then that only whence Pontus became a word used for the Sea in general though Prometheus according to Aeschilus the Attick Poet doth challenge all the glory of this Art of Navigation to himself whom among others who boasted themselves as Authours of this Art the Rhodians envying presumed to give Laws and to prescribe the Rules of Naval Discipline in order to the better government of Maritime affairs which were now occasionally introduced into the world by this Art of Navigation which Laws are found dispersed among the several Titles of the Civil Law by command from the Emperour Justinian This Island of Rhodes in the Mediterranean or Carpathian Sea was by reason of the multitude of their shipping and great commerce no less famous for their Sea-Laws then for their Monstrous Colossus The one was no less the Wonder of Reason in the infancy of Trade then the other of Art though That the greatest of the Seven in all the world This appears by that memorable and known passage of the Emperour Antoninus Pius who in Answer unto Eudemon's complaint concerning the seizure of his ship-broken goods by the Customers of the Cyclides in the Archipelago referres him for Justice to the Rhodean Laws professing that although he were Lord of the World yet the Law was of the Sea To which Rhodian Law several other Emperours as Tiberias Hadrian Vespatian Trajan Lucius Septimius Severus and others do referre all Maritime Controversies yea for many hundred of years the Mediterranean and most parts of the Christian Ocean where any Trassick or Commerce was subscribed to the Law of Rhodes in the Decision of all matters of Admiral Cognizance But some there are who by no means will admit that the Rhodians should thus Monopolize the glory of advancing the Common Interest of Mankind as if the Law of the Sea was born into the world only by their Obstetricy and therefore will have the Origination of the sea-Sea-Laws attributed to the Phaenicians who as they are by some accounted the Authors of Arithmetick and Astronomie so also of Navigation whence is that Prima ratem ventis credre docta Tyrus They were the First that took the observation of the North-starre in supplement of that Navall mystery These Phaenicians who came with Cadmus into Greece as they Civilized the Graecians by their Sciences and other Literature so they exceedingly debauch'd them by their Luxurie and insatiable avarice which together with their Wares and Merchandise they first imported into Greece These were they that transported Io whence the Ionean Sea is so called out of Greece into Aegypt and were the First that descryed the Two Poles This Phoenicia is the Sea-Coast of Syria The Greeks call this Sea-Coast Phoenicia but the Hebrews call it Chanaan and the Inhabitants Chananites Dionysius also is of opinion that the Phoenicians were the First Mariners Merchants and Astronomers and Tyrus the Maritine Metropolis thereof whose Trade and Commerce was so great and remarkable in that Aera from Adam and consequently her Pride and Luxurie that Less then Two whole Chapters of the Sacred Record will not suffice to describe the vastness of the one and the Judgments of the other This City Tyrus is there styled a Merchant All whose Ships were made of Firre their Masts of Cedar their Oares of Bashan Oke the Hatches of Ivory the Wast clothes Vanes Flaggs and Pendants of Purple and Scarlet the common Mariners were the Zidoneans and Inhabitants of Arvad their Calkers were the Ancients of Geball and their Steers-men or Pilots where the wise men of Tyrus To these may be added the Inhabitants of Caria in Asia Minor for it is upon good Records of History that these also were anciently reputed Lords of the Sea as also the Inhabitants of Corinth Likewise the people of Aegina one of the Isles of the Cyclades and of Aegypt All these respectively have challenged to themselves this honourable invention of the Art of Navigation But the First that invented Ships on the Red Sea sailed thereon is said to be King Erythrus whence the Red Sea took its name of Erythreum Mare There are others who ascribe this Art of Navigation to the Carthaginians This seems to have more then fumum probationis in it for that these Poeni or Carthaginians originally were Phoeni or Phoenicians it is most undeniable that their Naval Discoveries attempted by Hanno by Hamilco and other Carthaginians are no less famous upon Historical Record then their Three great though unfortunate Bella Punica Maritima when Hannibal himself was Lord high Admiral which began in the 158 Olympiad and concluded with the sad Catastrophe of that famous City of Carthage then 700 years old in the last year of the 158 Olympiad whereby Rome by her Conquests lost the glory of a Competitor for the worlds Empire Now when the Roman Empire which is so commonly mistaken for the Beast with ten horns mentioned in the Prophet Daniel with Teeth of Iron and Nails of Brass which in truth is meant of the Syrian Monarchy under the Seleucidae so called from Seleucus Nicanor was shattered and dilacerated whereby a very dark and dismal Eclipse ensued generally on all Laws Necessity then which hath no Law occasioned new Laws and bad manners at Sea begat good Laws on Land yet not so much a Creation of new Laws that never were before as a Reviver or Resurrection of the former out of the Cinders of that fallen Empire together with such Additionals as Time Experience and Negotiations had administred occasion for especially to such parts of the world as by their Neighbourhood to the Sea were most conversant in Naval Expeditions and Maritime affairs Hence it is that in supplement of the forementioned sea-Sea-Laws all the chief Towns of Commerce and Traffick on the Mediterranean contributed special Sea-Constitutions and Ordinances of their own for the better regulation of all Maritime Occurrencies Such were the sea-Sea-Laws published by divers Emperours of Rome also by the Inhabitants of Pisa by the Genuises by those of Messene in Peliponesus of Marselleis Venice Constantinople Arragon by the Massilites Barcelonians and others As also the Laws of Oleron nigh 500 years now Received by most of the Christian world specially the Mediterranean as the Legal Standard of all Naval Discipline and for Decision of all Maritime Controversies For the Rhodian Laws being grown somewhat Superannuated and obsolete these Laws of Oleron succeeded the other and were published in that Isle then belonging to the Dutchy of Aquitane by King Richard the First at his Return from the Holy Land in the Fifth year of his Reign the said Isle at that time being under the Dominion of the Kings of England As to the Original of the Soveraign Command at Sea in the Infancy of Time though very uncertain yet divers Nations among which chiefly the Assyrians Macedonians Persians Egyptians
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
ΣΥÎΗΓΟΡΟΣ ΘΑΛΑΣΣΙΟΣ A VIEVV OF THE ADMIRAL JURISDICTION WHEREIN The most material Points concerning that JURISDICTION are fairly and submissively Discussed AS ALSO Divers of the Laws Customes Rights and Priviledges of the HIGH ADMIRALTY of England by Ancient Records and other Arguments of Law Asserted WHEREUNTO Is added by way of Appendix an Extract of the Ancient Laws of OLERON By JOHN GODOLPHIN LL. D. Littusque rogamus Innocuum Virg. Aen. 7. LONDON Printed by W. Godbid for Edmund Paxton over against the Castle Tavern neer Doctors Commons and John Sherley at the Pellican in Little Brittain 1661. TO THE Reader HE that negotiates about Maritime Affairs is under Protection without Letters of safe Conduct as being within the Sanctuary of Jus Gentium and the right Timing of a Modest Address oft times proves more successful then a Confident Argument out of season There seems some probability as if this Treatise obtrudes not upon the world or thy patience like a Tract borne out of due time nor as if it came like a Physitian to his Patients Funeral or as Suetonius relates touching the Deputies of Troy sent to condole with Tiberius seven or eight moneths after the death of his sons If this Treatise be out of season others as well as my self are happily deceived in which case it will suffice to say with Philip de Comines That It is very hard for a man to be wise that hath not been deceived For the Method it is as Regular as the Arguments would afford though not so exact as might have been if the same Metal had been cast into another Mould yet not so rude and out of shape as to suspect from the disproportion of the Body that the Soul is ill lodged or like some long-breath'd confused Discourses of late much in fashion whereof it may be truly said as was once of the Romans two Ambassadours sent to one of their Provinces whereof one wounded in the Head the other lame in his feet Mittit Populus Romanus Legationem quae nec Caput nec Pedes habet and which for their prolixity and immethodicality may justly expect the same answer that those of Lacedemon gave the Samnites That they had forgotten the Beginning understood not the Middle and disliked the Conclusion The Subject-matter of this Treatise is not so much de jure as de jurisdictione Admiralitatis Angliae not so much touching the Law of the Admiralty or Sea-Laws as now received and practised in the Navigable parts of the world as in reference to the Jurisdiction of that Law within this Kingdome of Great Brittain So that it will on all hands be eafily agreed that the argument of Jurisdictions is Quaestio admodum Subtilis and no wonder if you consider That that which is de competentia Judicis Jurisdictionis is totius juris velut Obex repagulum But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and zeal for the Publick facilitates the highest difficulties To leave the Laws sub incognito or Jurisdictions sub incerto are both of National ill consequence subjecting the people either to Transgression through Ignorance or to unnecessary expences by multiplicity of Law-Suits Lux Lex Veritas are