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
districtum Maris vocat The Straights of Gibralter infra Jurisdictionem Maritimam And because it appeared That the Contract was made at the Island of Malaga Prohibition was granted for it was not regarded that he added infra Jurisdictionem Maritimam which appeared contrary If in another Case it happen to be elsewhere supposed that the Contract is made at Burdeaux in France in Islington though by the very light of nature it appears as soon as it is put to be contrary yet there may be that reason of Law to hold the place is not traversable as to the Infra Corpus Comitatus which the Infra Jurisdictionem Maritimam cannot duly expect when that appears to be contrary It was once said by Justice Wray in Sir Julius Caesars Case That it was hard that his Jurisdiction should be tryed before himself It hath been observed for these last twenty years that it is far more easie to preach good doctrine then to practise it The Law in all Jurisdictions is but Reason Regulated No wonder therefore if sometimes a Cause as to the Merits of it meet with a right Decision in a wrong Jurisdiction but less wonder if it oftner happeneth otherwise It is reported in the Case of Bright against Couper That an Action of Covenant being brought upon a Covenant made by a Merchant with a Master of a Ship viz. That if he would bring his Fraight to such a Port then he would pay him such a summe it was shewed that part of the goods were taken away by Pyrats and that the residue of the goods were brought to the place appointed and there unladen And that the Merchant had not paid and so the Covenant broken And the question was whether the Merchant should pay the mony agreed for since all the Merchandizes were not brought to the place appointed And the Court was of opinion that he ought not to pay the mony because the Agreement was not by him performed Here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed albeit there was Vis major or Casus Fortuitus without any default in the Master or Mariners in the Case the Court being of opinion that he ought not to pay the mony because the Agreement was not by him performed nor had it been performed in case of stress of weather part of the goods had Navis Levandae causa been thrown over-board probably this Pyracy whereby came this casual incapacity of performing the Agreement was Super altum mare And the same Reporter in Westons Case A Merchant hath a Ship taken by a Spaniard being enemy and a moneth after an English Merchant with a Ship called the Little Richard re-takes it from the Spaniard And the Owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by battel of an enemy Probably this Capture and Re-capture the occasion of this plea and querele was only Super altum mare and the property of Shipping called into question by reason of such supermarine accidents the matter of this plea and querele is of every days practice in the Admiralty and so accustomed time out of mind But at another time in a Case something parallel to that quoad merita Causae super altum mare A Prohibition would not be granted A Dunkirker having seised a French mans Vessel Super altum mare sold the same with her Lading at Weâ—mouth whither it had been driven before its brought infra praesidia Dom. Regis Hispan whereupon the French man Libelled in the Court of Admiralty against the Vendee pro interesse suo who shewed that it was taken not by Letters of Mart as was pretended but by Piracy And prayed a Prohibition And it was agreed by the Justices That if a Ship be taken by Piracy or by Letters of Mart and be not brought infra praesidia of that Prince by whose subject it was taken that it is no lawful Prize and the Property is not altered and such was said to be the Law of the Court of Admiralty And therefore the Court would not grant a Prohibition In the former Case where Prohibition was granted the property of the Ship seems not to be altered for though she were as that Case puts it taken by an Enemy and a moneth intervened between the Capture and re-Capture and so did pernoctare with the Captors yet it does not appear by that Case that she was ever brought infra praesidia hostium before such re-capture or that ever Judication passed thereon And if there were any alteration of Property of that ship the Property must have been altered Super altum mare which is properly Cognizable in the Admiralty in respect of the Place as well as the thing it self in its own nature Littleton that Famous Oracle of the Law as aforesaid asserts That a thing done out of the Realm may not be tryed within the Realm by the oath of twelve men The Lord Coke as aforesaid acknowledgeth That the Lord Admiral hath and ought to have Jurisdiction of Contracts pleas and quereles made upon the Sea or any part thereof not within any County And Sir George Crook says That if a Suit be commenced in the Court of Admiralty upon things done upon the Sea no Prohibition is to be granted Therefore it follows that Contracts made and other things done upon the Sea are inherent in the Jurisdiction of the Admiralty CHAP. IX Of Contracts and Bargains made and other things done Beyond the Seas And whether the Cognizance thereof doth belong to the Admiralty IF the