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
where scituate the strange Tree that grows on that Island 36 Fraight how to be apportioned when the Voyage is imperfect 166 France when first an Admiral there 20 21 G. GEnuises famous for their Maritime Laws 13 Gold Silver Precious Stones and the like found in on or nigh the Sea in what cases may be kept by the Finder and in what cases not 190 192 194 Goods found that belonged to shipping how they were to be disposed of in Ancient times 192 193 Goods cast over board to lighten the ship no Derclict 188 189 Graecians by whom they were first Civilized 10 11 H. HAnnibal high Admiral of the Carthaginians 12 Hanno Hamilco famous for their Naval discoveries ibid. Hercules Pillars why the Motto of Non ultra engraven thereon 9 I. IEnnings Case against Audley 116 Imperium what the several degrees thereof in the Law 57 to 65 Impleaders of Marine Causes in a wrong Jurisdiction punishable by the Admiralty 31 32 Interdictum at the Civil Law how it differs from Prohibitio at the Common Law 71 Joh. Rex his Ordinance made at Hastings touching the Soveraignty of the Kings of England in the Brittish Seas 30 Ionean Sea where and why so called 11 Jurisdiction the Etymon of the word with the several kinds and degrees thereof in Law 56 to 69 Jurisdiction of the Admiralty of England the great Antiquity thereof 22 to 36 Jus Gentium the Original thereof 53 Jus Humanum Civile what and how introduced 54 Just the divers acceptations of that word in Law as in reference to Fictions 83 L. LAding or ships Lading in part disposed to supply the ships occasions the Law in that casâ— pag. 179 180 Law the true definition thereof 51 The Law of Nature of Nations The Civil Law The Law Sacerdotal and Canon 52 to 55 Law of the Sea or Law Admiral the great Antiquity thereof Laws Imperial their use and exeellency above other Laws in most Kingdomes 51 52 Laws of the Heathens fathered on their Heathenish Idols 53 Leigh's Case against Burley 135 Lycurgus Legislator to the Lacedemonians 53 Lye the lye given to or by either the Skipper or Mariners the ancient penalty in that case 173 M. MAhomet Law-giver to the Arabians 53 Manumission what and how it differs from Emancipation 65 Marcelleis famous for Marine Constitutions 13 Mariner's Case against Jones 133 Mariners their duty in case of disaster to the Vessel 102 Not to desert the ship till the Voyage be ended 165 Not to go out of the ship without the Skippers leave 167 In what case they may 178 If hurt or wounded in what case not to be healed at the ships charge 167 168 Messine where scituate the people thereof famous for their Sea-Laws 13 Minos he gave Laws to the Cretians 53 Minotauri Fabula why so called 8 Murderers of ship-broken men their strange and cruel punishment 185 N. NAmes of ships and Skippers to be engraven on the Buoyes of the Anchors 195 Navigation the Antiquity thereof to whom Originally ascribed 7 to 12 Nearchus Admiral to Alex. the Great 15 Neptune why feigned to be God of the Sea 14 Niceas Another Admiral to the Athenians 15 Noah how long since he arrived at Ararat 7 North-Starre its use in Navigation by whom first invented 10 Numa Law-giver to the Romans 53 O. OLeron where scituate most famous for their Sea-Laws and Maritime Constitutions when and by whom first published pag. 13 14 Onesicratus Admiral to the Assyrians 15 P. PAtroclus Admiral to the Syrians 15 Palmer's Case against Pope 94 111 135 Partnership in a Fishing design the Law in that case 182 Paeni or Carthaginians originally Phoeni or Phoenicians 12 Phoenicia where scituate the People thereof supposed to be the first Mariners Merchants and Astronomers As also the first Inventors of Arithmetick and the Art of Navigation 10 11 Pilots the punishment of an unskilful Pilot in case of Damage thereby 180 The punishment of treacherous Pilots 186 187 The strange punishment of their Abettors 188 Pirates their punishment 122 196 Who supposed to be the first that purged the Seas of such Vermin 8 Pisa the Inhabitants thereof famous for their Maritime Laws 13 Poles who first descryed the two Poles 11 Pericles another Admiral of the Athenians 15 Pontus the reason why the Sea is so called 9 Port and Port-Town how they differ 112 113 Prohibition what the Original thereof with its several kinds causes and effects in Law 72 to 81 Properties created at Sea Super altum mare whether cognizable in the Admiralty 31 R. REd Sea who there first Invented ships and sailed thereon and why called Erithraeum mare 12 Relegatio what how it differs from Deportatio 58 59 Reâ—â—er Crimbald the French Admiral his 〈◊〉 and illegal attempts on the Brittish Seas in derogation of the Soveraignty of England 28 29 Rhodes where scituate their precedency to all other Nations in Marine Constitutions 9 Rhodian Law generally referred to by the Emperours in decision of Maritime Controversies 10 19 20 Richard the First the first that published the Sea-Laws of Oleron and when 14 Ridley's opinion touching Prohibitions 78 79 Roman Admirals 18 19 S. SAles of ship or Lading or any part of either made by Skippers or Mariners without special Procuration in what cases good or not good in Law 164 165 179 180 Salvage how to be paid and satisfied 166 183 Sarazen Admirals 16 17 Seleucidae over the Syrian Monarchy why so called 13 Ship forced from her Cables and Anchors the Law in that case 194 195 Not to stay for a sick Mariner 168 When broken the Mariners not to be hindred from saving the goods 182 183 In King Edgar's time 400 Sail for the Guard of the Brittish Seas 27 Sick Mariners how to be provided for 168 And what wages such may challenge 169 Skipper's duty before he leaves a Port. 164 How to finish his Voyage in case of some disaster to his own ship 166 Slings for hoysing of goods 171 172 If damage happen thereby who must make it good 181 Solon Legislator to the Athenians 53 Soveraignty of the Brittish Seas publickly acknowledged by the Agents and Procurators of no less then ten Neighbour-Nations Kingdomes and States at once to be de jure in the Monarch of Great Brittain 28 Striking a ship-board whether by the Skipper or Mariners the Law in that case 173 Statutes 13 R. 2. cap. 5. 