is said to be a Truth how fatal soever built upon this double foundation First because the Court of Admiralty proceeds by the Civil Law Secondly because if an erroneous sentence be given in that Court no Writ of Errour but an Appeal doth lye according to the Statute of 8 Eliz. cap. 5. Reason is or should be the source or fountain of all humane Laws no Waters rise higher then their Springs The first enquiry therefore will be what a Court of Record is or what Court may properly be said to be a Court of Record which being known and considered if you be not then satisfied you may if you please farther enquire whether the being of Record be such an essential qualification to a Court as without which it is incapable of taking such Stipulations I say such Stipulations as the Court of Admiralty hath ever used to take and de jure ought to take The Lord Coke makes this description of a Court of Record Every Court of Record is the Kings Court albeit another may have the profit wherein if the Judges do erre a Writ of Errour doth lye But the county-County-Court the hundred-Hundred-Court the Court-Baron and such like are no Courts of Record And therefore upon their Judgments a Writ of Errour lyeth not but a Writ of false Judgment for that they are no Courts of Record because they cannot hold plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis It is observable that it is here said that every Court of Record is the Kings Court So is the high Court of Admiralty styled the Kings Court as appears not only by the Title or preliminary Description but also by the second Article or Proposition in the Resolutions upon the Cases of Admiral Jurisdiction subscribed in Anno 1632. by the Reverend Judges in Presence of His Late Majesty of ever Blessed Memory and the Lords of His Majesties most Honourable Privy Councel And whereas in the said description of a Court of Record it is said They are no Courts of Record because they cannot hold Plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis it is well known that the Court of Admiralty can hold Plea of a Debt or Trespass Maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings and not only of Trespass Vi Armis but also of Maihem yea of Death it self Wherefore as the former character of a Courts being of Record may be applyed to the high Court of Admiralty as the Kings Court So the other character of a Courts not being of Record is no way applicable to the said Court of Admiralty But in the said description of a Court of Record it is said that every Court of Record is the Kings Court wherein if the Judges do erre a Writ of Errour doth lye the question then is whether it be a question whether a Writ of Errour doth lye in the Consistory Court of the University of Cambridge which Queen Elizabeth by her Charter dated 26 April Anno 3 Reg. made a Court of Record And Writs of Errour did also properly lye in any Court where they have power to hold Plea by the Kings Charter or by Prescription in any summe either in Debt or Trespass above the summe of forty shillings In which sense the Court of Admiralty as aforesaid is sufficiently qualified as a Court of Record which though eminent enough for its practice and interest in the Realm and so not probable to have escaped a particularization among the other fore-mentioned Courts the County-Court Hundred-Court and Court-Baron as no Courts of Record by reason of any oblivion yet is not there instanced among those other Courts not of Record And the County is called a Court of Record Westm 2. cap. 3. Anno 13 Ed. 1. But it seems by Britton cap. 27. that it is only in these causes whereof the Sheriff holdeth Plea by special Writ and not those that are holden of course or custome And whereas Brook seemeth to say That no Court Ecclesiastical is of Record yet Bishops certifying Bastardy Bigamy Excommunication the vacancy or plenarty of a Church a Marriage a Divorce a Spiritual intrusion and the like are credited without farther enquiry or controlment This only by the way and in transitu If it be said the Court of Admiralty is no Court of Record because it proceeds by the Civil Law it may be demanded by what Law the Consistory-Court of Cambridge proceeds which Q. Elizabeth as aforesaid made by her Charter a Court of Record For the King may make a Court of Record by his Grant which seems to allay that Antipathy that is supposed between a Court of Record and a Court proceeding by the Civil Law a Law allowed received and owned as the Law of the Admiralty of England Yet Serjeant Harris in the Case of Record against Jobson argued That a Recognizance taken in the Court of Admiralty to stand to the Order of the Court is void and that it hath been so adjudged So it 's argued it is not said Resolved It is a happiness as well as a truth what was once said in Dr. James his Case That the King is the indifferent Arbitratour in all Jurisdictions and of all Controversies touching the same and that it is a Right of his Crown to distribute to them that is to declare their bounds It is no novel doctrine to assert that Stipulations taken in the high Court of Admiralty for appearance or performance of its own Acts Orders and Decrees are in modo procedendi quasi Accessorium quoad Principale And the Modern Reporter in a Case depending before the Commissioners of Ensurance between Oyles and Marshal says That it being moved in the Kings Bench for a Prohibition and a Rule there given to shew cause why a