of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain none but a few Mare Libertines and that for their own Interest ever scrupled Sir Hen Spelman gives us an Account of a very Ancient Record extracted out of the Laws of Hoelus Dha Regis seu Principis Walliae cir An. 928. which for the proof of the said Dominium quasi uno intuitu is here inserted in haec verba viz. Variato aliquantulum Nominis Vocabulo dici hic videtur Huwell Da qui superius Hoêl Dha Latine Hoêlus Hoelus alias Huval quem Malmesburiensis unum fuisse refert e quinque Wallensium Regibus Quos cum Cunadio Rege Scotorum Malcolmo Rege Cambrorum Maccusio Achipirata seu Principe Nautarum vel Marium Praefecto ad Civitatem Legionum sibi occurrentes Rex Anglorum Eadgarus in Triumphi pompam deducebat Una enim impositos remigrare eos hanc coegit dum in Prora ipse Sedens Navis tenuit gubernaculum ut se hoc spectaculo Soli Sali orbis Brittanici Dominum praedicaret Monarcham In this Ancient and Memorable Record King Edgar Neptune-like rides in Triumph over the Brittish Seas giving the world to understand that Dominium Maris is the Motto of his Trident. Consonant whereunto is that which the Law it self says Mare dicitur esse de districtu illius Civitatis vel Loci qui confinat cum mari in quantum se extendit territorium terrae prope mare In a word to this purpose the Renowned Learned Mr. Selden who hath left no more to say but with Jo Baptist Larrea in one of his Decisions of Granada That Authorum sententias non ex numero sed ex ratione metiri oportet pensitari debent juris fundamenta non Authorum Elenchum velut calculatione computari The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs as well in respect of Jurisdiction as Protection He is that high Officer or Magistrate to whom is committed the Government of the Kings Navy with power of Decision in all Causes Maritime as well Civil as Criminal So that befide the power of Jurisdiction in Criminals he may judge of Contracts between party and party touching things done upon or beyond the the Seas Wherein he may cause his Arrests Monitions and other Decrees of Court to be served upon the Land as also may take the parties body or goods in execution upon the Land The Lord Coke in honour of the Admiralty of England is pleased to publish to the world that the Lord Admirals Jurisdiction is very Ancient and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind as appears not only by the Laws of Oleron but also by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. Ed. 2. Thus as the Laws and Constitutions of the Sea are nigh as Ancient as Navigation it self so the Jurisdiction thereof hath universally been owned and received by all Nations yea and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one and establishment of the other For otherwise without such Maritime Laws and such an Admiral Jurisdiction how could the Ancient Brittains long before Julius Caesar invaded this Isle restraine all Strangers Merchants excepted from approaching their Confines or regulate such Navies as were the wonder of that Age Or how could King Edgar in the Titles of his Charters have effectually styled himself as well Imperator Dominusque rerum omnium Insularum Oceani qui Brittaniam circumjacent as Anglorum Basileus or maintain in Naval Discipline these four hundred Sail of ships appointed by him to guard and scour the Brittish Seas And did not Etheldred after Edgar for the self-same end and purpose set forth to Sea from Sandwitch one of the greatest Navies that ever this Kingdome prepared Doubtless this was no Lawless Navy without Maritime Constitutions for the due regulation thereof according to the Laws of the Sea Consonant to that of the Jurisdiction of the Admiralty then in use and received by all the Maritime Principalities of Europe Whereas it is universally acknowledged That the Admiralty of England is very Ancient and long before the Reign of Edward the third who ever consults Antiquity shall find it farre more Ancient and long before the Reign of Edward the first even time out of mind before the said Edward the first To this purpose very remarkable is that ancient Record in the Tower of London entituled De Superioritate Maris Angliae jure Officii Admirallatus in eodem and out of the old French rendred into English by Sir John Boroughs in his compendious Treatise of the Soveraignty of the Brittish Seas pag. 25 c. edit Anno 1633. in which it evidently appears that the Admiralty of England and the Jurisdiction thereof was farre more Ancient then Edward the first and that from age to age successively and time out of mind even before the days of the said Edward the first it was so owned and acknowledged by this and all other Neighbour-Nations as appears by the said Record which was occasioned by a National Agreement of certain differences arising between the Kings of England and France in the 26 year of the Reign of the said Edward the first by reason of certain usurpations attempted by Reyner Grimbald then Admiral of the French Navy in the Brittish Seas in which Agreement the Commissioners or Agents for the Maritime Coasts of the greatest part of the Christian world of Genoa Spain Germany Holland Zealand Freezland Denmark and Norway then present made this memorable Acknowledgment and Declaration which is extracted out of the said Record as to so much thereof as relates to the Jurisdiction of the Admiralty viz. That the Procurators of the Admiral of the Sea of England and of other places as of the Sea-Coasts as of Genoa Catalonia Spain Almayne Zealand Holland Freezland Denmark and Norway do shew that the Kings of England time out of mind have been in peaceable possession of the Seas of England in making and establishing Laws and Statutes and Restraints of Arms and of Ships c. and in taking Surety c. and in ordering of all other things necessary for the maintaining of Peace Right and Equity c. and in doing Justice Right and Law according to the said Laws Ordinances and Restraints and in all other things which may appertain to the Exercise of Soveraign Dominion in the places aforesaid And A. de B. Admiral of the Sea deputed by the King of England and all other Admirals ordained by the said King of England have been in peaceable possession of the Soveraign guard with the Cognizance of Justice c. And whereas the Masters of the Ships of the said Kingdome of England in the absence of the said Admiral have been
