in peaceable possession of taking Cognizance and judging all actions done in the said Sea c. the said Procurators in the names of their said Lords do pray c. that speedy delivery of the Goods and Merchandizes taken and detained be made to the Admiral of the said King of England to whom the Cognizance of the same of right appertaineth so that without disturbance of you or any other he may take Cognizance thereof and do that which appertaineth to his Office In which Record it is observable that even in those days that is before the time of Edward the first the Kingdome of England had not only the Soveraignty of the Brittish Seas but also an Admiral empowered with a Jurisdiction Maritime to take Cognizance and judge all actions done on the Sea to doe Justice execute the Laws of the Sea maintain Peace Right and Equity according to the Laws and Ordinances of the Sea and in a word to minister Justice in all things that to the Office of an Admiral appertain To this might be added King John's Ordinance made at Hastings touching the Soveraignty of the Brittish Seas in the point of striking Sail or veiling Bonnets by the vessels of Forraign Nations to the Kings Ships which Ordinance was made long before the Reign of Edward the first and wherein mention is likewise made of the high Admiral of England But this that hath been said may abundantly suffice both to prove and illustrate the Antiquity of the high Admirall of England and his Jurisdiction in matters Maritime If it be granted that Frustra sunt Arma foris nisi est Consilium domi it cannot well be denied but that Frustra sunt Arma domi nisi est Dominium Maris to which as undeniably may be added that Frustra est Dominium Maris nisi est Jurisdictio domi If therefore the Ancient Rights of the Jurisdiction of the Admiralty of England should at any time happen to be impeded by ought not so properly qualified Judicially to conserve the Rights of the Soveraignty of the Brittish Seas might not a Decay of Trade that Cornucope of all National Provisions be justly suspected specially if Neighbour-Nations should thence pretend to spy any thing like a flaw in Englands Trident as if her Dominium Maris were in part dismantled the Plenty as well as the Safety and Security of these Kingdomes much under God consisting in the Power of the Royal Navy those Pyramids of Majesty or Floating Garisons The Dominium Jurisdictio Maris are such Confederates you cannot prejudice the one and not the other And therefore to scruple that Jurisdiction those Ancient Rights whereby our own are conserved and secured may not be convenient So that to doubt whether the established Jurisdiction of the high Admiralty of England may judge of Marine Properties is implicitely and in effect to inferre that the Navy Royall is equipped only to enamel the Seas and take the Air or that their Captures at Sea must evaporate if Bargains and Sales made super altum mare can transferre and alienate properties then doubtless the Admiralty can finally judge and determine thereof Nor let any man think the Admiralty of England is without remedy in case one man impleads another for an Admiral cause in another Jurisdiction for if the Admiralty cannot summon and proceed according to the ancient style practice and known Rights Laws and Customes of that Jurisdiction against such who in matters of Admiral Cognnizance prosecute the Law elsewhere then what is it more then a meer Idaea that hath no real existence beyond the pleasure of the parties litigant nor is that other mis-opinion viz. That the Admiralty may not enforce its own Decrees and Orders worth Consideration for the Executive part is so inherent in a Jurisdiction quatenus such that in effect it is but a lame and imperfect Jurisdiction without a Power Coercive which breaths life and vigour into a Jurisdiction by Execution which otherwise would be but like a Body without a Soul or like an expert Commander Commissioned to fight with his hands manacled behind him Sententia absque Executione est quasi splendidum Justitiae Cadaver This mis-conceit may not be much inferiour to theirs who are dextrous at Translocations by surmises and suggestions if the the circumstance of Locality be too light to be traversable yet it is of weight enough to be surmised or suggested It is not impossible but that the Cognizance of the Admiralty being in part essentiated by the Marine Circumstance of Place may be obstructed by a meer missurmise as to the Locality Suum cuique tribuere is the ultimate Result or Summa Totalis of all Justice whose Ballance is then best poized when it weighs each Individuals Policy with a Consistency to common Interest It may be not less hazardous then chargeable for the Client to complement Justinian with one Fee and Littleton with another If so it will be expedient that he provide two Purses which is but the beginning of sorrows for he must also provide a good stock of Patience to await the event of what will put no issue to the merits of his Cause And in Concurrencies of Jurisdictions a Concurrency of Jurisdictional qualifications as well Intrinsick as Extrinsick seems to be requisite for admitmitting that by a Dedimus potestatem or other Writ of like nature witnesses might be Legally examined at Venice Lisboa or other transmatine parts Sub mutuae vicissitudinis obtentu yet what Judicial improvement can be made thereof especially quando ex facto jus oritur without due intrinsick qualisications calculated for the Meridian of a Maritime Cause But to digress may be to transgress To return therefore to the Antiquity of the Office and Juisdiction Admiral The Authour of the Book entituled Rights of the Kingdome hath several Passages concerning the Office and Jurisdiction of the Admiralty whereof one is pag. 90. That Edgar that Great Monarch was as great a Conquerour by Sea as Aethelstane by Land That it might be easier to shew his four Seas then to set their exact Bounds But in pag. 132. he is pleas'd to say that the Law Maritime is Dark enough with all the Jurisdiction of the Court Admiral So is the Sun to him that will not see where he farther seems to please himself with saying That that Office may be harder then the Name by calling it a strange mixture of Greek and Arabick Yet for the Antiquity of the said Office he doth the Admiralty that right as withal in the same place to assert That the old Ms. del'Office del ' Admiral hath divers Records of H. 1. Rich. 1. and King John speaking of Trials by twelve as at Common Law But that now the practice is much otherwise And that in the Rolls of Ed. 1. the Name of Admiral But not in our Printed Laws that the said Authour knows of till Edward the second And then adds That in Edward the third the Rolls are