Prohibition should not be granted to the Court of Ensurance it was then declared That if they had Jurisdiction of the Principal matter they had Jurisdiction of matters also incident thereto And what are Recognizances taken in the Court of Admiralty for Appearance and performance of its own Acts and Decrees more then Stipulations Judicio sisti judicatum solvi Insomuch as to deny the right or power of taking such Stipulations seems in effect as to imply an inhibition of the whole Jurisdiction for without such Stipulations in praeparatorio Litis the subsequent Judgement be it for Plaintiff or Defendant would prove but vain and elusory And a Judgement without due and effectual execution is quasi sententia inanimata without such stipulations Justice may be perverted into Injustice for default of that which is the complement or ultimate design of all Justice viz. Facultas suum cuique tribuendi The Practice of taking such Stipulations for the Legality thereof according to
thereof or is Naturalized a Denizon of that Countrey Reprizals may not be Exercised on Pilgrims or such as travel for Religion sake nor on Students Scholars or their Books or other Necessaries Nor on Ambassadors or their Retinue nor on Women or Children Likewise Goods found with a Merchant of another place then that against which Reprizals are granted albeit the Factor of such Goods were of that place are not subject to such Reprizals nor ought the presumption of the Place though strong enough for Condemnation where proof of an innocent property failes prevail against fuller Evidence Ecclesiastical persons are also by the Canon Law expresly Exempt from Reprizals So likewise such persons as by Storm or Stress of weather are driven into Port have an Exemption from the Law of Reprizals according to the Jus Commune what the Edict of any particular State in that case may doe is not here determined But a ship or Goods belonging to the Subjects of another Prince against whom Reprizals are granted coming into a Port of that State issuing such Letters of Reprizal not by storm or stresse of Weather but to avoid Confiscation for some delict committed at home in their own Countrey may be subject to Reprizals in Port. This Right of Reprizals which as some would have it answers to the Saxon Withernam is not only admissable in cases of denyal or protelation of Justice as when Judgement may not be had within the time prescribed by Law but also when Judgement is given plainly against the Law and no Remedy to be had against such wrong Judgement either in the ordinary course per viam Provocationis A Appellationis ad Jâ—dicem superiorem nor in the extraordinary per viam supplicationis ad principem understand thus when the matter in Controversie is tam quod merita quam quod modum procedendi not Doubtful for in Doubtful matters the Presumption is ever for the Judge or Court But a wrong Judgement in matters not Doubtful must be redress'd one way or other specially if such be given to the prejudice of Foraigners over whom the Authority of a Judge though in his own Jurisdiction is not so exactly the same as over his own Subjects And although it be a Rule in Law Res judicata pro veritate habetur yet it is as true that Judex male judicans pro injuria tenetur nor doth a Judgement or a Definitive diminish the merits though it may alter the Case Therefore Paulus the Lawyer held that a Debtor that is a Debtor indeed though Judicially absolved yet by nature remains a Debtor still and therefore when this happens to be a Foraigners Case he may if all other Legal Expedients fail for redress have recourse to the Jus Gentium which holds conformity with the Law of Nature Subjects indeed may not by force oppose the Execution even of an illegal Judgment nor forcibly prosecute their denyed rights and that by reason of the Energie of that Power and Authority which is over them the Subjects obedience being in the Emphasis of the Magistrates Authority But yet Foraigners can fly to the Jus Gentium to Right themselves by way of Compulsion which they could not effect by any Legal prosecution so long as their Right is reparable by Judgment according to Law but infeazible by reason of the denegation or protelation of Justice contrary to the regular proceedings of Law It seems at least Summum jus if not plus justo that the Goods of his Innocent Subjects that denyed Justice should be taken and seized for that â—njustice wherof they appear no more guilty then the original Complainants The truth is this is not introduced by the Jus Naturae but yet being commonly received by Custome and National practise is now become qualified for an allowance or tolleration by the Jus Gentium whether this were sufficient for Nestor to plunder the Elidenses for taking away his Fathers horses or for others on the like peccadilloes in this Age to Centuple their Losses on their Innocent Neighbours for their Princes omissions under colour of Letters of Marque is easier to question then proper to determine But whether Christian blood should be ingaged in the quarrel which originully was but of Private Interest would soon be decided where no Military man hath the Chair By the Law of Nations all the Subjects of the Dominion doing wrong whether Natives or Strangers making their aboad there are within the reach of Reprizals whereby 't is evident that Strangers not permanent there nor under any of the aforesaid qualifications are excepted for Reprizals