almost Synonimous if either of these suffer though but a partial Eclipse how great is the darkness thereof If a Jurisdiction without which the Law is but as a dead Letter be uncertain how great is that uncertainty but the liquid and clear stating and ascertaining of Jurisdictions to their proper and respective Boundaries beyond which one may not pass to the invading of another is one of the primary Constitutions of Jus Gentium This short View of the Admiral Jurisdiction was in its Origination designed only to prevent a Vacuum inter alia negotia and not to hazard the Censure of a Superfluum inter aliorum otia And although a great part of this Fabrick be laid on a Foundation of Civil Law yet in regard it is an indispensable duty which every man owes his Native Countrey to keep as much as may be sub incognito from Strangers and Forraigners abroad what possibly may not be absolutely perfect for there is no perfection under the Sun quoad modum procedendi at home Sumus enim Surdi omnes in Linguis quas non intelligimus And in regard this Treatise must recite the very Letter of certain Clauses of several Acts of Parliament Transactions of State and Book-Cases of Common Law And in regard the satisfaction of Merchants and Mariners was the main motive and design of emitting this to the Opinions of men For these reasons it could neither properly nor profitably speak the Ideum of that Law which is no less adequate to the Admiralty then currant over all the Christian world The just Rights and Customes of the Jurisdiction of the Admiralty of England are here with submission asserted and consequently therein many of the Priviledges of Merchants and Mariners and not only of those who have a Birth-right to England's Laws of the Admiralty but also of all such who negotiating with us have a Right thereto by the Jus Gentium and National Treaties The Merchant is Bonum Publicum and such is that Nations Interest whose Merchants do flourish that to gratifie them with all possible immunities and due encouragement is now become the common policy of all such Kingdomes and States as reap more treasure from their Ports then Pastures It was most true what Seneca once said of them Mercator urbibus prodest Medicus aegrotis without whom a Communalty or Civil Society of men can scarce plentifully or honourably subsist It was a saying with Baldus that famous Civilian That the world could not live without Merchants Whence it may be rationally inferred That that Nation is nigh drowning whose Merchants are under water their Function being to import Necessaries and to export Superfluities If therefore such Marine Controversies as arise between Merchant and Merchant or between Merchant and Mariner should be removed from the Cognizance of the Admiralty whereof there is now no fear ad aliud examen it might prove no fallible Index but that our Trade and Commerce in too sad a measure might also in some short time after be exported ad aliam Regionem Here therefore is the Merchant and the Mariner insisting not for any thing more then what is according to the known Laws of the Land and the ancient established Sea-Laws of England with the Customes thereof so far as they contradict not the Laws and Statutes of this Realm It will not be denyed but That Jurisdictio originaliter radicata est in Principe ab eo descendunt Iudices sicut Rivuli à Fonte suo The decision of the Rights of Jurisdictions resides not in any persons of a private capacity but in that Power that creates and constitutes Jurisdictions that is the Prince or chief Magistrate as the Supream Source or Fountain of all Humane Laws and Judicatories Reader it seems something difficult to determine whether the Sophistication
be preserved for no Contribution but where the Ship arrives in safety Within the Cognisance of the Jurisdiction of the Admiralty and wherein Merchants and Mariners are principally concerned are also all causes of Reprizals known to us by the Words Reprisaliae or Letters of Marque which in the Law have also other Appellations as Pignoratio Clarigatio and Androlepsia For it is supposed that those Reprizals now commonly used were first introduced in Imitation of that Androlepsia among the Greeks with whom it was a certain Right in case of Murder to apprehend and seize any three persons whether Citizens or other of any such place or City into which the Murtherer had fled for shelter making it his place of Residence and such persons to keep in safe custody until upon demand the said Murderer were delivered up to Justice This was Androlepsia with the Greeks which as some suppose gave an hint to other Nations for these Reprizals which are now of practice more common then commendable The word Clarigatio is more acceptable to express Reprizals then either Androlepsia or Pignoratio fot Pignoratio is a word too Generall and Androlepsia too Special as being only by the Authority of such as required the Revenge of Murder and upon no other accompt then that The word Reprizals is from the French reprendre reprise that is to Retake or to take again one thing for anorher albeit this may not be by any Private Authority but only by the Authority of that Prince whose subject the Injured person is and only in case Justice be denyed or illegally delayed by that Prince whose subject the Offender is For before any concession of Letters of Reprizal or Marque there ought to precede the Oath of the party Injured or other sufficient proof touching the pretended Injurie the certain loâ—s and damage thereby sustained the due prosecution for obtaining satisfaction in a Legal way the denyal or protelation of Justice the complaint thereof to his own Prince Requision of Justice by him made to the supreme Magistrate where Justice in the ordinary course was denyed persistency still in the denyal of Justice all which precedent Letrers of Reprizal under such Cautions Restrictions and Limitations as are consonant to Law and as the special Case may require may issue by the Jus Gentium for such Law-Casuists as question whether Reprizals are Lawful are in that point rather Divines then Lawyers Grotius who was both resolves it in the Affirmative wherein Nations as well as Persons the Jus Civile as well as the Jus Gentium agree the Legality thereof whether you understand General and Universal Reprizals which is quasi Bellum Privatum or Special and Particular Reprizals which is quasi Duellum Publicum The precedent Requisites being duely observed Reprizals may issue by the Authority of the Prince in whom alone resides the power as of making War and Peace so also of granting Letters of Marque And this notwithstanding any Lawes to the Contrary that seem to inhibite the same But with respect to the National Treaties and Coventions which in this point may at times vary and alter the Case in Conformitie to such National Contracts A due Administration of Justice is not the Least sense wherein Princes are stiled Gods To deny or delay Justice is Injustice Justice is every mans Right who hath not forfeited what he might claim by the Jus Gentium therefore the Prince within whose Territories Justice is denyed or delayed is Accomptable to that other Prince whose Subjects suffer thereby and by the Law Subjects may be punished for their Prince's Omissions in what the Law of Nations requires And that Prince who unlawfully detained the Rights of a Subject under another Prince or suffers it within his Territories to be detained and in the Ordinary Course of Law denies Restitution he may at length be compelled to Restitution vi manu militari He that in the way of Reprizals apprehends at Sea another mans Goods ought not to keep them in his own private Custody and to Convert them by his own authority to his own private use but ought to bring them to some Publick Place in order to a Judication according to Law yet they are to remain with the Captors till by them they are thus brought and submitted to Publick Justice by the authoritie whereof Commission may issue for Landing or unlading the said goods for Inspection for Inventorying and for Sale either of such part thereof as upon such Inspection shall appear to be Bona peritura or of the whole in case the Court shall see Cause which is to order payment out of the Proceed thereof to the party to whose use the Letters of Marque issued for and towards satisfaction of his debt and damages after deduction of all dues duties necessary Costs and Charges relating to the Seizure either Judicially or Extra-judicially And the said debt and damages with all Costs and Charges being fully satisfied the Remainder or Overplus if any which seldome happens in such cases is to be Restored to their Owners from whom they were taken and the said Letters of Marque thenceforward to cease Such Letters of Marque issue not without good and Sufficient Caution first given in Court for the due observance thereof according to Law the transgression whereof creates a forfeiture of such Judicial Recognizance or Stipulation and the Captor for the better management of a Judicial Proof in order to a right Decision according to the merits of the case is to produce part of the Seized Mariners to be Sworn and Examined according to Law as also to Exhibite all the Ship-papers and Evidences found a Shipboard and till Judication he may not break bulk of his own private authority nor suffer any imbezilement of the Lading nor Sell Barter or otherwise alter the property thereof without Special Commission from the Court for so doing In the Law there are certain Persons and Things Exempt from being Lyable or Subject to Reprizals They whose Persons are Exempt have also their goods Free. Reprizals granted against any Kingdome or State are understood as against such only who inhabit therein and not against such who though originally of that Countrey against which the Reprizals are yet inhabit elsewhere possibly in the same Kingdome whence the Letters of Marque issued for he is not in this point reputed of that Kingdome State Province or City wherein he doth not inhabite albeit he were born therein It is not the place of a mans Nativity but his Domicill not of his Origination but of his Habitation that subjects him to Reprizals the Law doth not consider so much where he was Borne as where he Lives not so much where he came into the world as where he improves the world provided he hath there Decenniated or inhabited Ten years or less in case he hath born Office there or paid Scott and Lott or removed his Family thither or his Estate or the greater part