in deciding all Maritime Controversies Insomuch that the Emperour Antoninus who though Imperious enough in styling himself Totius mundi Dominus yet in all Nautical Controversies subscribed to the Rhodian Law acknowledging that though himself was Lord of the world yet the other was of the Sea There were also very Ancient Laws made and published by those of Rhodes who were most expâ—rt at Sea as well touching Navigation as Merchant-affairs where the use thereof was of no less Consequence unto then of Antiquity in that Mediterranean Isle The Assertions upon Historical Record touching the Excellency of their Sea-Laws their incomparable skill in Navigation and the Trophies of their Naval Victories are almost incredible But this so famous Isle being at length reduced from the glory of a Splendid to the Eclipse of a Decaied Merchant by reason of the many irruptions and incursions made thereon by several Nations specially by the Turks a little before the Reign of Charles the Great when about the same time the Turks also possessed themselves of several other Isles in the Mediterranean the Gallantry of the Rhodian Navies soon after vanished which at length as some German Authours would have it was thence translated to the Oriental Ocean or Baltick Sea For that Wisby in Gotland anciently prescribed the Sea-Laws to Merchants and Mariners whereunto as afterwards to Lubeck the Neighbouring Cities did usually appeal in all affairs of Maritime Cognizance The word Admiralius from the Eastern Empire was first transported into Italy and Sicilia thence into France and from thence into England The first high Admiral in France as supposed was one Rutlandus so called by Aeginardus in the Life of Charles the Great others called him Rolandus he was Constituted high Admiral of France about the time of King Pipin or Charles Martel Yet others are of opinion that the office of Ameral that is Admiral was known to the French first in the daies of Lewis the seventh from whose time till Philip the fourth there was only one Admiral After that there were two Admirals in France at the same time And afterwards more then two at one and the same time each dividing his Jurisdiction according to the Coasts of their several Provinces respectively This high Officer L' Ameral in point of dignity is next to the High Constable of France Anciently there were three Admirals in France one in Aquitane another in Brittany and the other was Generalis in Francia which three are now reduced to one who doth exercise his Jurisdiction at the Marble Table in Palatio Parisiensi And whereas it is by some supposed that Rutlandus alias Rolandus as aforesaid in King Pipins daies was the first Admiral of France yet the more probable opinion is that either Enguarrantus Dom. de Causy in King Philip the third's time Or Americus Vicount of Narbone in King Johns time was the first that ever had the honour of that high Office in the Kingdome of France CHAP. III. The Antiquity of the Maritime Authority together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain IN the precedent Chapter it is said that the name of Admirallius first came out of the Eastern Empire into Italy and Sicily thence into France and thence into England And this as the Learned Sir Hen Spelman doth suppose after the time of the Holy Warre For that as he observes out of Hovenden when King Rich. the first prepared his Navy for that design he appointed no single person to the Command in chief of that Navy by the name or style of Admiral but deputed five several persons to that Command by the name or style of Ductores Justiciarii Constabularii totius Navigii The said Learned Authour comes something nigher to our times and says that this Appellation or style of Admiral seems not to be received with us in An. 8 H. 3. for that the King in his Grant at that time to William de Lucy expresses himself only by the words of Concessit Maritimam Angliae without any mentioning of the word Admiral in that Patent Nor yet in the forty eighth year of his Reign for that he then Constituted Tho de Moleton Capitaneum Custodem Maris non Admirallium So that he is of opinion that this high Officer was not known to us here in England by the name or style of Admirallius till the beginning of Ed. the first 's Reign And that William de Leiburn was the first with us that had the dignity of that Office by the style of Admiral who at the Assembly at Bruges Anno 15 Ed. 1. was styled Admirallus Maris Regis And that soon after the said Office became Tripartite viz. Anno 22 Ed. 1. when the said William de Leiburne was made Admiral of Portsmouth and the adjacent parts John de Botecurts of Yarmouth and the Neighbouring Coasts thereof and a certain Irish Knight of the West and Irish Coasts After whom succeeded three other Admirals for the same Divisions in the 19 year of Ed. 2. viz. John Otervin Nicholas Kiriel and John de Felton And in those daies the Admiral was often styled not Admirallus maris but Admirallus flotae Navium id est Classis or the Admiral of the Navy And this Admiral had his power divided into two stations the one was the North station which began at the mouth of the River of Thames and thence extended it self North-ward comprising Yarmouth and all the Eastern shore The other was the West station which beginning likewise at the mouth of the River of Thames stretched it self West-ward comprising Portsmouth and all the South and West of England But the first that was styled Admirallus Angliae was Richard the younger son of Alan Earl of Arundel and Surrey in the tenth year of R. 2. Notwithstanding all this which hath been said intimating that William de Leiburn in the 15 of Ed. 1. was the first in England that had this Office by the name or style of Admirallus yet it is evident by Matth. Paris in H. 1. which is about 150 years before that of Ed. 1. that at that time there was mention made of one Balac Ameralius here in England who in Fight took and surprized Jocelyne Earl of Edessa with his Cousin Galeranus But at what point of Time precisely that Office by the style or Appellation of Admiral was first known in England it matters not much since the thing it self which signified that Office now known to us by the style of Lord High Admiral and the Jurisdiction thereof hath ever been in this Kingdome time out of mind This will the more evidently appear if you consult the Records of History and compare them with others National touching that Ancient Dominion the Kings of England have ever had over the Seas of England together with that Maritime Jurisdiction which hath ever asserted the same That the Kings