being in their nature quasi onus Publicum are introduced for the satisfaction of Publick Debts to which Strangers that are meerly such are no way obliged indeed to the Laws of the Land where their present being is they are subject but yet are not Subjects And whereas it is formerly said that Ambassadors are Exempt from Reprizals as also their Retinue and Goods understand it not of such as are Commissionated to any Prince or State in enmity or actual hostility against that Prince who issues such Letters of Marque Lastly by the Law of Nations in matters of Reprizals whatever is taken immediately upon the Capture accrues ipso facto to the Captor in point of Propetty so far as the Original debt or damage with all incident costs and charges doth amount unto and the surplus to be restored which Equity in this case the Venetians long since used to the ships they took on this accompt from the Genuises But by the Civil Law Monitions or Citations after a seizure ought to issue and the parties concerned are not to carve for themselves but submit the whole matter to a Judicial Examination in order to their Satisfaction which ought to ballance the Damnum Emergens but not to exceed by way of Supplement in reference to the Lucrum cessans for the Law of Reprizals though otherwise rigid enough yet Restitutio in integrum is its ultimate design and as no man ought to be enriched by anothers Losse so no man ought to gain by his own Losse when it may not be repaired otherwise then by Remedies extraordinary if not unlawful Having glanced at some general Heads of the Law of the Admiralty quasi in transitu by way of Introduction the least whereof in its due Latitude requiring more Volumes then are Pages in this and therein the Custom paid with other ordinary Port-charges usual in such cases It may now be free to sayl from the Law to the Jurisdiction of the Admiralty being the Port of Discharge in the Design of this Adventure The Wind seems Fair the Seas well purged of Rovers and Nereus reinvested with his Trident The Ensurance therefore need run but Low the Danger is not great now that we have Peace with all Our selves yea the Loss is but small though the Ship miscarry so the Cargo be preserved for that 's of value indeed a Jewell without which the whole World would
stupor as his Epitaph in S. Anthonies Church at Padua where he also dyed above one hundred years before the other styles him when he was a young Student in the Laws was wont to say that of other matters and points of Law he could attain to some understanding by his private study and chamber-disquisitions but in this point of Jurisdictions he could understand nothing at all but what he heard in the Schools Voce Magistra Of such difficulty is the subject matter of this Treatise and yet with what confidence do some illiterate persons like boyes at foot-ball toss and play with Jurisdictions even almost to the tripping up the heels of Magistracy it self Jurisdictions are things of much tenderness as well as profoundness and must be gently touch'd as well as deeply weigh'd if persons in Juridical Authority be styled Mortal Gods then Jurisdictions are in some sense things Sacred and may not be approached unto but with Civil reverence Nor is the acquisition of the profound knowledge of the Law touching Jurisdictions a pomeridian work for sollicitous students much less obvious to rural capacities A right understanding what Law is gives the clearest prospect to a discovery what Jurisdictions are the Civilians do succinctly and fully define Law Lex est Sanctio Sancta jubens honesta prohibens contraria Law is a Decree not to be violated commanding things honest forbidding the contrary Plato in his definition of Law says It is a Reasonable Rule leading and directing men to their due end for a publick good ordaining penalties for them that transgress and reward for them that obey And Cicero defines it to be the highest and chief reason graffed in nature commanding those things which are to be done and forbidding the contrary And of all Laws those of the Empire next to the Jus Divinum seem to challenge the precedency in all Forraign Kingdomes and States though in this as not in their proper sphere they display not their beams with that lustre for want of that encouragement and employment they deserve It is every mans duty to have the best and highest thoughts of the Laws of his own Country yet to oppose them to the Ancient Emperial Laws either as to the Theory thereof with their numerous host of most Learned Interpreters or as to the Practick in the Pleadings of the highest Courts of the greatest part of the Christian world in the many Judgements and Decisions of the several Rotes of Italy at Rome at Naples at Florence at Genoa at Bononia at Mantua at Perusium and the rest in the Judgements of the Imperial Chamber at Spire which is the last result of the German Nation in the Decisions of Granado and other places of Spain and other Kingdomes as in the Arrests of the several Courts of Parliament in France as Paris Aix Burdeaux Grenoble and the rest To oppose any Municipal Laws save our own to the Ancient Emperial Laws in the latitude aforesaid recitasse est refutasse the very recital thereof is confutation enough saving the honour due to the Laws of our Native Country It will not be denyed but that the Great Legislator of Heaven and Earth is the Fountain of all Laws that is Law properly so called had its Origination