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
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
then that only whence Pontus became a word used for the Sea in general though Prometheus according to Aeschilus the Attick Poet doth challenge all the glory of this Art of Navigation to himself whom among others who boasted themselves as Authours of this Art the Rhodians envying presumed to give Laws and to prescribe the Rules of Naval Discipline in order to the better government of Maritime affairs which were now occasionally introduced into the world by this Art of Navigation which Laws are found dispersed among the several Titles of the Civil Law by command from the Emperour Justinian This Island of Rhodes in the Mediterranean or Carpathian Sea was by reason of the multitude of their shipping and great commerce no less famous for their Sea-Laws then for their Monstrous Colossus The one was no less the Wonder of Reason in the infancy of Trade then the other of Art though That the greatest of the Seven in all the world This appears by that memorable and known passage of the Emperour Antoninus Pius who in Answer unto Eudemon's complaint concerning the seizure of his ship-broken goods by the Customers of the Cyclides in the Archipelago referres him for Justice to the Rhodean Laws professing that although he were Lord of the World yet the Law was of the Sea To which Rhodian Law several other Emperours as Tiberias Hadrian Vespatian Trajan Lucius Septimius Severus and others do referre all Maritime Controversies yea for many hundred of years the Mediterranean and most parts of the Christian Ocean where any Trassick or Commerce was subscribed to the Law of Rhodes in the Decision of all matters of Admiral Cognizance But some there are who by no means will admit that the Rhodians should thus Monopolize the glory of advancing the Common Interest of Mankind as if the Law of the Sea was born into the world only by their Obstetricy and therefore will have the Origination of the Sea-Laws attributed to the Phaenicians who as they are by some accounted the Authors of Arithmetick and Astronomie so also of Navigation whence is that Prima ratem ventis credre docta Tyrus They were the First that took the observation of the North-starre in supplement of that Navall mystery These Phaenicians who came with Cadmus into Greece as they Civilized the Graecians by their Sciences and other Literature so they exceedingly debauch'd them by their Luxurie and insatiable avarice which together with their Wares and Merchandise they first imported into Greece These were they that transported Io whence the Ionean Sea is so called out of Greece into Aegypt and were the First that descryed the Two Poles This Phoenicia is the Sea-Coast of Syria The Greeks call this Sea-Coast Phoenicia but the Hebrews call it Chanaan and the Inhabitants Chananites Dionysius also is of opinion that the Phoenicians were the First Mariners Merchants and Astronomers and Tyrus the Maritine Metropolis thereof whose Trade and Commerce was so great and remarkable in that Aera from Adam and consequently her Pride and Luxurie that Less then Two whole Chapters of the Sacred Record will not suffice to describe the vastness of the one and the Judgments of the other This City Tyrus is there styled a Merchant All whose Ships were made of Firre their Masts of Cedar their Oares of Bashan Oke the Hatches of Ivory the Wast clothes Vanes Flaggs and Pendants of Purple and Scarlet the common Mariners were the Zidoneans and Inhabitants of Arvad their Calkers were the Ancients of Geball and their Steers-men or Pilots where the wise men of Tyrus To these may be added the Inhabitants of Caria in Asia Minor for it is upon good Records of History that these also were anciently reputed Lords of the Sea as also the Inhabitants of Corinth Likewise the people of Aegina one of the Isles of the Cyclades and of Aegypt All these respectively have challenged to themselves this honourable invention of the Art of Navigation But the First that invented Ships on the Red Sea sailed thereon is said to be King Erythrus whence the Red Sea took its name of Erythreum Mare There are others who ascribe this Art of Navigation to the Carthaginians This seems to have more then fumum probationis in it for that these Poeni or Carthaginians originally were Phoeni or Phoenicians it is most undeniable that their Naval Discoveries attempted by Hanno by Hamilco and other Carthaginians are no less famous upon Historical Record then their Three great though unfortunate Bella Punica Maritima when Hannibal himself was Lord high Admiral which began in the 158 Olympiad and concluded with the sad Catastrophe of that famous City of Carthage then 700 years old in the last year of the 158 Olympiad whereby Rome by her Conquests lost the glory of a Competitor for the worlds Empire Now when the Roman Empire which is so commonly mistaken for the Beast with ten horns mentioned in the Prophet Daniel with Teeth of Iron and Nails of Brass