L' Ameral in point of dignity is next to the High Constable of France Anciently there were three Admirals in France one in Aquitane another in Brittany and the other was Generalis in Francia which three are now reduced to one who doth exercise his Jurisdiction at the Marble Table in Palatio Parisiensi And whereas it is by some supposed that Rutlandus alias Rolandus as aforesaid in King Pipins daies was the first Admiral of France yet the more probable opinion is that either Enguarrantus Dom. de Causy in King Philip the third's time Or Americus Vicount of Narbone in King Johns time was the first that ever had the honour of that high Office in the Kingdome of France CHAP. III. The Antiquity of the Maritime Authority together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain IN the precedent Chapter it is said that the name of Admirallius first came out of the Eastern Empire into Italy and Sicily thence into France and thence into England And this as the Learned Sir Hen Spelman doth suppose after the time of the Holy Warre For that as he observes out of Hovenden when King Rich. the first prepared his Navy for that design he appointed no single person to the Command in chief of that Navy by the name or style of Admiral but deputed five several persons to that Command by the name or style of Ductores Justiciarii Constabularii totius Navigii The said Learned Authour comes something nigher to our times and says that this Appellation or style of Admiral seems not to be received with us in An. 8 H. 3. for that the King in his Grant at that time to William de Lucy expresses himself only by the words of Concessit Maritimam Angliae without any mentioning of the word Admiral in that Patent Nor yet in the forty eighth year of his Reign for that he then Constituted Tho de Moleton Capitaneum Custodem Maris non Admirallium So that he is of opinion that this high Officer was not known to us here in England by the name or style of Admirallius till the beginning of Ed. the first 's Reign And that William de Leiburn was the first with us that had the dignity of that Office by the style of Admiral who at the Assembly at Bruges Anno 15 Ed. 1. was styled Admirallus Maris Regis And that soon after the said Office became Tripartite viz. Anno 22 Ed. 1. when the said William de Leiburne was made Admiral of Portsmouth and the adjacent parts John de Botecurts of Yarmouth and the Neighbouring Coasts thereof and a certain Irish Knight of the West and Irish Coasts After whom succeeded three other Admirals for the same Divisions in the 19 year of Ed. 2. viz. John Otervin Nicholas Kiriel and John de Felton And in those daies the Admiral was often styled not Admirallus maris but Admirallus flotae Navium id est Classis or the Admiral of the Navy And this Admiral had his power divided into two stations the one was the North station which began at the mouth of the River of Thames and thence extended it self North-ward comprising Yarmouth and all the Eastern shore The other was the West station which beginning likewise at the mouth of the River of Thames stretched it self West-ward comprising Portsmouth and all the South and West of England But the first that was styled Admirallus Angliae was Richard the younger son of Alan Earl of Arundel and Surrey in the tenth year of R. 2. Notwithstanding all this which hath been said intimating that William de Leiburn in the 15 of Ed. 1. was the first in England that had this Office by the name or style of Admirallus yet it is evident by Matth. Paris in H. 1. which is about 150 years before that of Ed. 1. that at that time there was mention made of one Balac Ameralius here in England who in Fight took and surprized Jocelyne Earl of Edessa with his Cousin Galeranus But at what point of Time precisely that Office by the style or Appellation of Admiral was first known in England it matters not much since the thing it self which signified that Office now known to us by the style of Lord High Admiral and the Jurisdiction thereof hath ever been in this Kingdome time out of mind This will the more evidently appear if you consult the Records of History and compare them with others National touching that Ancient Dominion the Kings of England have ever had over the Seas of England together with that Maritime Jurisdiction which hath ever asserted the same That the Kings
full of that Office And so proceeds That in Rich. 2. it was brought to a Weldy that 's the Epethite it pleases him to afford it Model Being Uncertain rather then Infinite before as the said Authour is there pleased to determine For says he the Bounds were ever straighter much then some may imagine Also that they were again disputed in Henry the fourth Q. Elizabeth and King James And then he is pleas'd most facetiously to add That it lies more open to the Common Law then to the Wind. Yet withal he doth not there conceal but that besides the Laws of Arthur the Brittain and Edgar the Saxon we have some Records of Custome by Sea as well as by Land with Priviledge to some below the King before the Norman whom they make the Founder yet he was in the said Authours judgement but Patron of the Ports and Wardens of the Sea And the same Authour speaking of the Sea-statutes of Rich. 1. how that they were made de Communi probarum virorum Consilio refers to the very expression of the Charter it self in Hovenden Wendover or Matthew Paris who doth add that per Consilium Magnatum there were made Justiciarii super totum Navigium Angliae c. which with divers Records of Henry the third may be added to the Admiral or Saxon Aen Mere eal Over all the Sea To which much might be added from the Rolls of Hen. 3. and Ed. 1. But this that hath been said may suffice to satisfie some and convince others touching the Antiquity of the Office and Jurisdiction of the High Admiralty of England For the Utility of this Ancient Jurisdiction of the Admiralty in this Kingdome of Great Brittain if you have retrospect to the Honour thereof in Precedent Generations Antiquity can witness with what effectual success if not to the nonplus of Neighbour-Nations the Dominium Maris Brittanici hath been from Age to Age Judicially asserted If you consider the plenty and splendour of a flourishing Kingdome the present Generation cannot yet forget to give ample testimony