Jurisdiction of the Admiralty in this point should seem to be pretermitted or waved by saying that Bargains and Contracts made beyond the Seas wherein the Common Law cannot administer Juflice do belong to the Lord High Constable and Earl Marshal of England It might seem tacitely to imply as if Charter-parties Bills of Lading Cockets Invoyces Commissions of Mart Marine Consortships and other Contracts or things made or done beyond Sea touching Trade and Navigation were not within the Conusance of the Jurisdiction of the High Admiralty of England Whereas it is well known That they are only Contracts and Deeds of Arms and of War and the like out of the Realm that do properly belong to the Lord High Constable and Earl Marshal of England and the like within the Realm whose Jurisdiction is of a distinct and diversified nature both from that of the Common Law and of the Admiralty also It is said That if an Indenture Bond or other Specialty or any Contract be made beyond Sea for the doing of any Act or payment of mony within the Realm or otherwise wherein the Common Law can administer Justice and give ordinary remedy In these Cases neither the Constable and Marshal nor the Court of Admiralty hath any Jurisdiction So that the Admiralty seems hereby to be of little use as to
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
and to award satisfaction to such as suffered wrong and damage But also that those very Laws and Statutes which were so to be Corrected Declared Expounded and Conserved by the Authority of the Office of the Admiralty were the Sea-Laws published at Oleron by King Richard the First So that the said Laws of Oleron gave the Rule and seems to be the usage concerning the Admiralty in the time of Edward the Third wereof the said Statute of 13 R. 2. speaks and by which Laws all Maritime affairs whether upon or beyond the Seas are properly Cognizable in the Jurisdiction of the Admiralty And in those Laws of Oleron so published by Richard the First are comprehended the matters of Admiral Cognizance whereunto that Form of Proceedings in these Records mentioned to be ordained by Edward the First and afterwards to be resumed revived and continued by Edward the Third relates Which very Records are also verbatim transcribed and published by the Lord Coke in that part of his Instit concerning the Court of Admiralty which speaks of the Superiority of England over the Brittish Seas and of the Antiquity of the Admiralty of England which he there proves expresly as high as to the time of Edward the First and by good inference of Antiquity and Ancient Records much higher For it appears by Ancient Records That not only in the days of King Edward the First but also in the days of King John all Causes of Merchants and Mariners and Things happening within the Floud-Mark were ever tryed before the Lord Admiral Again For the clearer understanding of what was the Usage in the time of Ed. 3. concerning the Admiralty it may be observed That in the beginning of these Records in Edward the Third's time it is said That a Consultation was had and the whole Bench of Judges advised with To the end that the Form of Proceedings heretofore ordained by Edward the First and his Councel should be resumed and continued not only for the retaining and conserving the ancient Superiority of the Sea of England but also the Office of the Admiralty as to the Correcting Expounding Conserving and Declaring the Laws and Statutes long since made by his Predecessors for the maintaining of Peace and Justice c. If upon a full Consultation in Ed. the Third's time That Form of Proceedings which had been formerly ordained by Ed. the First and his Councel shall be again resumed and continued it seems then requisite in the next place to inquire a little farther what was ordained by the said Edward the First and his Councel over and above what is already mentioned in the said Record And it appears that in the days of the said Ed. the First thâ—râ— was a good provision and remedy ordained for such Complainants as by Prohibitâ—ons issuing out of one Court to surcease the Legal prosecution of their rights in another could obtain redress in neither For by the Statute of the Writ of Consultation in Anno 24 Ed. 1. It is enacted That where there is a surceasing of Proceedings upon Prohibitions and the Complainants could have no remedy in the Kings Court that then the Lord Chancellour or Lord Chief Justice upon sight of the Libel should write to the Judges before whom the Cause was first moved that they proceed therein notwithstanding the Kings Prohibition directed to them before In a word therefore The said Statute of 13 R. 2. mentions the Usage in the time of Ed. 3. Edward the Third resumes and continues the Laws of Oleron published by Rich. 1. and what was ordained in the time of Ed. 1. And Edward the First ordained as in the Records aforesaid and Statute of Consultation The Expositor of the Terms of Law in his description of the Lord Admiral says That he is an Officer to Judge of Con Contracts between party and party concerning things done upon or beyond the Seas And in another of ancient Authority it is said in these words viz. That if an Obligation bear date out of the Realm as in Spain France or such