stupor as his Epitaph in S. Anthonies Church at Padua where he also dyed above one hundred years before the other styles him when he was a young Student in the Laws was wont to say that of other matters and points of Law he could attain to some understanding by his private study and chamber-disquisitions but in this point of Jurisdictions he could understand nothing at all but what he heard in the Schools Voce Magistra Of such difficulty is the subject matter of this Treatise and yet with what confidence do some illiterate persons like boyes at foot-ball toss and play with Jurisdictions even almost to the tripping up the heels of Magistracy it self Jurisdictions are things of much tenderness as well as profoundness and must be gently touch'd as well as deeply weigh'd if persons in Juridical Authority be styled Mortal Gods then Jurisdictions are in some sense things Sacred and may not be approached unto but with Civil reverence Nor is the acquisition of the profound knowledge of the Law touching Jurisdictions a pomeridian work for sollicitous students much less obvious to rural capacities A right understanding what Law is gives the clearest prospect to a discovery what Jurisdictions are the Civilians do succinctly and fully define Law Lex est Sanctio Sancta jubens honesta prohibens contraria Law is a Decree not to be violated commanding things honest forbidding the contrary Plato in his definition of Law says It is a Reasonable Rule leading and directing men to their due end for a publick good ordaining penalties for them that transgress and reward for them that obey And Cicero defines it to be the highest and chief reason graffed in nature commanding those things which are to be done and forbidding the contrary And of all Laws those of the Empire next to the Jus Divinum seem to challenge the precedency in all Forraign Kingdomes and States though in this as not in their proper sphere they display not their beams with that lustre for want of that encouragement and employment they deserve It is every mans duty to have the best and highest thoughts of the Laws of his own Country yet to oppose them to the Ancient Emperial Laws either as to the Theory thereof with their numerous host of most Learned Interpreters or as to the Practick in the Pleadings of the highest Courts of the greatest part of the Christian world in the many Judgements and Decisions of the several Rotes of Italy at Rome at Naples at Florence at Genoa at Bononia at Mantua at Perusium and the rest in the Judgements of the Imperial Chamber at Spire which is the last result of the German Nation in the Decisions of Granado and other places of Spain and other Kingdomes as in the Arrests of the several Courts of Parliament in France as Paris Aix Burdeaux Grenoble and the rest To oppose any Municipal Laws save our own to the Ancient Emperial Laws in the latitude aforesaid recitasse est refutasse the very recital thereof is confutation enough saving the honour due to the Laws of our Native Country It will not be denyed but that the Great Legislator of Heaven and Earth is the Fountain of all Laws that is Law properly so called had its Origination from God himself This is an undoubted Position not only in Christian Religion but such as the Doctors of the Gentiles and Heathens themselves will easily admit for even among them such as assumed the Legislative Authority and took upon them to prescribe Laws would at the enactment thereof invocate their false Gods and endevour to father them on one or other of their heathenish Deities as Minos who gave Laws to the Cretians on Jupiter Numa who gave Laws to the Romans on Aegeria Nympha Zoroaster who to the Bractians and Persians on Horomasis Trismegister who to the Egyptians on Mercurius Charondas who to the Thurians on Saturn Lycurgus who to the Lacedemonians on Apollo Draco and Solon who to the Athenians on Minerna Mahomet who to the Arabians on the Angel Gabriel Thus all agree in this that Law hath the image and superscription of some supernaturall Powers and is more Ancient then Adams Fall as is evident by necessary though sad consequences for without Law there had been no Transgression In immediate subordination to the Divine and Natural Law written in the tables of the heart came the Jus Gentium or the Law of Nations when men first began to have mutual Commerce with each other for thereby was introduced a kind of Necessity for all Nations to observe some certain Rules as Law without which no Society of men in way of reciprocal negotiations could subsist which Law doth indeed flow from the Law of Nature insomuch that Cicero was of opinion that in all matters and affairs of the world whatever was the Consent and Concurrent approbation or allowance of all Nations that was to be understood the Law of Nature Next unto which is the Jus humanum Civile being a distinct Law both from the Law of Nature and also from the Jus Gentium and seems to be then born into the world when men first of many Individuals began to compact themselves into one Society and when they first began to incorporate themselves into Bodies Politick which in the worlds infancy seems to be when Cain built the City Enoch for Civil Laws seem to have their Origination then when Cities began first to be built Magistrates to be constituted and Ordinations of Government to be committed to writing for indeed Civil Law properly so called is no other then that which every City constituted and enacted for it self and for its own peculiar government which Law also hath its foundation laid in the Law of Nature from whence as from a Fountain are derived divers lesser channels and rivulets according to the great variety of Places Persons Times and Transactions And the Civil Law of the Roman Empire in common acceptation and mode of speech is now for the Antiquity Excellency Universality and Authority thereof called The Civil Law by way of Eminency the Name and Appellation of the Civil Law being now properly appropriated to the Emperial Law and Constitutions as that Law which was the Law Currant in all the Dominions of the Roman Empire and is at this day in most parts of the whole Christian world Beside these Laws peculiar to a due administration of Justice in matters meerly secular there was also at the worlds Infancy a kind of Sacerdotal Law or Law of the Priesthood when men congregated first began to adore the â—reat God in the way of a Publick worâ—hip for in the first Constitution of Common-weals and Cities it was necessary to establish certain Laws peculiar to the Priesthood for it cannot be imagined but that when men first began to offer their first-fruits and to sacrifice to God there was then some Law in being for the worship of the Deity nor
thereof or is Naturalized a Denizon of that Countrey Reprizals may not be Exercised on Pilgrims or such as travel for Religion sake nor on Students Scholars or their Books or other Necessaries Nor on Ambassadors or their Retinue nor on Women or Children Likewise Goods found with a Merchant of another place then that against which Reprizals are granted albeit the Factor of such Goods were of that place are not subject to such Reprizals nor ought the presumption of the Place though strong enough for Condemnation where proof of an innocent property failes prevail against fuller Evidence Ecclesiastical persons are also by the Canon Law expresly Exempt from Reprizals So likewise such persons as by Storm or Stress of weather are driven into Port have an Exemption from the Law of Reprizals according to the Jus Commune what the Edict of any particular State in that case may doe is not here determined But a ship or Goods belonging to the Subjects of another Prince against whom Reprizals are granted coming into a Port of that State issuing such Letters of Reprizal not by storm or stresse of Weather but to avoid Confiscation for some delict committed at home in their own Countrey may be subject to Reprizals in Port. This Right of Reprizals which as some would have it answers to the Saxon Withernam is not only admissable in cases of denyal or protelation of Justice as when Judgement may not be had within the time prescribed by Law but also when Judgement is given plainly against the Law and no Remedy to be had against such wrong Judgement either in the ordinary course per viam Provocationis A Appellationis ad Jâ—dicem superiorem nor in the extraordinary per viam supplicationis ad principem understand thus when the matter in Controversie is tam quod merita quam quod modum procedendi not Doubtful for in Doubtful matters the Presumption is ever for the Judge or Court But a wrong Judgement in matters not Doubtful must be redress'd one way or other specially if such be given to the prejudice of Foraigners over whom the Authority of a Judge though in his own Jurisdiction is not so exactly the same as over his own Subjects And although it be a Rule in Law Res judicata pro veritate habetur yet it is as true that Judex male judicans pro injuria tenetur nor doth a Judgement or a Definitive diminish the merits though it may alter the Case Therefore Paulus the Lawyer held that a Debtor that is a Debtor indeed though Judicially absolved yet by nature remains a Debtor still and therefore when this happens to be a Foraigners Case he may if all other Legal Expedients fail for redress have recourse to the Jus Gentium which holds conformity with the Law of Nature Subjects indeed may not by force oppose the Execution even of an illegal Judgment nor forcibly prosecute their denyed rights and that by reason of the Energie of that Power and Authority which is over them the Subjects obedience being in the Emphasis of the Magistrates Authority But yet Foraigners can fly to the Jus Gentium to Right themselves by way of Compulsion which they could not effect by any Legal prosecution so long as their Right is reparable by Judgment according to Law but infeazible by reason of the denegation or protelation of Justice contrary to the regular proceedings of Law It seems at least Summum jus if not plus justo that the Goods of his Innocent Subjects that denyed Justice should be taken and seized for that â—njustice wherof they appear no more guilty then the original Complainants The truth is this is not introduced by the Jus Naturae but yet being commonly received by Custome and National practise is now become qualified for an allowance or tolleration by the Jus Gentium whether this were sufficient for Nestor to plunder the Elidenses for taking away his Fathers horses or for others on the like peccadilloes in this Age to Centuple their Losses on their Innocent Neighbours for their Princes omissions under colour of Letters of Marque is easier to question then proper to determine But whether Christian blood should be ingaged in the quarrel which originully was but of Private Interest would soon be decided where no Military man hath the Chair By the Law of Nations all the Subjects of the Dominion doing wrong whether Natives or Strangers making their aboad there are within the reach of Reprizals whereby 't is evident that Strangers not permanent there nor under any of the aforesaid qualifications are excepted for Reprizals being in their nature quasi onus Publicum are introduced for the satisfaction of Publick Debts to which Strangers that are meerly such are no way obliged indeed to the Laws of the Land where their present being is they are subject but yet are not Subjects And whereas it is formerly said that Ambassadors are Exempt from Reprizals