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
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
of Out-readers or Out-riggers Furnishers Hirers Fraighters Owners Part-owners of ships as such also all causes of Priviledged ships or Vessels in his Majesties Service or his Letters of safe Conduct also all causes of shipwrack at Sea Flotson Jetson Lagon Waiffs Deodands Treasure-Trove Fishes-Royal with the Lord Admirals shares and the Finders respectively also all causes touching Maritime offences or misdemeanours such as cutting the Bovy-Rope or Cable removal of an Anchor whereby any Vessel is moared the breaking the Lord Admiral 's Arrests made either upon person ship or goods Breaking Arrests on ships for the King's Service being punishable with Confiscation by the Ordinance made at Grimsby in the the time of Rich. 1. Mariners absenting themselves from the Kings Service after their being prest Impleading upon a Maritine Contract or in a Maritime Cause elsewhere then in the Admiralty contrary to the Ordinance made at Hastings by Ed. 1. and contrary to the Laws and Customes of the Admiralty of England Forestalling of Corn Fish c. on ship-board regrating and exaction of water-osficers the appropriating the benefit of Salt-waters to private use exclusively to others without his Majesties Licence Kiddles Wears Blind stakes Water-mills and the like to the obstruction of Navigation in great Rivers False weights or measures on ship-board Concealings of goods found about the dead within the Admiral Jurisdiction or of Flotsons Jetsons Lagons Waiffs Deodands Fishes Royal or other things wherein the Kings Majesty or his Lord Admiral have interest Excessive wages claimed by Ship-wrights Mariners c. Maintainers Abettors Receivers Concealers or Comforters of Pyrats Transporting Prohibited goods without Licence Draggers of Oysters and Muscles at unseasonable times viz. between May-day and Holy-rood-day Destroyers of the brood or young Fry of Fish such as claim Wreck to to the prejudice of the King or Lord Admiral such as unduly claim priviledges in a Port Disturbers of the Admiral Officers in execution of the Court-Decrees Water-Bayliffs and Searchers not doing their duty Corruption in any of the Admiral-Court-Officers Importers of unwholesome Victuals to the peoples prejudice Fraighters of strangers Vessels contrary to the Law Transporters of ptisoners or other prohibited persons not having Letters of safe Conduct from the King or his Lord Admiral Casters of Ballasts into Ports or Harbours to the prejudice thereof Unskilful Pilots whereby ship or man perish Unlawful Nets or other prohibited Engines for Fish Disobeying of Embargos or going to Sea contrary to the Prince his command or against the Law Furnishing the ships of Enemies or the Enemy with ships All prejudice done to the Banks of Navigable Rivers or to Docks Wharsfs Keys or any thing whereby Shipping may be endangered Navigation obstructed or Trade by Sea impeded Also embezilments of ship-tackle or furniture all substractions of Mariners wages all defraudings of his Majesties Customes or other Duties at Sea also all prejudices done to or by passengers a shipboard and all damages done by one ship or Vessel to another also to go to Sea in tempestuous weather to sail in devious places or among Enemies Pyrats Rocks or other dangerous places being not necessitated thereto all clandestine attempts by making privy Cork-holes in the Vessel or otherwise with intent to destroy or endanger the ship Also the shewing of false Lights by Night either on shore or in Fishing Vessels or the like on purpose to intice Sailers to the hazard of their Vessels all wilful or purposed entertaining of unskilful Masters Pilots or Mariners or sailing without a Pilot or in Leaky and insufficient Vessels also the over-burdening the ship above her birth-mark and all ill stowage of goods a shipboard also all Importation of Contrabanda goods or Exportation of goods to prohibited Ports or the places not designed together with very many other things relating either to the state or condition of persons Maritime their rights their duties or their defaults all which only to enumerate would require a Volume of it self These therefore may suffice for a hint of persons and things properly Cognizable within the Jurisdiction of the Admiralty of England Omitting what might be here likewise added as to the Naval Military part within the Cognizance of the said Jurisdiction As that ships in the Brittish Seas not amaining at the first Summons to any of his Majesties ships may be assaulted and taken as Enemies That no Prize ought to be carried from the Fleet without the Admirals leave That all above hatches saving the ship-furniture ought upon a seizure jure belli to goe to the Captors That the Vessels of Forraigners met with at Sea may be visited and examined if suspected specially in times of Warre their Cocquets Pasports Charter-parties Invoyces Bills of Lading Ship-Roll with other Instruments ship-papers perused that so if there be cause they may be brought before the Admiral There are many other particulars referring as well to the Civil as to the Criminal part of this Jurisdiction which might be here inserted but the design of this Compendious Treatise being as formerly hinted rather to touch then handle things it may not be expected that the great Continent of the Admiralty should be comprized in so small a Map To conclude therefore with that great Oracle of the Civil Law Baldus touching the Marine Jursdiction In mari Jurisdictio est sicut in terra Nam Mare in terra h. e. in alveo suo fundatum est quum Terra sit inferior Sphaera videmus de jure Gentium in mari esse Regna distincta sicut in arida terra Ergo Jus Civile id est Praesciptio illud idem potest in mari scilicet quod in terra operari So that all such as out of a subtile humour would fain insinuate into the world as if there were no such thing as Jurisdictio maris or Dominium maris with its prescript limits and bounds some arguing from the perpetual motion of that liquid element Others from a supposed parity between the Sea and the Air in point of Community are by this Learned Oracle left without any hopes or possibility of the least Orthodox support for their Anti-thalas-monarchical opinion For in this place he is positive That both the Jurisdiction and the Dominion of the Sea with their distinct limits and bounds as well as that of the Land are duly constituted and that not by force and power but by Law not only by the Civil but also by the Law of Nations and this not in the Emperours alone but also in such Kingdomes and States as by Prescription Custome or otherwise may claim the same CHAP. V. Of Laws and Jurisdictions in general with the several kinds and degrees thereof IT is recorded in the Historical part of the Law by that famous Lawyer of Millayne Jason Maynus who flourished about the year of our Lord 1500 and taught at Padua where he dyed Anno 1519. upon this subject of Jurisdictions that Raphael Fulgosius that Jaspis virtutum utroque jure
ought it to be doubted but that in those days there was a true Church of Beleevers as also true Sacrifices and as some hold true Sacraments and therefore not to be conceived but that there was also some Ecclesiastical Law then in force which afterward became much more clear under Moses Law And by way of additament to this in tract of time was the Canon Law established in every Christian Common-wealth which received not as some suppose it 's Original at that time when the General and Universall Councils began to be first held as under Constantine but in the days of the Apostles themselves who gave divers Rules and made many Canons touching Divine Wâ—rship and in order to the salvation of Souls And thus Laws being introduced into the world it could not be but there must be Jurisdictions also without which the Law is but a dead Letter For the clearer understanding whereof know That the word Jurisdictio without the Letter c etymologizeth it self For it is not so called from Juris and dictio as some would have it but from Juris and ditio And so Jurisdictio is quasi juris potestas But this pleaseth not Calvin who in this matter following Ferrand would derive it from Juris dictio and doth charge Accursius with an errour in Judgement for holding it to be derived from Juris ditio though he confesses that Bartol himself and many others do follow Accursius therein whose opinion seems to have the best congruity with reason in the energy of Law though Ferrand's Opinion seems to out-weigh if the comprized matter should be ballanced only by the letters of the word but indeed of the two Accursius hath by farre the more numerous Retinue So that Jurisdictio taken in the large sense as the Genus generalissimum or Plenissima Jurisdictio is nothing else but Potestas de jure Publico introducta cum necessitate juris dicendi aequitatis statuendae The word Jurisdictio taken in this large sense doth properly signifie that Office or Function which the lawful Magistrate doth hold and exercise by the ordinary right of his just power and authority Of Jurisdictions taken in this large sense there are three species or kinds in the Law There is Imperium Merum Imperium Mixtum Jurisdictio simplex And it is called Imperium because it proceeds from the Authority of the Judge and not from any right inherent or residing in