thereof in reference to the Trade and Commerce of this Nation And if you will not be so irregular as to deny the Consequence that naturally flowes from these Premises you cannot but inferre this Positive Conclusion That the succeeding Generations are like to suffer as well an Eclipse of their Honour as an Abatement of interest without the influence of that Jurisdiction Insomuch as the late Cardinal save one of France did wisely according to the last cited Authour dispose or rather retain that Office as the best Jewel of that Kingdome which yet must yield to this But in a word the Jurisdiction of the Admiralty of England may not unaptly be compared to that Tree in the Island of Fierro being one of the Sept. insulae of the Canaries which as Historians tell us doth with the droppings of his leaves yield water for the sustenance of the whole Island It is farther added that the Moors having taken that Island from the Christians attempted to fell down that Tree but each blow recoyled on the striker The former part of this strange Relation with a small variation passes for a Truth as known unto and acknowledged by most of the Ancient Travellers and Geographers The other part being probably but a fabulous Addition To keep hands off has not as the other the Credit of an Application To conclude if this Chapter seems to a Genius more ratified by acuteness for Apprehension then endued with Patience for Expectation more prolix then may be regularly consistent with a Treatise only by way of Summary view let him only consider that where Eagle-eyes who are seldome dazeled with too much light are to be dealt with it may be less dis-ingenious to borrow a Point of Expatiation then to remain too much in debt to the Truth for want of room to display her Beams in CHAP. IV. of Persons Maritime As also of such Things as are properly Cognizable within the Jurisdiction of the Admiralty of England And in what method it proceeds to Judgement THere are but three things that seem specially to illustrate the splendour of a Jurisdiction viz. Sceptrum Majestatis or the Power and Legal Authority of the Prince as to the Constitution thereof Codex Administrationis or the Right Administration of Justice and Gladii potestas vel Gladius Executionis or the Coercive power That Jurisdictions thus constituted are inter Regalia Principum no person not dis-principled will deny So as what was long since the Law as to the Emperour in point of Jurisdiction within the Empire Imperator quoad Jurisdictionalia Dominus totius mundi appellatur is the same and as true in absolute Kings and Princes within their own Kingdomes Dominions Principalities and Territories And no wonder in that Kings and Princes tantum possunt in suo statu quantum Imperator in Imperio Some without lisping say that a King in his Kingdome hath a farre greater right and interest then the Emperour hath in the Empire for that a King is Loco Domini and his Kingdome is more assimilated unto hath a greater resemblance with that which is Dominiū properly so called then with that which is but simply Regimen The Emperour is not Proprietarius but chief Governour of the Empire And that only by Election not by Succession as the other Now as the Seas belong to Princes in respect of Jurisdiction and Protection So also in them properly resides the Right and Power of Commissionating Ministers of Justice for the due Exercise and Administration thereof in decision of all matters whether Civil or Criminal within their Cognizance according to the known Laws of the Sea not contradicting the Statute or Municipal Laws of that Kingdome or State whereof the said Prince is next and immediately under God Supreme As to Persons Maritime it might be considered who they are that more peculiarly are of Marine capacities and properly may be said to be within the Jurisdiction of the Admiralty what their Rights Priviledges and Immunities are and what their Office or Duty respectively is Likewise as to Things properly Maritime it might be considered either as they be in respect of the actions thence arising Civile and respecting only Commodum Privatum between party and party whether it be Contractus or quasi Contractus either by any Perpetual known Rights or by some Casual Occurrence Or Criminal and respecting the Fiscus in reference ad utilitatem Publicam but that the design of this Treatise is not to expatiate in the Law on any of these but only as most adequate to a Summary view of the Admiral Jurisdiction to touch quasi in transitu what referres to each of these under its own proper head and no farther then may be of use for the clearer discovery of the subject matter of the Jurisdiction of the Admiralty of England without engaging into Controversal points chusing rather in a Treatise so compendious
districtum Maris vocat The Straights of Gibralter infra Jurisdictionem Maritimam And because it appeared That the Contract was made at the Island of Malaga Prohibition was granted for it was not regarded that he added infra Jurisdictionem Maritimam which appeared contrary If in another Case it happen to be elsewhere supposed that the Contract is made at Burdeaux in France in Islington though by the very light of nature it appears as soon as it is put to be contrary yet there may be that reason of Law to hold the place is not traversable as to the Infra Corpus Comitatus which the Infra Jurisdictionem Maritimam cannot duly expect when that appears to be contrary It was once said by Justice Wray in Sir Julius Caesars Case That it was hard that his Jurisdiction should be tryed before himself It hath been observed for these last twenty years that it is far more easie to preach good doctrine then to practise it The Law in all Jurisdictions is but Reason Regulated No wonder therefore if sometimes a Cause as to the Merits of it meet with a right Decision in a wrong Jurisdiction but less wonder if it oftner happeneth otherwise It is reported in the Case of Bright against Couper That an Action of Covenant being brought upon a Covenant made by a Merchant with a Master of a Ship viz. That if he would bring his Fraight to such a Port then he would pay him such a summe it was shewed that part of the goods were taken away by Pyrats and that the residue of the goods were brought to the place appointed