as also their Retinue and Goods understand it not of such as are Commissionated to any Prince or State in enmity or actual hostility against that Prince who issues such Letters of Marque Lastly by the Law of Nations in matters of Reprizals whatever is taken immediately upon the Capture accrues ipso facto to the Captor in point of Propetty so far as the Original debt or damage with all incident costs and charges doth amount unto and the surplus to be restored which Equity in this case the Venetians long since used to the ships they took on this accompt from the Genuises But by the Civil Law Monitions or Citations after a seizure ought to issue and the parties concerned are not to carve for themselves but submit the whole matter to a Judicial Examination in order to their Satisfaction which ought to ballance the Damnum Emergens but not to exceed by way of Supplement in reference to the Lucrum cessans for the Law of Reprizals though otherwise rigid enough yet Restitutio in integrum is its ultimate design and as no man ought to be enriched by anothers Losse so no man ought to gain by his own Losse when it may not be repaired otherwise then by Remedies extraordinary if not unlawful Having glanced at some general Heads of the Law of the Admiralty quasi in transitu by way of Introduction the least whereof in its due Latitude requiring more Volumes then are Pages in this and therein the Custom paid with other ordinary Port-charges usual in such cases It may now be free to sayl from the Law to the Jurisdiction of the Admiralty being the Port of Discharge in the Design of this Adventure The Wind seems Fair the Seas well purged of Rovers and Nereus reinvested with his Trident The Ensurance therefore need run but Low the Danger is not great now that we have Peace with all Our selves yea the Loss is but small though the Ship miscarry so the Cargo be preserved for that 's of value indeed a Jewell without which the whole World would
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
ought it to be doubted but that in those days there was a true Church of Beleevers as also true Sacrifices and as some hold true Sacraments and therefore not to be conceived but that there was also some Ecclesiastical Law then in force which afterward became much more clear under Moses Law And by way of additament to this in tract of time was the Canon Law established in every Christian Common-wealth which received not as some suppose it 's Original at that time when the General and Universall Councils began to be first held as under Constantine but in the days of the Apostles themselves who gave divers Rules and made many Canons touching Divine Wâ—rship and in order to the salvation of Souls And thus Laws being introduced into the world it could not be but there must be Jurisdictions also without which the Law is but a dead Letter For the clearer understanding whereof know That the word Jurisdictio without the Letter c etymologizeth it self For it is not so called from Juris and dictio as some would have it but from Juris and ditio And so Jurisdictio is quasi juris potestas But this pleaseth not Calvin who in this matter following Ferrand would derive it from Juris dictio and doth charge Accursius with an errour in Judgement for holding it to be derived from Juris ditio though he confesses that Bartol himself and many others do follow Accursius therein whose opinion seems to have the best congruity with reason in the energy of Law though Ferrand's Opinion seems to out-weigh if the comprized matter should be ballanced only by the letters of the word but indeed of the two Accursius hath by farre the more numerous Retinue So that Jurisdictio taken in the large sense as the Genus generalissimum or Plenissima Jurisdictio is nothing else but Potestas de jure Publico introducta cum necessitate juris dicendi aequitatis statuendae The word Jurisdictio taken in this large sense doth properly signifie that Office or Function which the lawful Magistrate doth hold and exercise by the ordinary right of his just power and authority Of Jurisdictions taken in this large sense there are three species or kinds in the Law There is Imperium Merum Imperium Mixtum Jurisdictio simplex And it is called Imperium because it proceeds from the Authority of the Judge and not from any right inherent or residing in the party The first of these viz. Imperium Merum is that Jurisdiction which respecting only the Publick utility is exercised Officio Judicis Nobili and by way of Accusation This hath the power of the Sword contra homines facinorosos and all Capital Offenders And is so called from its purity simplicity and immixture with either of the other kinds of Jurisdictions Of this Imperium Merum Bartoll makes Six several degrees which Jason contracts into Four but Zasius into Three Of these Six degrees of Imperium Merum the First is Merum Imperium Maximum And this resides only in the Prince or in the Supreme Authority In this Bartol doth lodge the Legislative Faculty or power of enacting Laws also the calling a General Council or the summoning a Parliament also the power of Confiscation of Delinquents goods In a word under this Merum Imperium Maximum are contained all things competible to Princes or the Supreme Magistrate And to these particulars which Bartol mentions under this head the DD do add one more and that is the creating of Tabellions General or Publick Notories The Second degree is Merum Imperium Majus This extends to the taking away of life and hath the power of the Sword Under this head also is that Potestas gladii in homines facinerosos forementioned but derivative from the Prince The Third degree is Merum Imperium Magnum under which head is comprehended Deportation or perpetual banishment But these two last degrees Jason comprehends under one and the same head For says he under the power of the Sword in facinerosos homines is comprehended three kinds of Capital Causes viz. First when the Life Natural is taken away either in whole or in part as by dismembration amputation or mutilation Secondly when the Life Civil is taken away as by loss of Liberty and by perpetual imprisonment for such are dead in Law Thirdly when a man is deprived of his Franchise Freedome or Priviledges which he had in any place by a Natural or Civil Right The Fourth degree is Merum Imperium Parvum under which head is comprehended Relegation or temporal exilement which is no more then an extermination whereby a man is commanded out of the confines of his own Country for a season And although Deportatio Relegatio be often used promiscuously in the Law for one and the same yet the Law discriminates them by very different Characters For in Deportation there is a perpetual in Relegation but a temporal banishment And as they differ in the Circumstance of Time so also in the Circumstance of Place For in Relegation the party is only circumscribed and it's part of his punishment that he shall not go out of the limits of such a certain place So Shimei the Benjamite that cursed David in his way to Mahanaim was after Davids death confined by his son Solomon unto Hierusalem and not to pass over the Brook Kidron who upon occasion of his going afterwards to Gath exceeded the limits of his circumscription and for so doing was put to death by Benaiah at the Kings command But now in Deportation the party is not so confined to or circumscribed by any certain place but is quite banished and exiled out of all the precincts of his own Country Again in Deportation the party cannot take his goods with him in Relegation he may but this difference holds not always Likewise under this head is comprized every Corporal punishment provided it be Tortura ad poenam Delicti For if it be Tortura only ad investigationem veritatis then it may be otherwise The Fifth degree is Merum Imperium Minus under which is comprized that moderate Coertion by Corporal Castigations which are ad vindictam Maleficii to distinguish it from Coertio verbalis per officium Merum and is competible with the Office or Function of Magistrates in Authority Also Cognizance of such crimes as are of the lesser and inferiour kind Of this and the last precedent degree or member of Imperium Merum Jason makes but one as formeâ—ly but one of the Second and Third degrees So that although here be Six species degrees or members of Imperium Merum according to Bartolls accompt yet here are but Four according to Jasons computation and to him in this matter the DD do generally incline rather then unto Bartoll The Sixth and last degree is Merum Imperium
and so to conclude this point with Omphalius that famous and Modern German Lawyer Jurisdictio est res indivisibilis si tamen ejus Domini in eodem Territorio dissentiant in Exercitio Jurisdictionis pertinebit ad Superiorem Potestatem Conoordia partes interponere vel usum Jurisdictionis Exercendae dividere This seems to be the Admiralties Case in terminis All Jurisdictions are essentially radicated only in the Prince or Supreme Magistrate The Law ranks them inter Regalia Principum The right and power of the conservation of Jurisdictions doth lodge and reside properly there from whence they had their being and origination Jurisdictiones omnes ab ipso Principe velut Rivuli à fonte suo manarunt When the Prince or Supreme Authority Ex plenitudine Potestatis doth create or constitute a Jurisdiction he doth not devest himself of the right of expounding his own Grant according to that in the Law Jurisdictio licet concedatur à Principe semper tamen inhaeret ejus ossibus So that when differences do arise concerning the rights or demands the Ampliations or Restrictions the Latitude or Boundaries of Jurisdictions the Prince is the competent Judge to decide and reconcile In this case therefore to Caesar is the Appeal CHAP. VI. Of Prohibitions Their several kinds Causes and Effects in the Law HAving spoken of Jurisdictions in general it may not now be of less consequence to enquire of what superseding faculty a Prohibition in its original and due intendment of Law may be in point of right and power for the removal of the Cognizance of Causes from one Jurisdiction to another And although in the precedent Chapter there hath been a clear and distinct Prospect of the matter of Jurisdictions out of the Civil Law being the best and indeed the only Law that could with such transparency present us with an object of that depth and difficulty yet now being to look through other Mediums so clear a sight of Prohibitions may not be expected to be presented in the same Glass For Prohibitio in the sense now intended may not be taken for Interdictum quo Praetor vetat aliquid fieri nor be thence dissected into its several kinds and distinctions according to the Analogy of Civil Law This would be as little pertinent to the present purpose in hand as rationally it could expect of credit or belief out of its proper Sphere Suffice it therefore that it be described under such Rules and Characters as the Law of this Realm doth not disown It shall therefore only be premised what Boerius that famous Civilian says of it That a Judge in matters cognizable before him may prohibit such as are within his Jurisdiction from impleading any in another Court to his prejudice And that an Ecclesiastical Judge may issue his Mandate to a Judge Secular prohibiting him from medling with matters of Ecclesiastical Cognizance And the same Boerius in another place says That in such cases of Excess by the power of one Jurisdiction exercised over another the