15 R. 2. cap. 3. 2 H. 4. cap. 11. 27 El. cap. 11. touching the Jurisdiction of the Admialty 141 to 154 Super altum mare properly within the Jurisdiction of the Admiralty 91 to 98 Supplicatio what it imports in Law 63 Surmizes Suppositions or Suggestions of places beyond Sea to be locally as within the body of some County within the Realm Variety of Opinions touching the same in the Common Law-Books 80 Susans Case against Turner 91 115 130 Sydonians famous and able Mariners 11 16 T. TAckle ship-tackle pawned pledged or hypothecated for the ships
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
over-flow its banks to the inundation of another it 's most just and safe seasonably to reduce them to their proper Channels Were it true what Bald. says Jurisdictiones penes Principes residere quasi Scabellum the Clashing of Jurisdictions might be an offence only to the Footstool of Majesty but if Jurisdictio ejus ossibus inhaeret as Tapia and others assert then it may be of an higher nature Where divers persons are concredited with Juridical Trust or Authority there the Jurisdiction is either Separate or Concurrent or in Common A Separate Jurisdiction may appertain to a certain number of persons privative or exclusive to all others whereby they are externally qualified to take Cognizance either of other Persons or of other Causes or of other Quantities or of other Places then what other Judges are Juridically qualified for A Concurrent Jurisdiction is that which appertaineth to many Cumulative as when the same Cases are equally subjected to the Cognizance of many Judges yet so that each of them whether one or more by himself or themselves may in solidum hear and determine the Case and he or they only may take Cognizance thereof to whom address by the Complainant is first made and before whom the Suit is first Commenced for in such Cases prevention takes place and in all Competent Jurisdictions wherever the Action is first Commenced there Judgement ought to be given in the Case Thus the Emperial Chamber by an Ordinance there made hath Concurrent Jurisdiction with the Emperour himself save in matters relating to the Fee or Inheritance of the Emperial Crown A Jurisdiction in common appertaineth to many and that cumulative as to all of them so to all of them together and complexive insomuch that one of them may not proceed without the other the Law obliging all of them to be present together in Judgement But whatever Jurisdictions there are in a Nation of how many kinds degrees orders or subordinations soever This is a sure Rule and without Exception Jurisdictiones non sunt confundendae The Bonum Publicum is more Rationally stated and more concerned in rhe equal administration of Justice then to admit the least Confusion in that which is the only Expedient to prevent Confusion for Justice whose office it is not only to doe that which is equal but also to remove that which is unequal is never illustrable through any Mediums that hath the least tincture of Injustice and although for its material Object it ever hath some one External action or other as suppose Equality between Payment and Debt yet for its Formal Object it ever hath Honesty and Conformity unto at least an adequate Consistency with Natural reason comprised in that external Act. Of all Jurisdictions That of the Admiralty or Sea-Affairs hath been the least beholding to the Auxiliaries of the Press in defence of its Ancient Rights and Priviledges against such as would without offence impair the same The Reason probably may be either from the paucity of such as are more specially therein concerned in respect of that numerous Host or Retinue that in fealty to the other Jurisdictions are most prompt Notaries on all occasions oâ— rather in that it is of that excellent use in all Maritime Dominions that the Friends thereof are well assured its worth would be better valued if the want thereof were more smartly felt The Ensuing Treatise is to assert the Rights thereof in part the design of whose highest Ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the Rights and Priviledges of so Ancient and Necessary a Jurisdiction then to convince any by Arguments less perswasive then that Interest whereon some meâ—s Prejudice may be founded Though Merchants and Mariners qua tales be not such able Lawyers as to know how their Maritime Cases should be determined according to the exact Rule of Law yet they are such able Supports to any Nation or Kingdome that they are not to be left sub incerto where or in what Tribunal to find that Rule under such a quality of Juridical Competency as not to run hazards by Land as well as by Sea yet this under the Notion of a Maritime Cause when possibly it is of another Element may not be strain'd in favour of one Jurisdiction in derogation of another nor under the notion of Merchants when posibly they are at best but quasi Mercatores For not every one that buyes and sells is thence presently to be denominated a Merchant but he only who in the way of Trade and Negotiation deals in Moveables for gain or profit upon design of disposing thereof in the way of Commerce either by Importation Exportation or otherwise in the way of Emption Vendition Barter Permutation or Exchange So that he is not properly said to be a Merchant who once and no more doth buy Commodities that he may sell the same for it is not one Act that doth denominate a Merchant