and there unladen And that the Merchant had not paid and so the Covenant broken And the question was whether the Merchant should pay the mony agreed for since all the Merchandizes were not brought to the place appointed And the Court was of opinion that he ought not to pay the mony because the Agreement was not by him performed Here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed albeit there was Vis major or Casus Fortuitus without any default in the Master or Mariners in the Case the Court being of opinion that he ought not to pay the mony because the Agreement was not by him performed nor had it been performed in case of stress of weather part of the goods had Navis Levandae causa been thrown over-board probably this Pyracy whereby came this casual incapacity of performing the Agreement was Super altum mare And the same Reporter in Westons Case A Merchant hath a Ship taken by a Spaniard being enemy and a moneth after an English Merchant with a Ship called the Little Richard re-takes it from the Spaniard And the Owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by battel of an enemy Probably this Capture and Re-capture the occasion of this plea and querele was only Super altum mare and the property of Shipping called into question by reason of such supermarine accidents the matter of this plea and querele is of every days practice in the Admiralty and so accustomed time out of mind But at another time in a Case something parallel to that quoad merita Causae super altum mare A Prohibition would not be granted A Dunkirker having seised a French mans Vessel Super altum mare sold the same with her Lading at Weâ—mouth whither it had been driven before its brought infra praesidia Dom. Regis Hispan whereupon the French man Libelled in the Court of Admiralty against the Vendee pro interesse suo who shewed that it was taken not by Letters of Mart as was pretended but by Piracy And prayed a Prohibition And it was agreed by the Justices That if a Ship be taken by Piracy or by Letters of Mart and be not brought infra praesidia of that Prince by whose subject it was taken that it is no lawful Prize and the Property is not altered and such was said to be the Law of the Court of Admiralty And therefore the Court would not grant a Prohibition In the former Case where Prohibition was granted the property of the Ship seems not to be altered for though she were as that Case puts it taken by an Enemy and a moneth intervened between the Capture and re-Capture and so did pernoctare with the Captors yet it does not appear by that Case that she was ever brought infra praesidia hostium before such re-capture or that ever Judication passed thereon And if there were any alteration of Property of that ship the Property must have been altered Super altum mare which is properly Cognizable in the Admiralty in respect of the Place as well as the thing it self in its own nature Littleton that Famous Oracle of the Law as aforesaid asserts That a thing done out of the Realm may not be tryed within the Realm by the oath of twelve men The Lord Coke as aforesaid acknowledgeth That the Lord Admiral hath and ought to have Jurisdiction of Contracts pleas and quereles made upon the Sea or any part thereof not within any County And Sir George Crook says That if a Suit be commenced in the Court of Admiralty upon things done upon the Sea no Prohibition is to be granted Therefore it follows that Contracts made and other things done upon the Sea are inherent in the Jurisdiction of the Admiralty CHAP. IX Of Contracts and Bargains made and other things done Beyond the Seas And whether the Cognizance thereof doth belong to the Admiralty IF the Jurisdiction of the Admiralty in this point should seem to be pretermitted or waved by saying that Bargains and Contracts made beyond the Seas wherein the Common Law cannot administer Juflice do belong to the Lord High Constable and Earl Marshal of England It might seem tacitely to imply as if Charter-parties Bills of Lading Cockets Invoyces Commissions of Mart Marine Consortships and other Contracts or things made or done beyond Sea touching Trade and Navigation were not within the Conusance of the Jurisdiction of the High Admiralty of England Whereas it is well known That they are only Contracts and Deeds of Arms and of War and the like out of the Realm that do properly belong to the Lord High Constable and Earl Marshal of England and the like within the Realm whose Jurisdiction is of a distinct and diversified nature both from that of the Common Law and of the Admiralty also It is said That if an Indenture Bond or other Specialty or any Contract be made beyond Sea for the doing of any Act or payment of mony within the Realm or otherwise wherein the Common Law can administer Justice and give ordinary remedy In these Cases neither the Constable and Marshal nor the Court of Admiralty hath any Jurisdiction So that the Admiralty seems hereby to be of little use as to
Contracts though Vltra-marine But the Lord Hobard in Bridgmans Case goes farther and says That it hath been often Resolved That if any Obligation were made at Sea yet it could not be sued in the Admiralty Court because it is an Obligation which takes his course and binds according te the Common Law So that it hence follows that if it be made beyond Sea wherein the Common Law can administer Justice the Court of Admiralty hath not any Jurisdiction And if it be made at Sea it cannot be sued in the Admiralty Court because it takes its course and binds according to the Common Law Thus betwixt Land and Water between Contracts made beyond Sea and Obligations made at Sea the Admiralty seems like a kind of Derelict But probably it is not hereby meant or intended that every Contract made beyond Sea shall be tryed at the Common Law but only such as are there made for doing some Act within the Realm or otherwise wherein the Common Law can administer Justice and give ordinary remedy Nor every thing done at Sea but only Obligations which have their course and bind according to the Common Law and also when these things done at Sea be not as Bridgmans Case farther puts it of the same nature and respect that is as the said Case explains it an Obligation made at Sea for security of a debt growing before at Land cannot be sued