King is to decide the Controversie A Prohibition in the sense most adequate to the purpose in hand is a Writ forbidding to hold Plea in a Matter or Cause supposed to be without the Jurisdiction and Cognizance of that Court where the Suit depends Sir Thomas Ridley calls it a Commandement sent out of some of the Kings higher Courts of Record where Prohibitions have been used to be granted in the Kings Name sealed with the Seal of that Court and subscribed with the Teste of the chief Judge or Justice of the Court from whence the Prohibition doth come at the suggestion of the Plaintiff pretending himself to be grieved by some Ecclesiastical or Marine Judge in non-admittance of some matter or doing some other thing against his right in his or their Judicial Proceedings commanding the said Ecclesiastical or Marine Judge to proceed no farther in that cause upon pretence that the same doth not belong to the said Ecclesiastical or Marine Judge But this description of the Writ of Prohibition though large enough yet not comprehensive enough For Prohibitions may issue to Courts that have neither Ecclesiastical nor Marine Cognizance as appears by the Learned Fitzh who among Sixty several Cases by him mentioned wherein a Prohibition doth lye doth not instance in any against the Admiralty Nor do the Statutes though express as to Prohibirions against Courts Ecclesiastical speak of any in express terms or in the letter of it as against the Admiralty Hence probably it is that the Authour of the Terms of the Law makes no other description of a Prohibition then this viz. That it is a Writ that lyeth where a man is impleaded in the Spiritual Court of a thing that toucheth not Matrimony nor Testament nor meerly Tithes And this Writ shall be directed as well to the Party as to the Judge or his Official to prohibit them that they proceed no farther But if it appears afterwards to the Judges Temporal that the matter is to be determined by the Spiritual Court and not in the Court Temporal then the Party shall have a Writ of Consultation commanding the Judges of the Court Spiritual to proceed in the first Plea Which description of the Writ of Prohibition is consonant to the Statute of 2 Ed. 6. cap. 13. whereby it is provided That he that sueth for a Prohibition shall make a suggestion and prove it by two witnesses And in case it be not proved true by two witnesses at the least in the Court where the Prohibition is granted within six moneths next after the said Prohibition then the Party so hindred by such Prohibition shall have a Consultation and recover double costs and damages against the party that sued for the Prohibition And in the said description of a Prohibition by the Authour of the Terms of Law there is not any thing express'd as to a Prohibition against the Admiralty but only against Judges in matters Spiritual wherein the Court of Admiralty is not concern'd By the Proceedings whereof there is not as in the other once was the least pretence for any fear of dis-inheritage of the Crown-Rights which will be agreed to be originally the Causa finalis of Prohibitions Whence it was long since observed and published by a Learned Civilian of this Nation That this Writ of Prohibition in those days may well be spared For although it were some help to the Kings inheritance and Crown when the two Swords were in two divers hands yet now that both Jurisdictions are settled in the King as the only Supreme Magistrate there is little reason thereof And indeed the Jurisdiction of the Admiralty of England was ever inherent in the Crown of England so that there was never in that sense that parity of reason for Prohibitions against the one as against the other That which at first hath its origination from a principle of well-grounded policy and is of
the premises it may be no digression to insert a word by way of caution to the imperfect Notionist that he would not hence infer as if the Law did feign impossibilities because it supposes the living to be dead and the dead to be alive the absent to be present and the present to be absent and the like For although they would indeed be impossibilities if only considered simply in an identity of fact and time of person and of place without their right and due diversifications yet they are not impossibilities being rightly according to the Law of Fictions distinguished in respect of fact time person and place together with such transactions translocations transtemporations and transpersonalities as according to Rules of Law are requisite to every Fiction that enures to any effect in Law For that which may seem Deceptio intellectus and by mis-apprehension possibly be taken for an impossibility in the precedent instances of a Legal Fiction is in truth nothing but that defect or absence of verity in the person act thing manner time or place feigned Indeed to look for Truth in a Fiction is to expect an impossibility with as much vanity as some men do for Revelations if it were possible that there could be the least verity in the thing supposed it would immediately cease to be a Fiction Legal Fictions may be aptly styled The just Policies of Law to attain unto the end and effect of Law by remedies extraordinary only where the ordinary means do fail This therefore is no warrant to fly to Fictions though Legal much less to others as remedies extraordinary when the ordinary means by Law provided may be used This point of Fictions having now been put to the touchstone of the Law and impartially weighed in the ballance thereof it plainly appears what kind of Fictions they are that are legally qualified to take place in the Judicial proceedings of the Civil Law in Forraign Nations as also in this Kingdome which before the late unnaturall and intestine Wars was and now seems to be for Religion Justice and Commerce Regina Insularum totius Orbis CHAP. VIII That the Cognizance of all Causes and Actions arising of Contracts made and other things done upon the Sea is inherent in the Jurisdiction of the Admiralty THis Truth in the Law is not denyed in the Judgements of men though it hath not wanted at least a seeming Contradiction in Practice Witness Susans Case against Turner in Noys Reports where it is said That if a Suit be in the Court of Admiralty for a Contract supposed to be made Super altum mare the Defendant upon a Surmize or Suggestion that it was made upon the Land within the Realm may have a Prohibition Such and the like begat that complaint of the Admiralty which gave the Lord Coke occasion to assert in these words following viz. That by the Laws of the Realm the Court of Admiralty hath no cognizance power or Jurisdiction of any matter of contract plea or querele within any County of the Realm either upon Land or the Water but every such contract plea or querele and all other things rising within any County either upon the Land or the Water ought to be tryed and determined by the Laws of the Land and not before or by the Lord Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the Water infra fluxum refluxum aquae but whether it be upon any Water within any County Wherefore we acknowledge that of contracts pleas and quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had thereof by twelve men the Lord Admiral hath and ought to have Jurisdiction This was the Answer long since given to an Objection made by the Admiralty But the Objection was That whereas the Cognizance of all Contracts and other thiags done upon the Sea belongeth only to the Juisdiction of the Admiralty the same are made tryable at the Common Law by supposing the same to have been done in Cheapside and such like places So that the sinew of the Objection is That things done upon the Sea being cognizable only in the Admiralty are made tryable elsewhere by supposing them to be done in Cheapside and such like plaees The said Answer speaking nothing as to the said manner of supposing seems not to enervate the said Objection The Answer distinctly declares and sets forth where and in what places the Jurisdiction of the Admiralty hath not Cognizance viz. not upon Land or Water within any County But why according to the said Objection things done upon the Sea and belonging only to the Admiralty are made tryable at Common Law by supposing them to be done in Cheapside and such like places seems yet to be resolved Statutum simpliciter loquens debet intelligi de his quae vera sunt secundum veritatem non de his quae sunt secundum Fictionem The scruple touching the surmize implyed in the supposition mentioned in the said Objection doth arise from the fact so supposed as whether solid enough to lay foundation for such superstructures as are built thereon It is acknowledged That of Contracts made and other things done upon the Sea or any part thereof which is not within any County the Lord Admiral hath and ought to have Jurisdiction but if this Super altum mare should by a meer surmize or suggestion be translocated in operation of Law and so thereby become as it were Infra Corpus Comitatus the said acknowledgement would seem to be disacknowledged and the said Objection would seem to be an Objection still Veritatis congressus invictae est major veritas And he that sues an Admiral Cause in another Court ought to withdraw it and to fine to the King Brownlow Reports That if a Bond bear date Super altum mare it must be sued only in the Admiral Court Whether then an Obligation or other Contract made on board one of the Frigots of the Navy Royall or the like in the Straights may be tryed in other then the Admiral Court by alledging or supposing the same to have been made in the Straights in Islington in the County of Middlesex seems to be the question for the very truth of the fact as to the place of making such Obligation in the Straights or Super altū mare seems not to alter the Case if the place so suggested is not to be traverfed it being as easie and as feasible to suppose and suggest the said Frigot and the Straights as Burdeaux in France to be in Islington But the great Oracle of the Law assures us That things done out of the Realm may not be tryed within the Realm by the oath of twelve men It is reported in Palmers Case against Pope That Jennings libelled in the Admiralty against one Audley upon a Contract laid to be made apud Malaga infra