but a certain Assidutiy or frequent Negotiation in the Mystery of Merchandizing unless he be matriculated or entred as such in the Society or Corporation of Merchants He also may be said to be a Merchant who by common fame and in the opinion of men is commonly reputed a Merchant They that buy Wares or Merchandizes to reduce them by their own Art or Industry into other forms then formerly they were of are reputed rather Artificers then Merchants unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby in which case they may be said to be rather Merchants then Craftsmen or Artificers And such as buy wares for present money that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought are reputed rather Usurers then Merchants But Bankers Money-changers and such as deal by way of Exchange are reputed under the notion of Merchants For whereas it is formerly said that a Merchant deals only in Moveables understand that Money is comprised under that notion So also are Ships The Isle of Rhodes anciently was the only Mart of Trade and Commerce in the whole world Antiquity describes that Isle and the City thereof as the only Metropolis of Merchants who though they have a Latitude as wide as the Ocean in point of Trade and Negotiation yet they may not in time of war transport Prohibited Goods or Commodities to an Enemy though designed for the Redemption of Captives Yet such is the Reputation of Merchants that Credit is generally given without the least distrust unto their Count-Books unless some Legal Exception may be raised against the same or other just cause of suspicion And whereas each Merchant hath his peculiar Mark wherewith his Goods are usually marked by way of
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
thereof or is Naturalized a Denizon of that Countrey Reprizals may not be Exercised on Pilgrims or such as travel for Religion sake nor on Students Scholars or their Books or other Necessaries Nor on Ambassadors or their Retinue nor on Women or Children Likewise Goods found with a Merchant of another place then that against which Reprizals are granted albeit the Factor of such Goods were of that place are not subject to such Reprizals nor ought the presumption of the Place though strong enough for Condemnation where proof of an innocent property failes prevail against fuller Evidence Ecclesiastical persons are also by the Canon Law expresly Exempt from Reprizals So likewise such persons as by Storm or Stress of weather are driven into Port have an Exemption from the Law of Reprizals according to the Jus Commune what the Edict of any particular State in that case may doe is not here determined But a ship or Goods belonging to the Subjects of another Prince against whom Reprizals are granted coming into a Port of that State issuing such Letters of Reprizal not by storm or stresse of Weather but to avoid Confiscation for some delict committed at home in their own Countrey may be subject to Reprizals in Port. This Right of Reprizals which as some would have it answers to the Saxon Withernam is not only admissable in cases of denyal or protelation of Justice as when Judgement may not be had within the time prescribed by Law but also when Judgement is given plainly against the Law and no Remedy to be had against such wrong Judgement either in the ordinary course per viam Provocationis A Appellationis ad Jâ—dicem superiorem nor in the extraordinary per viam supplicationis ad principem understand thus when the matter in Controversie is tam quod merita quam quod modum procedendi not Doubtful for in Doubtful matters the Presumption is ever for the Judge or Court But a wrong Judgement in matters not Doubtful must be redress'd one way or other specially if such be given to the prejudice of Foraigners over whom the Authority of a Judge though in his own Jurisdiction is not so exactly the same as over his own Subjects And although it be a Rule in Law Res judicata pro veritate habetur yet it is as true that Judex male judicans pro injuria tenetur nor doth a Judgement or a Definitive diminish the merits though it may alter the Case Therefore Paulus the Lawyer held that a Debtor that is a Debtor indeed though Judicially absolved yet by nature remains a Debtor still and therefore when this happens to be a Foraigners Case he may if all other Legal Expedients fail for redress have recourse to the Jus Gentium which holds conformity with the Law of Nature Subjects indeed may not by force oppose the Execution even of an illegal Judgment nor forcibly prosecute their denyed rights and that by reason of the Energie of that Power and Authority which is over them the Subjects obedience being in the Emphasis of the Magistrates Authority But yet Foraigners can fly to the Jus Gentium to Right themselves by way of Compulsion which they could not effect by any Legal prosecution so long as their Right is reparable by Judgment according to Law but infeazible by reason of the denegation or protelation of Justice contrary to the regular proceedings of Law It seems at least Summum jus if not plus justo that the Goods of his Innocent Subjects that denyed Justice should be taken and seized for that â—njustice wherof they appear no more guilty then the original Complainants The truth is this is not introduced by the Jus Naturae but yet being commonly received by Custome and National practise is now become qualified for an allowance or tolleration by the Jus Gentium whether this were sufficient for Nestor to plunder the Elidenses for taking away his Fathers horses or for others on the like peccadilloes in this Age to Centuple their Losses on their Innocent Neighbours for their Princes omissions under colour of Letters of Marque is easier to question then proper to determine But whether Christian blood should be ingaged