of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain none but a few Mare Libertines and that for their own Interest ever scrupled Sir Hen Spelman gives us an Account of a very Ancient Record extracted out of the Laws of Hoelus Dha Regis seu Principis Walliae cir An. 928. which for the proof of the said Dominium quasi uno intuitu is here inserted in haec verba viz. Variato aliquantulum Nominis Vocabulo dici hic videtur Huwell Da qui superius Hoêl Dha Latine Hoêlus Hoelus alias Huval quem Malmesburiensis unum fuisse refert e quinque Wallensium Regibus Quos cum Cunadio Rege Scotorum Malcolmo Rege Cambrorum Maccusio Achipirata seu Principe Nautarum vel Marium Praefecto ad Civitatem Legionum sibi occurrentes Rex Anglorum Eadgarus in Triumphi pompam deducebat Una enim impositos remigrare eos hanc coegit dum in Prora ipse Sedens Navis tenuit gubernaculum ut se hoc spectaculo Soli Sali orbis Brittanici Dominum praedicaret Monarcham In this Ancient and Memorable Record King Edgar Neptune-like rides in Triumph over the Brittish Seas giving the world to understand that Dominium Maris is the Motto of his Trident. Consonant whereunto is that which the Law it self says Mare dicitur esse de districtu illius Civitatis vel Loci qui confinat cum mari in quantum se extendit territorium terrae prope mare In a word to this purpose the Renowned Learned Mr. Selden who hath left no more to say but with Jo Baptist Larrea in one of his Decisions of Granada That Authorum sententias non ex numero sed ex ratione metiri oportet pensitari debent juris fundamenta non Authorum Elenchum velut calculatione computari The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs as well in respect of Jurisdiction as Protection He is that high Officer or Magistrate to whom is committed the Government of the Kings Navy with power of Decision in all Causes Maritime as well Civil as Criminal So that befide the power of Jurisdiction in Criminals he may judge of Contracts between party and party touching things done upon or beyond the the Seas Wherein he may cause his Arrests Monitions and other Decrees of Court to be served upon the Land as also may take the parties body or goods in execution upon the Land The Lord Coke in honour of the Admiralty of England is pleased to publish to the world that the Lord Admirals Jurisdiction is very Ancient and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind as appears not only by the Laws of Oleron but also by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. Ed. 2. Thus as the Laws and Constitutions of the Sea are nigh as Ancient as Navigation it self so the Jurisdiction thereof hath universally been owned and received by all Nations yea and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one and establishment of the other For otherwise without such Maritime Laws and such an Admiral Jurisdiction how could the Ancient Brittains long before Julius Caesar invaded this Isle restraine all Strangers Merchants excepted from approaching their Confines or regulate such Navies as were the wonder of that Age Or how could King Edgar in the Titles of his Charters have effectually styled himself as well Imperator Dominusque rerum omnium Insularum Oceani qui Brittaniam circumjacent as Anglorum Basileus or maintain in Naval Discipline these four hundred Sail of ships appointed by him to guard and scour the Brittish Seas And did not Etheldred after Edgar for the self-same end and purpose set forth to Sea from Sandwitch one of the greatest Navies that ever this Kingdome prepared Doubtless this was no Lawless Navy without Maritime Constitutions for the due regulation thereof according to the Laws of the Sea Consonant to that of the Jurisdiction of the Admiralty then in use and received by all the Maritime Principalities of Europe Whereas it is universally acknowledged That the Admiralty of England is very Ancient and long before the Reign of Edward the third who ever consults Antiquity shall find it farre more Ancient and long before the Reign of Edward the first even time out of mind before the said Edward the first To this purpose very remarkable is that ancient Record in the Tower of London entituled De Superioritate Maris Angliae jure Officii Admirallatus in eodem and out of the old French rendred into English by Sir John Boroughs in his compendious Treatise of the Soveraignty of the Brittish Seas pag. 25 c. edit Anno 1633. in which it evidently appears that the Admiralty of England and the Jurisdiction thereof was farre more Ancient then Edward the first and that from age to age successively and time out of mind even before the days of the said Edward the first it was so owned and acknowledged by this and all other Neighbour-Nations as appears by the said Record which was occasioned by a National Agreement of certain differences arising between the Kings of England and France in the 26 year of the Reign of the said Edward the first by reason of certain usurpations attempted by Reyner Grimbald then Admiral of the French Navy in the Brittish Seas in which Agreement the Commissioners or Agents for the Maritime Coasts of the greatest part of the Christian world of Genoa Spain Germany Holland Zealand Freezland Denmark and Norway then present made this memorable Acknowledgment and Declaration which is extracted out of the said Record as to so much thereof as relates to the Jurisdiction of the Admiralty viz. That the Procurators of the Admiral of the Sea of England and of other places as of the Sea-Coasts as of Genoa Catalonia Spain Almayne Zealand Holland Freezland Denmark and Norway do shew that the Kings of England time out of mind have been in peaceable possession of the Seas of England in making and establishing Laws and Statutes and Restraints of Arms and of Ships c. and in taking Surety c. and in ordering of all other things necessary for the maintaining of Peace Right and Equity c. and in doing Justice Right and Law according to the said Laws Ordinances and Restraints and in all other things which may appertain to the Exercise of Soveraign Dominion in the places aforesaid And A. de B. Admiral of the Sea deputed by the King of England and all other Admirals ordained by the said King of England have been in peaceable possession of the Soveraign guard with the Cognizance of Justice c. And whereas the Masters of the Ships of the said Kingdome of England in the absence of the said Admiral have been