the party The first of these viz. Imperium Merum is that Jurisdiction which respecting only the Publick utility is exercised Officio Judicis Nobili and by way of Accusation This hath the power of the Sword contra homines facinorosos and all Capital Offenders And is so called from its purity simplicity and immixture with either of the other kinds of Jurisdictions Of this Imperium Merum Bartoll makes Six several degrees which Jason contracts into Four but Zasius into Three Of these Six degrees of Imperium Merum the First is Merum Imperium Maximum And this resides only in the Prince or in the Supreme Authority In this Bartol doth lodge the Legislative Faculty or power of enacting Laws also the calling a General Council or the summoning a Parliament also the power of Confiscation of Delinquents goods In a word under this Merum Imperium Maximum are contained all things competible to Princes or the Supreme Magistrate And to these particulars which Bartol mentions under this head the DD do add one more and that is the creating of Tabellions General or Publick Notories The Second degree is Merum Imperium Majus This extends to the taking away of life and hath the power of the Sword Under this head also is that Potestas gladii in homines facinerosos forementioned but derivative from the Prince The Third degree is Merum Imperium Magnum under which head is comprehended Deportation or perpetual banishment But these two last degrees Jason comprehends under one and the same head For says he under the power of the Sword in facinerosos homines is comprehended three kinds of Capital Causes viz. First when the Life Natural is taken away either in whole or in part as by dismembration amputation or mutilation Secondly when the Life Civil is taken away as by loss of Liberty and by perpetual imprisonment for such are dead in Law Thirdly when a man is deprived of his Franchise Freedome or Priviledges which he had in any place by a Natural or Civil Right The Fourth degree is Merum Imperium Parvum under which head is comprehended Relegation or temporal exilement which is no more then an extermination whereby a man is commanded out of the confines of his own Country for a season And although Deportatio Relegatio be often used promiscuously in the Law for one and the same yet the Law discriminates them by very different Characters For in Deportation there is a perpetual in Relegation but a temporal banishment And as they differ in the Circumstance of Time so also in the Circumstance of Place For in Relegation the party is only circumscribed and it's part of his punishment that he shall not go out of the limits of such a certain place So Shimei the Benjamite that cursed David in his way to Mahanaim was after Davids death confined by his son Solomon unto Hierusalem and not to pass over the Brook Kidron who upon occasion of his going afterwards to Gath exceeded the limits of his circumscription and for so doing was put to death by Benaiah at the Kings command But now in Deportation the party is not so confined to or circumscribed by any certain place but is quite banished and exiled out of all the precincts of his own Country Again in Deportation the party cannot take his goods with him in Relegation he may but this difference holds not always Likewise under this head is comprized every Corporal punishment provided it be Tortura ad poenam Delicti For if it be Tortura only ad investigationem veritatis then it may be otherwise The Fifth degree is Merum Imperium Minus under which is comprized that moderate Coertion by Corporal Castigations which are ad vindictam Maleficii to distinguish it from Coertio verbalis per officium Merum and is competible with the Office or Function of Magistrates in Authority Also Cognizance of such crimes as are of the lesser and inferiour kind Of this and the last precedent degree or member of Imperium Merum Jason makes but one as formeâ—ly but one of the Second and Third degrees So that although here be Six species degrees or members of Imperium Merum according to Bartolls accompt yet here are but Four according to Jasons computation and to him in this matter the DD do generally incline rather then unto Bartoll The Sixth and last degree is Merum Imperium
Minimum which comprehends whatever is imposed by way of pecuniary mulct upon some crime provided such pecuniary mulct be in reference to the Publick utility and not in satisfaction of private injuries The Second Species or kind of Jurisdictio taken in this large sense is Imperium Mixtum And it is that Jurisdiction which respecting only private utility is exercised Officio Judicis Nobili It is so called as being of a mixt nature because it consists partly of Imperium Merum and partly of Jurisdictio Simplex And as it consists in Commodo pecuniario respecting only private utility so it doth participate of Jurisdictio Simplex and is differenced from Imperium Merum Of this Imperium Mixtum Bartol as in the former makes other six degrees which Jason contracts to three and calls them Gradum MaximuÌ„ Medium MinimuÌ„ The First and Second of Bartols degrees Jason doth join in one as being both competible only to the Prince or Supreme Magistrate The Third and Fourth of Bartols degrees he likewise joyns in one as both requiring plenam causae cognitionem and both incompetible with interiour Magistrates So likewise of the Fifth and Sixth degrees Now because this last Division of Jasons seems to take best with the most part of the DD as being the most succinct yet comprehensive of all Jasons method shall here be followed as formerly was Bartols The first degree then of Imperium Mixtum according to Jasons account is Imperium Mixtum Maximum which pertains solely to the Prince and concerns only Actus voluntarios yet it may be alâ—o in the ordinary Magistrate but then it must be by way of derivation from the Prince This Imperium Mixtum Maximum comprehends veniam aetatis impetranti That is that whereas by the Civil Law a man is held a Minor and under age until he attain unto the age of twenty five years the Prince might at his Petition grant veniam aetatis impetranti that is if such Minor being a Male could prove himself to be of the full age of twenty years or being a Female could prove her self to be of the full age of eighteen years then might such by way of Petition impetrare veniam aetatis à Principe that is they might for the better management of their estate request the Prince's favour for an exemption from their Minority and to be held and taken as of full age that is as of the age of twenty five years to all intents and purposes of Law whatever only they could not by vertue of such Priviledge alienate their Praedials or Immoveables without a special Decree for that purpose And this Priviledge was obtainable only by the Prince's Grant Also under this head is comprehended that which the Civilians call Arrogatio which is a kind of Adoption but something different from it For the Prince did interponere Authoritatem Arrogationi Likewise under this head is comprehended Legitimation or the power of legitimating such as are unlawfully begotten And also Emancipation which properly so called is a Judicial and solemn transference alienation or vendition of free-born children For Manumission relates only to Servants and Bond-men from and out of the Dominium power and Jurisdiction of their natural Parents into the power â—nd right of another had and done by the authority of the competent Judge with the concurrency and mutual consent of both parent and child By such Emancipation the Patria Potestas is dissolved si filium suum forisfamiliaverit for it is a kind of vendition or sale by a tradition or delivery of his child out of his own right over to another who thereby becomes as it were Pater Fiduciarius or a Father in trust to the child although anciently such Emancipation was held no less then Civil death to the child or then an Ingressus Religionis Likewise under this head is comprehended that which the Law calls Supplicatio which is a Cognition or Retractation of a Judicial sentence from which lies no Appeal by way of Supplication pertaining only to the Prince and in the Roman Government to the Praetorian Praefect This is that Remedy of a Judicial Sentence which the Canonists call Revisionem Sententiae or the Review of a Sentence This is used but very rarely and only in extraordinary Cases but chiefly against the Sentence of such Judges as from whom by reason of their Eminency non licet Appellare In such Cases the imploring of the grace and favour of the Prince or Supreme Authority is properly called Supplicatio The Second degree is Imperium Mixtum Medium under which is comprized a full and plenary Cognition of a Cause with Coertion as well Real as Personal of such is the putting a man into possession by vertue of a Secundum Decretum Likewise Restitutio in integrum Also the expulsion or outing another of his Actual Possession In like manner under this head are comprehended all matters that require a plenary Cognition although it hath not Real or Personal Coertion As to give such a possession of goods as shall convey and carry a right of Property with it Also to pronounce for the putting into Possession Ex Secundo Decreto Also to interpose ones Authority for the Alienation of things appertaining to Minors Also in Transactions of Alimony and the like The Third and last degree is Imperium Mixtum Minimum And this consists in such things as are expedited Officio Judicis Nobili but do not require a plenary Cognition as the former but are determined by a Summary proceeding and have respect only to Private utility Of this kind is the putting into Possession by a Primum Decretum Also any possession which to the Cognizance of the Cause doth not require a Proceeding De Plano but only Summarily sine strepitu judicii Of this kind also is the granting of Possession to Minors Ex Edicto Carboniano so called from Cneus Carbo the Praetor and Authour of that Edict For when upon the death of a Parent Intestate any question or Controversie arose to the Pupil or Minor either Male or Female by the Masculine line concerning the inheritance or goods of such Parent as also concerning the state quality or condition of such Minor or whether he were the legitimate Child of such Parent In all such cases daâ—ur Carboniana bonorum Possessio saith the Law that is such Minor shall by that Edict be put into possession of the said goods he first giving good caution or security not to diminish the same during his Minority and in the mean time the dispute in Law or Controversie touching the right of Title to the said goods as also touching the state quality and condition of such Minor is by the same Edict to be deferred and put off untill he come of full age Likewise under this head falls Manumission or the setting at liberty such as were under the servitude and dominium