in the quarrel which originully was but of Private Interest would soon be decided where no Military man hath the Chair By the Law of Nations all the Subjects of the Dominion doing wrong whether Natives or Strangers making their aboad there are within the reach of Reprizals whereby 't is evident that Strangers not permanent there nor under any of the aforesaid qualifications are excepted for Reprizals being in their nature quasi onus Publicum are introduced for the satisfaction of Publick Debts to which Strangers that are meerly such are no way obliged indeed to the Laws of the Land where their present being is they are subject but yet are not Subjects And whereas it is formerly said that Ambassadors are Exempt from Reprizals as also their Retinue and Goods understand it not of such as are Commissionated to any Prince or State in enmity or actual hostility against that Prince who issues such Letters of Marque Lastly by the Law of Nations in matters of Reprizals whatever is taken immediately upon the Capture accrues ipso facto to the Captor in point of Propetty so far as the Original debt or damage with all incident costs and charges doth amount unto and the surplus to be restored which Equity in this case the Venetians long since used to the ships they took on this accompt from the Genuises But by the Civil Law Monitions or Citations after a seizure ought to issue and the parties concerned are not to carve for themselves but submit the whole matter to a Judicial Examination in order to their Satisfaction which ought to ballance the Damnum Emergens but not to exceed by way of Supplement in reference to the Lucrum cessans for the Law of Reprizals though otherwise rigid enough yet Restitutio in integrum is its ultimate design and as no man ought to be enriched by anothers Losse so no man ought to gain by his own Losse when it may not be repaired otherwise then by Remedies extraordinary if not unlawful Having glanced at some general Heads of the Law of the Admiralty quasi in transitu by way of Introduction the least whereof in its due Latitude requiring more Volumes then are Pages in this and therein the Custom paid with other ordinary Port-charges usual in such cases It may now be free to sayl from the Law to the Jurisdiction of the Admiralty being the Port of Discharge in the Design of this Adventure The Wind seems Fair the Seas well purged of Rovers and Nereus reinvested with his Trident The Ensurance therefore need run but Low the Danger is not great now that we have Peace with all Our selves yea the Loss is but small though the Ship miscarry so the Cargo be preserved for that 's of value indeed a Jewell without which the whole World would
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-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
full of that Office And so proceeds That in Rich. 2. it was brought to a Weldy that 's the Epethite it pleases him to afford it Model Being Uncertain rather then Infinite before as the said Authour is there pleased to determine For says he the Bounds were ever straighter much then some may imagine Also that they were again disputed in Henry the fourth Q. Elizabeth and King James And then he is pleas'd most facetiously to add That it lies more open to the Common Law then to the Wind. Yet withal he doth not there conceal but that besides the Laws of Arthur the Brittain and Edgar the Saxon we have some Records of Custome by Sea as well as by Land with Priviledge to some below the King before the Norman whom they make the Founder yet he was in the said Authours judgement but Patron of the Ports and Wardens of the Sea And the same Authour speaking of the Sea-statutes of Rich. 1. how that they were made de Communi probarum virorum Consilio refers to the very expression of the Charter it self in Hovenden Wendover or Matthew Paris who doth add that per Consilium Magnatum there were made Justiciarii super totum Navigium Angliae c. which with divers Records of Henry the third may be added to the Admiral or Saxon Aen Mere eal Over all the Sea To which much might be added from the Rolls of Hen. 3. and Ed. 1. But this that hath been said may suffice to satisfie some and convince others touching the Antiquity of the Office and Jurisdiction of the High Admiralty of England For the Utility of this Ancient Jurisdiction of the Admiralty in this Kingdome of Great Brittain if you have retrospect to the Honour thereof in Precedent Generations Antiquity can witness with what effectual success if not to the nonplus of Neighbour-Nations the Dominium Maris Brittanici hath been from Age to Age Judicially asserted If you consider the plenty and splendour of a flourishing Kingdome the present Generation cannot yet forget to give ample testimony thereof in reference to the Trade and Commerce of this Nation And if you will not be so irregular as to deny the Consequence that naturally flowes from these Premises you cannot but inferre this Positive Conclusion That the succeeding Generations are like to suffer as well an Eclipse of their Honour as an Abatement of interest without the influence of that Jurisdiction Insomuch as the late Cardinal save one of France did wisely according to the last cited Authour dispose or rather retain that Office as the best Jewel of that Kingdome which yet must yield to this But in a word the Jurisdiction of the Admiralty of England may not unaptly be compared to that Tree in the Island of Fierro being one of the Sept. insulae of the Canaries which as Historians tell us doth with the droppings of his leaves yield water for the sustenance of the whole Island It is farther added that the Moors having taken that Island from the Christians attempted to fell down that Tree but each blow recoyled on the striker The former part of this strange Relation