Romans Carthaginians have ascribed it to themselves But the Greeks confidently assert that Minos King of Crete had the first Soveraign Empire over the Sea and thence would fain have it over our Faith also as if Saturn King of Crete seeing his son Neptune to have invented the Art of Navigation gave him the Command of his Navies at Sea which he managed with such success that after-Ages sacrificed to him as to a God of the Sea So that Minos being descended of Saturn by his son Jupiter having afterwards obtained the Superintendency and Guard of the Seas left it to his Successours Notwithstanding which the Syrians Egyptians Cyprians Rhodians but specially the Phoenicians have in all former Ages had the honour of being reputed the most valiant and expert Artists at Sea in Maritime affairs and that from the excellent Conduct and Government of their Navies beyond all other Nations and Countries whatsoever But the Corinthians are supposed to be the first that ever formed or modelled Navies at Sea in a Classical way The Athenians had two chief Magistrates for the Maritime affairs The one was to provide such a number of ships for this or that design each Captain having in charge to see to the Equipping of his own vessel These Captains they called Trierarchy The other had power of setting them to Sea and of ordering them home again at his pleasure whom they called Magistratus rei Nauticae Iurisdictionem habens qui Trierarchis jura reddebat and ordered the several Squadrons to such or such stations and places of Rendezvous and discharged them as he thought fit This was That Thalassiarchus or Admiral of the Athenians who sometimes had more Admiral 's then one at once as Niceas and Demosthenes at other times but one only as Alcibiades Pericles Simon and others Likewise under Alexander the Great and his Successours Kings of Syria and Egypt there were divers Admirals whereof some were Grecians others of other Countries such were Nearchus Onesicratuâ— Beton Diognot and others As also Patroclus under Nicanor and Seleucus of the Syrian Monarchy But most Memorable is that Commission which was by Ptolomeus Philadelphus given to Decearchus as if he had been to take an exact measure of the Circumfercnce of the whole world by a Line of Navigation Among the Phoenicians the Tyrians and Zidonians were the most eminent in all Maritime affairs as was formerly hinted These not only transported from place to place varieties of Merchandizes till then unknown to other parts of the world but also made divers new Discoveries and planted Colonies therein as at Vtick Hippone and Lepte in Africa at Thebes in Greece and Egypt and at Gades and Carthage that Carthage which is in Spain But of all Africk the other Carthage once Lord of the Levant the chiefest for Sea-affairs whose Admiral Hanno by order of the Senate discovered the utmost Coasts of Africk even to one degree of the Aequinoctial And their other Admiral Hamilco discovered all that part of Europe which till then lay as sub-incognito to the Carthaginians In the Eastern Empire he that was high Admiral was styled Drungarius as Drungarius Navigiorum Constantinopoli Drungarius Classis Drungarius mari Praefectus Drungarius Magnus Although some are of opinion that this was a general word with them or a word which signified Generals as well by Land as by Sea Qui Drungis hoc est globis militum imperabant This Magnus Drungarius Classis was a subordinate Officer or Naval Magistrate under their great Duke and was also styled Ameralius which with them was likewise a Common Appellation for Terrene Princes Thus the Tyrant of Babylon was called Amiralius Thus Huntindon speaks of twelve Amiralios Paganorum that were slain at the Siege of Antioch Thus Matth. Paris in Will 2. speaks of 29 Reges Amiralios at once appointed for the Warres by Corbaranus Thus Robert the Monk makes mention of the Son of Cassianus King of Antioch and twelve Admiraldi of the King of Babylon slain in battel whom with an Army he had sent to aid the said King of Antioch Thus the Agents or Ambassadours of the the King of Babylon styled the said King himself Admiraldum Dominus noster Admiraldus Babyloniae mandat vobis Francorum Principibus Salutem Thus Nabuchodonosor King of Babylon was styled Admiralius Thus we also find a Chieftain of a Bow-Militia styled Arcubalistariorum Admiralius So that anciently this word Ameralius or Admiralius did signifie as well the Commander in chief of the Armies by Land as of the Navies by Sea and sometimes the office or dignity of Kings and Princes or other Soveraigns of Supreme Authority but this you are to limit only to the Turks and Asiaticks Again In the Eastern Empire there were no less then Four Admirals or Amiraei there properly so called at once for that Mahomet or rather Muhammad appointed Four Praetors in the Kingdome of the Sarazens which were called Ameraei And that Muhamed a little before his death constituted Four Ameraeos qui debellarent omnes ex genere Arabum Christianos These Four Ameraei were also called Quatuor