Cognizance of the Cause grounded upon that suggestion so that the Place seems to be of such Jurisdictional weight as not capable of being translocated by the highest strength of Imagination which may present strange things in Apparitions but cannot possibly enervate the energy of Truths and Reallities And thence possibly it is that for prevention of improbable surmizes as a suggestion may be quasi Causa sine qua non of a Prohibition so the said Statute of 2 Ed. 6. cap. 13. provides that probability by witnesses which cannot be without verity be a due requisite of suggestions The Lord Coke upoâ— this Subject of suggesting and surmizing viz. of places beyond Sea to be as within the Body of some County within this Realm doth acknowledge That there is variety of Opinions in the very Books of the Common Law upon this point This kind of suggesting and surmizing did in late years of fatal memory much impede the Judicial Proceedings of the Admiralty when it was no rare thing to meet with a suggestion of a Contract to have been made or other thing done upon the Land in some certain place within the Body of some County that really and in truth was made or done upon or beyond the Seas and farther possibly then the suggestor ever saw in a Map The Civilians say there are certain Cases wherein Prohibitio vim suam non exercet whereof one is Quando aliquid prohibetur sinel Causa and the Law of this Realm allows another and that is Quando Consultatio conceditur Prohibitions in the Law there are of other kinds though not so pertinent to the purpose in hand Such is the Writ Indicavit as in matter of Tithes This lyeth also for the Patron where the Incumbent is impleaded for the Advowson or right of Patronage in a Spiritual Court though it lyeth not till the Libel be brought to be viewed in Chancery Et Lis Contestata And it lyeth only before Sentence is given in the Ecclesiastical Court being afterwards void Lastly a Prohibition ceaseth and loseth his vertue after a Consultation is granted as appears by the Statute of 24 Ed. 1. which declares in what Cases a Consultation is grantable which again is afterwards more full in the Statute of 2 Ed. 6. cap. 13. whereby it is enacted That a Consultation shall be granted for default of proving the suggestion and double Costs and Damages as aforesaid awarded to the party hindred by such Prohibition against him that so pursued the same And where a Consultation is once truly granted the Judge formerly prohibited shall according to the Statute of 50 Ed. 3. cap. 4. proceed in the Cause notwithstanding any other Prohibition thereupon provided the matter in the Libel be not altered CHAP. VII Of Fictions what a Fiction in Law is how farre and in what cases Fictions may be used according to the Rules of Law BY Fiction is here intended no other then such as the Law it self intends no other then such as being authorised by Law and introduced upon a warrant of Law hath in operation the due effect of Law As for other Fictions the Law understands them but as meer Cyphers tollerating none but such as are grounded upon and regulated according to the just Principles of the Law The Essence of Law being more Rational her Designs more Equitable her Mediums more feasible and her style more serious and venerable then to hazard either under the Conduct of any Notions inconsistent either with Equity or Possibility For the Law doth imitate Nature Such Fictions therefore as cannot endure the Test of Law are Fictions indeed proper only for a Comment upon Lucians Dialogues To proceed therefore to the Law A Fiction in the eye of the Law and such whose Practice may be warranted by Law is Legis adversus veritatem in re Possibili ex justa causa dispositio So that it is Legis non hominis dispositio it must be a Fiction framed according to the Rules of Law not whatever is imaginable in the conceptions of Man This word Dispositio is sometimes taken for a quality of the mind or imperfect habit that is an Inclination or Affection But in this place it signifies an Act proceeding from good Authority of Law for it must be Ex justa Causa which word Just hath divers acceptations or significations in the Law As sometimes it is opposed to that which is wicked or contrary to Justice and Equity whence it follows that the Suggestor may not frame or model a Fiction opposite thereto Sometimes the word Just is in the Law taken for Full or Perfect And hereby all defects and imperfections for want of any Legal Requisites in the Suggestors Notions to the fabricating of a Fiction are excluded Such are the defects or imperfections in respect either of Equity or Possibility For as the suggestions are to arise ex justa causa so they are to center in re possibili But to prevent mistakes let it not be hence inferred as if it were here implyed that all Surmizes and Suggestions at Law in order to remove or transplea a Cause from one Jurisdiction to another were such Fictions as fall not within the compass of the said Definition of a Legal Fiction If any such inconsequent construction be made of the Premises or shall be made of what follows it is no mans errour but the Readers For though all Fictions whether Legal or illegal may be Surmizes Suggestions or Suppositions yet all Surmizes or Suggestions are not illegal Fictions And many of the Suggestions used in the Practick part of the Law for the end aforesaid are both true equitable and possible and consequently probable and so of good and necessary use in practice according to the Law in the Statute of Prohibitions in that behalf provided And this not by way of digression but ad majorem necessariam Cautelam to prevent all mis-apprehensions The foresaid Definition of a Fiction Legal not finding general entertainment among the DD it may be free to incline with the more received opinion to Bartols definition thereof whose words are these viz. Fictio est in re certa ejus quod est possibile adversus veritatem pro veritate a jure facta assumptio A Fiction is an Assumption of Law upon an untruth for a truth against the truth in some thing possible to be done but not done So that Surmizes and Suggestions in Judicial Practice that are true are not as was aforesaid Fictions In this definition it is said to be in re certa to difference it from Presumption which ever fixes upon something that is dubious yet carries so much of truth with it as without better evidence is not counterpoized But Fictio fit super Certo Super Falso Certo fingitur Super Vero Incerto praesumitur Likewise in in this definition it is said to be Ejus quod est possibile because Super eo quod
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
and to award satisfaction to such as suffered wrong and damage But also that those very Laws and Statutes which were so to be Corrected Declared Expounded and Conserved by the Authority of the Office of the Admiralty were the Sea-Laws published at Oleron by King Richard the First So that the said Laws of Oleron gave the Rule and seems to be the usage concerning the Admiralty in the time of Edward the Third wereof the said Statute of 13 R. 2. speaks and by which Laws all Maritime affairs whether upon or beyond the Seas are properly Cognizable in the Jurisdiction of the Admiralty And in those Laws of Oleron so published by Richard the First are comprehended the matters of Admiral Cognizance whereunto that Form of Proceedings in these Records mentioned to be ordained by Edward the First and afterwards to be resumed revived and continued by Edward the Third relates Which very Records are also verbatim transcribed and published by the Lord Coke in that part of his Instit concerning the Court of Admiralty which speaks of the Superiority of England over the Brittish Seas and of the Antiquity of the Admiralty of England which he there proves expresly as high as to the time of Edward the First and by good inference of Antiquity and Ancient Records much higher For it appears by Ancient Records That not only in the days of King Edward the First but also in the days of King John all Causes of Merchants and Mariners and Things happening within the Floud-Mark were ever tryed before the Lord Admiral Again For the clearer understanding of what was the Usage in the time of Ed. 3. concerning the Admiralty it may be observed That in the beginning of these Records in Edward the Third's time it is said That a Consultation was had and the whole Bench of Judges advised with To the end that the Form of Proceedings heretofore ordained by Edward the First and his Councel should be resumed and continued not only for the retaining and conserving the ancient Superiority of the Sea of England but also the Office of the Admiralty as to the Correcting Expounding Conserving and Declaring the Laws and Statutes long since made by his Predecessors for the maintaining of Peace and Justice c. If upon a full Consultation in Ed. the Third's time That Form of Proceedings which had been formerly ordained by Ed. the First and his Councel shall be again resumed and continued it seems