in the Court of Admiralty because it is not for a Marine cause No man 't is presumed doth question but there may be debts growing at Land for Marine Causes as in respect of Shipping Navigation and the like Otherwise a Skipper signing Bills of Lading at Land might pretend such Bills of Lading so signed by him did not oblige him to a delivery of the goods therein expressed according to the consignation thereof A Marine Contract may be made and a Nautical debt contracted as well by Land as by Sea for security whereof Obligation may be afterwards made at or beyond the Sea and be within the Cognizance of the Jurisdiction of the Admiralty which would not signifie much in this or any Nation if it could not administer Justice in any Cases save only such as have their Birth Life and Death their foundation negotiation and consummation precisely Super altum mare specially where a surmize or suggestion may be material quoad examen though the Case oft times happens to prove otherwise quoad merita Sir George Croke in the foresaid Resolutions upon the Cases of Admiral Jurisdiction seems to be of another opinion where it is said That if a Suit be commenced in the Court of Admiralty upon Contracts made or other things done beyond the Seas or upon the Seas no Prohibition to be granted or awarded There respect seems to be had more to the Place where the Contract is made then whether it be for a Marine cause There are some things that wherever they be made or done whether this side the Sea upon the Sea or beyond the Sea may be properly Cognizable in the Admiralty Such are Charter-parties Bills of Lading and the like There are other things wherein the Jurisdiction of the Admiralty is limited as to the Locallity upon or beyond the Sea Personal Actions may sometimes be or not be of Admiral Cognizance according as they are here or there Local at other times they are regulated quoad subjectam materiam about which they are conversant for as there are some certain Places that sui natura are subject to the Jurisdiction of the Admiralty so there are some certain Things that are likewise sui natura subject to the same Jurisdiction And as a Maritime Place may without respect to the subâ—ect matter entitle that Jurisdiction to a Cognoslibility of a Case so sometimes the subject matter as the said Charter-parties Bills of Lading and such like may without such absolute respect had to the Place have the same operation were it otherwise it might be something difficult to find a Case simply and absolutely of an Admiral Cognizance for Contracts though made even upon or beyond the Seas are generally to take effect at Land And that which is purely Marine in the Cause may be Terrene in the Effect Bills of Lading that are so properly inherent in the Admiralty take effect at Land though made and firm'd a ship-board for the most part upon or beyond the Seas Likewise Contracts for Fraight and Mariners wages take effect at Land yet for the most part are made a ship-board upon or beyond the Seas These Obligations for they are Obligations though they are for doing some Act within the Realm as in Bills of Lading for the safe delivery a shore the dangers of the Sea excepted of such goods to the Consignatory as are therein mentioned and in Contracts of Fraight and Mariners wages for the due payment of mony on the Land yet are all within the Jurisdiction of the Admiralty When a Contract is really made Super altum mare vel ultra quatuor maria specially in matters sui natura maritime though in order to something afterwards to be done or performed in whole or in part upon the Land This seems by the Ancient Customes style and practice of the Admiralty to be within the Jurisdiction thereof yea properly and exclusively unless you hold the doctrine of Universal Concurrency And herein the Admiralty may safely appeal to the words of that great Oracle of the Law whereof mention hath been made in the precedent Chapter viz. Que chose fait hors del Royalme n' aient poet estre trie diens Le Royalme per Le serement de 12. A thing done out of the Realm may not be tryed within the Realm by the oath of twelve men This is the judgement of him whom the Lord Coke styles not only by the name of a Lawyer but of the Law it self No surmize or suggestion can cause that to be which in sui natura is not nor cause that legally to seem to be which in rerum natura is not capable of being The Question is not whether an Alien born out of the Dominions of the Realm of England may as a Demandant bring his real Action nor is it imagined by any that because he is an Alien that therefore his Case may not come to Tryal for want of a suggestion To feign a Native of France to be born in such a certain place in England doth not reach the Case in hand For though it be impossible for one and the same individual person to be born in both places yet it is not impossible but that he who is surmized or suggested to be born in one place might in truth be born in another nor contrary to the Rules of Law to surmize a translocation of a mans Nativity which admits a possibility in any place within the habitable parts of the whole Universe therefore such a surmize or suggestion may be regularly consisteâ—t with the Law of Fictions and consequently
practicable for the foundation of Process Action or Judicial Proceedings But it may be otherwise of certain Things which if you assay by a surmize to remove from their proper element you may seem as it were to annihilate the thing it self Or endeavouring a representation of such non-entities by a meer conception of words you may seem as it were to attempt incapabilities which the Law understands not or no other then the ebolitions of fancy for ex nihilo nihil fit Nor is it controverted whether a Delinquent for adherency with the Kings Enemies beyond Sea shall be tryed in England no question but such adherency without the Kingdome to accommodate the matter for Tryal somewhere and to prevent a total failure of Justice may according to Law be alledged to have been made in some place within the Kingdome because a Fact of that kind is within the Notion of Nature and Reason capable of a being in either But it does not thence follow that the Collision of one Ship against another by the violence of Wind and Tide being and capable of happening