then the said Lord is bound to take his share at the place where such Fish was found XXXIX Also the said Lord ought to submit to the foresaid Costs and Charges for that he ought not by anothers damage to inrich himself otherwise he sins XL. If by some chance or misfortune the said Fish happen to be lost or otherwise stoln away from the place where it was first found and this about the time of the said Lords going to see it or before in this Case he that first found it is not any way obliged to make it good XLI In all other things found by the Sea-side which have formerly been in the possession of some or other as Wines Oyls and other Merchandize although they have been cast over board and left by the Merchants and so ought to appertain to him that first finds the same yet herein also the Custome of the Country is to be observed as formerly in the Case of Fish But in case there be a presumption that these were the Goods of some Ship that perished then neither the said Lord nor Finder thereof ought to take any thing thereof so as to convert it to their own use but they ought to doe thâ—rewith as before hath been said that is to cause therewith that Prayers be made for the deceased as also other special good works Or otherwise they shall incur the forementioned Maledictions XLII If any Ship or other Vessel at Sea happen to find a Fish it is wholly theirs that found it in case no due pursuit be made after it And no Lord of any place ought either to challenge it or demand any part thereof although they bring it to his ground XLIII If any seek for Gold or Silver on the Sea-shore and findeth some he ought to restore it all without any diminution thereof XLIV If any going along the Sea-shore to fish or otherwise happen to find Gold or Silver or the like he is bound to make restitution thereof deducting for his own pains Otherwise if he be poor he may retain it to himself that is if he know not to whom to restore it yet he ought to give notice of such his sinding the same to the neighbourhood and parts next adjacent to the place where he found it Moreover he ought to advise with his Prelate Curate or Confessor who ought to weigh and take into Consideration the indigency and poverty of the Finder and the quantity of the Silver and then to give him such advice as is consonant to a good Conscience XLV If a Vessel by stress of weather be constrained to cut her Towes and Cables by the end and so to quit and leave behind her both Cables and Anchors and make to Sea as please the wind and weather in this Case the said Cables and Anchors ought not to be as lost to the said Vessel if there were any Boy at them And such as fish for them are bound to restore them if they know to whom but withal they ought to be paid for their pains according as Justice shall determine But because sometimes they know not to whom to restore them the Lords of the place have their shares and the Finders theirs and they neither cause Pater Noster to be said nor Avie Maria as they ought And therefore it hath been ordained That every Master of a Ship cause to be ingraven or set upon the Boyes thereof his own name or the name of his Ship or of the Port or Haven whereof she is which will prevent great inconveniencies for it sometimes happens that he that left his Anchor in the morning hath recovered it again by night And such as detain it from him are no better then Thieves and Pirates XLVI If any Ship or other Vessel by any Casualty or misfortune happen to be wreck'd and perish in that case the pieces of the bulk of the Vessel as well as the Lading thereof ought to be reserved and kept in safety for them to whom it belonged before such disaster happened notwithstanding any Custome to the contrary And all takers partakers abettors consenters or contrivers in the said wreck if they be Bishops Prelates or Clerks they ought to be deposed and deprived of their Benefices respectively And if they be Lay-men they are to incur the penalties aforesaid XLVII Which is to be so understood when the said Ship or Vessel so wreck'd did not exercise the Thievish mystery of Robbing and Free booting and when the Mariners thereof are not Pirates Sea-Rovers or Enemies to our holy Catholick Faith But in case they be Pirates Robbers Sea-Rovers Turks or other Enemies to our said Catholick Faith every man may then deal with such as with meer Brutes and despoil them of their goods without any punishment for so doing A SERIES or Catalogue according to Sir Spelman's Computation of such as have been Dignified with the Office of Lord High Admiral in this Kingdome since King John's time to to the Reign of King Charles the First of Blessed Memory Wherein No mention is made of Marthusius that Princeps Nautarum in K. Edgars time Nor of those other Tetrarchs of his Navy who for the guard of the â—rittish Seas had no less then a thousand Sail of Ships under their Command Nor of those other Commanders in Chief touching the Sea-Affairs who have been beside the common and usual mode Constituted by his Successors Kings of England But of such only as in the Ordinary way have been Dignified with the said Office and Marine Authority in this Kingdome viz. 8 H. 3. RIchard de Lucy is said to have Maritimam Angliae 48 H. 3. Thomas de Moleton was Constituted Capitaneus Custos maris Portuum Maritimorum 25 Ed. 1. William de Leiburne is styled at the Assembly at Bruges 8 Martii 15 Ed. 1. 1286. Admirallus maris Angliae 22 Ed. 1. John de Botetort Admiral of the North for the Coast of Yarmouth and that station William de Leibourn Admiral of the South for Porâ—â—â—outh and that station A certain Irish Knight Admiral of the West and the parts thereof Admirals of the North viz. Admirals of the West viz.  From the mouth of the River of Thames North-ward From the mouth of the River of Thames West-ward  34 Ed. 1. Edward Charles Gervase Allard  8 Ed. 2. John Botetort William Cranis   10 Ed. 2. Nichalds Cryoll  10 Ed. 2. John Perbrun alià s Perburn Robert Leiburn Knight   12 Ed. 2. John Athey  15 Ed. 2. John Perburn Robert de Leiburn Knight Admiral of the Western Ports of England Wales and Ireland  16 Ed. 2. John Perburn Robert Battail alià s Batall one of the Barons of the Cinque-Ports  18 Ed. 2. John Sturmy Robert Bendon  19 Ed. 2. John Otervin Nicholas Keriel Walsingh calls these the three Admirals of the three Coasts of England viz. of Yarmouth
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
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
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