then requisite in the next place to inquire a little farther what was ordained by the said Edward the First and his Councel over and above what is already mentioned in the said Record And it appears that in the days of the said Ed. the First thâ—râ— was a good provision and remedy ordained for such Complainants as by Prohibitâ—ons issuing out of one Court to surcease the Legal prosecution of their rights in another could obtain redress in neither For by the Statute of the Writ of Consultation in Anno 24 Ed. 1. It is enacted That where there is a surceasing of Proceedings upon Prohibitions and the Complainants could have no remedy in the Kings Court that then the Lord Chancellour or Lord Chief Justice upon sight of the Libel should write to the Judges before whom the Cause was first moved that they proceed therein notwithstanding the Kings Prohibition directed to them before In a word therefore The said Statute of 13 R. 2. mentions the Usage in the time of Ed. 3. Edward the Third resumes and continues the Laws of Oleron published by Rich. 1. and what was ordained in the time of Ed. 1. And Edward the First ordained as in the Records aforesaid and Statute of Consultation The Expositor of the Terms of Law in his description of the Lord Admiral says That he is an Officer to Judge of Con Contracts between party and party concerning things done upon or beyond the Seas And in another of ancient Authority it is said in these words viz. That if an Obligation bear date out of the Realm as in Spain France or such other it is said in the Law and truth it is they are the Authours words that they be not pleadable at the Common Law Also the Learned Mr. Selden in the fore-cited place says That the Jurisdiction of the Common Law extends not it self beyond the Seas and without the Realm of England For as he speaks In the Law of the Land it is reckoned among the Priviledges of such as are absent That they who shall be out of the Realm of England at the levying of a Fine of any Land and making Proclamation thereupon are not so bound either by a yearly prescription as heretofore or by a five years prescription as is usuall of later times but that their right remains entire to them upon their return home So that being beyond Sea and without the Realm of England at that time and nothing of prejudice in that case fastned on them by reason of any Non-Appearance it seems as without the reach of the Common Law And Mr. Selden in the same place proves That to be beyond the Seas or extra quatuor maria doth in the Common Law-Books signifie the very same thing with extra Regnum And again Mr. Selden for 't is but due as well to the Truth as his Memory to repeat his Authority in the same place asserts concerning Things relating to Actions for Matters Maritime That they were not wont to be entered in express tearms heretofore in the ordinary Courts of the Common Law whose Jurisdiction was ever esteemed of such a nature that an Action Instituted about a matter arising in any other place then within the bounds of the Realm was by the ancient strict Law always to be rejected by them After which manner as it hath been a Custome now for many years that an Action ought to be rejected unless the matter have its rise within the Body as they call it of the County that is within some Province or County of the Island usually given in charge to certain Governours or Officers known to us by the name of Sheriffs So also is it in the Sea-Province belonging by the ancient received custome to the high Admiral or his Deputies not only so far as concerns its defence and guard but also as to matter of Jurisdiction Likewise in the same place Mr. Selden in honour of the Admiralty says That in ancient Records concerning the Customes of the Court of Admiralty It was an usual custome in the time of King Henry the First and of other Kings both before and after him That if any man accused of a capital crime done by Sea being publickly called five times by the voice of the Cryer after so many several days assigned did not make his Appearance in the Court of Admiralty he was banished out of England de mer appurtenant au Roy d'Angleterre or out of the Sea belonging to the King of England for forty years more or
Prohibition be awarded against the Court of Admiralty in Suits there Commenced upon Contracts made beyond the Seas CHAP. XIII Of the Agreement touching the Admiralty in Anno 1575. As also of the Resolutions Hill 8. Car. 1. upon the Cases of Admiral Jurisdiction THE Non-observance of the said Agreement being for the more quiet and certain execution of Admiral Jurisdiction was one of the Objections of the Admiralty in Anno 8 Jac. Reg. whereof mention is made by the Lord Coke in Par. 4. Instit cap. 22. And where it is said to be a supposed Agreement and that it had not been delivered to the then Judges but acknowledged to have heard the same read over in His Majesties Presence And to which Answer was then made That for so much thereof as differeth from those Answers viz. to the other Objections then made it is against the Laws and Statutes of this Realm And therefore the Judges of the Kings Bench never assented thereunto as is pretended neither doth the phrase thereof agree with the tearms of the Laws of the Realm This was the Answer then given to that Objection grounded upon the said Agreement Whether the same were no more then supposed may be referred to the matter of Fact wherein if so the evidentia rei will easily liquidate the scruple and dissipate dubieties Though the said Agreement be disagreed yet the Law like the Axis of the Body Politick remains fixed notwithstanding the rotation of opinions And whether so much thereof as differed from the Answers then made to the other Objections were repugnant to the Laws and Statutes of the Realm or the phrase discrepant from the tearms thereof would be more visible upon an Inspection were it free to insert that as an Imprinted Agreement here which is called but a supposed Agreement there Therefore to inquire how far the said Agreement made or supposed to be made in one age may be obligatory in another may possibly have an implication of more verity and reality then the thing it self with general consent doth or may challenge yet being in substance Consonant to the subsequent Resolutions upon the Cases of Admirall Jurisdiction and being an Objection long since under a former Impression with the Answer thereto as aforesaid it may be now a less Transgression to omit the Thing it self saltem in terminis then Digression to have given this short hint thereof quasi in nubibus The Resolutions Hill 8. Car. 1. upon the Cases of Admiral Jurisdiction being the Articles Propositions and Agreement made and subscribed in Febr. 1632. by all the Reverend Judges of both the Honourable Benches for the accommodating and setling the Differences concerning Prohibitions are very Energetical in Affirmance of much of the Rights of the said Jurisdiction The Sun need not borrow the Auxiliaries of Art to demonstrate his Light These Articles and this Agreement whatever the former be are more then supposed being reall and true You have it here as to the Body and Substance thereof in no other words then Sir Geo. Croke in his Reports delivers it with the requisite Addition of the style or Preface thereto together with the names of the Lords of His Majesties most Honourable Councel then present As followeth viz. At White Hall 18 Febr. 1632. Present The Kings Most Excellent Majesty Lord Keeper Lord Arch-Bishop of York Lord Treasurer Lord Privy Seal Earl Marshal Lord Chamberlain E. of Dorset E. of Carlisle E. of Holland E. of Denbeigh Lord Chancellour of Scotland E. of Morton Lord V. Wimbleton Lord V. Wentworth Lord V. Faulkland Lord Bishop of London Lord Cottington Lord Newburgh Mr. Treasurer Mr. Controller Mr. Vice-Chamberlain Mr. Secretary Coke Mr. Secretary Windebank This day His Majesty being present in Councel the Articles and Propositions following for the accommodating and setling the Difference concerning Prohibitions arising between His Majesties Courts at Westminster and His Court of Admiralty were fully Debated and Resolved by the Board And were then likewise upon reading the same as well before the Judges of his Majesties said Courts at Westminster as before the Judge of His said Court of Admiralty and His Atturney General Agreed unto and subscribed by them all in His Majesties Presence viz. 1. If Suit should be commenced in the Court of Admiralty upon Contracts made or other things Personal done beyond the Seas or upon the Sea No Prohibition to be awarded 2. If Suit be before the Admiral for Fraight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas 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 But if the Suit be for the Penalty Or if the question be whether the Charter-party were made or not Or whether the Plaintiff did release or otherwise discharge the same within the Realm This is to be tryed in the Kings Courts at Westminster and not in His Court of Admiralty 3. If Suit be in the Court of Admiralty for Building Amending Saving or necessary Victualling of a Ship against the Ship it self and not against any party by name but such as for his Interest makes himself a party No Prohibition is to be granted though this be done within the Realm 4. Although of some Causes arising upon the Thames beneath the first Bridge and divers other Rivers beneath the first Bridge the Kings Courts have Cognizance Yet the Admiralty hath also Jurisdiction there in the point specially mentioned in the Statute of 15 R. 2. And also by Exposition and Equity thereof he may inquire of and redress all annoyances and obstructions in these Rivers that are any impediment to Navigation or Passage to or from the Sea And also to try Personal Contracts and Injuries done there which concern Navigation upon the Sea And no Prohibition is to be granted in such Cases 5. If any be imprisoned and upon Habeas Corpus brought If it be certified that any of these be the Cause of his Imprisonment the party shall be remanded Subscribed Febr. 1632. By all the Judges of both Benches AN EXTRACT By way of APPENDIX Of the Ancient LAVVS of Oleron Rendred into English out of GARSIAS aliàs FERRAND Together with Some Marginal Observations thereon LONDON Printed in the Year 1661. AN EXTRACT By way of APPENDIX of the Ancient Sea-Laws of OLERON Rendred into English out of Garsias aliàs Ferrand The Judgements of the Sea and the Isle of OLERON For the Regulation and Government of Merchants Owners of Ships Part-Owners Masters of Ships and Common Mariners in all Maritime Affairs I. WHen a Ship or other Vessel whereof a Master is made belonging to several Part-Owners and departing from her own Port arrives at Burdeoux Rouen or such like place and is there Fraighted to sail for Scotland or some other Forraign Country The Master in such case may not sell or dispose the said Vessel without Licence or a special Procuration for that purpose from the said