where Terra firma is not may according to Rules of Law be supposed to have happened in the Ward of Cheap when possibly or in truth the said casualty did happen Super altum mare it may be sixty Leagues West-ward of the Cassiterides or Isles of Scilly And this not so much to accommodate the matter for a Tryal at Law somewhere for prevention of a total failure of Justice as in the former cases as to remove a Tryal already in being from one Jurisdiction to another lite pendente ad aliud examen There is a double difference and of wide dimensions between the said instances and the true state of the Case in hand First that way of arguing holds well and rationally to create a Tryal in case of Necessity where otherwise Justice might totally fail for want of a competent Tribunal in order thereto And here there is no opponent for the objection is of another nature as when surmizes and suggestions are used as a remedy extraordinary where the ordinary means fail not and that not so much to beget a Tryal which otherwise could have no being as to remove a Tryal actually in being Secondly there is a vast difference in Law between Persons and Things in reference to Legal Fictions as to their operation in Judicial Proceedings For Persons in one place will without offence to the Law admit of Fictions to suppose them in any place but Things and Actions are ever to be accommodated as unto a possibility in Nature so to Rationality and Equity in Act Insomuch that if by any manner of supposing they happen to be strain'd beyond either of these all the Superstructure may fall for want of sufficient foundation Though it be very true what Spiegelius once said Fingi Lites poterunt ut transactio fiat citra Praetoris authoritatem yet most apt and true also is that of Ulpian Fictio privata illicita nihil distat à fraudulent a simulatione The Reason in Law is because as all Legal Fictions must ever imitate Nature it self in re possibili though it be adversus veritatem so it must also be Legis ex justa causa dispositio It is said That an Obligation made beyond the Seas may be sued in what place in England the Plaintiff please Insomuch that notwithstanding it bear date at Burdeaux in France yet it may be alledged to be made in quodam loco vocat ' Burdeaux in France in Islington in the County of Middlesex and there it shall be tryed For as it is there farther added in that case it is not traversable whether there be such a place in Islington or no. But yet the Renowned Littleton says plainly as is before observed That a thing done out of the Realm may not be tryed within the Realm by the Oath of twelve men If an Obligation made beyond the Seas may be sued here in England in whatsoever place the Plaintiff please admitting the intraversability of the place it follows That a thing done at Burdeaux in France may be tryed in Middlesex in England and that which was done in the East-Indies may be tryed in the Ward of Cheap If it be admitted that the words of the incomparable Littleton viz. Out of the Realm And the words of the Lord Coke viz. Beyond the Seas do according to the intendment here agree in parity of sense though in other Cases very distinguishable then it would seem as if there were some need of a person dexterous at Gordian knots in this point that may not Alexander-like cut instead of untying the same who withal must remember what the Lord Coke himself there says in the close of that Burdeaux Case in Islington viz. That these Points are necessary to be known in respect of the variety of opinions in our Books whereby it is evident that there is not that universal unanimity of consent in this point as to render it indubitable So that although a surmize or suggestion should translocate Burdeaux into Islington yet 't is not to be gain-said but that the great Oracle of the Law asserts That Things done without the Realm cannot be tryed within the Realm by the Oath of twelve men Where the Locality is meerly Circumstantial to the Fact and not withal Essential to a Jurisdiction in that case the intraversability of the Place need not be so considerable as when a Right of Cognizance admits dispute by reason of such Locality or the claim of another Jurisdiction not inadmissable specially of such a Jurisdiction as mainly calculates her Cognizance according to the Meridian of that Place where the Thing or ground of Action received its Origination and where the very Locality becomes as it were one Essential to the Jurisdiction it self and where by such an intraversability of the Place though only surmized it becomes not impossible but that a competent Jurisdiction may happen to be quoad hoc excluded The Jurisdiction of the Admiralty having ever been of the complaining hand touching the inconveniencies through uncertainty of Jurisdiction as to the Cognizance and Tryal of Causes Maritime may aptly say with the Lord Coke Misera est servitus ubi jus est vagū aut incognitum It hath been said That if an Indenture Bond or other Specialty or any Contract be made beyond the Sea for the doing of any Act or payment of any mony within the Realm That in such Cases the Court of Admiralty hath not any Jurisdiction And that therefore Prohibitions have been granted as by Law they ought when the Court of Admiralty hath dealt therewith in derogation of the Common Law If Instances of awarding Prohibitions should amount to a general Rule without Exception the Admiralty would seem to have made in former times many frivolous complaints it is presumed all men will not deny but that it is possible for a Transmarine Contract to be a Maritime