Admirantes And of these Four Admirals with the Sarazens the one had the Sea-Command of Egypt and Africa two others thereof divided the Spanish Coasts betwixt them and the Fourth had Palestine and the Coasts of Syria But many are of opinion that before Charlemaigne the Sarazens had but one Admiral viz. Addala after him Aron and after him Mabarmad which Charlemaigne having war with his Brother Haldala and being more then half conquered by him condescended that the Sarazens should have two Admirals for one And Turpin who was Secretary to the said Emperour Charlemaigne acquaints us with an Admiral of Babylon vvho came to the succour and relief of the Sarazens of Spain against the French as also of another Admiral viz. Galaffre a very potent Favorite with the said Emperour Under the Roman State when Pompey banded with Caesar for the Soveraignty there were several Admirals well nigh as many as the Nations were which aided either party with Shipping as the Egyptians Asiaticks Rhodians Syrians Achaians and others over whom M. Bibulus was Lord high Admiral But when the Government was reduced to an establishment the Admiralty was setled also which not long after was again divided into two parts for there was one Admiralty at Misene and the adjacent Poâ—â—s for the South another at Ravenne towards the East which two for distinctions sake they called the High and Low Seas each whereof was under the Command of his proper Admiral whom they called Praefectus Classis as the Captains of their Ships were known by the style of Navarchi It is also evident that in the Roman Empire there was anciently a Company or Society of Owners and Masters of Ships as also of Merchant-Adventurers at Sea in the Isle and City of Rhodes which above all other places in the world had once the Prerogative
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
over-flow its banks to the inundation of another it 's most just and safe seasonably to reduce them to their proper Channels Were it true what Bald. says Jurisdictiones penes Principes residere quasi Scabellum the Clashing of Jurisdictions might be an offence only to the Footstool of Majesty but if Jurisdictio ejus ossibus inhaeret as Tapia and others assert then it may be of an higher nature Where divers persons are concredited with Juridical Trust or Authority there the Jurisdiction is either Separate or Concurrent or in Common A Separate Jurisdiction may appertain to a certain number of persons privative or exclusive to all others whereby they are externally qualified to take Cognizance either of other Persons or of other Causes or of other Quantities or of other Places then what other Judges are Juridically qualified for A Concurrent Jurisdiction is that which appertaineth to many Cumulative as when the same Cases are equally subjected to the Cognizance of many Judges yet so that each of them whether one or more by himself or themselves may in solidum hear and determine the Case and he or they only may take Cognizance thereof to whom address by the Complainant is first made and before whom the Suit is first Commenced for in such Cases prevention takes place and in all Competent Jurisdictions wherever the Action is first Commenced there Judgement ought to be given in the Case Thus the Emperial Chamber by an Ordinance there made hath Concurrent Jurisdiction with the Emperour himself save in matters relating to the Fee or Inheritance of the Emperial Crown A Jurisdiction in common appertaineth to many and that cumulative as to all of them so to all of them together and complexive insomuch that one of them may not proceed without the other the Law obliging all of them to be present together in Judgement But whatever Jurisdictions there are in a Nation of how many kinds degrees orders or subordinations soever This is a sure Rule and without Exception Jurisdictiones non sunt confundendae The Bonum Publicum is more Rationally stated and more concerned in rhe equal administration of Justice then to admit the least Confusion in that which is the only Expedient to prevent Confusion for Justice whose office it is not only to doe that which is equal but also to remove that which is unequal is never illustrable through any Mediums that hath the least tincture of Injustice and although for its material Object it ever hath some one External action or other as suppose Equality between Payment and Debt yet for its Formal Object it ever hath Honesty and Conformity unto at least an adequate Consistency with Natural reason comprised in that external Act. Of all Jurisdictions That of the Admiralty or Sea-Affairs hath been the least beholding to the Auxiliaries of the Press in defence of its Ancient Rights and Priviledges against such as would without offence impair the same The Reason probably may be either from the paucity of such as are more specially therein concerned in respect of that numerous Host or Retinue that in fealty to the other Jurisdictions are most prompt Notaries on all occasions oâ— rather in that it is of that