soon be Bankerupt So that if it escape the private Arrest of some Fained or Fictitious Action there is no fear of a General Embarg Elenchus Authorum OR The Names of the Authours Quoted in this TREATISE AeSchilus Accursius Afflictus Africanus Albericus Alexander Alonzo de Chavez Andreas Masius Angelus Annot. in Sac. Bib. Edit 1651. Aristotle Athenaeus Aurelius Aul. Gellius Baldus Bartolus Bernar. Gerardus Boerius Boroughs Brownlow Bullenger Caius Caiciapulus Cagnolus Calvinus Calistratus Carbo Cassanaeus Castrensis Casus Caesars Comment Coelus Rhod. Caepolla Celsus Cicero Comines Consul del Mar. Corp. Jur. Civil Corp. Jur. Can. Codinus Coke Corvinus Cowell Crook Curopalates Curtius Cynus Cothereou Pet. Coth Demosthenes Diodor. Sic. Dion Afric Doct. Stud. Domin Niger Donellus Durandus Faber Fascic de sup Adm. in arce Londinensi Fazellus Ferrandus Fitzherbert Fleta Florus Forster Fragm Hist Aquit Fragm Ascript Polib Fulgosius Galen Gellius Gerardus Godwyn Goldsborough Gothofred Granat Decis Greg. Gemist Grotius Herodotus Hevedin Rog. Heved Hieron de Chavez Hobard Homer Horace Huntindon Jason Isernia Junius Justinian Larrea Leonard Leon. Marsisc Leunclavius Libanius Littleton Livius Lucius Florus Lupus de Magistr Mainus Maranta Marsicius Malmesburiensis Math. Paris Masius MS. Admtis voc Liber Niger Monstrelatus Morisotus Moursius Noy Omphalius Oleron Sea-Laws Ortelius Oswaldus Owen Panormitan Papinianus Paris Math. Paris Paris de Puteo Paulus Paul Emil. Peregrinus Perinus Petr. Cothereou Plato Plinie Plutarch Polybius Pompeius Trog Pomponeus Pruckman Fred. Pruck Ptolimaeus Purchas Purpureus Ramus Ranulphus Castrensis Raphael Rhodiae Leges Ridley Rodorig Zamerano Rupertas alià s Robertus le Monachus Sabellicus Salycet Scardius Scaevola Selden Seneca Siffridus Sigebertus Sigonius Speculator Spelm. Consul Spelm. Glossar Spiegelius Strabo Suetonius Suidas Tacitus Tapia Terms of Law Theophanes Thucidides Tibullus Triphoneus Tullus Turpinus Tuschus Valer. Max. Valer. Forster Victor Virgill Vlpian Vopischus Zamerano Zasius Zonarus THE CONTENTS OF THIS TREATISE viz. CHAP. I. ADmiral the Etymon or true Original of the word with the various Appellations thereof CHAP. II. The Original of Navigation and the Sea-Laws with the Antiquity of the Office of high Admiral in the Transmarine or Forraign parts of the world CHAP. III. The Antiquity of the Maritime Authority together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain 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 CHAP. V. Of Laws and Jurisdictions in general with the several kinds and degrees thereof CHAP. VI. Of Prohibitions Their several kinds Causes and Effects in the Law CHAP. VII Of Fictions what a Fiction in Law is how farre and in what cases Fictions may be used according to the Rules of Law 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 CHAP. IX Of Contracts and Bargains made and other things done Beyond the Seas And whether the Cognizance thereof doth belong to the Admiralty CHAP. X. Of Judicial Recognizances and Stipulations for Appearance and performance of the Acts Orders Judgments and Decrees of the Court of Admiralty As also whether the said high Court of Admiralty of England be a Court of Record 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 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. CHAP. XIII Of the Agreement touching the Admiralty in Anno 1575. As also of the Resolutions Hill 8. Car. 1. upon the Cases of Admiral Jurisdiction A VIEW OF THE ADMIRAL JURISDICTION CHAP. I. Admiral the Etymon or true Original of the word with the various Appellations thereof THE Glossographists and others have digg'd very deep to come at the Root of this word Some are of opinion that the word Admiralius is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsus or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsugo or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsigo or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi Salmacidus Salsus à Salsugine Elementi cui imperat from the Saltness of that Element where properly his Authority and Jurisdiction doth reside vel quod in salso mari suum exercet imperium But this not seasoned with sufficient reason is held but as an unsavoury derivation from the great improbability that any in imposing of Names should quit the thing it self wherein the Denominated is most inherent and flie only to the more remote qualities thereof As if you should say that the Admiral in rebus Maritinâ—s were rather Salinarius then Marinarius as is truly observed by the Learned Sir Henry Spelman So that if you offer this Derivation though cum grano vel mica Salis it will not pass Therefore others are of opinion that it is derived from the French Ameral signifying an high Officer or Magistrate in Sea-affairs But this is as if you should say to keep to the Metaphor of a Liquid Element That Ice dissolved is the Mother of Water rather then Water frozen the Mother of Ice No doubt but Ameral in French now signifies such an high Officer or Magistrate but where was that French word Ameral when the Office of Admiral by other Appellations almost homophonous to that was in being but not in France That Office by other Names Appellative not much dissonant to this of Admiral was anciently known in the world when no such thing in France for the Romans themselves anciently had not these Admirales for so then called till Constantine in whose time isti Admirales Magistratus creati sunt that is among the Romans for they were known to other parts of the world long before Constantine the Great Anno 330. So that it may be truly said that this high Officer or Magistrate in Sea-affairs is in the French now rendred by the word Ameral But not that the word Admiral is thence derived Therefore others conceive it is derived from the Saxon Aen Mere eal that is over all the Sea This passes for a currant derivation and exposition of the word Admiral with us possibly because it sounds both so prettily and pithily for we are now as apt as our Neighbours t'other side the water to be alamoded as well with fine words as other vanities Yet this being a derivation of our own Generation it may not be much controverted specially for that others as well as those of our own Nation have acknowledged the word Admiral to be derived from the Saxons with whom the word Hadmiral doth signifie Praefectum maris Others there are who will have it derived