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-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
before used Goods damnified at Sea whether by the Ship-tackle or not to be purged and cleared by the Oath of the Skipper and part of his Company The Law in case of the Lye or a stroak given by or to the Skipper or his Mariners The Law in case of difference between the Skipper and any of his Mariners Skipper to take an able Mariner in the absence of another or to make good the damage if any thereby In case of Collision one ship against another the damage to be in common and equally divided yet so as they both if need be purge themselves of all wilfulness by Oath What the Law is in placing of Anchors in Harbours specially where there is but little water as also of Boys to the said Anchors What the Mariners Immunity or Priviledge anciently was in Fraight which is now grown obsolete It seems in those days this was the Law Now no such thing in use The Skipper may compel the Mariner to complete the Ships Voyage The Contract for wages must be performed though the Voyage be not so as the fault be not in the Mariners What the Law is touching Mariners going a shore when the ship is in Port. The Merchant to pay Demourage when it happens through his own default What the Law is in â—ase a Skippeâ— on his Voyage be reduced to Necessities in a Forraign Port. In some cases the Skipper may sell part of his Lading If part os a Merchants Carge be sold to supply the Necessities of the Ship the value and fraight thereof is to be made good to and by the said Merchant The head of an unskilful Pilo must go for the loss of a Vessel occasioned by his unskilfulness in case he hath not wherewith to make satisfaction What the Law is in case of damage to goods by reason of the Ship-ropes or Slings in hoysing of goods over board What the Law is as to Partnership in the Fishing Craft In case of such Partnership part of the profits upon such a Fishing design accrue to the next of kin to the deceased in that design Ship broken men not to be impeded or hâ—ndred but aided and assisted in preservation of Ship and Lading Salvage to be regulated not according to promise made by the distressed but as the Court of Admiralty shall judge in equity Art 4. Naufragium quasi Navis Fractio The penalty of such Thieves as steal srom persons that are Ship-broken VVhat the Law is in case of wreck * As if the gift of Salvation might be purchased with mony Good meanings will never exculpate blind and superstitious Devotion This is the Law of Rome by Land at this day as well as of Oleron at Sea nigh 500 years since Covetousness which is Idolatry sometimes is also Bestiality They that lived like beasts might not dye like men By the Law of Oleron Behold and wonder at the Diabolical Practice of some treacherous Pilots The penalty of such thieves as steal goods from poor distressed ship-broken persons The exemplary punishment of all treacherous Pilots An Adequate punishment without respect of persons which will not counterpoize one grain of honesty in the ballance of Justice So exact was this Law in punishing such politickly Covetous Miscreants Goods cast over board for lightning the Ship quatenus such are not Derelicts Merces è Nave jactae Derelictae non videntur Leg. 7. Dig. Pro Derelict What symptomes for a Presumption in certain cases of goods cast over board that they are not Derelict Res nullius Noviter inventa fit primo Occupantis Now called Royal Fishes Out of the mouth of a Fish the King of Kings himself will work a Miracle to pay Tribute rather then offend by denying it where it is due Matth. 17. 27. In such things Custome is to be observed Consuetudo in tract of time may evaporate into Desuetudo as in this Case This hath reference only to such times and places as wherein such Custome did prevail Locupletari nemo debet cum alterius injuria Leg. 14. tit 6. Cod. lib. 5. Dig. lib. 23. tit 3. leg 6. § 2. Dig. lib. 2. tit 15. leg 8. § 22. Dig. lib. 12. tit 6. leg 14. Non tam tenetur qui non tenet quam qui detinet Consuetudo est Lex non scripta Natura postscripta Goods found and presumed to have belonged to Shipping are dedicated not to profane but pious uses Art 26. If in Heaven they need no Prayers if in Hell Ab inferis nulla Redemptio if in Purgatory 't is pity to trouble them the longer there the better purged This is Româ—s Utopia Res capta sit Captentis was Law well meant at Oleron but very ill expounded by our late Interpreters Presupposing the Finders knowledge of of the true Owner thereof What the Law is in Case of Treasure Trove You may not Note or infer hence as if in all Ages the Clergie had a finger in all Elements What the Law is in case a Ship by stresse of weather be forced from her Cables and Anchors Well meaning devotion in a Superstitious way opens a dore to Idolatrie And Politick devotion in an hy-pocritical way Le ts in Blasphemy The Names of Skippers or of their Ships to be engraven on their Boyes What the Law is in case of Wreck Pirates and other unreasonable men are to be dealt with like other irrational Animals Catholick signifies General or Universal But Orthodoae hath a far better Signification
of Truths or the Fucus of Errors hath of late years been the more Epidemical cheat in Print it being sufficiently notorious how that adulterous generation went a whoring after the Press and what a noisome spawn of illegitimate Brats were then generated of the froth of the brain not less numerous then spurious that neither their male-content Parents nor Religion Law Reason nor Charity are able to maintain And although this Treatise be of a more generous extraction yet it is very far from complementing it self with the least vain hopes of exemption from those censures which are common to all men It is worth an Asterisk to observe how infeazable it hath been in all ages for the most Innocent to escape this correction Aristotle that Prince of Peripateciks was accused of being too obstruce and obscure and in many things labours under Galen's reprehension the Dialogues of Divine Plato are taxed for being too confused and immethodical Virgil by some is counted but a shallow and weak witted Poet and by others charged as if he were wholly beholding to Homer for his works and Homer himself is derided by Horace as if he were too drowfie a poet Demosthenes could not please Marcus Tullius in all things Trogus Pompeius doth accuse Titus Livius his Orations of Fiction and Falsities Seneca was nick-named and called Lime without Sand Pliny is compared to a turbulent River that tastes of many things but digests few But to come home to the Worthies of the Civilians Profession for even the most Orthodox Oracles of the Civil Law have not escaped such undue reprehensions As some have affirmed that Accursius had no depth of Judgement Others reprove Bartol for the length of his Distinctions as if somewhat too Monstrous by having too many Members On the other side Albericus is blamed for too much Brevity Baldus for inconstancy and instability of Judgement Alexander for the perplexity of his Method and both the Raphaels for their too much subtilty in some things for their neglect of and carelesness in the more polite Literature in other things for their non-citing and mis-alledging the Doctours And in a word those very ancient and most famous Lawyers that by the profoundness of their Judgement and splendour of their Eloquence have so illustrated the dark and obscure places of the Civil Law as that they nave left the world just cause of Admiration no hopes of Imitation even these have not escaped the like mis-reprehensions For in the Life of Iustinian Perinus out of Suidas hath a large Invective against Tribonian that Architect of the Pandects Besides who more Eloquent then Ulpian who more Pithy then Paulus who more Learned then Callistratus who more Acute then Papinianus who more Distinct and withal Succinct then Scaevola who more Free and Fluid then Caius who more Profound then Africanus who more Delightful and Satisfactory then Pomponius who more Clear and Transparent then Celsus who more Candid and Ingenious then Triphonius Yet all these in their Respective and Incomparable Works have met with the said undue Reprehensions If this therefore shall chance to meet with some waspish humours we must consider the Climate Nor is it more then wants a President or less then needs a charitable Construction which is the worst Revenge can possibly be executed by such as chuse rather to suffer then offend J. C. THE INTRODUCTION OR Preface TO THE Ensuing TREATISE THE Systeme of Jurisdictions is as the Law it self above the Notions of any Private Conception he is something more then of a singular Invention that thinks he can arraign the Verdict of all Ages Nihil dici queat quod non priue dictum fuit And he is more then of an audacious spirit that dares invade the Laws Prerogative Nihil proferri debet quod non