excellent use in all Maritime Dominions that the Friends thereof are well assured its worth would be better valued if the want thereof were more smartly felt The Ensuing Treatise is to assert the Rights thereof in part the design of whose highest Ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the Rights and Priviledges of so Ancient and Necessary a Jurisdiction then to convince any by Arguments less perswasive then that Interest whereon some meâ—s Prejudice may be founded Though Merchants and Mariners qua tales be not such able Lawyers as to know how their Maritime Cases should be determined according to the exact Rule of Law yet they are such able Supports to any Nation or Kingdome that they are not to be left sub incerto where or in what Tribunal to find that Rule under such a quality of Juridical Competency as not to run hazards by Land as well as by Sea yet this under the Notion of a Maritime Cause when possibly it is of another Element may not be strain'd in favour of one Jurisdiction in derogation of another nor under the notion of Merchants when posibly they are at best but quasi Mercatores For not every one that buyes and sells is thence presently to be denominated a Merchant but he only who in the way of Trade and Negotiation deals in Moveables for gain or profit upon design of disposing thereof in the way of Commerce either by Importation Exportation or otherwise in the way of Emption Vendition Barter Permutation or Exchange So that he is not properly said to be a Merchant who once and no more doth buy Commodities that he may sell the same for it is not one Act that doth denominate a Merchant but a certain Assidutiy or frequent Negotiation in the Mystery of Merchandizing unless he be matriculated or entred as such in the Society or Corporation of Merchants He also may be said to be a Merchant who by common fame and in the opinion of men is commonly reputed a Merchant They that buy Wares or Merchandizes to reduce them by their own Art or Industry into other forms then formerly they were of are reputed rather Artificers then Merchants unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby in which case they may be said to be rather Merchants then Craftsmen or Artificers And such as buy wares for present money that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought are reputed rather Usurers then Merchants But Bankers Money-changers and such as deal by way of Exchange are reputed under the notion of Merchants For whereas it is formerly said that a Merchant deals only in Moveables understand that Money is comprised under that notion So also are Ships The Isle of Rhodes anciently was the only Mart of Trade and Commerce in the whole world Antiquity describes that Isle and the City thereof as the only Metropolis of Merchants who though they have a Latitude as wide as the Ocean in point of Trade and Negotiation yet they may not in time of war transport Prohibited Goods or Commodities to an Enemy though designed for the Redemption of Captives Yet such is the Reputation of Merchants that Credit is generally given without the least distrust unto their Count-Books unless some Legal Exception may be raised against the same or other just cause of suspicion And whereas each Merchant hath his peculiar Mark wherewith his Goods are usually marked by way of
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
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
Contracts though Vltra-marine But the Lord Hobard in Bridgmans Case goes farther and says That it hath been often Resolved That if any Obligation were made at Sea yet it could not be sued in the Admiralty Court because it is an Obligation which takes his course and binds according te the Common Law So that it hence follows that if it be made beyond Sea wherein the Common Law can administer Justice the Court of Admiralty hath not any Jurisdiction And if it be made at Sea it cannot be sued in the Admiralty Court because it takes its course and binds according to the Common Law Thus betwixt Land and Water between Contracts made beyond Sea and Obligations made at Sea the Admiralty seems like a kind of Derelict But probably it is not hereby meant or intended that every Contract made beyond Sea shall be tryed at the Common Law but only such as are there made for doing some Act within the Realm or otherwise wherein the Common Law can administer Justice and give ordinary remedy Nor every thing done at Sea but only Obligations which have their course and bind according to the Common Law and also when these things done at Sea be not as Bridgmans Case farther puts it of the same nature and respect that is as the said Case explains it an Obligation made at Sea for security of a debt growing before at Land cannot be sued in the Court of Admiralty because it is not for a Marine cause No man 't is presumed doth question but there may be debts growing at Land for Marine Causes as in respect of Shipping Navigation and the like Otherwise a Skipper signing Bills of Lading at Land might pretend