which in truth is meant of the Syrian Monarchy under the Seleucidae so called from Seleucus Nicanor was shattered and dilacerated whereby a very dark and dismal Eclipse ensued generally on all Laws Necessity then which hath no Law occasioned new Laws and bad manners at Sea begat good Laws on Land yet not so much a Creation of new Laws that never were before as a Reviver or Resurrection of the former out of the Cinders of that fallen Empire together with such Additionals as Time Experience and Negotiations had administred occasion for especially to such parts of the world as by their Neighbourhood to the Sea were most conversant in Naval Expeditions and Maritime affairs Hence it is that in supplement of the forementioned Sea-Laws all the chief Towns of Commerce and Traffick on the Mediterranean contributed special Sea-Constitutions and Ordinances of their own for the better regulation of all Maritime Occurrencies Such were the Sea-Laws published by divers Emperours of Rome also by the Inhabitants of Pisa by the Genuises by those of Messene in Peliponesus of Marselleis Venice Constantinople Arragon by the Massilites Barcelonians and others As also the Laws of Oleron nigh 500 years now Received by most of the Christian world specially the Mediterranean as the Legal Standard of all Naval Discipline and for Decision of all Maritime Controversies For the Rhodian Laws being grown somewhat Superannuated and obsolete these Laws of Oleron succeeded the other and were published in that Isle then belonging to the Dutchy of Aquitane by King Richard the First at his Return from the Holy Land in the Fifth year of his Reign the said Isle at that time being under the Dominion of the Kings of England As to the Original of the Soveraign Command at Sea in the Infancy of Time though very uncertain yet divers Nations among which chiefly the Assyrians Macedonians Persians Egyptians
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
the Bill to be within the Ward of Saint Mary Hill And a Prohibition was granted upon a Suggestion that it was good for the ordering of Ships A Consultation was granted hut afterwards upon good advice and opening the matter a Supersedeas to the Consultation wâ—s granted quod Prohibitio stet for the wrong and fact is said to be within a County and Ward and for that it does not belong to the Admiral for all Civil Contracts or Trespasses done upon the River of Thames or any other River that is proper to the Common Law are tryable in that County which is next to the Bank and that side of the River where the Fact was done but in Criminal matters upon any River that is given to the Admiral by the Statute of 28 H. 8. cap. 15. Thus it is reported But the Resolution aforesaid is That in cases arising upon the Thames the Admiralty hath Jurisdiction specially in the point mentioned in the Statute of 15 R. 2. And no Prohibition to be granted CHAP. XII Of the Jurisdiction of the high Admiralty of England Stat. 13 R. 2. cap. 5. Stat. 15 R. 2. cap. 3. Stat. 2. H. 4. cap. 11. Stat. 27 Eliz. cap. 11. THE Exposition Explanation and Interpretation of the Statute-Laws being a right properly inherent in the Supreme Authority that enacted them and in the Reverend Judges the Lex Loquens or voice of them there remains no more to the good people of his Majesties Dominions then to yield all obedience to them and thereby claim their birth-right in them In order whereto it is every mans prudence as much as in him lyes to clarifie his Intellect yet with such sobriety that as Ignorance may be no Obex to his Obedience on the one hand so also that super-curiosity may not quite dazle his Intellect on the other It is not ignorantia juris but facti that can excuse any And though in a sense it may properly be said of Humane as of Sacred Laws That they are not of any private interpretation whose Oracles alone are intrusted with the exposition thereof yet it is every mans duty to know the Rule of his Duty And he that will understand that he may obey aright must have a right understanding of what he is to obey Upon theâ—e Considerations it is most clear That it well becomes all such who may be concerned in the subject matter of this Treatise to have right-informed apprehensions not to make private Interpretations of the true intent and meaning of the said Statutes in order to a clearer prospect of the Admirall Jurisdiction It is enacted by the Statute of 13 R. 2. cap. 5. That the Admirals and their Deputies shall not meddle from henceforth of any thing done within the Realm but only of a thing done upon the Sea as it hath been used in the time of the Noble Prince King Edward Grand-father of King R. 2. Whence it hath been inferred that the Jurisdiction of the Admiralty is confined only to things done upon the Sea The said Statute says That the Admirals shall not meddle with any thing done within the Realm but only with things done upon the Sea as it hath been used in the time of King Edward Grand-father of R. 2. that is in the time of Edward the Third