with a small variation passes for a Truth as known unto and acknowledged by most of the Ancient Travellers and Geographers The other part being probably but a fabulous Addition To keep hands off has not as the other the Credit of an Application To conclude if this Chapter seems to a Genius more ratified by acuteness for Apprehension then endued with Patience for Expectation more prolix then may be regularly consistent with a Treatise only by way of Summary view let him only consider that where Eagle-eyes who are seldome dazeled with too much light are to be dealt with it may be less dis-ingenious to borrow a Point of Expatiation then to remain too much in debt to the Truth for want of room to display her Beams in CHAP. IV. of Persons Maritime As also of such Things as are properly Cognizable within the Jurisdiction of the Admiralty of England And in what method it proceeds to Judgement THere are but three things that seem specially to illustrate the splendour of a Jurisdiction viz. Sceptrum Majestatis or the Power and Legal Authority of the Prince as to the Constitution thereof Codex Administrationis or the Right Administration of Justice and Gladii potestas vel Gladius Executionis or the Coercive power That Jurisdictions thus constituted are inter Regalia Principum no person not dis-principled will deny So as what was long since the Law as to the Emperour in point of Jurisdiction within the Empire Imperator quoad Jurisdictionalia Dominus totius mundi appellatur is the same and as true in absolute Kings and Princes within their own Kingdomes Dominions Principalities and Territories And no wonder in that Kings and Princes tantum possunt in suo statu quantum Imperator in Imperio Some without lisping say that a King in his Kingdome hath a farre greater right and interest then the Emperour hath in the Empire for that a King is Loco Domini and his Kingdome is more assimilated unto hath a greater resemblance with that which is Dominiū properly so called then with that which is but simply Regimen The Emperour is not Proprietarius but chief Governour of the Empire And that only by Election not by Succession as the other Now as the Seas belong to Princes in respect of Jurisdiction and Protection So also in them properly resides the Right and Power of Commissionating Ministers of Justice for the due Exercise and Administration thereof in decision of all matters whether Civil or Criminal within their Cognizance according to the known Laws of the Sea not contradicting the Statute or Municipal Laws of that Kingdome or State whereof the said Prince is next and immediately under God Supreme As to Persons Maritime it might be considered who they are that more peculiarly are of Marine capacities and properly may be said to be within the Jurisdiction of the Admiralty what their Rights Priviledges and Immunities are and what their Office or Duty respectively is Likewise as to Things properly Maritime it might be considered either as they be in respect of the actions thence arising Civile and respecting only Commodum Privatum between party and party whether it be Contractus or quasi Contractus either by any Perpetual known Rights or by some Casual Occurrence Or Criminal and respecting the Fiscus in reference ad utilitatem Publicam but that the design of this Treatise is not to expatiate in the Law on any of these but only as most adequate to a Summary view of the Admiral Jurisdiction to touch quasi in transitu what referres to each of these under its own proper head and no farther then may be of use for the clearer discovery of the subject matter of the Jurisdiction of the Admiralty of England without engaging into Controversal points chusing rather in a Treatise so compendious
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
the premises it may be no digression to insert a word by way of caution to the imperfect Notionist that he would not hence infer as if the Law did feign impossibilities because it supposes the living to be dead and the dead to be alive the absent to be present and the present to be absent and the like For although they would indeed be impossibilities if only considered simply in an identity of fact and time of person and of place without their right and due diversifications yet they are not impossibilities being rightly according to the Law of Fictions distinguished in respect of fact time person and place together with such transactions translocations transtemporations and transpersonalities as according to Rules of Law are requisite to every Fiction that enures to any effect in Law For that which may seem Deceptio intellectus and by mis-apprehension possibly be taken for an impossibility in the precedent instances of a Legal Fiction is in truth nothing but that defect or absence of verity in the person act thing manner time or place feigned Indeed to look for Truth in a Fiction is to expect an impossibility with as much vanity as some men do for Revelations if it were possible that there could be the least verity in the thing supposed it would immediately cease to be a Fiction Legal Fictions may be aptly styled The just Policies of Law to attain unto the end and effect of Law by remedies extraordinary only where the ordinary means do fail This therefore is no warrant to fly to Fictions though Legal much less to others as remedies extraordinary when the ordinary means by Law provided may be used This point of Fictions having now been put to the touchstone of the Law and impartially weighed in the ballance thereof it plainly appears what kind of Fictions they are that are legally qualified to take place in the Judicial proceedings of the Civil Law in Forraign Nations as also in this Kingdome which before the late unnaturall and intestine Wars was and now seems to be for