other it is said in the Law and truth it is they are the Authours words that they be not pleadable at the Common Law Also the Learned Mr. Selden in the fore-cited place says That the Jurisdiction of the Common Law extends not it self beyond the Seas and without the Realm of England For as he speaks In the Law of the Land it is reckoned among the Priviledges of such as are absent That they who shall be out of the Realm of England at the levying of a Fine of any Land and making Proclamation thereupon are not so bound either by a yearly prescription as heretofore or by a five years prescription as is usuall of later times but that their right remains entire to them upon their return home So that being beyond Sea and without the Realm of England at that time and nothing of prejudice in that case fastned on them by reason of any Non-Appearance it seems as without the reach of the Common Law And Mr. Selden in the same place proves That to be beyond the Seas or extra quatuor maria doth in the Common Law-Books signifie the very same thing with extra Regnum And again Mr. Selden for 't is but due as well to the Truth as his Memory to repeat his Authority in the same place asserts concerning Things relating to Actions for Matters Maritime That they were not wont to be entered in express tearms heretofore in the ordinary Courts of the Common Law whose Jurisdiction was ever esteemed of such a nature that an Action Instituted about a matter arising in any other place then within the bounds of the Realm was by the ancient strict Law always to be rejected by them After which manner as it hath been a Custome now for many years that an Action ought to be rejected unless the matter have its rise within the Body as they call it of the County that is within some Province or County of the Island usually given in charge to certain Governours or Officers known to us by the name of Sheriffs So also is it in the Sea-Province belonging by the ancient received custome to the high Admiral or his Deputies not only so far as concerns its defence and guard but also as to matter of Jurisdiction Likewise in the same place Mr. Selden in honour of the Admiralty says That in ancient Records concerning the Customes of the Court of Admiralty It was an usual custome in the time of King Henry the First and of other Kings both before and after him That if any man accused of a capital crime done by Sea being publickly called five times by the voice of the Cryer after so many several days assigned did not make his Appearance in the Court of Admiralty he was banished out of England de mer appurtenant au Roy d'Angleterre or out of the Sea belonging to the King of England for forty years more or
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
practicable for the foundation of Process Action or Judicial Proceedings But it may be otherwise of certain Things which if you assay by a surmize to remove from their proper element you may seem as it were to annihilate the thing it self Or endeavouring a representation of such non-entities by a meer conception of words you may seem as it were to attempt incapabilities which the Law understands not or no other then the ebolitions of fancy for ex nihilo nihil fit Nor is it controverted whether a Delinquent for adherency with the Kings Enemies beyond Sea shall be tryed in England no question but such adherency without the Kingdome to accommodate the matter for Tryal somewhere and to prevent a total failure of Justice may according to Law be alledged to have been made in some place within the Kingdome because a Fact of that kind is within the Notion of Nature and Reason capable of a being in either But it does not thence follow that the Collision of one Ship against another by the violence of Wind and Tide being and capable of happening where Terra firma is not may according to Rules of Law be supposed to have happened in the Ward of Cheap when possibly or in truth the said casualty did happen Super altum mare it may be sixty Leagues West-ward of the Cassiterides or Isles of Scilly And this not so much to accommodate the matter for a Tryal at Law somewhere for prevention of a total failure of Justice as in the former cases as to remove a Tryal already in being from one Jurisdiction to another lite pendente ad aliud examen There is a double difference and of wide dimensions between the said instances and the true state of the Case in hand First that way of arguing holds well and rationally to create a Tryal in case of Necessity where otherwise Justice might totally fail for want of a competent Tribunal in order thereto And here there is no opponent for the objection is of another nature as when surmizes and suggestions are used as a remedy extraordinary where the ordinary means fail not and that not so much to beget a Tryal which otherwise could have no being as to remove a Tryal actually in being Secondly there is a vast difference in Law between Persons and Things in reference to Legal Fictions as to their operation in Judicial Proceedings For Persons in one place will without offence to the Law admit of Fictions to suppose them in any place but Things and Actions are ever to be accommodated as unto a possibility in Nature so to Rationality and Equity in