to the usage in whose days the said words seem to have reference as Limitative with a Referendo And admitting the word duly if not by the Letter of the Statute yet by construction of Law it may seem almost as equally difficult exactly to know what was the usage as what was the due usage or what was in this point duly used in the days of Edward the Third only with this difference that an usage being matter of Fact there may be Rei evidentia in that case to prove it self whereas to know what was duly used may be matter of Law and capable of diversities of opinion consonant to various perswasions And yet until it be known what was in this matter the due usage in the time of Edward the Third it seems not indubitably obvious to every running Intellect to conceive what may be the full scope and true intent or meaning That the Admirals shall not meddle c. but only with things done upon the Sea as it hath been used in the time of King Edward Grand-father of King Richard the Second For the clearer apprehension wherof it may not be impertinent under submission to better Judgements and without presuming on any thing quod est supra nos as formerly hinted to inquire a little what was used or duly used in this point of Admiral Jurisdiction in the days of the said Edward the Third Grand-father to King Richard the Second To this purpose the Learned Mr. Selden in his impregnable Treatise of the Dominion and Soveraignty of the Brittish Seas le ts us to understand That it appears by Ancient and Publick Records containing divers main points touching which the Judges were to be consulted with for the good of the Kingdome in the time of King Edward the Third That Consultation was had for the more convenient guarding of the Sea For the whole Bench of Judges were then advised with To the end so runs the Record That the Form of Proceedings heretofore ordained and bâ—gun by Edward the First Grand-father to our Lord the King and by his Councel at the prosecution of his subjects may be resumed and continued ofâ—ngland â—ngland and the Authority of the Office of Admiralty in the same as to the Correcting Expounding Declaring and Conserving the Laws and Statutes long since made by his Predecessors Kings of England for the maintaining Justice among all people of what Nation soever passing through the Sea of England And to take Cognizance of all attempts to the contrary in the same and to punish offenders and award satisfaction to such as suffer wrong and damage which Laws and Statutes were by the Lord Richard heretofore King of England at his return from the Holy Land interpreted declared and published in the Isle of Oleron and named in French Le Ley Olyroun That which Mr. Selden takes special notice of and commends to our chiefest Observation is what we find in these Records touching the Original of the Naval Laws published at the Isle of Oleron The said Statute of 13 R. 2. makes mention of the usage in the time of King Edward Grand-father of R. 2. who was Edward the Third in whose Reign according to this Record not only the Form of Proceedings ordained by King Ed. 1. and his Councel were to be resumed and continued for the retaining and conserving the Authority of the Office of Admiralty as to the Correcting Expounding Declaring and Conserving the Laws and Statutes made long before by the Predecessors of the said King Edward the First for the maintaining of Peace and Justice among the people of what Nation soever and to take Cognizance of all attempts to the contrary to punish offenders
less according to the pleasure of the Admiral This hath Mr. Selden the Lawyer as well as Mr. Selden the Antiquary there is far less feasibility of contesting with him then of gaining honour by subscribing to his authority Wherefore upon an Interestless perpension of what hath been only touch'd not so largely handled as might have been in a set Treatise proportionable to this subject matmatter the Jurisdiction of the Admiralty may be found not only a Body of more Solidity then to dissolve only into Water and not only a Jurisdiction proceeding by such Laws as have from age to age successively been owned by the Supreme Authority of this Nation but also such a Jurisdiction as though it hath its due bounds yet possibly according to what hath been duly used in the time of King Edward Grand-father of King Rich. 2. not so exceedingly straight-laced as some in the late Licentious times imagined specially if in addition to the Premises they consider what hath been formerly said to have been urged by Haughton viz. That the intent of the Statute of 13 R. 2. cap. 5. was not to inhibit the Admiral Court to hold Plea of any thing made beyond Sea but only of things made within the Realm which pertains to the Common Law and is not in prejudice of the King or Common Law if he hold Plea over the Sea And that this was the intent of the Statute appears by the Preamble And in the same Report it is farther said That Walmesly and Warburton Justices agree That if a thing be done beyond