Religion Justice and Commerce Regina Insularum totius Orbis CHAP. VIII That the Cognizance of all Causes and Actions arising of Contracts made and other things done upon the Sea is inherent in the Jurisdiction of the Admiralty THis Truth in the Law is not denyed in the Judgements of men though it hath not wanted at least a seeming Contradiction in Practice Witness Susans Case against Turner in Noys Reports where it is said That if a Suit be 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 Such and the like begat that complaint of the Admiralty which gave the Lord Coke occasion to assert in these words following viz. That by the Laws of the Realm the Court of Admiralty hath no cognizance power or Jurisdiction of any matter of contract plea or querele within any County of the Realm either upon Land or the Water but every such contract plea or querele and all other things rising within any County either upon the Land or the Water ought to be tryed and determined by the Laws of the Land and not before or by the Lord Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the Water infra fluxum refluxum aquae but whether it be upon any Water within any County Wherefore we acknowledge that of contracts pleas and quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had thereof by twelve men the Lord Admiral hath and ought to have Jurisdiction This was the Answer long since given to an Objection made by the Admiralty But the Objection was That whereas the Cognizance of all Contracts and other thiags done upon the Sea belongeth only to the Juisdiction of the Admiralty the same are made tryable at the Common Law by supposing the same to have been done in Cheapside and such like places So that the sinew of the Objection is That things done upon the Sea being cognizable only in the Admiralty are made tryable elsewhere by supposing them to be done in Cheapside and such like plaees The said Answer speaking nothing as to the said manner of supposing seems not to enervate the said Objection The Answer distinctly declares and sets forth where and in what places the Jurisdiction of the Admiralty hath not Cognizance viz. not upon Land or Water within any County But why according to the said Objection things done upon the Sea and belonging only to the Admiralty are made tryable at Common Law by supposing them to be done in Cheapside and such like places seems yet to be resolved Statutum simpliciter loquens debet intelligi de his quae vera sunt secundum veritatem non de his quae sunt secundum Fictionem The scruple touching the surmize implyed in the supposition mentioned in the said Objection doth arise from the fact so supposed as whether solid enough to lay foundation for such superstructures as are built thereon It is acknowledged That of Contracts made and other things done upon the Sea or any part thereof which is not within any County the Lord Admiral hath and ought to have Jurisdiction but if this Super altum mare should by a meer surmize or suggestion be translocated in operation of Law and so thereby become as it were Infra Corpus Comitatus the said acknowledgement would seem to be disacknowledged and the said Objection would seem to be an Objection still Veritatis congressus invictae est major veritas And he that sues an Admiral Cause in another Court ought to withdraw it and to fine to the King Brownlow Reports That if a Bond bear date Super altum mare it must be sued only in the Admiral Court Whether then an Obligation or other Contract made on board one of the Frigots of the Navy Royall or the like in the Straights may be tryed in other then the Admiral Court by alledging or supposing the same to have been made in the Straights in Islington in the County of Middlesex seems to be the question for the very truth of the fact as to the place of making such Obligation in the Straights or Super altū mare seems not to alter the Case if the place so suggested is not to be traverfed it being as easie and as feasible to suppose and suggest the said Frigot and the Straights as Burdeaux in France to be in Islington But the great Oracle of the Law assures us That things done out of the Realm may not be tryed within the Realm by the oath of twelve men It is reported in Palmers Case against Pope That Jennings libelled in the Admiralty against one Audley upon a Contract laid to be made apud Malaga infra
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
the Bill to be within the Ward of Saint Mary Hill And a Prohibition was granted upon a Suggestion that it was good for the ordering of Ships A Consultation was granted hut afterwards upon good advice and opening the matter a Supersedeas to the Consultation wâ—s granted quod Prohibitio stet for the wrong and fact is said to be within a County and Ward and for that it does not belong to the Admiral for all Civil Contracts or Trespasses done upon the River of Thames or any other River that is proper to the Common Law are tryable in that County which is next to the Bank and that side of the River where the Fact was done but in Criminal matters upon any River that is given to the Admiral by the Statute of 28 H. 8. cap. 15. Thus it is reported But the Resolution aforesaid is That in cases arising upon the Thames the Admiralty hath Jurisdiction specially in the point mentioned in the Statute of 15 R. 2. And no Prohibition to be granted CHAP. XII Of the Jurisdiction of the high Admiralty of England Stat. 13 R. 2. cap. 5. Stat. 15 R. 2. cap. 3. Stat. 2. H. 4. cap. 11. Stat. 27 Eliz. cap. 11. THE Exposition Explanation and Interpretation of the Statute-Laws being a right properly inherent in the Supreme Authority that enacted them and in the Reverend Judges the Lex Loquens or voice of them there remains no more to the good people of his Majesties Dominions then to