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
Contract if so then possibly the Admiralty may seem to deal therewith not in derogation to the Common Law specially if Things done without the Realm may not be tryed within the Realm by the Oath of twelve men That no Maritime Contract shall be tryed elsewhere then in the Court of Admiralty appears plainly by the Sea-Laws by the Customes of the Admiralty and by the Act made at Hastings by King Edward the First For Maritime Contracts may be made as well beyond the Seas as at Sea And the performance of something ex post facto within the Realm in pursuance of a precedent Contract made beyond Sea not altering the Maritime quality of the Original Fact doth not seem to make it cease being Maritime nor render that incapable of continuing Maritime which was of a Maritime Nativity Justice Croke in the Resolution upon the Cases of Admiral Jurisdiction subscribed 4 Febr. 1632. by all the Reverend Judges of both the Honourable Benches Reports That if there be a Suit commenced in the Admiralty for Fraight or Mariners wages or for breach of Charter-parties 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 Much less then if the Charter-party happen to be made without the Realm Such Charter-parties as also Bills of Lading and the like are Contracts frequently made beyond Sea for the delivery of goods to whom they are consigned within the Realm if the Admiral Cognizance of such Transmarine Contracts be in derogation of the Common Law then it should seem as if Things done out of the Realm might be tryable within the Realm by the Oath of twelve men in variation from the precedent assertion of the Renowned Littleton The Concessions of the said Reverend Judges in Anno 1632. seem not so much by way of enlargement as in affirmance of the Admiral Jurisdiction for prevention of future uncertainties in point of Jurisdictions In the Case of Don Diego Serviento de Acuna Ambassador Lieger for the King of Spain against Jolliff and Tucker It was said That when the Case is laid at Land no man may by a new-found form of Suit draw it ad aliud Examen but he must submit his forms to the Law and not è Contra. If this be the Law which no man questions as being visibly founded upon good Reason it follows That when the Case is laid at Sea no man should by a new-found form of Suit draw it ad aliud examen For Surmizes and Suggestions or Suppositions will admit of any forms and assume what shape you please so may not Suits and Actions This would seem rather to prostitute the Law to forms then to submit the forms to the Law Remarkable is the Case of Palmer against Pope The Case was this Pope agreed with Palmer Super altum mare to transport him certain Sugars This Agreement was afterwards put in writing in the Port of Gado on the Coast of Barbary The Sugars happened to be spoyled at Sea by Salt water For which Palmer sues Pope in the Admiralty For that the Original Contract and the Breach also were both Super altum mare yet upon a Suggestion that the Charter-party was made in the Port of Gado upon the Continent of Barbary it was resolved that a Prohibition lay because the Original Contract though it were made at Sea yet was changed when it was put into writing Sealed which being at Land changed the Jurisdiction as to that point This was the Case and this the Resolution thereupon It is here said that the Original Contract and the Breach thereof were both Super altum mare But it is said withal That upon a Suggestion of the Charter-parties being made in the Port of Gado upon the Continent of Barbary the Contract originally made at Sea was changed by being afterwards put into writing sealed at Land whereby the Jurisdiction was also changed It doth not appear that there was any variation as to the substance of the Agreement in the writing sealed as supposed at Land from the Contract originally made at Sea nor any alteration as to Circumstance other then that of Locality where the writing was sealed containing that Contract or Agreement which was bonae sidei Contractus and therefore good and valid among Merchants without any writing at all whether sealed or not The Charter-party is suggested to be made in the Port of Gado upon the Continent of Barbary in a Port upon a Continent by a Continent is meant terra firma and a Port or Portus est locus conclusus quo importantur exportantur merces A Vessel designed for the Port of London is intended for the River of Thames A Port is Navigable a Port-Town is upon the Continent A Charter-party made in London is made upon the Continent of England A Charter-party made in the Port of London is made upon the River of Thames The said Original Contract was upon the Sea the Breach thereof was also upon the Sea the Concurrence of which two makes the cause of the Suit entire as in the said Case more at large And the suggestion it self lays the Charter-party to be made in the Port which Nature hath adapted for Importation and Exportation It was in that Case agreed that if it had been a writing only without seal it had wrought no change of the Contract and consequently no change of the Jurisdiction Put the Case the like Contract or Agreement had originally been made at Land afterwards put into writing sealed at Sea the Question is whether the Contract be changed and with that change another change in consequence thereof Seals may be Essential to Deeds being but as Embrio's till thereby animated and as abortive till by the obstetricy of witnesses well delivered But Bargains Contracts and Agreements among Merchants and Mariners proceeding only Secundum aequum bonum and being Contracts bonae fidei do oblige ultro citroque without any Seal to the same And such made at Sea though but parole are with Merchants and Mariners as valid as if in writing sealed at Land And this is consonant to that Law which is most conversant in such Affairs A Seal as aforesaid may be Essential to a Deed or the like Instrument so is the place of making a Contract or Agreement Essential suo genere to the Admiral in point of Cognizance which in effect is not denyed in the Report of that Case between Palmer and Pope where it is said That the Jurisdiction of the Admiralty groweth not from the Cause as of Tithes and Testaments in the Spiritual Courts but from the Place yet this may not be understood exclusively to such things as are properly Maritime and consequently within the Cognizance and Jurisdiction of the Admiralty such as Reprizals Derelicts matters touching Navigation Charter-parties Bills of Lading Mariners wages and the like whereof you have a Summary enumeration in the Fourth Chapter