being thereby excluded the Cognizance of such Maritime Contracts both sides the water must keep to Sea in all weathers yet scarce retain the libert if I may so say of a confinement Super altum mare according to the energy of that suggession reported in the Case aforesaid of Susans against Turner where it is said That if a Suit be commenced in the 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 Prohibition According to which comnutation with the premises considered the Jurisdiction of the Admiralty seems to be hard put to it both by Sea and Land Nor need it seem any thing strange that the Jurisdiction of the Admiralty seems excluded of Cognizance in such cases of Charter-parties whether made at Land or beyond Sea if a bare Surmize or Suggestion according to the â—aid Report in the Case of Susans against Turner may work as to a Prohibition against the Admiralty when a Suit is there commenced for a Contract not appearing other then made Super altum mare According to these premises if the Charter-party be made at Land though to be performed upon or beyond the Seas it is to be tryed in the ordinary course of the Common Law And if the Contract be made beyond Sea for doing any act within the Realm c. the Court of Admiralty hath not any Jurisdiction thereof And if the Suit be commenced in the Admiralty for a Contract supposed to be made upon the Sea then by a Surmize or Suggestion that it was made upon the Land a Prohibition according to the said Case may be had Thus in matters of Charter-party this side the Sea the Common Law seems to claim the Cognizance in Contracts made beyond Sea the Admiralty seems not to be allowed any Jurisdiction and in Contracts supposed to be made upon the Sea the Defendant upon a Surmize may have a Prohibition But no Fiction can spunge the Ocean nor turn the Sea into dry Land or the Bay of Mexico into Middlesex till it be proved as well as surmized In the said Case of Susans against Turner where it is said If a Suit be in the Admiral Court for a Contract supposed to be made Super altum mare the Defendant upon a Surmize that it was made upon the Land within the Realm may have a Prohibition It is there farther added in these words viz. And that it may come in issue if it was upon the Land or upon the Sea But by the Justices their Rule is that upon such a Suggestion they shall not grant a Prohibition after Sentence pass'd So that be the verity of the Fact as to the Super altum mare in it self never so liquid yet being primarily but supposed as all things in judicio though in themselves never so clear never so true yet must be alledged before the Court can proceed a Counter-supposition or Crosssurmize may work according to this as to a Prohibition to bring it in issue whether it was upon the Land or upon the Sea And so it seems as if scarce possible in any Case to avoid a Prohibition for the reallest Truths and the undenyablest verities under the Sun if in judicio foro contentioso can be at first but supposed truths for the Court if it proceed Legally cannot but proceed Secundum allegata first Probata next Charter-parties Bills of sale of Ships and the like Maritime Contracts are commonly made according to the Law of Oleron and frequently wicâ— a clause express to that purpose inserted therein the Civil Law the Laws and Customes of the Sea whereby the Admiralty proceeds takes notice thereof and can judge and determine accordingly how far other Laws that are accommodated to matters of another element though in themâ—elves and in their proper sphere most excellent can do the like is no part of the design of this compendious Treatise to determine But that Prohibitions have been granted upon Charter-parties is undenyably true Yeâ— the lamentable Cases of poor Mariners for their Wages have not of late unhappy years escaped Prohibitions although it be not denyed but they may all joyn in one Libel in the Court of Admiralty whereas at the Commoâ— Law if they must there prosecute they may not bring their Actions otherwise then severally and apart to their greater expence and charges respect being not had to the identity of the Case or the poverty of the Demâ—ndants to introduce a joynt Action To this purpose it is reported That where judgement was given in the Court of Admiralty against one Jones a Master of a Ship at the Suit of certain poor Mariners for their wages a Prohibition was prayed upon a Suggestion that the Contract was made at London in England but the Prohibition was denyed because he had not sued his Prohibition in due time viz. before a Judgement given in the Court of Admiralty Whereby it seems as if it was not the nature of the Case though for Mariners wages that prevented the Prohibition but the unseasonable suing for it viz. After Judgement given in the Court of Admiralty Touching the Jurisdiction of the Admiralty in ontracts made and other things done upon the Rivers beneath the first Bridges next the Sea where it ebbs and flows and in the Ports Creeks Havens Peers Sounds Harbours Rhodes Bayes Channels and other places infra fluxum refluxum maris It hath been asserted That by the Laws of this Realm the Court of Admiralty hath no Cognizance Power or Jurisdiction of any matter within any County either upon Land or Water So as 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 And it is farther added That for the death of a man and of Mayhem in these two Cases only done in great Ships being and hovering in the main stream only beneath the Points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other Causes but in these two only the Admiral hath Cognizance yet probably it will not be denyed but that by Exposition and Equity of the Statute of 15 R. 2. cap. 3. whence as supposed that assertion is taken he 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 also try all personal contracts and injuries done there which concern Navigation upon the Sea And no Prohibition is to be granted in such Cases The Reader may at his leisure consult the said Statute whether it says In the main streams only beneath the Points of the same Rivers nigh to the Sea or whether the Statute doth not say In the mâ—in stream of great Rivers only beneath the Bridge of the same Rivers nigh to the
ΣΥÎΗΓΟΡΟΣ ΘΑΛΑΣΣΙΟΣ A VIEVV OF THE ADMIRAL JURISDICTION WHEREIN The most material Points concerning that JURISDICTION are fairly and submissively Discussed AS ALSO Divers of the Laws Customes Rights and Priviledges of the HIGH ADMIRALTY of England by Ancient Records and other Arguments of Law Asserted WHEREUNTO Is added by way of Appendix an Extract of the Ancient Laws of OLERON By JOHN GODOLPHIN LL. D. Littusque rogamus Innocuum Virg. Aen. 7. LONDON Printed by W. Godbid for Edmund Paxton over against the Castle Tavern neer Doctors Commons and John Sherley at the Pellican in Little Brittain 1661. TO THE Reader HE that negotiates about Maritime Affairs is under Protection without Letters of safe Conduct as being within the Sanctuary of Jus Gentium and the right Timing of a Modest Address oft times proves more successful then a Confident Argument out of season There seems some probability as if this Treatise obtrudes not upon the world or thy patience like a Tract borne out of due time nor as if it came like a Physitian to his Patients Funeral or as Suetonius relates touching the Deputies of Troy sent to condole with Tiberius seven or eight moneths after the death of his sons If this Treatise be out of season others as well as my self are happily deceived in which case it will suffice to say with Philip de Comines That It is very hard for a man to be wise that hath not been deceived For the Method it is as Regular as the Arguments would afford though not so exact as might have been if the same Metal had been cast into another Mould yet not so rude and out of shape as to suspect from the disproportion of the Body that the Soul is ill lodged or like some long-breath'd confused Discourses of late much in fashion whereof it may be truly said as was once of the Romans two Ambassadours sent to one of their Provinces whereof one wounded in the Head the other lame in his feet Mittit Populus Romanus Legationem quae nec Caput nec Pedes habet and which for their prolixity and immethodicality may justly expect the same answer that those of Lacedemon gave the Samnites That they had forgotten the Beginning understood not the Middle and disliked the Conclusion The Subject-matter of this Treatise is not so much de jure as de jurisdictione Admiralitatis Angliae not so much touching the Law of the Admiralty or Sea-Laws as now received and practised in the Navigable parts of the world as in reference to the Jurisdiction of that Law within this Kingdome of Great Brittain So that it will on all hands be eafily agreed that the argument of Jurisdictions is Quaestio admodum Subtilis and no wonder if you consider That that which is de competentia Judicis Jurisdictionis is totius juris velut Obex repagulum But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and zeal for the Publick facilitates the highest difficulties To leave the Laws sub incognito or Jurisdictions sub incerto are both of National ill consequence subjecting the people either to Transgression through Ignorance or to unnecessary expences by multiplicity of Law-Suits Lux Lex Veritas are almost Synonimous if either of these suffer though but a partial Eclipse how great is the darkness thereof If a Jurisdiction without which the Law is but as a dead Letter be uncertain how great is that uncertainty but the liquid and clear stating and ascertaining of Jurisdictions to their proper and respective Boundaries beyond which one may not pass to the invading of another is one of the primary Constitutions of Jus Gentium This short View of the Admiral Jurisdiction was in its Origination designed only to prevent a Vacuum inter alia negotia and not to hazard the Censure of a Superfluum inter aliorum otia And although a great part of this Fabrick be laid on a Foundation of Civil Law yet in regard it is an indispensable duty which every man owes his Native Countrey to keep as much as may be sub incognito from Strangers and Forraigners abroad what possibly may not be absolutely perfect for there is no perfection under the Sun quoad modum procedendi at home Sumus enim Surdi omnes in Linguis quas non intelligimus And in regard this Treatise must recite the very Letter of certain Clauses of several Acts of Parliament Transactions of State and Book-Cases of Common Law And in regard the satisfaction of Merchants and Mariners was the main motive and design of emitting this to the Opinions of men For these reasons it could neither properly nor profitably speak the Ideum of that Law which is no less adequate to the Admiralty then currant over all the Christian world The just Rights and Customes of the Jurisdiction of the Admiralty of England are here with submission asserted and consequently therein many of the Priviledges of Merchants and Mariners and not only of those who have a Birth-right to England's Laws of the Admiralty but also of all such who negotiating with us have a Right thereto by the Jus Gentium and National Treaties The Merchant is Bonum Publicum and such is that Nations Interest whose Merchants do flourish that to gratifie them with all possible immunities and due encouragement is now become the common policy of all such Kingdomes and States as reap more treasure from their Ports then Pastures It was most true what Seneca once said of them Mercator urbibus prodest Medicus aegrotis without whom a Communalty or Civil Society of men can scarce plentifully or honourably subsist It was a saying with Baldus that famous Civilian That the world could not live without Merchants Whence it may be rationally inferred That that Nation is nigh drowning whose Merchants are under water their Function being to import Necessaries and to export Superfluities If therefore such Marine Controversies as arise between Merchant and Merchant or between Merchant and Mariner should be removed from the Cognizance of the Admiralty whereof there is now no fear ad aliud examen it might prove no fallible Index but that our Trade and Commerce in too sad a measure might also in some short time after be exported ad aliam Regionem Here therefore is the Merchant and the Mariner insisting not for any thing more then what is according to the known Laws of the Land and the ancient established Sea-Laws of England with the Customes thereof so far as they contradict not the Laws and Statutes of this Realm It will not be denyed but That Jurisdictio originaliter radicata est in Principe ab eo descendunt Iudices sicut Rivuli à Fonte suo The decision of the Rights of Jurisdictions resides not in any persons of a private capacity but in that Power that creates and constitutes Jurisdictions that is the Prince or chief Magistrate as the Supream Source or Fountain of all Humane Laws and Judicatories Reader it seems something difficult to determine whether the Sophistication