of this Treatise to which the Reader is referred A Surmize or Suggestion in certain Cases is doubtless a very Legal Expedient yet possibly some men will no more agree with others of their fellow-rationals in suggesting a Contract to be made in the Port of New-haven upon the Continent of France then if they surmiz'd it to be made in the Bay of Biscay upon the Continent of Spain To this purpoâ—e very memorable is that fore-mentioned Case of Susans against Turner where it is said That if a Suit be commenced in the Court of Admiralty for a Contract supposed to be made Super altum mare the Defendant upon a Surmize or Suggestion that it was made upon the Land within the Realm may have a Prohibition The Fact is re vera super altum mare notwithstanding which the Jurisdiction of the high Admiralty of England seems as that Case puts it to be in point of Cognizance subordinated to a bare surmize or suggestion though in re minus vera In matters of an inferiour alloy it is no superlative argument to infer a thing ought to be so because it hath been so much less in point of Jurisdiction Though it be a common Rule in Law that ex facto jus oritur yet this is ever to be understood non de facto supposito sed vero It is yet too fresh in memory to escape observation how of late unhappy years Prohibition have been prayed even by such as in the self-same Case had before admitted the Jurisdiction of the Admiralty by pleading there yea when by the Libel it could not appear that the Contract whereon the Action was grounded was made out of that Jurisdiction Insomuch as it became most mens policy that suspected the success of their Cause in one Jurisdiction to endevour by the art of surmizing the removal thereof to another And this though the Case in it self never so clear of Admiral Cognizance and after themseves had submitted to the Jurisdiction This had but a slender affinity with what is reported in the Case between Jennings and Audley where Prohibition was prayed to the Admiral and the Libel shewed to the Court which contained the Contract was made in the Straights of Malago within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed That in all Cases where the Defendant admits the Jurisdiction af the Admiral Court by Pleading there Prohibition shall not be granted if it do not appear by the Libel that the Act was done out of their Jurisdiction The like we find in the Case of Baxter against Hopes In which it is said That if the Defendant admits the Jurisdiction of the Court then the Court will not upon a bare surmize grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libel that is that the Act was not made within the Jurisdiction of the Sea And to this difference all the Court agreed So that for the same party in the same cause to surmize and move for a Prohibition against that Jurisdiction to which himself had formerly submitted and in a Cause which by the Libel appears not other then Maritime seems quite beside the Rule and Practice of Law To conclude this point of Forraign Contracts made and other things done beyond the Seas The Merchants Case Mich. 8 Jac. in the Kings Bench may not be omitted It is therein thus reported viz. Henry Yelverton moved the Court for a Prohibition to the Admiralty Court And the Case was There was a Bargain made between two Merchants in France and for non-performance of this Bargain one Libelled against the other in the Admiralty Court And upon the Libel it appeared that the Bargain was made in Marcelleis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it And Flemming Chief Justice would not grant a Prohibition for though the Court of Admiralty hath nothing to do with this matter yet insomuch as this Court cannot hold Plea of that the Contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the Bargain may be supposed to be made at Marcelleis in Kent or Norfolk or other County within England and so tryable before us and it was said that there were many Presidents to that purpose and day given to search for them This was the Case wherein it appears the Bargain was made beyond the Seas and between Merchants yet said the Admiralty hath nothing to do therewith because not upon the deep Sea nor that Court hold Plea thereof because made in France therefore according to Flemming Chief Justice no Prohibition but Yelverton and Williams Justices to the contrary the Contract being supposable to be made at Marcelleis in Kent or Norfolk Therefore a search for Presidents of Contracts though really made beyond Sea yet supposed to be made in some Forraign parts beyond Sea in England as Marcelleis in Kent or Norfolk or the like This could not be so much out of any necessitous ground to accommodate the matter to a tryal somewhere for prevention of a total failure of Justice as in order to a removal thereof from the Court of Admiralty where it actually depended It is now nigh thirty years since in the Royal Presence it was unanimously resolved and subscribed by all the Reverend Judges of both the Honourable Benches viz. Febr. 1632. upon the Cases of the Admiralty-Jurisdiction That if a Suit be commenced in the Court of Admiralty upon Contracts or other things done beyond the Seas no Prohibition is to be awarded CHAP. X. Of Judicial Recognizances and Stipulations for Appearance and performance of the Acts Orders Judgments and Decrees of the Court of Admiralty As also whether the said high Court of Admiralty of England be a Court of Record ALthough the Court of Admiralty time out of mind hath ever used to take such Recognizances and Stipulations for Judicial Appearances and due performance of such Acts Orders and Judgments as are made and given in the said Court yet this Ancient Practice of the Admiralty though so adequate to the genuine rights of Judicatories and Tribunals of Justice quatenus such hath not escaped a Contradiction founded upon this assertion That the Court of Admiralty is no Court of Record Such as hold Prohibitions may be granted to the Court of Admiralty upon the ground or reason aforesaid seem to model the Argument Syllogistically and say That for the taking of Recognizances against the Laws of this Realm Prohibitions have been and ought to be granted But the Court of Admiralty doth take Recognizances against the Laws of this Realm Ergo c. The Minor Proposition is said to be proved thus viz. No Court being not a Court of Record can take such Recognizances But the Court of Admiralty is no Court of Record Ergo c. That unhappy Minor