Sea as if an Obligation bears date beyond Sea or be so Local that it cannot be tryed by the Common Law if the Admiral hold plea of that Prohibition shall not be awarded for it is not to the prejudice of the King or of the Common Law By the Statute of 15 R. 2. cap. 3. It is Enacted and Declared That the Court of Admiralty shall have no cognizance of Contracts Pleas and Quereles or other things done within the Bodies of the Counties as well by Land as by Water Nevertheless of the Death of a man and of Mayhem done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiralty shall have cognizance From hence it hath been observed by way of Inference how Curious the Makers of this Statute were to exclude the Admiralty of all manner of Jurisdiction within any water which lyeth within any County of this Realm possibly it hath not been so exactly observed by way of Redress how unfortunate specially of late years the same hath been in having its Jurisdiction impeded and obstructed in Waters without any County of this Realm by the Prohibitory Consequences of a Surmize or Suggestion when in rei veritate the matter was otherwise then surmized or suggested This is that Statute whereof mention is made in the precedent Chapter touching the mistake of the word Bridge instead of Points It seems something more then strange in Nature to find a main stream or great Rivers whereof this Statute speaks beneath the Points which beak out into the main Sea as Navigators well know when they double the Point the main Sea or great Rivers being commonly emptyed into the main Ocean above not beneath such Points and usually cease to be streams or Rivers before the Waters thereof reach the said Points And it were no prejudice if it were ascertained what Havens and Harbours may be held as within the Bodies of some County because possibly Geographers know not with what Counties to incorporate Milford-Haven Mounts-Bay Tor-Bay Plymouth-Sound and the like The Law in express tearms hath put the difference Res facta in Portu non facta in Terra The Law knows no preternatural confusion of Elements Lex semper imitatur Naturam Time was olim meminisse dolebit in the late Licentious days when the Admiralty of England between Land-imagined and the Sea-County-corporated could scarce keep above water But now that Justice once more looks like it self and suum cuique tribuitur miraculously arrived instead of sic volo sic jubeo c. Insomuch that it might then be as truly as sadly said Terras Astraea reliquit yet now that Justice by an over-ruling hand of Divine Providence is again turned into its ancient and proper Channel and it being well known to the whole world of what lustre and value the Jewel of the Admiralty is when well set in the Diadem or Crown of Great Brittain it may not now be unseasonable to alledge what is asserted as is aforesaid to be of ancient Record viz. That not only in the days of Edward the First but also in the days of King John All Causes of Merchants and Mariners and things happening within the Floud-Mark were ever tryed before the Lord Admiral Consonant to what was resolved in Sir Hen. Constables Case That the soyl betwixt the high and low Water-Mark may be the Subjects but when covered with water the Admirals Jurisdiction reaches to it By the Statute of 2 H. 4. cap. 11. It is Enacted That the Statute of 1. 3 R. 2. cap. 5. shall be firmly holden and kept and put in execution This Statute therefore seems as a reviver or in confirmation of that which as aforesaid mentions according to that which hath been duly used in the time of King Edward Grand-father of King Richard the Second which being formerly insisted on a retrospect may here suffice By the Statute of 27 Eliz. cap. 11. It is Enacted That all and every such of the said offences before mentioned as hereafter shall be done upon the main Sea or Coasts of the Sea being no part of the Body of any County of this Realm and without the Precinct Jurisdiction and Liberty of the Cinque-Ports and out of any Haven or Pier shall be tryed and determined before the Lord Admial c. It hath been hence inferred That by the Judgement of the whole Parliament the Jurisdiction of the Admiralty is wholly confined to the main Sea or Coasts of the Sea being no parcel of the Body of any County of this Realm And that this Statute is a particular description of that Jurisdiction as to the limits thereof This Statute gives the Jurisdiction of the Admiralty a power of Cognizance in such Offences done upon the main Sea or Coasts thereof there 's the Ampliation Being no part of the Body of any County and without the precinct of the Cinque-Ports and out of any Haven or Pier there 's the Limitation Where either of these is part or parcel of the Body of any County within this Realm the Admiralty may not claim Jurisdiction therein Touching Contracts made beyond Sea the said Letter of this Statute is silent In the Resolutions upon the Cases of Admiral Jurisdiction the substance of the first Article or Proposition is That no