of Truths or the Fucus of Errors hath of late years been the more Epidemical cheat in Print it being sufficiently notorious how that adulterous generation went a whoring after the Press and what a noisome spawn of illegitimate Brats were then generated of the froth of the brain not less numerous then spurious that neither their male-content Parents nor Religion Law Reason nor Charity are able to maintain And although this Treatise be of a more generous extraction yet it is very far from complementing it self with the least vain hopes of exemption from those censures which are common to all men It is worth an Asterisk to observe how infeazable it hath been in all ages for the most Innocent to escape this correction Aristotle that Prince of Peripateciks was accused of being too obstruce and obscure and in many things labours under Galen's reprehension the Dialogues of Divine Plato are taxed for being too confused and immethodical Virgil by some is counted but a shallow and weak witted Poet and by others charged as if he were wholly beholding to Homer for his works and Homer himself is derided by Horace as if he were too drowfie a poet Demosthenes could not please Marcus Tullius in all things Trogus Pompeius doth accuse Titus Livius his Orations of Fiction and Falsities Seneca was nick-named and called Lime without Sand Pliny is compared to a turbulent River that tastes of many things but digests few But to come home to the Worthies of the Civilians Profession for even the most Orthodox Oracles of the Civil Law have not escaped such undue reprehensions As some have affirmed that Accursius had no depth of Judgement Others reprove Bartol for the length of his Distinctions as if somewhat too Monstrous by having too many Members On the other side Albericus is blamed for too much Brevity Baldus for inconstancy and instability of Judgement Alexander for the perplexity of his Method and both the Raphaels for their too much subtilty in some things for their neglect of and carelesness in the more polite Literature in other things for their non-citing and mis-alledging the Doctours And in a word those very ancient and most famous Lawyers that by the profoundness of their Judgement and splendour of their Eloquence have so illustrated the dark and obscure places of the Civil Law as that they nave left the world just cause of Admiration no hopes of Imitation even these have not escaped the like mis-reprehensions For in the Life of Iustinian Perinus out of Suidas hath a large Invective against Tribonian that Architect of the Pandects Besides who more Eloquent then Ulpian who more Pithy then Paulus who more Learned then Callistratus who more Acute then Papinianus who more Distinct and withal Succinct then Scaevola who more Free and Fluid then Caius who more Profound then Africanus who more Delightful and Satisfactory then Pomponius who more Clear and Transparent then Celsus who more Candid and Ingenious then Triphonius Yet all these in their Respective and Incomparable Works have met with the said undue Reprehensions If this therefore shall chance to meet with some waspish humours we must consider the Climate Nor is it more then wants a President or less then needs a charitable Construction which is the worst Revenge can possibly be executed by such as chuse rather to suffer then offend J. C. THE INTRODUCTION OR Preface TO THE Ensuing TREATISE THE Systeme of Jurisdictions is as the Law it self above the Notions of any Private Conception he is something more then of a singular Invention that thinks he can arraign the Verdict of all Ages Nihil dici queat quod non priue dictum fuit And he is more then of an audacious spirit that dares invade the Laws Prerogative Nihil proferri debet quod non prius Constitutum fuit Hence it is that he that writes of that Subject without Book that is that vents his own Notions or sails by the weather-cock of his own Brain not only consiscates the ill-stowed Cargo of his Intellect but also renders himself no less arrogant and presumptuous in the tacite apprehensions of the Prudent then shallow and ridiculous to the most rural Capacities It is therefore nothing dishonourable for Treatises of this Nature to merit the Application of that Liberty which Chrysippus took of whom it is said That he borrowed so freely from Authours that if his name were but expunged or obliterated out of the Title Page there would nothing remain that could properly be called his own It is neither heretical nor disingenious to accommodate old Truths to new Designs so it be done aptly and honestly sine animo furandi for there is that Credit by way of debt due to the Authours that it is no less then Theft to conceal them whereas one half of the debt is paid if you duly quote them yea they become your Debtours if by the ingenuity of your Husbandry you raise their Credit according to the improved value But he that conceals the Patrons of his Assertions is ashamed of his own Craft robs the Dead and châ—ats the Living He that writes Politicks without prefixing his Principles comes short of his Duty But he that writes Law without quoting his Authority presumes beyond his Line he that blushes to be ingenious is ashamed of his own modesty Plato borrowed many things from Pythagoras Aristotle from Plato and Theophrastus from Aristotle This Treatise hath borrowed nothing but what it intends to pay here 's the acknowledgement of the debt full satisfaction with interest may be expected elsewhere sufficient Caution being given in the subsequent Elenchus of the Creditours As Reason is the soul of the Law so Jurisdictions may be styled the faculties of that soul being reduced to act or exercise as they are accommodated to this or that object Consequently therefore to confound Jurisdictions is to obliquitate the Rule of all Humane actions specially if any thing less then Bonum Publâ—cum under a vizor be the Authour of that confusion Mine and Thine divide the world betwixt them in Private transactions they are unhappy Monosyllables but in Publick affairs they may be of most dangerous Consequence Insomuch that Seneca said The world would be quiet were it not for those two ambitious Pronouns This Meum Tuum is here understood Collective for Jurisdictio being of Publick right is not competible with any Private interest exclusive to common good that being beside the design of Jus Gentium whereby Jurisdictions were Originally constituted The flux and reflux of Jurisdictions are from and to the Prince as Rivers from and to the Ocean wherein Transactions of the greatest weight and burden are Navigable And therefore to obstruct the Current of Justice in this or that Channel may force open the Sluces of the Law to a Cataclysme of Injustice and dissolve the Ligaments of the best jointed Body Politick in the whole world And yet if the streams of one Jurisdiction running too rapid
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
to be wind-bound in our own Ports then to lanch forth into the wide Ocean of the Maritime Laws touching this Subject specially in an English Bottome having an eye to the Burden of the Vessel and for whose accompt this Cargo was first shipp'd whither bound and for whom consigned as also how disadvantageous it might prove for the Principals to have the returns of their expectation only in the Arbitrary altercations of cross-opinions rather then in such stapletruths of the Law as are not only currant in all the Navigable parts of the world but of most use and practice in the Admiralty of England For these reasons the Reader may expect only a taste of Admirall varieties and therein no more then may serve to excite his impatience after the excellency of that which in a set Treatise for this purpose might in its proper Dialect and due Latitude be emitted by an abler Artist All Maritime affairs are regulated chiefly by the Emperial Laws the Rhodian Laws the Laws of Oleron or by certain peculiar and Municipal Laws and Constitutions appropriated to certain Cities Towns and Countries bordering on the Sea within or without the Mediterranean calculated for their proper Meridian or by those Maritime Customes and Prescriptions or Perpetual Rights which are between Merchants and Mariners each with other or each among themselves This Maritime Government and Jurisdiction is by the King as Supreme as well by Sea as at Land concredited with the Lord high Admiral of England who next and immediately under the Prince hath the chief Command at Sea and of Sea-affairs at Land This Lord high Admiral hath several Officers under him some of a higher others of a lower form Some at Land others at Sea some of a Military others of a Civil Capacity some Judicial others Ministerial Such as are Chief in the Judicial Capacity are in the Law known by the style of Magisteriani or Judges of Sea-faring debates and all Maritime controversies whereof one being the Judex ad quem in all Maritime causes of appeal from inferiour Courts of Admiralty is with us known by the style of Supremae Curiae Admirallitatis Angliae Judex within whose cognizance in right of the Jurisdiction of the Admiralty by the Sea-Laws the Laws and Customes of the Admiralty of England are comprized all matters properly Maritime or any way pertaining to Navigation The Judicial Proceedings wherein are Summary Velo Levato sine figura Judicii As by warrant of arrest or other Original Mandate Execution and Return thereof Interposition of Caution given by the arrested for his Legal Appearance according to the tenor of the said Warrant of Arrest Appearance and Introduction of Sureties by way of Stipulation or Judicial Recognizance in the summe of the Action de judicio sisti de judicato expensis solvendis cum ratihabitione Procuratorii as also the Plaintiffs caution to pay costs in case he fail in his suit Contempt in case of non-appearance and forfeiture of the said caution in case of such contempt offering the Libel in case of Appearance Litis contestation or joyning of issue Decree for the Defendants personal Answer upon Oath to the said Libel exhibited against him a Decree for a viis modis in case of a Non Inventus a Decree against the sureties to produce the party Principal in judicio Production of him accordingly his answer upon Oath to the Libel Production of Witnesses Compulsory against such Witnesses as will not appear without it Commission for examining of Witnesses at home or sub mutuae vicissitudinis obtentu beyond Sea The Oath of Calumny by both parties if they please Exception against the Witnesses The Supplementary Oath Exhibition of Instruments Publication of Witnesses Conclusion of the Cause Sentence Definitive Appeal made within fifteen days of the said Sentence Assignment ad prosequendum Prosecution of the Appeal Remission of the Cause to the Judge A Quo Decree for Execution and Sentence executed accordingly Beside the other way of proceeding by arrest of goods or of goods in other mens hands and so to a Primum Decretum as to the Possession upon four Defaults and thence after one year to a Secundum Decretum as to the Propriety in case of Nonintervention upon laying down the costs of the Prim. Decret in the interim In the Proceedings there may be also Reconvention also sequestration of goods lite pendente