such Bills of Lading so signed by him did not oblige him to a delivery of the goods therein expressed according to the consignation thereof A Marine Contract may be made and a Nautical debt contracted as well by Land as by Sea for security whereof Obligation may be afterwards made at or beyond the Sea and be within the Cognizance of the Jurisdiction of the Admiralty which would not signifie much in this or any Nation if it could not administer Justice in any Cases save only such as have their Birth Life and Death their foundation negotiation and consummation precisely Super altum mare specially where a surmize or suggestion may be material quoad examen though the Case oft times happens to prove otherwise quoad merita Sir George Croke in the foresaid Resolutions upon the Cases of Admiral Jurisdiction seems to be of another opinion where it is said That if a Suit be commenced in the Court of Admiralty upon Contracts made or other things done beyond the Seas or upon the Seas no Prohibition to be granted or awarded There respect seems to be had more to the Place where the Contract is made then whether it be for a Marine cause There are some things that wherever they be made or done whether this side the Sea upon the Sea or beyond the Sea may be properly Cognizable in the Admiralty Such are Charter-parties Bills of Lading and the like There are other things wherein the Jurisdiction of the Admiralty is limited as to the Locallity upon or beyond the Sea Personal Actions may sometimes be or not be of Admiral Cognizance according as they are here or there Local at other times they are regulated quoad subjectam materiam about which they are conversant for as there are some certain Places that sui natura are subject to the Jurisdiction of the Admiralty so there are some certain Things that are likewise sui natura subject to the same Jurisdiction And as a Maritime Place may without respect to the subâ—ect matter entitle that Jurisdiction to a Cognoslibility of a Case so sometimes the subject matter as the said Charter-parties Bills of Lading and such like may without such absolute respect had to the Place have the same operation were it otherwise it might be something difficult to find a Case simply and absolutely of an Admiral Cognizance for Contracts though made even upon or beyond the Seas are generally to take effect at Land And that which is purely Marine in the Cause may be Terrene in the Effect Bills of Lading that are so properly inherent in the Admiralty take effect at Land though made and firm'd a ship-board for the most part upon or beyond the Seas Likewise Contracts for Fraight and Mariners wages take effect at Land yet for the most part are made a ship-board upon or beyond the Seas These Obligations for they are Obligations though they are for doing some Act within the Realm as in Bills of Lading for the safe delivery a shore the dangers of the Sea excepted of such goods to the Consignatory as are therein mentioned and in Contracts of Fraight and Mariners wages for the due payment of mony on the Land yet are all within the Jurisdiction of the Admiralty When a Contract is really made Super altum mare vel ultra quatuor maria specially in matters sui natura maritime though in order to something afterwards to be done or performed in whole or in part upon the Land This seems by the Ancient Customes style and practice of the Admiralty to be within the Jurisdiction thereof yea properly and exclusively unless you hold the doctrine of Universal Concurrency And herein the Admiralty may safely appeal to the words of that great Oracle of the Law whereof mention hath been made in the precedent Chapter viz. Que chose fait hors del Royalme n' aient poet estre trie diens Le Royalme per Le serement de 12. A thing done out of the Realm may not be tryed within the Realm by the oath of twelve men This is the judgement of him whom the Lord Coke styles not only by the name of a Lawyer but of the Law it self No surmize or suggestion can cause that to be which in sui natura is not nor cause that legally to seem to be which in rerum natura is not capable of being The Question is not whether an Alien born out of the Dominions of the Realm of England may as a Demandant bring his real Action nor is it imagined by any that because he is an Alien that therefore his Case may not come to Tryal for want of a suggestion To feign a Native of France to be born in such a certain place in England doth not reach the Case in hand For though it be impossible for one and the same individual person to be born in both places yet it is not impossible but that he who is surmized or suggested to be born in one place might in truth be born in another nor contrary to the Rules of Law to surmize a translocation of a mans Nativity which admits a possibility in any place within the habitable parts of the whole Universe therefore such a surmize or suggestion may be regularly consisteâ—t with the Law of Fictions and consequently
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