from God himself This is an undoubted Position not only in Christian Religion but such as the Doctors of the Gentiles and Heathens themselves will easily admit for even among them such as assumed the Legislative Authority and took upon them to prescribe Laws would at the enactment thereof invocate their false Gods and endevour to father them on one or other of their heathenish Deities as Minos who gave Laws to the Cretians on Jupiter Numa who gave Laws to the Romans on Aegeria Nympha Zoroaster who to the Bractians and Persians on Horomasis Trismegister who to the Egyptians on Mercurius Charondas who to the Thurians on Saturn Lycurgus who to the Lacedemonians on Apollo Draco and Solon who to the Athenians on Minerna Mahomet who to the Arabians on the Angel Gabriel Thus all agree in this that Law hath the image and superscription of some supernaturall Powers and is more Ancient then Adams Fall as is evident by necessary though sad consequences for without Law there had been no Transgression In immediate subordination to the Divine and Natural Law written in the tables of the heart came the Jus Gentium or the Law of Nations when men first began to have mutual Commerce with each other for thereby was introduced a kind of Necessity for all Nations to observe some certain Rules as Law without which no Society of men in way of reciprocal negotiations could subsist which Law doth indeed flow from the Law of Nature insomuch that Cicero was of opinion that in all matters and affairs of the world whatever was the Consent and Concurrent approbation or allowance of all Nations that was to be understood the Law of Nature Next unto which is the Jus humanum Civile being a distinct Law both from the Law of Nature and also from the Jus Gentium and seems to be then born into the world when men first of many Individuals began to compact themselves into one Society and when they first began to incorporate themselves into Bodies Politick which in the worlds infancy seems to be when Cain built the City Enoch for Civil Laws seem to have their Origination then when Cities began first to be built Magistrates to be constituted and Ordinations of Government to be committed to writing for indeed Civil Law properly so called is no other then that which every City constituted and enacted for it self and for its own peculiar government which Law also hath its foundation laid in the Law of Nature from whence as from a Fountain are derived divers lesser channels and rivulets according to the great variety of Places Persons Times and Transactions And the Civil Law of the Roman Empire in common acceptation and mode of speech is now for the Antiquity Excellency Universality and Authority thereof called The Civil Law by way of Eminency the Name and Appellation of the Civil Law being now properly appropriated to the Emperial Law and Constitutions as that Law which was the Law Currant in all the Dominions of the Roman Empire and is at this day in most parts of the whole Christian world Beside these Laws peculiar to a due administration of Justice in matters meerly secular there was also at the worlds Infancy a kind of Sacerdotal Law or Law of the Priesthood when men congregated first began to adore the â—reat God in the way of a Publick worâ—hip for in the first Constitution of Common-weals and Cities it was necessary to establish certain Laws peculiar to the Priesthood for it cannot be imagined but that when men first began to offer their first-fruits and to sacrifice to God there was then some Law in being for the worship of the Deity nor
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
that Law whereby that Court proceeds is nothing inferiour in point of Antiquity to the Jurisdiction it self the style of that Court in that point of Practice being as Ancient as the Court it self And whereas the right of taking such stipulations for Appearance and performance of the Acts Orders Judgements and Decrees of the Court of Admiralty hath not been without contradiction upon the foresaid ground That the said Court is no Court of Record it doth plainly appear by a Record of good Antiquity and with the Learned Mr. Selden of good Authority That the said Court is a Court of Record And if the Court of Admiralty be discharactered as no Court of Record by reason of its proceeding by the Civil Law it would thence seem to be implyed as if no part of the Civil Law were any part of the Law of England It is not concealed from the world by a person of no less honour then knowledge in the Laws of this Realm that the Imperial or Roman Law is in some cases the Law of the Land This worthy Authour speaking of the Right of Prerogative in absolute Kings and Princes as to Impositions upon Merchandizes doth upon that occasion in the fore-cited place declare himself in haec verba Forasmuch as the general Law of Nations which is and ought to be Law in all Kingdomes and the Law-Merchant is also a branch os that Law and likewise the Imperial and Roman Law have been ever admitted had received by the Kings and people of England in Causes concerning Merchants and Merchandizes and so are become the Laws of the Land in these Cases why should not this question of Impositions be examined and decided by the Rules of those Laws so far forth as the same doth concern Merchants and Merchandizes as well as by the Rules of our Customary or Common Law of England especially because the Rules of those other Laws are well