of this Treatise to which the Reader is referred A Surmize or Suggestion in certain Cases is doubtless a very Legal Expedient yet possibly some men will no more agree with others of their fellow-rationals in suggesting a Contract to be made in the Port of New-haven upon the Continent of France then if they surmiz'd it to be made in the Bay of Biscay upon the Continent of Spain To this purpoâ—e very memorable is that fore-mentioned Case of Susans against Turner where it is said That if a Suit be commenced in the Court of Admiralty for a Contract supposed to be made Super altum mare the Defendant upon a Surmize or Suggestion that it was made upon the Land within the Realm may have a Prohibition The Fact is re vera super altum mare notwithstanding which the Jurisdiction of the high Admiralty of England seems as that Case puts it to be in point of Cognizance subordinated to a bare surmize or suggestion though in re minus vera In matters of an inferiour alloy it is no superlative argument to infer a thing ought to be so because it hath been so much less in point of Jurisdiction Though it be a common Rule in Law that ex facto jus oritur yet this is ever to be understood non de facto supposito sed vero It is yet too fresh in memory to escape observation how of late unhappy years Prohibition have been prayed even by such as in the self-same Case had before admitted the Jurisdiction of the Admiralty by pleading there yea when by the Libel it could not appear that the Contract whereon the Action was grounded was made out of that Jurisdiction Insomuch as it became most mens policy that suspected the success of their Cause in one Jurisdiction to endevour by the art of surmizing the removal thereof to another And this though the Case in it self never so clear of Admiral Cognizance and after themseves had submitted to the Jurisdiction This had but a slender affinity with what is reported in the Case between Jennings and Audley where Prohibition was prayed to the Admiral and the Libel shewed to the Court which contained the Contract was made in the Straights of Malago within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed That in all Cases where the Defendant admits the Jurisdiction af the Admiral Court by Pleading there Prohibition shall not be granted if it do not appear by the Libel that the Act was done out of their Jurisdiction The like we find in the Case of Baxter against Hopes In which it is said That if the Defendant admits the Jurisdiction of the Court then the Court will not upon a bare surmize grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libel that is that the Act was not made within the Jurisdiction of the Sea And to this difference all the Court agreed So that for the same party in the same cause to surmize and move for a Prohibition against that Jurisdiction to which himself had formerly submitted and in a Cause which by the Libel appears not other then Maritime seems quite beside the Rule and Practice of Law To conclude this point of Forraign Contracts made and other things done beyond the Seas The Merchants Case Mich. 8 Jac. in the Kings Bench may not be omitted It is therein thus reported viz. Henry Yelverton moved the Court for a Prohibition to the Admiralty Court And the Case was There was a Bargain made between two Merchants in France and for non-performance of this Bargain one Libelled against the other in the Admiralty Court And upon the Libel it appeared that the Bargain was made in Marcelleis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it And Flemming Chief Justice would not grant a Prohibition for though the Court of Admiralty hath nothing to do with this matter yet insomuch as this Court cannot hold Plea of that the Contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the Bargain may be supposed to be made at Marcelleis in Kent or Norfolk or other County within England and so tryable before us and it was said that there were many Presidents to that purpose and day given to search for them This was the Case wherein it appears the Bargain was made beyond the Seas and between Merchants yet said the Admiralty hath nothing to do therewith because not upon the deep Sea nor that Court hold Plea thereof because made in France therefore according to Flemming Chief Justice no Prohibition but Yelverton and Williams Justices to the contrary the Contract being supposable to be made at Marcelleis in Kent or Norfolk Therefore a search for Presidents of Contracts though really made beyond Sea yet supposed to be made in some Forraign parts beyond Sea in England as Marcelleis in Kent or Norfolk or the like This could not be so much out of any necessitous ground to accommodate the matter to a tryal somewhere for prevention of a total failure of Justice as in order to a removal thereof from the Court of Admiralty where it actually depended It is now nigh thirty years since in the Royal Presence it was unanimously resolved and subscribed by all the Reverend Judges of both the Honourable Benches viz. Febr. 1632. upon the Cases of the Admiralty-Jurisdiction That if a Suit be commenced in the Court of Admiralty upon Contracts or other things done beyond the Seas no Prohibition is to be awarded CHAP. X. Of Judicial Recognizances and Stipulations for Appearance and performance of the Acts Orders Judgments and Decrees of the Court of Admiralty As also whether the said high Court of Admiralty of England be a Court of Record ALthough the Court of Admiralty time out of mind hath ever used to take such Recognizances and Stipulations for Judicial Appearances and due performance of such Acts Orders and Judgments as are made and given in the said Court yet this Ancient Practice of the Admiralty though so adequate to the genuine rights of Judicatories and Tribunals of Justice quatenus such hath not escaped a Contradiction founded upon this assertion That the Court of Admiralty is no Court of Record Such as hold Prohibitions may be granted to the Court of Admiralty upon the ground or reason aforesaid seem to model the Argument Syllogistically and say That for the taking of Recognizances against the Laws of this Realm Prohibitions have been and ought to be granted But the Court of Admiralty doth take Recognizances against the Laws of this Realm Ergo c. The Minor Proposition is said to be proved thus viz. No Court being not a Court of Record can take such Recognizances But the Court of Admiralty is no Court of Record Ergo c. That unhappy Minor