and sentence Interlocutory as well as Definitive with many other particulars which may or may not happen according as the Court sees cause and the merits of the Case require Within the Cognizance of this Jurisdiction are all affairs that peculiarly concern the Lord high Admiral or any of his Officers quatenus such all matters immediately relating to the Navies of the Kingdome the Vessels of Trade and the Owners thereof as such all affairs relating to Mariners whether Ship-Officers or common Mariners their Rights and Priviledges respectively their office and duty their wages their offences whether by wilfulness casualty ignorance negligence or insufficiency with their punishments Also all affairs of Commanders at Sea and their under-officers with their respective duties priviledges immunities offences and punishments In like manner all matters that cnocern Owners and Proprietors of ships as such and all Masters Pilots Steersmen Boteswains and other ship-Officers all Ship-wrights Fisher-men Ferry-men and the like Also all causes of Seizures and Captures made at Sea whether jure Belli Publici or jure Belli Privati by way of Reprizals or jure nullo by way of Piracy Also all Charter-parties Cocquets Bills of Lading Sea-Commissions Letters of safe Conduct Factories Invoyces Skippers Rolls Inventories and other Ship-papers Also all causes of Fraight Mariners wages Load-manage Port-charges Pilotage Anchorage and the like Also all causes of Maritime Contracts indeed or as it were Contracts whether upon or beyond the Seas all causes of mony lent to Sea or upon the Sea called Foenus Nauticum Pecunia trajectitia usura maritima Bomarymony the Gross Adventure and the like all causes of pawning hypothecating or pledging of the ship it self or any part thereof or her Lading or other things at Sea all causes of Jactus or casting goods over board and Contributions either for Redemption of Ship or Lading in case of seizure by Enemies or Pyrats or in case of goods damnified or disburdening of ships or other chances with Average also all causes of spoil and depredations at Sea Robberies and Pyracies also all causes of Naval Consort-ships whether in War or Peace Ensurance Mandates Procurations Payments Acceptilations Discharges Loans or Oppignorations Emptions Venditions Conventions taking or letting to Fraight Exchanges Partnership Factoridge Passagemony and whatever is of Maritime nature either by way of Navigation upon the Sea or of Negotiation at or beyond the Sea in the way of Marine Trade and Commerce also the Nautical Right which Maritime persons have in ships their Apparâ—â— Tackle Furniture Lading and all things pertaining to Navigation also all causes
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
Minimum which comprehends whatever is imposed by way of pecuniary mulct upon some crime provided such pecuniary mulct be in reference to the Publick utility and not in satisfaction of private injuries The Second Species or kind of Jurisdictio taken in this large sense is Imperium Mixtum And it is that Jurisdiction which respecting only private utility is exercised Officio Judicis Nobili It is so called as being of a mixt nature because it consists partly of Imperium Merum and partly of Jurisdictio Simplex And as it consists in Commodo pecuniario respecting only private utility so it doth participate of Jurisdictio Simplex and is differenced from Imperium Merum Of this Imperium Mixtum Bartol as in the former makes other six degrees which Jason contracts to three and calls them Gradum MaximuÌ„ Medium MinimuÌ„ The First and Second of Bartols degrees Jason doth join in one as being both competible only to the Prince or Supreme Magistrate The Third and Fourth of Bartols degrees he likewise joyns in one as both requiring plenam causae cognitionem and both incompetible with interiour Magistrates So likewise of the Fifth and Sixth degrees Now because this last Division of Jasons seems to take best with the most part of the DD as being the most succinct yet comprehensive of all Jasons method shall here be followed as formerly was Bartols The first degree then of Imperium Mixtum according to Jasons account is Imperium Mixtum Maximum which pertains solely to the Prince and concerns only Actus voluntarios yet it may be alâ—o in the ordinary Magistrate but then it must be by way of derivation from the Prince This Imperium Mixtum Maximum comprehends veniam aetatis impetranti That is that whereas by the Civil Law a man is held a Minor and under age until he attain unto the age of twenty five years the Prince might at his Petition grant veniam aetatis impetranti that is if such Minor being a Male could prove himself to be of the full age of twenty years or being a Female could prove her self to be of the full age of eighteen years then might such by way of Petition impetrare veniam aetatis à Principe that is they might for the better management of their estate request the Prince's favour for an exemption from their Minority and to be held and taken as of full age that is as of the age of twenty five years to all intents and purposes of Law whatever only they could not by vertue of such Priviledge alienate their Praedials or Immoveables without a special Decree for that purpose And this Priviledge was obtainable only by the Prince's Grant Also under this head is comprehended that which the Civilians call Arrogatio which is a kind of Adoption but something different from it For the Prince did interponere Authoritatem Arrogationi Likewise under this head is comprehended Legitimation or the power of legitimating such as are unlawfully begotten And also Emancipation which properly so called is a Judicial and solemn transference alienation or vendition of free-born children For Manumission relates only to Servants and Bond-men from and out of the Dominium power and Jurisdiction of their natural Parents into the power â—nd right of another had and done by the authority of the competent Judge with the concurrency and mutual consent of both parent and child By such Emancipation the Patria Potestas is dissolved si filium suum forisfamiliaverit for it is a kind of vendition or sale by a tradition or delivery of his child out of his own right over to another who thereby becomes as it were Pater Fiduciarius or a Father in trust to the child although anciently such Emancipation was held no less then Civil death to the child or then an Ingressus Religionis Likewise under this head is comprehended that which the Law calls Supplicatio which is a Cognition or Retractation of a Judicial sentence from which lies no Appeal by way of Supplication pertaining only to the Prince and in the Roman Government to the Praetorian Praefect This is that Remedy of a Judicial Sentence which the Canonists call Revisionem Sententiae or the Review of a Sentence This is used but very rarely and only in extraordinary Cases but chiefly against the Sentence of such Judges as from whom by reason of their Eminency non licet Appellare In such Cases the imploring of the grace and favour of the Prince or Supreme Authority is properly called Supplicatio The Second degree is Imperium Mixtum Medium under which is comprized a full and plenary Cognition of a Cause with Coertion as well Real as Personal of such is the putting a man into possession by vertue of a Secundum Decretum Likewise Restitutio in integrum Also the expulsion or outing another of his Actual Possession In like manner under this head are comprehended all matters that require a plenary Cognition although it hath not Real or Personal Coertion As to give such a possession of goods as shall convey and carry a right of Property with it Also to pronounce for the putting into Possession Ex Secundo Decreto Also to interpose ones Authority for the Alienation of things appertaining to Minors Also in Transactions of Alimony and the like The Third and last degree is Imperium Mixtum Minimum And this consists in such things as are expedited Officio Judicis Nobili but do not require a plenary Cognition as the former but are determined by a Summary proceeding and have respect only to Private utility Of this kind is the putting into Possession by a Primum Decretum Also any possession which to the Cognizance of the Cause doth not require a Proceeding De Plano but only Summarily sine strepitu judicii Of this kind also is the granting of Possession to Minors Ex Edicto Carboniano so called from Cneus Carbo the Praetor and Authour of that Edict For when upon the death of a Parent Intestate any question or Controversie arose to the Pupil or Minor either Male or Female by the Masculine line concerning the inheritance or goods of such Parent as also concerning the state quality or condition of such Minor or whether he were the legitimate Child of such Parent In all such cases daâ—ur Carboniana bonorum Possessio saith the Law that is such Minor shall by that Edict be put into possession of the said goods he first giving good caution or security not to diminish the same during his Minority and in the mean time the dispute in Law or Controversie touching the right of Title to the said goods as also touching the state quality and condition of such Minor is by the same Edict to be deferred and put off untill he come of full age Likewise under this head falls Manumission or the setting at liberty such as were under the servitude and dominium
of others and refers properly to Servants that were under the domination of Masters as Emancipation doth to children free-born that were under the power of their natural Parents of these kinds are Causae Libertinitatis Causae Ingenuitatis The Third and last species or kind of Jurisdictio taken in this large sense is Jurisdictio Simplex And it is that Jurisdiction which is exercised Officio Judicis Mercenanario Respecting only Private utility Jure Actionis And being thus exercised Officio Judicis Mercenario it differs from both the former viz. both from Imperium Merum and from Imperium Mixtum Of this Jurisdictio Simplex which in truth is Jurisdictio propriè stricte specialiter sumpta Bartol as in the former makes no less then Six Degrees but Jason again as formerly reduces and contracts them to Three viz. Gradum Magnum Medium Minimum Which method now follows as being the acceptablest with the Modern DD. and distinctly comprehensive of all that the Six Degrees which Bartol makes are capable of Under the First of these viz. Gradum Jurisdictionis Simplicis Magnum are comprehended such as the Law looks on as matters of great prejudice such are Causae Liberales wherein are controverted all disputes concerning Liberty or Servitude Freedome or Bondage Ingenuity not of wit but of birth or Libertinity These Causae Liberales are understood in the Law as certain species opposite to such things as are either of Merum or Mixtum Imperium The Actions that hence do arise are as formerly Actiones Liberales cogniâ—able only before the Superiour Judges The truth is such Actions as these that concern the state quality condition or reputation of perions are in the Law termed Causae Arduae Negotium Arduum And therefore Inferiour Judges who by interpretation of Law according to the Civil Laws account are Judices Municipales are no way competent to take cognizance of such Cases Likewise under this head fall all Causes wherein upon any Action any Castigations Coertions Restraints or other Corporal punishments in execution of some Definitive Sentence do happen according to that smart Proverb in Law Qui non habet in aere