prius Constitutum fuit Hence it is that he that writes of that Subject without Book that is that vents his own Notions or sails by the weather-cock of his own Brain not only consiscates the ill-stowed Cargo of his Intellect but also renders himself no less arrogant and presumptuous in the tacite apprehensions of the Prudent then shallow and ridiculous to the most rural Capacities It is therefore nothing dishonourable for Treatises of this Nature to merit the Application of that Liberty which Chrysippus took of whom it is said That he borrowed so freely from Authours that if his name were but expunged or obliterated out of the Title Page there would nothing remain that could properly be called his own It is neither heretical nor disingenious to accommodate old Truths to new Designs so it be done aptly and honestly sine animo furandi for there is that Credit by way of debt due to the Authours that it is no less then Theft to conceal them whereas one half of the debt is paid if you duly quote them yea they become your Debtours if by the ingenuity of your Husbandry you raise their Credit according to the improved value But he that conceals the Patrons of his Assertions is ashamed of his own Craft robs the Dead and châ—ats the Living He that writes Politicks without prefixing his Principles comes short of his Duty But he that writes Law without quoting his Authority presumes beyond his Line he that blushes to be ingenious is ashamed of his own modesty Plato borrowed many things from Pythagoras Aristotle from Plato and Theophrastus from Aristotle This Treatise hath borrowed nothing but what it intends to pay here 's the acknowledgement of the debt full satisfaction with interest may be expected elsewhere sufficient Caution being given in the subsequent Elenchus of the Creditours As Reason is the soul of the Law so Jurisdictions may be styled the faculties of that soul being reduced to act or exercise as they are accommodated to this or that object Consequently therefore to confound Jurisdictions is to obliquitate the Rule of all Humane actions specially if any thing less then Bonum Publâ—cum under a vizor be the Authour of that confusion Mine and Thine divide the world betwixt them in Private transactions they are unhappy Monosyllables but in Publick affairs they may be of most dangerous Consequence Insomuch that Seneca said The world would be quiet were it not for those two ambitious Pronouns This Meum Tuum is here understood Collective for Jurisdictio being of Publick right is not competible with any Private interest exclusive to common good that being beside the design of Jus Gentium whereby Jurisdictions were Originally constituted The flux and reflux of Jurisdictions are from and to the Prince as Rivers from and to the Ocean wherein Transactions of the greatest weight and burden are Navigable And therefore to obstruct the Current of Justice in this or that Channel may force open the Sluces of the Law to a Cataclysme of Injustice and dissolve the Ligaments of the best jointed Body Politick in the whole world And yet if the streams of one Jurisdiction running too rapid
Romans Carthaginians have ascribed it to themselves But the Greeks confidently assert that Minos King of Crete had the first Soveraign Empire over the Sea and thence would fain have it over our Faith also as if Saturn King of Crete seeing his son Neptune to have invented the Art of Navigation gave him the Command of his Navies at Sea which he managed with such success that after-Ages sacrificed to him as to a God of the Sea So that Minos being descended of Saturn by his son Jupiter having afterwards obtained the Superintendency and Guard of the Seas left it to his Successours Notwithstanding which the Syrians Egyptians Cyprians Rhodians but specially the Phoenicians have in all former Ages had the honour of being reputed the most valiant and expert Artists at Sea in Maritime affairs and that from the excellent Conduct and Government of their Navies beyond all other Nations and Countries whatsoever But the Corinthians are supposed to be the first that ever formed or modelled Navies at Sea in a Classical way The Athenians had two chief Magistrates for the Maritime affairs The one was to provide such a number of ships for this or that design each Captain having in charge to see to the Equipping of his own vessel These Captains they called Trierarchy The other had power of setting them to Sea and of ordering them home again at his pleasure whom they called Magistratus rei Nauticae Iurisdictionem habens qui Trierarchis jura reddebat and ordered the several Squadrons to such or such stations and places of Rendezvous and discharged them as he thought fit This was That Thalassiarchus or Admiral of the Athenians who sometimes had more Admiral 's then one at once as Niceas and Demosthenes at other times but one only as Alcibiades Pericles Simon and others Likewise under Alexander the Great and his Successours Kings of Syria and Egypt there were divers Admirals whereof some were Grecians others of other Countries such were Nearchus Onesicratuâ— Beton Diognot and others As also Patroclus under Nicanor and Seleucus of the Syrian Monarchy But most Memorable is that Commission which was by Ptolomeus Philadelphus given to Decearchus as if he had been to take an exact measure of the Circumfercnce of the whole world by a Line of Navigation Among the Phoenicians the Tyrians and Zidonians were the most eminent in all Maritime affairs as was formerly hinted These not only transported from place to place varieties of Merchandizes till then unknown to other parts of the world but also made divers new Discoveries and planted Colonies therein as at Vtick Hippone and Lepte in Africa at Thebes in Greece and Egypt and at Gades and Carthage that Carthage which is in Spain But of all Africk the other Carthage once Lord of the Levant the chiefest for Sea-affairs whose Admiral Hanno by order of the Senate discovered the utmost Coasts of Africk even to one degree of the Aequinoctial And their other Admiral Hamilco discovered all that part of Europe which till then lay as sub-incognito to the Carthaginians In the Eastern Empire he that was high Admiral was styled Drungarius as Drungarius Navigiorum Constantinopoli Drungarius Classis Drungarius mari Praefectus Drungarius Magnus Although some are of opinion that this was a general word with them or a word which signified Generals as well by Land as by Sea Qui Drungis hoc est globis militum imperabant This Magnus Drungarius Classis was a subordinate Officer or Naval Magistrate under their great Duke and was also styled Ameralius which with them was likewise a Common Appellation for Terrene Princes Thus the Tyrant of Babylon was called Amiralius Thus Huntindon speaks of twelve Amiralios Paganorum that were slain at the Siege of Antioch Thus Matth. Paris in Will 2. speaks of 29 Reges Amiralios at once appointed for the Warres by Corbaranus Thus Robert the Monk makes mention of the Son of Cassianus King of Antioch and twelve Admiraldi of the King of Babylon slain in battel whom with an Army he had sent to aid the said King of Antioch Thus the Agents or Ambassadours of the the King of Babylon styled the said King himself Admiraldum Dominus noster Admiraldus Babyloniae mandat vobis Francorum Principibus Salutem Thus Nabuchodonosor King of Babylon was styled Admiralius Thus we also find a Chieftain of a Bow-Militia styled Arcubalistariorum Admiralius So that anciently this word Ameralius or Admiralius did signifie as well the Commander in chief of the Armies by Land as of the Navies by Sea and sometimes the office or dignity of Kings and Princes or other Soveraigns of Supreme Authority but this you are to limit only to the Turks and Asiaticks Again In the Eastern Empire there were no less then Four Admirals or Amiraei there properly so called at once for that Mahomet or rather Muhammad appointed Four Praetors in the Kingdome of the Sarazens which were called Ameraei And that Muhamed a little before his death constituted Four Ameraeos qui debellarent omnes ex genere Arabum Christianos These Four Ameraei were also called Quatuor Admirantes And of these Four Admirals with the Sarazens the one had the Sea-Command of Egypt and Africa two others thereof divided the Spanish Coasts betwixt them and the Fourth had Palestine and the Coasts of Syria But many are of opinion that before Charlemaigne the Sarazens had but one Admiral viz. Addala after him Aron and after him Mabarmad which Charlemaigne having war with his Brother Haldala and being more then half conquered by him condescended that the Sarazens should have two Admirals for one And Turpin who was Secretary to the said Emperour Charlemaigne acquaints us with an Admiral of Babylon vvho came to the succour and relief of the Sarazens of Spain against the French as also of another Admiral viz. Galaffre a very potent Favorite with the said Emperour Under the Roman State when Pompey banded with Caesar for the Soveraignty there were several Admirals well nigh as many as the Nations were which aided either party with Shipping as the Egyptians Asiaticks Rhodians Syrians Achaians and others over whom M. Bibulus was Lord high Admiral But when the Government was reduced to an establishment the Admiralty was setled also which not long after was again divided into two parts for there was one Admiralty at Misene and the adjacent Poâ—â—s for the South another at Ravenne towards the East which two for distinctions sake they called the High and Low Seas each whereof was under the Command of his proper Admiral whom they called Praefectus Classis as the Captains of their Ships were known by the style of Navarchi It is also evident that in the Roman Empire there was anciently a Company or Society of Owners and Masters of Ships as also of Merchant-Adventurers at Sea in the Isle and City of Rhodes which above all other places in the world had once the Prerogative