Act Insomuch that if by any manner of supposing they happen to be strain'd beyond either of these all the Superstructure may fall for want of sufficient foundation Though it be very true what Spiegelius once said Fingi Lites poterunt ut transactio fiat citra Praetoris authoritatem yet most apt and true also is that of Ulpian Fictio privata illicita nihil distat à fraudulent a simulatione The Reason in Law is because as all Legal Fictions must ever imitate Nature it self in re possibili though it be adversus veritatem so it must also be Legis ex justa causa dispositio It is said That an Obligation made beyond the Seas may be sued in what place in England the Plaintiff please Insomuch that notwithstanding it bear date at Burdeaux in France yet it may be alledged to be made in quodam loco vocat ' Burdeaux in France in Islington in the County of Middlesex and there it shall be tryed For as it is there farther added in that case it is not traversable whether there be such a place in Islington or no. But yet the Renowned Littleton says plainly as is before observed That a thing done out of the Realm may not be tryed within the Realm by the Oath of twelve men If an Obligation made beyond the Seas may be sued here in England in whatsoever place the Plaintiff please admitting the intraversability of the place it follows That a thing done at Burdeaux in France may be tryed in Middlesex in England and that which was done in the East-Indies may be tryed in the Ward of Cheap If it be admitted that the words of the incomparable Littleton viz. Out of the Realm And the words of the Lord Coke viz. Beyond the Seas do according to the intendment here agree in parity of sense though in other Cases very distinguishable then it would seem as if there were some need of a person dexterous at Gordian knots in this point that may not Alexander-like cut instead of untying the same who withal must remember what the Lord Coke himself there says in the close of that Burdeaux Case in Islington viz. That these Points are necessary to be known in respect of the variety of opinions in our Books whereby it is evident that there is not that universal unanimity of consent in this point as to render it indubitable So that although a surmize or suggestion should translocate Burdeaux into Islington yet 't is not to be gain-said but that the great Oracle of the Law asserts That Things done without the Realm cannot be tryed within the Realm by the Oath of twelve men Where the Locality is meerly Circumstantial to the Fact and not withal Essential to a Jurisdiction in that case the intraversability of the Place need not be so considerable as when a Right of Cognizance admits dispute by reason of such Locality or the claim of another Jurisdiction not inadmissable specially of such a Jurisdiction as mainly calculates her Cognizance according to the Meridian of that Place where the Thing or ground of Action received its Origination and where the very Locality becomes as it were one Essential to the Jurisdiction it self and where by such an intraversability of the Place though only surmized it becomes not impossible but that a competent Jurisdiction may happen to be quoad hoc excluded The Jurisdiction of the Admiralty having ever been of the complaining hand touching the inconveniencies through uncertainty of Jurisdiction as to the Cognizance and Tryal of Causes Maritime may aptly say with the Lord Coke Misera est servitus ubi jus est vagū aut incognitum It hath been said That if an Indenture Bond or other Specialty or any Contract be made beyond the Sea for the doing of any Act or payment of any mony within the Realm That in such Cases the Court of Admiralty hath not any Jurisdiction And that therefore Prohibitions have been granted as by Law they ought when the Court of Admiralty hath dealt therewith in derogation of the Common Law If Instances of awarding Prohibitions should amount to a general Rule without Exception the Admiralty would seem to have made in former times many frivolous complaints it is presumed all men will not deny but that it is possible for a Transmarine Contract to be a Maritime
then the said Lord is bound to take his share at the place where such Fish was found XXXIX Also the said Lord ought to submit to the foresaid Costs and Charges for that he ought not by anothers damage to inrich himself otherwise he sins XL. If by some chance or misfortune the said Fish happen to be lost or otherwise stoln away from the place where it was first found and this about the time of the said Lords going to see it or before in this Case he that first found it is not any way obliged to make it good XLI In all other things found by the Sea-side which have formerly been in the possession of some or other as Wines Oyls and other Merchandize although they have been cast over board and left by the Merchants and so ought to appertain to him that first finds the same yet herein also the Custome of the Country is to be observed as formerly in the Case of Fish But in case there be a presumption that these were the Goods of some Ship that perished then neither the said Lord nor Finder thereof ought to take any thing thereof so as to convert it to their own use but they ought to doe thâ—rewith as