Luat in corpore But to make it yet more clear The Actions specially aimed at and properly intended hereby in the Law that fall under this head are such Cases as in themselves and according to their nature are Criminal but yet are civilly proceeded in or prosecuted Quando ex causd descendenti ex delicto quis fuit Condemnatus Civiliter Or such Actions Quae Civiliter ex Maleficiis intentantur The Second Degree of Jurisdictio Simplex is Gradus Medius under which are comprized all such Peouniary Causes as in value exceed Treoent ' Aureos This Aureus among the Ancients was in value about our English Noble or Six Shillings and eight pence but in Justinians time it was something more viz. about the value of an Angel in our Gold Coin Which is something less then Centum Cestertii according to the Roman Account which some would have the Aureum Antiquum to amount unto if every Cestertius must be in value three half pence farthing according to our Account The Third and last Degree of Jurisdiotio Simplex comprehends only such small and petty summes as will not defray the charges of a Plenary and Judicial Order of Proceeding and therefore they are heard and determined Summarily velo Levato Bartol would state liquidate and ascertain these petty summes to the value of Centum Aureos Others to Twenty others to Ten Duckets But Jason tells us plainly that the truth and the more received opinion is that in such cases the just and exact values are not determined or ascertained in the Law but left ad Arbitrium Judicis according to that Rule in Law in ff de jur delib And thus although here hath been distinctly touch'd each of the Three Species or kinds of Jurisdiction taking the word Jurisdictio as the Genus generalissimum And although here have been given some instances for the more clear description of each Member or Degree of each Species thereof yet all this would be but imperfect if such things as are or may be both of Merum Imperium and of Jurisdictio Simplex also but in divers respects should be omitted Of this kind therefore is that Tortura formerly hinted at which when it is imposed or executed Ad poenam or in Criminal Causes Ad veritatem eruendam is of Merum Imperium But when in Civil Causes it was wont to be used or imposed because the witnesses did vacillare and were inconstant staggering or wavering in their testimony it was then of Jurisdictio Simplex In like manner all moderate and light correction or punishment being inflicted Ad poenam Levis Delicti is of Merum Imperium but being imposed for contempt or contumacy in Civil Actions it is of Jurisdictio Simplex Also Excommunication when pronounced Ex Publica Causa against rebellious and contumacious persons is of Merum Imperium but being pronounced ad instantiam partis it is of Jurisdictio Simplex So likewise Restraint or Imprisonment when imposed by the Canon Law ad delictum puniendum is of Merum Imperium when otherwise imposed it is of Jurisdictio Simplex Lastly Appeals in all Criminal Causes are of Merum Imperium but in Civil Causes they are both of Jurisdictio Simplex and of Merum Imperium also There are also in the Law for these things are only hinted to the memories of such as know the Law several other Distinctions of Jurisdiction Such as Jurisdictio Voluntaria Contentiosa But this is a Distinction in respect of the parties Litigant the former Distinctions being in respect of the Judges themselves There is also Jurisdictio Ordinaria Delegata which though a very common received Distinction from the Speculator yet in truth 't is less true then common and is reproved by Bartol because the one differs not from the other according to the Law of Distinctions both being in their nature one and the same though diversified in the exercise thereof For the Judge Delegate doth but exercise Jurisdictionem Delegantis There is also Jurisdictio Prorogata as when the parties litigant do of themselves consent unto a Jurisdiction in one who without such consent were no Judge in the Case but this seems more like a compromise or arbitrary decision then like a Jurisdiction properly so called There are several other Distinctions of Jurisdiction in the Law here purposely omitted as being not so pertinent to the design in hand This therefore that hath been said may suffice for a hint to all such Appendexes on the Law as sollicite rather for the Lawyer then the Clyent to learn what a Jurisdiction in the eye of the Law is before they attempt the invasion thereof To apply the premises
good use in one age may afterwards be otherwise in another specially if the Rule Cessante Ratione cessat Lex should hold in this case as in others The Fiery Brazen Serpent when first erected was of happy use yet when abused by the people Hezekiah brake it in pieces yea though of Divine Institution yet when it became a snare to the people that good King did not scruple to call it Nehushtan The Court of Admiralty is one of the Courts Temporal one of the Courts of our Soveraign Lord the King and long since owned as such as appears by the Resolutions upon the Cases concerning the Jurisdiction of the Admiralty in Anno 1632. If the Court of Admiralty be one of His Majesties Temporal Courts then the old Argument of the Conservation of the Crown-Rights seems not to hold in this case and only for that Reason as to Prohibitions against the Admiralty as well for that the said Court is a Court Temporal as that it is one of His Majesties Courts specially in Cases that are either Locally or Materially Maritime It may not therefore be much material to inquire whether Prohibitions do lye as well against Temporal as Spiritual and Eccsesiastical Courts For admitting a Prohibition according to the Learned Fitzh g to be A Writ for the forbidding any Court either Spiritual or Secular to proceed in any Cause there depending upon suggestion that the Cognition thereof belongeth not to the said Court yet it is presumed that this doth not concern such Cases as primo intuitu appear to be Locally Maritime or according to the nature thereof have been time out of mind properly of the Admiral Cognizance For without doubt the suggestion mentioned in the said definition doth not in construction of Law pretend to any thing beyond the very truth of what is suggested or so as to transplea a Cause from one Jurisdiction to another absque minimo fumo probationis of the truth and reallity of the suggestion or that the Cognition of the Cause belongeth not to the Court Prohibited Thus having seen what a Prohibition is which in truth is no more but this viz. A Charge by Writ to forbear to hold Plea either in some matter or manner which as is supposed or suggested a man dealeth in beyond his Jurisdiction or otherwise then Law will warrant It follows That Every Prohibition is either Prohibitio Juris by the Law it self Or Prohibitio hominis where the Ministery of a competent Judge is used or Prohibitio Facti of meer Fact where it hath no fufficient ground or foundation in the Law The Second of these viz. the Ministery of a competent Judge is so essential as without which neither of the other can proceed Prohibitio Juris is a very Prohibition in it self and therefore it is a contempt to sue against it Prohibitions of Law are such as are set down by any Law or Statute of this Land whereby Ecclesiastical Courts are interdicted from dealing in the matters in such Statutes contained Such are the Statutes of 2 Ed. 6. cap. 13. whereby Judges Ecclesiastical are forbidden to hold Plea of any matter cause or thing being contrary or repugnant to or against the effect intent or meaning of the Statute of Westminster 2. cap. 3. the Statutes of Articuli Cleri Circumspecte agatis Silva Caedua viz. 43 Ed. 3. cap. 3. The Treatise De Regia Prohibitione Stat. 1 Ed. 3. cap. 10. Such also is the Statute of 9 Ed. 2. cap. 2. There are also other Statutes declaring in what Cases Prohibitions will not lye Such are the Statutes of 9 Ed. 2. cap. 1 4 5. Also 18 Ed. 3. cap. 5. 50 Ed. 3. cap. 4. Prohibitions of Fact are such as having no sollid foundation as the other on the Laws and Statutes of this Kingdome may yet pro tempore have some kind of operation like Prohibitio Juris because therein also is Prohibitio hominis or the Ministery of the Judge or Superiour Magistrate Such Prohibitions of Fact where they happen may administer more matter for Lawyers to work on then possibly the merits of the Cause require and have in former times occasioned several Complaints by reason of the perplexity of Law-Suits uncertainties in matters of Jurisdiction multiplicity of litigious Controversies excess of Charges delayes of Proceedings retardations of Justice and the like Hence it was that Sir Tho. Ridley in his View of the Civil and Ecclesiastical Law so long since on this Subject said That the Right of the Supreme Magistrate is not to be supposed by Imagination but to be made plain by Demonstration And so both the Statute of 18 Ed. 3. cap. 5. is whereby it is Provided That no Prohibition shall issue but where the King hath the Cognizance and of right ought to have which is very observable And also by the fore-mentioned of 2 Ed. 6. which prohibits Prohibitions to be granted otherwise then upon sight of the Libel and other Circumstances in the said Statute expressed By which it is intended the meaning of the Law-givers was not that every idle suggestion of every Atturney should breed a Prohibition but such only should be granted as the Judge according to Law should think worthy thereof if there were Right to deserve it Where the said Sir Thomas Ridley goes on and says That as emulation between the two Laws in the beginning brought in these multitude of Prohibitions either against or beside Law so the gain they brought to the Temporal Courts maintaineth them which also they are his words makes the Judges that they sesse not Costs and Damages in Cases of Consultation although the Statute precisely requires their assent and assignment therein because they would not deterre other men from suing out of Prohibitions and pursuing the same Though this was the Observation and these the very words of Sir Thomas Ridley upon this Subject in his time yet we may not thence inferre that so it is also now in our time specially now that Justice runs again in its proper channel and her ballance equally poized It was too true that in late years of unhappy memory the said words and observation of that Civilian were too sadly verified which now no doubt will in some short time as is already in a good degree be completely rectified In order to a Prohibition there is to precede such a suggestion as may be proved not such a suggestion as is not capable of proof Improbable suggestions lay no foundations Non-Entities are no Basis for Existencies It hath been a Rule without Exception ever since the Creation That Ex nihilo nihil fit By suggesting the Place where a Contract is supposed to be made to be at Burdeaux in France in Islington in the County of Middlesex seems to imply as if the alledging the Place viz. to be within the body of some County within the Realm were essential for the entituling of that Jurisdiction where such suggestion is made to a