yield all obedience to them and thereby claim their birth-right in them In order whereto it is every mans prudence as much as in him lyes to clarifie his Intellect yet with such sobriety that as Ignorance may be no Obex to his Obedience on the one hand so also that super-curiosity may not quite dazle his Intellect on the other It is not ignorantia juris but facti that can excuse any And though in a sense it may properly be said of Humane as of Sacred Laws That they are not of any private interpretation whose Oracles alone are intrusted with the exposition thereof yet it is every mans duty to know the Rule of his Duty And he that will understand that he may obey aright must have a right understanding of what he is to obey Upon theâ—e Considerations it is most clear That it well becomes all such who may be concerned in the subject matter of this Treatise to have right-informed apprehensions not to make private Interpretations of the true intent and meaning of the said Statutes in order to a clearer prospect of the Admirall Jurisdiction It is enacted by the Statute of 13 R. 2. cap. 5. That the Admirals and their Deputies shall not meddle from henceforth of any thing done within the Realm but only of a thing done upon the Sea as it hath been used in the time of the Noble Prince King Edward Grand-father of King R. 2. Whence it hath been inferred that the Jurisdiction of the Admiralty is confined only to things done upon the Sea The said Statute says That the Admirals shall not meddle with any thing done within the Realm but only with things done upon the Sea as it hath been used in the time of King Edward Grand-father of R. 2. that is in the time of Edward the Third to the usage in whose days the said words seem to have reference as Limitative with a Referendo And admitting the word duly if not by the Letter of the Statute yet by construction of Law it may seem almost as equally difficult exactly to know what was the usage as what was the due usage or what was in this point duly used in the days of Edward the Third only with this difference that an usage being matter of Fact there may be Rei evidentia in that case to prove it self whereas to know what was duly used may be matter of Law and capable of diversities of opinion consonant to various perswasions And yet until it be known what was in this matter the due usage in the time of Edward the Third it seems not indubitably obvious to every running Intellect to conceive what may be the full scope and true intent or meaning That the Admirals shall not meddle c. but only with things done upon the Sea as it hath been used in the time of King Edward Grand-father of King Richard the Second For the clearer apprehension wherof it may not be impertinent under submission to better Judgements and without presuming on any thing quod est supra nos as formerly hinted to inquire a little what was used or duly used in this point of Admiral Jurisdiction in the days of the said Edward the Third Grand-father to King Richard the Second To this purpose the Learned Mr. Selden in his impregnable Treatise of the Dominion and Soveraignty of the Brittish Seas le ts us to understand That it appears by Ancient and Publick Records containing divers main points touching which the Judges were to be consulted with for the good of the Kingdome in the time of King Edward the Third That Consultation was had for the more convenient guarding of the Sea For the whole Bench of Judges were then advised with To the end so runs the Record That the Form of Proceedings heretofore ordained and bâ—gun by Edward the First Grand-father to our Lord the King and by his Councel at the prosecution of his subjects may be resumed and continued ofâ—ngland â—ngland and the Authority of the Office of Admiralty in the same as to the Correcting Expounding Declaring and Conserving the Laws and Statutes long since made by his Predecessors Kings of England for the maintaining Justice among all people of what Nation soever passing through the Sea of England And to take Cognizance of all attempts to the contrary in the same and to punish offenders and award satisfaction to such as suffer wrong and damage which Laws and Statutes were by the Lord Richard heretofore King of England at his return from the Holy Land interpreted declared and published in the Isle of Oleron and named in French Le Ley Olyroun That which Mr. Selden takes special notice of and commends to our chiefest Observation is what we find in these Records touching the Original of the Naval Laws published at the Isle of Oleron The said Statute of 13 R. 2. makes mention of the usage in the time of King Edward Grand-father of R. 2. who was Edward the Third in whose Reign according to this Record not only the Form of Proceedings ordained by King Ed. 1. and his Councel were to be resumed and continued for the retaining and conserving the Authority of the Office of Admiralty as to the Correcting Expounding Declaring and Conserving the Laws and Statutes made long before by the Predecessors of the said King Edward the First for the maintaining of Peace and Justice among the people of what Nation soever and to take Cognizance of all attempts to the contrary to punish offenders