Sea For the difference may be material In the Case of Palmer against Pope it is reported That the Statute saith ad primâ—s pontes And in the Case of Leigh and Burley It is said that the 15 of R. 2. is mis-printed viz. that the Amiral shall have Jurisdiction to the Bridges for the Translator mistook Bridges for Points that is to say the Lands end So reported in the said Case The words of the Statute are viz. In the main stream of great Rivers only beneath the c. of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance It is not denyed by the Statute but the Admiral hath Jurisdiction in Cases of Mayhem and Death in the main stream of great Rivers Rivers are not found beneath the Lands end if Bridges be mistaken by the Translator for Points and Points be taken for the Lands end then Rivers and the main stream of great Rivers should be beneath the Lands end where they empty themâ—elves into the main Ocean Again the words of the Statuâ—e are In the main stream of great Rivers only beneath the c. And the words in that Caâ—e of Leigh against Burley are That the Admiral shall have Jurisdiction to the c. question is whether there also be a mistake in the Translation For the difference is great and very significant between to a place and beneath a place In the said Case of Leigh against Burley it is said That the Statute of 15 R. 2. is mis-printed yet probably the Press followed the Copy and in so doing it may be excused from an errour of mis-impression In the said Case it is also said That the Translator mistook Bridges for Points that is to say the Lands end A right impression of a mis-translation if any such be seems not to render the word Bridges in stead of Points or Lands end as mis-printed so long as the Press agrees with the Copy Pons in the Latine rendred into English seems rather to be a Bridge then Points or a Lands end Pons in the Latine sounds more like Points then Bridge and so doth Pont in the French which yet is a Bridge and not Point or Lands end which in the French seems to be more properly rendred by the word La poincte or un poinct But a Point of Land at which Rivers or Waters meet seems to be most properly rendred by the word Bec in the French which seems sufficiently dissonant from the word Points And those Navigators that by experience know the meaning of doubling the Point probably do â—eldome sail over Rivers either great or small beneath such Points But this only by way of observation upon the said mistake as reported in the â—aid Case of Leigh against Burley and not in the least by way of any thing else in reference to what is not of any private interpretation but reserved only for â—uch as unto whom are specially committed the Oracles of the Law The Assertion That it is not held material whether the Place be upon the Water infra fluxum refluxum maris but whether it be upon any water within any County was formerly hinted yet possibly it may be material to know what waters are held to be within a County specially if the question put by Doderidge Serjeant in the same Case of Leigh against Burley be duly considered In which Case it is reported That the Lord Coke said That the Admiral should have no Jurisdiction where a man may see from one side to the other but the Coroner of the County shall inquire of Felonies committed there which was held to be good by all the other Justices And he gave this difference that where the Place was covered over with Salt-water and out of any County or Town there est altum mare but where it is within any County there it is not altum mare but the tryal shall be per Vicenetum of the Town Doderidge Serjeant demanded this question The Isle of Lunday de Corpore Comitatus of Devonshire and lyes twenty miles within the Sea whether is that within the County Foster If the Sea there be not of any County the Admiral hath Jurisdiction or else not In this Case it is said that the Admiral hath no Jurisdiction where a man may see from one side to the other which in a transparent Horizon a man may do from the Lands end to the Cassiâ—erides or Isles of Scilly which lye seven Leagues at least thence distant in the main Ocean and almost the like from some part of England to the other side the water over to France The said Isles of Scilly are de Corpore Comitatus Cornubiae yet doubtless the high Admiral of England notwithstanding both sides are mutually visible hath Jurisdiction on the interflux there though the said word within should be taken in a sense as large as the Ocean it self And whereas it is said that the Admiralty hath not any Jurisdiction of Contracts Pleas or Quereles made or done upon a River Haven or Creek within any County of this Realm probably it is not thereby meant or intended to be limited or restrained otherwise then according to the Statute-Law the Laws and Customes of the Realm whereof those of the Sea are a part the Realm of England consisting of more elements then one And if you consult the Topography of several of the Harbours Havens Ports Rhodes Bayes Sounds and Creeks of this Kingdome probably the Admiralty might have in more senses then one a more liquid demonstration then so to be disjuriâ—dictioned by any meer supposition which had no small operation to the prejudice of the Admiralty in the days of the late Licentious Times when fancies were much in fashion thereby reducing Jurisdictions to uncertainty the common fate of all things in the said days of Legerde Brain but especially to the needleâ—s protelation of Justice as to Merchants and Mariners in the Legal prosecution of their Maritime Contracts notwithstanding the Resolutions upon Cases of Admiral Cognizance subscribed by all the Reverend Judges and Justices of both the Honourable Benches in the Eighth year of the Reign of our late Soveraign Charles the First of blessed Memory wherein among other things relating to that Jurisdiction it was then unanimously resolved That in Cases arising upon the Thames the Admiralty hath Jurisdiction specially in the point mentioned in the Statute of 15 R. 2. And by Equity thereof may inquire of and redress all annoyances and obstructions in those Rivers that are any impediment to Navigation or passage to or from the Sea and in all Navigable Rivers And no Prohibition to be granted But in the Case of Goodwin against Tompkins it seems something otherwise According to the Report the Case was this A Suit was in the Admiral Court for setting a Ship in a Wharf to the damage of the Plaintiff So that none could come to his Wharf which is said within