known to the other Nations with whom we have commerce whereas the Rules of our own Municipal Laws are only known within our Islands What this worthy Authour here speaks of the Civil Law in England as to this point of Impositions by the King on Merchandizes is applicable in any case of Navigation Naval Negotiation or other affairs properly relating to Merchants or Mariners within the sphere of the Admiralty of England And the same Learned Authour in another place When the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world c. And again in the same place All Marine and Sea-Causes which do arise for the most part concerning Merchants and Merchandizes crossing the Seas our Kings have ever used the Roman Civil Law for the deciding and determining thereof Thus far goes the said worthy Authour in this point It is most true the Civil Law in England is not the Law of the Land but the Law of the Sea Great Brittain and the Dominions thereof comprizing the adjacent Seas as well as the Land The Law by which the high Admiralty of England proceeds being in all Causes cognizable in that Jurisdiction allowed owned and received by Prince and People Soveraign and Subject seems to be a Law of England though not the Law of England not the Land-Law but the Sea-Law of England For as in matters Terrene and in Land-affairs it is proper to say infra Corpus Comitatus so in matters Maritime and Sea-affairs it is no less proper to say Sur le hout mere The Jurisdiction of the Admiralty of England is one of the Jurisdictions of England which ever implyes a Law to proceed by that cannot be but of that Place whereof the Jurisdiction it self is It neither may nor ought to be denyed but that for the taking Recognizances against the Laws of the Realm Prohibitions have been granted yet possibly it may not thence by a necessary concludency follow that the high Court of Admiralty in taking Stipulations for Judicial appearance or performance of the Acts and Orders of the Court vel judicio sisti vel judicatum solvi and this according to that Law whereby it is to proceed is involved under such a guilt of transgression against the Laws of the Realm as eo nomine to incur a Prohibition which if grantable upon every such Recognizance or Stipulation for Appearance and performance of the Acts and Judgements of the Court without which it cannot proceed according to Law there could then be no Suit or Action depending in the high Admiralty of England be it for Place Nature or Quality in it self never so Maritime and of undoubted Admiral Cognizance but must be subject and lyable to a Prohibition and consequently to a removal from its proper Jurisdiction ad aliud examen to the great grievance of Merchants and Mariners and others the good people of these His Majesties Dominions by reason of the multiplicity of Suits protelation of Justice excess of Judicial expences together with the uncertainty of Jurisdictions and all as the unavoydable consequences of such Prohibitions CHAP. XI Of Charter parties made on the Land and other things done beneath the first Bridge next to the Sea vel infra fluxum refluxum Maris and how far these may be said to be Cognizable in the Admiralty TOuching this Subject it hath been asserted That if a Charter-party be made within any City Port-Town or County of this Realm although it be to be performed upon or beyond the Seas yet is the same to be tryed and determined in the ordinary course of the Common Law and not in the Court of Admiralty This is exclusive as to the Admiralty in matters of Charter-parties made upon the Land But yet it is agreed and resolved Hill 8. Car. upon the Cases of Admiral Jurisdiction That though the Charter-party happen to be made within the Realm so as the penalty be not demanded A Prohibition is not to be granted Were it otherwise or that the Jurisdiction of the Admiralty might not take Cognizance of such Maritime Contracts though made on Land then by thereunto adding what was formerly observed out of the same place viz. That the Court of Admiralty hath not any Jurisdiction of any Contracts made beyond Sea for doing of any act within this Realm or otherwise wherein the Common Law can administer Justice It would follow that if according to the one of these Assertions such Maritime Contracts when made upon the Land though to be performed upon or beâ—ond the Seas may not be tryed or determined in the Court of Admiralty and when according to the other of these Assertions made beyond the Sea for doing of any act within this Realm c. the Court of Admiralty hath not any Juriidiction thereof In such caâ—e it must necessarily follow that the Jurisdiction of the Admiralty