before hath been said that is to cause therewith that Prayers be made for the deceased as also other special good works Or otherwise they shall incur the forementioned Maledictions XLII If any Ship or other Vessel at Sea happen to find a Fish it is wholly theirs that found it in case no due pursuit be made after it And no Lord of any place ought either to challenge it or demand any part thereof although they bring it to his ground XLIII If any seek for Gold or Silver on the Sea-shore and findeth some he ought to restore it all without any diminution thereof XLIV If any going along the Sea-shore to fish or otherwise happen to find Gold or Silver or the like he is bound to make restitution thereof deducting for his own pains Otherwise if he be poor he may retain it to himself that is if he know not to whom to restore it yet he ought to give notice of such his sinding the same to the neighbourhood and parts next adjacent to the place where he found it Moreover he ought to advise with his Prelate Curate or Confessor who ought to weigh and take into Consideration the indigency and poverty of the Finder and the quantity of the Silver and then to give him such advice as is consonant to a good Conscience XLV If a Vessel by stress of weather be constrained to cut her Towes and Cables by the end and so to quit and leave behind her both Cables and Anchors and make to Sea as please the wind and weather in this Case the said Cables and Anchors ought not to be as lost to the said Vessel if there were any Boy at them And such as fish for them are bound to restore them if they know to whom but withal they ought to be paid for their pains according as Justice shall determine But because sometimes they know not to whom to restore them the Lords of the place have their shares and the Finders theirs and they neither cause Pater Noster to be said nor Avie Maria as they ought And therefore it hath been ordained That every Master of a Ship cause to be ingraven or set upon the Boyes thereof his own name or the name of his Ship or of the Port or Haven whereof she is which will prevent great inconveniencies for it sometimes happens that he that left his Anchor in the morning hath recovered it again by night And such as detain it from him are no better then Thieves and Pirates XLVI If any Ship or other Vessel by any Casualty or misfortune happen to be wreck'd and perish in that case the pieces of the bulk of the Vessel as well as the Lading thereof ought to be reserved and kept in safety for them to whom it belonged before such disaster happened notwithstanding any Custome to the contrary And all takers partakers abettors consenters or contrivers in the said wreck if they be Bishops Prelates or Clerks they ought to be deposed and deprived of their Benefices respectively And if they be Lay-men they are to incur the penalties aforesaid XLVII Which is to be so understood when the said Ship or Vessel so wreck'd did not exercise the Thievish mystery of Robbing and Free booting and when the Mariners thereof are not Pirates Sea-Rovers or Enemies to our holy Catholick Faith But in case they be Pirates Robbers Sea-Rovers Turks or other Enemies to our said Catholick Faith every man may then deal with such as with meer Brutes and despoil them of their goods without any punishment for so doing A SERIES or Catalogue according to Sir Spelman's Computation of such as have been Dignified with the Office of Lord High Admiral in this Kingdome since King John's time to to the Reign of King Charles the First of Blessed Memory Wherein No mention is made of Marthusius that Princeps Nautarum in K. Edgars time Nor of those other Tetrarchs of his Navy who for the guard of the â—rittish Seas had no less then a thousand Sail of Ships under their Command Nor of those other Commanders in Chief touching the Sea-Affairs who have been beside the common and usual mode Constituted by his Successors Kings of England But of such only as in the Ordinary way have been Dignified with the said Office and Marine Authority in this Kingdome viz. 8 H. 3. RIchard de Lucy is said to have Maritimam Angliae 48 H. 3. Thomas de Moleton was Constituted Capitaneus Custos maris Portuum Maritimorum 25 Ed. 1. William de Leiburne is styled at the Assembly at Bruges 8 Martii 15 Ed. 1. 1286. Admirallus maris Angliae 22 Ed. 1. John de Botetort Admiral of the North for the Coast of Yarmouth and that station William de Leibourn Admiral of the South for Porâ—â—â—outh and that station A certain Irish Knight Admiral of the West and the parts thereof Admirals of the North viz. Admirals of the West viz.  From the mouth of the River of Thames North-ward From the mouth of the River of Thames West-ward  34 Ed. 1. Edward Charles Gervase Allard  8 Ed. 2. John Botetort William Cranis   10 Ed. 2. Nichalds Cryoll  10 Ed. 2. John Perbrun alià s Perburn Robert Leiburn Knight   12 Ed. 2. John Athey  15 Ed. 2. John Perburn Robert de Leiburn Knight Admiral of the Western Ports of England Wales and Ireland  16 Ed. 2. John Perburn Robert Battail alià s Batall one of the Barons of the Cinque-Ports  18 Ed. 2. John Sturmy Robert Bendon  19 Ed. 2. John Otervin Nicholas Keriel Walsingh calls these the three Admirals of the three Coasts of England viz. of Yarmouth