c. Adm. ut supra 1 Ed. 6. Tho. de S. Mauro Vulg. Seimor Knight Dom. de S. Mauro de Sudley Brother to Edw. D. of Somers Adm. Angl. Hib. Walliae Cales Bologniae c. 3 Ed. 6. John Dudley E. Warwic Vicecom Lisley c. Magnus Admirallus Angl. Hib. Wall Cales Bologn Marchiarum earundem Normanniae Gasconiae Aquitaniae Also Praefect Gen. Classis Marium Regis c. 4 Ed. 6. Edw. Clinton Knight Bar. Clinton Saius Admiral ut supra 1 Mar. Will. Howard Knight Bar. Effingham Adm. ut supra 3 Mar. Edw. Clinton Knight Bar. Clinton Saius Adm. ut supra 27 Eliz. Charles Lord Howard Knight of the Noble Order of the Garter Baro de Effingham E. of Nottingh Magn. Adm. Angl. Hiber ac Dominiorum Insularum earundem Villae Calesiae Marchiarum ejusdem Normandiae Gasconiae Aquitaniae Also Praefect Gen. Class marium dict Regnorum 16 Jac. Georgius Marchio Com. Buckingh Vicecom Villers Baro de Whaddon Deinde D. Buckingh Knight of the Noble Order of the Garter c. Constituted Magn. Adm. ut supra Non est dubium uti Spelman quin perplures Procerum istorum Equites fuerint Periscelidis sive Garterii Sed cum id sibi non prompte innotuerit aliis reliquit disquirendum AN Alphabetical Table of the Principal Things contained in this Treatise ADmiral it 's Etymâ—n or Original with the various Appellations thereof Page 1. to 7 The Antiquity thereof in Forraign Parts 7. to 21 The Antiquity thereof in England 22. to 37 Who the first Admiral in France 21 Twelve Admirals slain at once at the Siege of Antioch 17 Aegina where scituate Supposed by some to have first invented the Art of Navigation 12 Aegean Sea why so called 8 Africa by whom first peopled 8 Agreement National between England and France acknowledging the Soveraigntie of the Seas to be in the King of Great Brittain 28 29 Anchors hâ—w to be laid in Harbours where but little water 175 176 Alcibiades Admiral to the Athenians 15 Antonius Pius his Memorable Answer to Eudemon's Complaint touching shipwrack pag. 10 Arragon famous for Maritime Constitutions 13 Arrogatio what it is and how it differs from Adoptio 62 Aruad the Inhabitants thereof able Marinors 11 Asia by whom Originally peopled 8 Athenians their two chief Maritime Magistrates 15 Made Tributaries by the Sea-fights of Minos 8 Averidge what the Law is therein 170 Aureus how much in value among the Ancients 67 B. BArcelonians famous for Sea-Laws 13 Baxter Case against Hopes 116 Beast with Ten Horns what meant thereby 12 13 Bridgmans Case 99 Brights Case against Couper 95 Brittains of old famous for Navigation and how they anciently restrained all strangers Merchants excepted from approaching the Brittish Coasts 27 Boyes to the Anchors to have the name of the ship or Skipper engraven thereon 195 C. CAndie formerly called the Isle of Crete pag. 8 Canon-Law what the Original thereof 55 Carbonianum Edictum why so called the true meaning thereof in the Law 64 Caria where scituate the Inhabitants thereof anciently reputed Lords of the Sea 11 12 Carpathean Sea where scituate 9 Carthage when and how demolished 12 Carthaginians the Art of Navigation anciently ascribed to them ibid. Casting goods over board to be done at the Skippers discretion 169 Case of Baxter against Hopes in Brownl Rep. 2. part 116 Case of Bridgman in Hob. Reports 99 Case of Bright against Couper 95 Case of Admiral Court in Brownl Reports part 2. 107 Case of Don Diego Serviento de Acuna against Jolliffe and Tucker in Hob. Rep. 10 11 Case of Sir Hen. Constable in Coke's Reports 153 Case of the French man against the Vendee of a ship Trin. 17. Car. in Bro. Reports 97 Case of Goodwyn against Tompkins in Noy's Rep. 139 Case of Dr. James in Hob. Rep. 123 Case of Jennings against Audley in Br. Reports part 2. 116 Case of Sir Julius Caesar in Leonard's Rep. 95 Case of Leigh against Burley in Owen's Rep. 135 Case of Mariners against Jones in Whinch Rep. 133 Case of the Merchants Mich. 8. Jac. in Br. Rep. part 2. 117 Case of Oyles against Marshal in the Mod. Rep. 124 Case of Palmer against Pope in Hob. Rep. 94 111 135 Case of Record against Jobson in Noy's Rep. 125 Case of Susans against Turner in Noy's Rep. 91 115 Case of Weston in Brownl Rep. 96 Cases of Admiral Jurisdiction resolved Cro. Rep. 156 to 160 Cestertius how much in value 67 Chanaan so called by the Hebrews by the Greeks Phaenicia 11 Charondas Law-giver to the Thurians 53 Charter-parties properly cognizable in the Admiralty 129 to 140 Civil Law properly so called what And when first introduced 54 Colossus one of the worlds seven Wonders where scituate 9 Concurrency of Jurisdictions 33 Constantinople famous of old for Sea-Laws 13 Corynth anciently reputed Lord of the Sea and by some supposed to have invented the Art of Navigation 12 Cyclades Isles where scituate ibid. Cymon another Admiral of the Athenians 15 Clergy anciently to be advised with in case of Treasure-Trove 194 Collision of one ship against another and damage thereby the Law in that case 174 175 Custome in Sea-matters to be observed 190 191 192 Cutting of Masts and Cables in a storm what the Law is in that case 170 D. DAmage happening to Goods at Sea what the Law is in that case 172 Debate or Difference between the Skipper and his Mariners The Law in that case 174 Decearchus his Memorable Sea-Commission 15 16 Demourage when to be paid by the Merchant 179 Demosthenes Another Admiral of the Athenians 15 Deportatio what and how it differs from Relegatio 58 59 Derelicts in what case Goods may properly be said to be Derelict 189 Daedalus what his wings were made of 8 9 Dominion of the Sea the Right and Antiquity thereof in the Kings of Great Brittain 24 to 30 38 49 Dominion of the Sea in General the Original thereof 7 Don Diego Serviento de Acuna his Case against Jolliff and Tucker 110 111 Draco Law-giver to the Athenians 53 Drungarius Drungarius Magnus the Admirals style in the Eastern Empire whence so called 16 E. EDgar his Marine style and title in all his Charters 27 Egyptians the strange way of their Navigation 12 Emancipation what and how it differs frâ—m Manumission 65 Erythraeum mare where that is and why so called 12 Etheldred his incomparable Navy for the Guard of the Brittish Seas 27 Europe by whom first peopled 8 Execution or the Coercive power the life of the Law and a Right of the Jurisdiction of the Admiralty 32 Extra Regnum or Things done out of the Kingdome where or in what place tryable 98 to 118 F. FIshes Royal to whom they belong Page 190 Fictions Legal what they are the several kinds thereof Two capital Instances of such in the Law And how the Practice of Fictions may be said to be prejudicial to the Admiralty 82 to 91 Fierro