less according to the pleasure of the Admiral This hath Mr. Selden the Lawyer as well as Mr. Selden the Antiquary there is far less feasibility of contesting with him then of gaining honour by subscribing to his authority Wherefore upon an Interestless perpension of what hath been only touch'd not so largely handled as might have been in a set Treatise proportionable to this subject matmatter the Jurisdiction of the Admiralty may be found not only a Body of more Solidity then to dissolve only into Water and not only a Jurisdiction proceeding by such Laws as have from age to age successively been owned by the Supreme Authority of this Nation but also such a Jurisdiction as though it hath its due bounds yet possibly according to what hath been duly used in the time of King Edward Grand-father of King Rich. 2. not so exceedingly straight-laced as some in the late Licentious times imagined specially if in addition to the Premises they consider what hath been formerly said to have been urged by Haughton viz. That the intent of the Statute of 13 R. 2. cap. 5. was not to inhibit the Admiral Court to hold Plea of any thing made beyond Sea but only of things made within the Realm which pertains to the Common Law and is not in prejudice of the King or Common Law if he hold Plea over the Sea And that this was the intent of the Statute appears by the Preamble And in the same Report it is farther said That Walmesly and Warburton Justices agree That if a thing be done beyond Sea as if an Obligation bears date beyond Sea or be so Local that it cannot be tryed by the Common Law if the Admiral hold plea of that Prohibition shall not be awarded for it is not to the prejudice of the King or of the Common Law By the Statute of 15 R. 2. cap. 3. It is Enacted and Declared That the Court of Admiralty shall have no cognizance of Contracts Pleas and Quereles or other things done within the Bodies of the Counties as well by Land as by Water Nevertheless of the Death of a man and of Mayhem done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiralty shall have cognizance From hence it hath been observed by way of Inference how Curious the Makers of this Statute were to exclude the Admiralty of all manner of Jurisdiction within any water which lyeth within any County of this Realm possibly it hath not been so exactly observed by way of Redress how unfortunate specially of late years the same hath been in having its Jurisdiction impeded and obstructed in Waters without any County of this Realm by the Prohibitory Consequences of a Surmize or Suggestion when in rei veritate the matter was otherwise then surmized or suggested This is that Statute whereof mention is made in the precedent Chapter touching the mistake of the word Bridge instead of Points It seems something more then strange in Nature to find a main stream or great Rivers whereof this Statute speaks beneath the Points which beak out into the main Sea as Navigators well know when they double the Point the main Sea or great Rivers being commonly emptyed into the main Ocean above not beneath such Points and usually cease to be streams or Rivers before the Waters thereof reach the said Points And it were no prejudice if it were ascertained what Havens and Harbours may be held as within the Bodies of some County because possibly Geographers know not with what Counties to incorporate Milford-Haven Mounts-Bay Tor-Bay Plymouth-Sound and the like The Law in express tearms hath put the difference Res facta in Portu non facta in Terra The Law knows no preternatural confusion of Elements Lex semper imitatur Naturam Time was olim meminisse dolebit in the late Licentious days when the Admiralty of England between Land-imagined and the Sea-County-corporated could scarce keep above water But now that Justice once more looks like it self and suum cuique tribuitur miraculously arrived instead of sic volo sic jubeo c. Insomuch that it might then be as truly as sadly said Terras Astraea reliquit yet now that Justice by an over-ruling hand of Divine Providence is again turned into its ancient and proper Channel and it being well known to the whole world of what lustre and value the Jewel of the Admiralty is when well set in the Diadem or Crown of Great Brittain it may not now be unseasonable to alledge what is asserted as is aforesaid to be of ancient Record viz. That not only in the days of 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 Consonant to what was resolved in Sir Hen. Constables Case That the soyl betwixt the high and low Water-Mark may be the Subjects but when covered with water the Admirals Jurisdiction reaches to it By the Statute of 2 H. 4. cap. 11. It is Enacted That the Statute of 1. 3 R. 2. cap. 5. shall be firmly holden and kept and put in execution This Statute therefore seems as a reviver or in confirmation of that which as aforesaid mentions according to that which hath been duly used in the time of King Edward Grand-father of King Richard the Second which being formerly insisted on a retrospect may here suffice By the Statute of 27 Eliz. cap. 11. It is Enacted That all and every such of the said offences before mentioned as hereafter shall be done upon the main Sea or Coasts of the Sea being no part of the Body of any County of this Realm and without the Precinct Jurisdiction and Liberty of the Cinque-Ports and out of any Haven or Pier shall be tryed and determined before the Lord Admial c. It hath been hence inferred That by the Judgement of the whole Parliament the Jurisdiction of the Admiralty is wholly confined to the main Sea or Coasts of the Sea being no parcel of the Body of any County of this Realm And that this Statute is a particular description of that Jurisdiction as to the limits thereof This Statute gives the Jurisdiction of the Admiralty a power of Cognizance in such Offences done upon the main Sea or Coasts thereof there 's the Ampliation Being no part of the Body of any County and without the precinct of the Cinque-Ports and out of any Haven or Pier there 's the Limitation Where either of these is part or parcel of the Body of any County within this Realm the Admiralty may not claim Jurisdiction therein Touching Contracts made beyond Sea the said Letter of this Statute is silent In the Resolutions upon the Cases of Admiral Jurisdiction the substance of the first Article or Proposition is That no