that Law whereby that Court proceeds is nothing inferiour in point of Antiquity to the Jurisdiction it self the style of that Court in that point of Practice being as Ancient as the Court it self And whereas the right of taking such stipulations for Appearance and performance of the Acts Orders Judgements and Decrees of the Court of Admiralty hath not been without contradiction upon the foresaid ground That the said Court is no Court of Record it doth plainly appear by a Record of good Antiquity and with the Learned Mr. Selden of good Authority That the said Court is a Court of Record And if the Court of Admiralty be discharactered as no Court of Record by reason of its proceeding by the Civil Law it would thence seem to be implyed as if no part of the Civil Law were any part of the Law of England It is not concealed from the world by a person of no less honour then knowledge in the Laws of this Realm that the Imperial or Roman Law is in some cases the Law of the Land This worthy Authour speaking of the Right of Prerogative in absolute Kings and Princes as to Impositions upon Merchandizes doth upon that occasion in the fore-cited place declare himself in haec verba Forasmuch as the general Law of Nations which is and ought to be Law in all Kingdomes and the Law-Merchant is also a branch os that Law and likewise the Imperial and Roman Law have been ever admitted had received by the Kings and people of England in Causes concerning Merchants and Merchandizes and so are become the Laws of the Land in these Cases why should not this question of Impositions be examined and decided by the Rules of those Laws so far forth as the same doth concern Merchants and Merchandizes as well as by the Rules of our Customary or Common Law of England especially because the Rules of those other Laws are well known to the other Nations with whom we have commerce whereas the Rules of our own Municipal Laws are only known within our Islands What this worthy Authour here speaks of the Civil Law in England as to this point of Impositions by the King on Merchandizes is applicable in any case of Navigation Naval Negotiation or other affairs properly relating to Merchants or Mariners within the sphere of the Admiralty of England And the same Learned Authour in another place When the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world c. And again in the same place All Marine and Sea-Causes which do arise for the most part concerning Merchants and Merchandizes crossing the Seas our Kings have ever used the Roman Civil Law for the deciding and determining thereof Thus far goes the said worthy Authour in this point It is most true the Civil Law in England is not the Law of the Land but the Law of the Sea Great Brittain and the Dominions thereof comprizing the adjacent Seas as well as the Land The Law by which the high Admiralty of England proceeds being in all Causes cognizable in that Jurisdiction allowed owned and received by Prince and People Soveraign and Subject seems to be a Law of England though not the Law of England not the Land-Law but the Sea-Law of England For as in matters Terrene and in Land-affairs it is proper to say infra Corpus Comitatus so in matters Maritime and Sea-affairs it is no less proper to say Sur le hout mere The Jurisdiction of the Admiralty of England is one of the Jurisdictions of England which ever implyes a Law to proceed by that cannot be but of that Place whereof the Jurisdiction it self is It neither may nor ought to be denyed but that for the taking Recognizances against the Laws of the Realm Prohibitions have been granted yet possibly it may not thence by a necessary concludency follow that the high Court of Admiralty in taking Stipulations for Judicial appearance or performance of the Acts and Orders of the Court vel judicio sisti vel judicatum solvi and this according to that Law whereby it is to proceed is involved under such a guilt of transgression against the Laws of the Realm as eo nomine to incur a Prohibition which if grantable upon every such Recognizance or Stipulation for Appearance and performance of the Acts and Judgements of the Court without which it cannot proceed according to Law there could then be no Suit or Action depending in the high Admiralty of England be it for Place Nature or Quality in it self never so Maritime and of undoubted Admiral Cognizance but must be subject and lyable to a Prohibition and consequently to a removal from its proper Jurisdiction ad aliud examen to the great grievance of Merchants and Mariners and others the good people of these His Majesties Dominions by reason of the multiplicity of Suits protelation of Justice excess of Judicial expences together with the uncertainty of Jurisdictions and all as the unavoydable consequences of such Prohibitions CHAP. XI Of Charter parties made on the Land and other things done beneath the first Bridge next to the Sea vel infra fluxum refluxum Maris and how far these may be said to be Cognizable in the Admiralty TOuching this Subject it hath been asserted That if a Charter-party be made within any City Port-Town or County of this Realm although it be to be performed upon or beyond the Seas yet is the same to be tryed and determined in the ordinary course of the Common Law and not in the Court of Admiralty This is exclusive as to the Admiralty in matters of Charter-parties made upon the Land But yet it is agreed and resolved Hill 8. Car. upon the Cases of Admiral Jurisdiction That though the Charter-party happen to be made within the Realm so as the penalty be not demanded A Prohibition is not to be granted Were it otherwise or that the Jurisdiction of the Admiralty might not take Cognizance of such Maritime Contracts though made on Land then by thereunto adding what was formerly observed out of the same place viz. That the Court of Admiralty hath not any Jurisdiction of any Contracts made beyond Sea for doing of any act within this Realm or otherwise wherein the Common Law can administer Justice It would follow that if according to the one of these Assertions such Maritime Contracts when made upon the Land though to be performed upon or beâ—ond the Seas may not be tryed or determined in the Court of Admiralty and when according to the other of these Assertions made beyond the Sea for doing of any act within this Realm c. the Court of Admiralty hath not any Juriidiction thereof In such caâ—e it must necessarily follow that the Jurisdiction of the Admiralty