being thereby excluded the Cognizance of such Maritime Contracts both sides the water must keep to Sea in all weathers yet scarce retain the libert if I may so say of a confinement Super altum mare according to the energy of that suggession reported in the Case aforesaid of Susans against Turner where it is said That if a Suit be commenced in the 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 Prohibition According to which comnutation with the premises considered the Jurisdiction of the Admiralty seems to be hard put to it both by Sea and Land Nor need it seem any thing strange that the Jurisdiction of the Admiralty seems excluded of Cognizance in such cases of Charter-parties whether made at Land or beyond Sea if a bare Surmize or Suggestion according to the â—aid Report in the Case of Susans against Turner may work as to a Prohibition against the Admiralty when a Suit is there commenced for a Contract not appearing other then made Super altum mare According to these premises if the Charter-party be made at Land though to be performed upon or beyond the Seas it is to be tryed in the ordinary course of the Common Law And if the Contract be made beyond Sea for doing any act within the Realm c. the Court of Admiralty hath not any Jurisdiction thereof And if the Suit be commenced in the Admiralty for a Contract supposed to be made upon the Sea then by a Surmize or Suggestion that it was made upon the Land a Prohibition according to the said Case may be had Thus in matters of Charter-party this side the Sea the Common Law seems to claim the Cognizance in Contracts made beyond Sea the Admiralty seems not to be allowed any Jurisdiction and in Contracts supposed to be made upon the Sea the Defendant upon a Surmize may have a Prohibition But no Fiction can spunge the Ocean nor turn the Sea into dry Land or the Bay of Mexico into Middlesex till it be proved as well as surmized In the said Case of Susans against Turner where it is said If a Suit be in the Admiral Court for a Contract supposed to be made Super altum mare the Defendant upon a Surmize that it was made upon the Land within the Realm may have a Prohibition It is there farther added in these words viz. And that it may come in issue if it was upon the Land or upon the Sea But by the Justices their Rule is that upon such a Suggestion they shall not grant a Prohibition after Sentence pass'd So that be the verity of the Fact as to the Super altum mare in it self never so liquid yet being primarily but supposed as all things in judicio though in themselves never so clear never so true yet must be alledged before the Court can proceed a Counter-supposition or Crosssurmize may work according to this as to a Prohibition to bring it in issue whether it was upon the Land or upon the Sea And so it seems as if scarce possible in any Case to avoid a Prohibition for the reallest Truths and the undenyablest verities under the Sun if in judicio foro contentioso can be at first but supposed truths for the Court if it proceed Legally cannot but proceed Secundum allegata first Probata next Charter-parties Bills of sale of Ships and the like Maritime Contracts are commonly made according to the Law of Oleron and frequently wicâ— a clause express to that purpose inserted therein the Civil Law the Laws and Customes of the Sea whereby the Admiralty proceeds takes notice thereof and can judge and determine accordingly how far other Laws that are accommodated to matters of another element though in themâ—elves and in their proper sphere most excellent can do the like is no part of the design of this compendious Treatise to determine But that Prohibitions have been granted upon Charter-parties is undenyably true Yeâ— the lamentable Cases of poor Mariners for their Wages have not of late unhappy years escaped Prohibitions although it be not denyed but they may all joyn in one Libel in the Court of Admiralty whereas at the Commoâ— Law if they must there prosecute they may not bring their Actions otherwise then severally and apart to their greater expence and charges respect being not had to the identity of the Case or the poverty of the Demâ—ndants to introduce a joynt Action To this purpose it is reported That where judgement was given in the Court of Admiralty against one Jones a Master of a Ship at the Suit of certain poor Mariners for their wages a Prohibition was prayed upon a Suggestion that the Contract was made at London in England but the Prohibition was denyed because he had not sued his Prohibition in due time viz. before a Judgement given in the Court of Admiralty Whereby it seems as if it was not the nature of the Case though for Mariners wages that prevented the Prohibition but the unseasonable suing for it viz. After Judgement given in the Court of Admiralty Touching the Jurisdiction of the Admiralty in ontracts made and other things done upon the Rivers beneath the first Bridges next the Sea where it ebbs and flows and in the Ports Creeks Havens Peers Sounds Harbours Rhodes Bayes Channels and other places infra fluxum refluxum maris It hath been asserted That by the Laws of this Realm the Court of Admiralty hath no Cognizance Power or Jurisdiction of any matter within any County either upon Land or Water So as 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 And it is farther added That for the death of a man and of Mayhem in these two Cases only done in great Ships being and hovering in the main stream only beneath the Points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other Causes but in these two only the Admiral hath Cognizance yet probably it will not be denyed but that by Exposition and Equity of the Statute of 15 R. 2. cap. 3. whence as supposed that assertion is taken he 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 also try all personal contracts and injuries done there which concern Navigation upon the Sea And no Prohibition is to be granted in such Cases The Reader may at his leisure consult the said Statute whether it says In the main streams only beneath the Points of the same Rivers nigh to the Sea or whether the Statute doth not say In the mâ—in stream of great Rivers only beneath the Bridge of the same Rivers nigh to the