Sea For the difference may be material In the Case of Palmer against Pope it is reported That the Statute saith ad primâ—s pontes And in the Case of Leigh and Burley It is said that the 15 of R. 2. is mis-printed viz. that the Amiral shall have Jurisdiction to the Bridges for the Translator mistook Bridges for Points that is to say the Lands end So reported in the said Case The words of the Statute are viz. In the main stream of great Rivers only beneath the c. of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance It is not denyed by the Statute but the Admiral hath Jurisdiction in Cases of Mayhem and Death in the main stream of great Rivers Rivers are not found beneath the Lands end if Bridges be mistaken by the Translator for Points and Points be taken for the Lands end then Rivers and the main stream of great Rivers should be beneath the Lands end where they empty themâ—elves into the main Ocean Again the words of the Statuâ—e are In the main stream of great Rivers only beneath the c. And the words in that Caâ—e of Leigh against Burley are That the Admiral shall have Jurisdiction to the c. question is whether there also be a mistake in the Translation For the difference is great and very significant between to a place and beneath a place In the said Case of Leigh against Burley it is said That the Statute of 15 R. 2. is mis-printed yet probably the Press followed the Copy and in so doing it may be excused from an errour of mis-impression In the said Case it is also said That the Translator mistook Bridges for Points that is to say the Lands end A right impression of a mis-translation if any such be seems not to render the word Bridges in stead of Points or Lands end as mis-printed so long as the Press agrees with the Copy Pons in the Latine rendred into English seems rather to be a Bridge then Points or a Lands end Pons in the Latine sounds more like Points then Bridge and so doth Pont in the French which yet is a Bridge and not Point or Lands end which in the French seems to be more properly rendred by the word La poincte or un poinct But a Point of Land at which Rivers or Waters meet seems to be most properly rendred by the word Bec in the French which seems sufficiently dissonant from the word Points And those Navigators that by experience know the meaning of doubling the Point probably do â—eldome sail over Rivers either great or small beneath such Points But this only by way of observation upon the said mistake as reported in the â—aid Case of Leigh against Burley and not in the least by way of any thing else in reference to what is not of any private interpretation but reserved only for â—uch as unto whom are specially committed the Oracles of the Law The Assertion That it is not held material whether the Place be upon the Water infra fluxum refluxum maris but whether it be upon any water within any County was formerly hinted yet possibly it may be material to know what waters are held to be within a County specially if the question put by Doderidge Serjeant in the same Case of Leigh against Burley be duly considered In which Case it is reported That the Lord Coke said That the Admiral should have no Jurisdiction where a man may see from one side to the other but the Coroner of the County shall inquire of Felonies committed there which was held to be good by all the other Justices And he gave this difference that where the Place was covered over with Salt-water and out of any County or Town there est altum mare but where it is within any County there it is not altum mare but the tryal shall be per Vicenetum of the Town Doderidge Serjeant demanded this question The Isle of Lunday de Corpore Comitatus of Devonshire and lyes twenty miles within the Sea whether is that within the County Foster If the Sea there be not of any County the Admiral hath Jurisdiction or else not In this Case it is said that the Admiral hath no Jurisdiction where a man may see from one side to the other which in a transparent Horizon a man may do from the Lands end to the Cassiâ—erides or Isles of Scilly which lye seven Leagues at least thence distant in the main Ocean and almost the like from some part of England to the other side the water over to France The said Isles of Scilly are de Corpore Comitatus Cornubiae yet doubtless the high Admiral of England notwithstanding both sides are mutually visible hath Jurisdiction on the interflux there though the said word within should be taken in a sense as large as the Ocean it self And whereas it is said that the Admiralty hath not any Jurisdiction of Contracts Pleas or Quereles made or done upon a River Haven or Creek within any County of this Realm probably it is not thereby meant or intended to be limited or restrained otherwise then according to the Statute-Law the Laws and Customes of the Realm whereof those of the Sea are a part the Realm of England consisting of more elements then one And if you consult the Topography of several of the Harbours Havens Ports Rhodes Bayes Sounds and Creeks of this Kingdome probably the Admiralty might have in more senses then one a more liquid demonstration then so to be disjuriâ—dictioned by any meer supposition which had no small operation to the prejudice of the Admiralty in the days of the late Licentious Times when fancies were much in fashion thereby reducing Jurisdictions to uncertainty the common fate of all things in the said days of Legerde Brain but especially to the needleâ—s protelation of Justice as to Merchants and Mariners in the Legal prosecution of their Maritime Contracts notwithstanding the Resolutions upon Cases of Admiral Cognizance subscribed by all the Reverend Judges and Justices of both the Honourable Benches in the Eighth year of the Reign of our late Soveraign Charles the First of blessed Memory wherein among other things relating to that Jurisdiction it was then unanimously resolved That in Cases arising upon the Thames the Admiralty hath Jurisdiction specially in the point mentioned in the Statute of 15 R. 2. And by Equity thereof may inquire of and redress all annoyances and obstructions in those Rivers that are any impediment to Navigation or passage to or from the Sea and in all Navigable Rivers And no Prohibition to be granted But in the Case of Goodwin against Tompkins it seems something otherwise According to the Report the Case was this A Suit was in the Admiral Court for setting a Ship in a Wharf to the damage of the Plaintiff So that none could come to his Wharf which is said within
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