est impossibile non potest fingi Of Impossibilities there can be no Fiction according to Law whereon to ground any Suggestion Reason it self proves this for Art as aforesaid ever imitates Nature And what is impossible according to Nature is impossible according to Art and though Art in some sense may be said to perfect Nature yet it may not contradict Nature in any sense A Fiction in Law ever imitates a possibility in Natur◠Again it is said to be Adversus veritatem because if it were really true it would cease to be a Fiction yet withal it is said to be pro veritate An Assumption of Law upon an untruth for a truth because it hath the effect of Law being thus qualified as fully as if it were an Assumption upon a Truth Lastly it is said to be à jure facta Assumptio to exclude all illegal untruths which are not of Law but of Man and therefore have not the designed effect in operation of Law The premises considered it is most evident That on every Fiction according to Law attend two such Essential Requisites that if either of them be wanting it ceases to be a Legal Fiction The one is Equity the other is Possibility These are the Duo Necessaria to every Legal Fiction And such Fictions thus qualified are introduced by the Civil Law wherein among many others there are specially two that may be said to be the Capital or more Principal Fictions in the Law The one whereof is in Lege Cornelia The other in jure Postliminii A Fiction Legis Corneliae takes place when a Captive intra praesidia hostium dyes under such Captivity For if so then such Captive by that Law if he made a Will before such his being taken Captive shall in favour of such Will and for the upholding of the same be feigned to be dead in puncto temporis immediately before such his being taken Captive And so by that Legal Fiction of Death his Will is firm and valid as if he had really dyed without ever being taken by the Enemy That De jure Postliminii is whereby for the preservation of a mans right of property the Law doth feign him that is returned out of Captivity to be and to have been as if he had never been Captive or at all absent from that place of his freedome and priviledge whereof he was before such his Capture whereby he is redintegrated into his pristine state and condition As it is thus as to Persons so also is it as to Things such only excepted as by Law are exempted from the priviledge of Postliminium There are divers other Fictions in the Law though of less weight which have not any dependance at all on the former yet not one of them without Equity and Possibility Thus he that is in contempt for non-appearance in Court upon due Summons is by Law feigned to be present that so neither the Law might be rendred Elusory by his absence nor himself get any advantage by his own Laches nor the adverse party receive prejudice by the others contempt So on the other side he that is present in Court but doth there lurk and hide himself vel latitare inter columnas is by the Law feigned to be absent Also he that is in utero and as yet unborn is by the Law quoad suum commodum feigned to be born lest otherwise he should be left without remedy as to a childs portion Likewise such as enter into mutual Contracts of Partnership though themselves may not therein create Fictions other then the Law allows yet in matters of Society and Partnership the Lex Aquiliana doth feign a mutual stipulation or hypothecation in such Consortship which the Law styles stipulatio Aquiliana in such cases Socius socio tenetur Lege Aquiliana And in such cases of Partnership for the acquisition of a Dominium and Property in all the goods in Partnership without any actual delivery the Law doth tacitly feign such a delivery albeit it never specially intervened Likewise the Law feigns the person of one to represent the person of another that so Nephews and Nieces may succeed together with their Unkles and Aunts in their Grand-fathers and Grandmothers goods and chattels for so much thereof as should have come to their parents respectively in case they had been alive at the time of their said Grand-parents decease In like manner he that is dead may by Law be feigned to be alive to several constructions and operations of Law if others his equals in age be then alive or in case his being really alive at such time of feigning him to be alive doth not exceed the natural age of man Many more instances of Legal Fictions might here be added but these may suffice for proof that though the Law allows of Fictions yet never but where there is justa causa with equity and possibility disowning all others as Monstrous Fictions that are propagated meerly of the froth of the brain for the Law as aforesaid ever resembles and imitates Nature And therefore if any man will enter the lists with Lucian or strain his imagination to forge rarities beyond his Dialogues and feign a battel of Elephants to be fought on a Cobweb in the Air or fresh water-spring to rise out of the Whales belly or a Mine of Gold fifty fathome under ground in the middle Region of the Air or the like he may expect no protection from the Law for such irregular Notions A Legal Fiction under the foresaid qualifications is threefold either Inductiva or Privitiva or Translativa Extensiva A Fiction Inductive is when the Law feigns that to be which indeed is not A Fiction Privitive is when the Law feigns that not to be which indeed is And a Fiction Translative or Extensive is when the Law doth feign a thing to be done in one manner which in truth is done in another The first of these or the Inductive Fiction is an Assumption of Law in a thing certain and possible upon a non-existency for an existency The second or the Privitive Fiction is alike definable only the words inverted And the third or Translative Fiction is only an Assumption of Law more upon the Modus then the thing it self So called because it is mainly conversant in one of these four varieties As either when the Law by a Fiction transfers or translates some Act or Thing either from one place to another or from one person to another or from one thing to another or from one time to another But which soever of thes◠the Fiction be it must still keep within the due limits and bounds of equity and possibility Whatever the Fiction be it may be reduced to one of these three heads either Inductiva Privitiva or Translativa and neither of these but must quadrare with Bartols said definition or the Law rejects it as spurious and illegitimate For the yet clearer apprehension of
is said to be a Truth how fatal soever built upon this double foundation First because the Court of Admiralty proceeds by the Civil Law Secondly because if an erroneous sentence be given in that Court no Writ of Errour but an Appeal doth lye according to the Statute of 8 Eliz. cap. 5. Reason is or should be the source or fountain of all humane Laws no Waters rise higher then their Springs The first enquiry therefore will be what a Court of Record is or what Court may properly be said to be a Court of Record which being known and considered if you be not then satisfied you may if you please farther enquire whether the being of Record be such an essential qualification to a Court as without which it is incapable of taking such Stipulations I say such Stipulations as the Court of Admiralty hath ever used to take and de jure ought to take The Lord Coke makes this description of a Court of Record Every Court of Record is the Kings Court albeit another may have the profit wherein if the Judges do erre a Writ of Errour doth lye But the County-Court the Hundred-Court the Court-Baron and such like are no Courts of Record And therefore upon their Judgments a Writ of Errour lyeth not but a Writ of false Judgment for that they are no Courts of Record because they cannot hold plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis It is observable that it is here said that every Court of Record is the Kings Court So is the high Court of Admiralty styled the Kings Court as appears not only by the Title or preliminary Description but also by the second Article or Proposition in the Resolutions upon the Cases of Admiral Jurisdiction subscribed in Anno 1632. by the Reverend Judges in Presence of His Late Majesty of ever Blessed Memory and the Lords of His Majesties most Honourable Privy Councel And whereas in the said description of a Court of Record it is said They are no Courts of Record because they cannot hold Plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis it is well known that the Court of Admiralty can hold Plea of a Debt or Trespass Maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings and not only of Trespass Vi Armis but also of Maihem yea of Death it self Wherefore as the former character of a Courts being of Record may be applyed to the high Court of Admiralty as the Kings Court So the other character of a Courts not being of Record is no way applicable to the said Court of Admiralty But in the said description of a Court of Record it is said that every Court of Record is the Kings Court wherein if the Judges do erre a Writ of Errour doth lye the question then is whether it be a question whether a Writ of Errour doth lye in the Consistory Court of the University of Cambridge which Queen Elizabeth by her Charter dated 26 April Anno 3 Reg. made a Court of Record And Writs of Errour did also properly lye in any Court where they have power to hold Plea by the Kings Charter or by Prescription in any summe either in Debt or Trespass above the summe of forty shillings In which sense the Court of Admiralty as aforesaid is sufficiently qualified as a Court of Record which though eminent enough for its practice and interest in the Realm and so not probable to have escaped a particularization among the other fore-mentioned Courts the County-Court Hundred-Court and Court-Baron as no Courts of Record by reason of any oblivion yet is not there instanced among those other Courts not of Record And the County is called a Court of Record Westm 2. cap. 3. Anno 13 Ed. 1. But it seems by Britton cap. 27. that it is only in these causes whereof the Sheriff holdeth Plea by special Writ and not those that are holden of course or custome And whereas Brook seemeth to say That no Court Ecclesiastical is of Record yet Bishops certifying Bastardy Bigamy Excommunication the vacancy or plenarty of a Church a Marriage a Divorce a Spiritual intrusion and the like are credited without farther enquiry or controlment This only by the way and in transitu If it be said the Court of Admiralty is no Court of Record because it proceeds by the Civil Law it may be demanded by what Law the Consistory-Court of Cambridge proceeds which Q. Elizabeth as aforesaid made by her Charter a Court of Record For the King may make a Court of Record by his Grant which seems to allay that Antipathy that is supposed between a Court of Record and a Court proceeding by the Civil Law a Law allowed received and owned as the Law of the Admiralty of England Yet Serjeant Harris in the Case of Record against Jobson argued That a Recognizance taken in the Court of Admiralty to stand to the Order of the Court is void and that it hath been so adjudged So it 's argued it is not said Resolved It is a happiness as well as a truth what was once said in Dr. James his Case That the King is the indifferent Arbitratour in all Jurisdictions and of all Controversies touching the same and that it is a Right of his Crown to distribute to them that is to declare their bounds It is no novel doctrine to assert that Stipulations taken in the high Court of Admiralty for appearance or performance of its own Acts Orders and Decrees are in modo procedendi quasi Accessorium quoad Principale And the Modern Reporter in a Case depending before the Commissioners of Ensurance between Oyles and Marshal says That it being moved in the Kings Bench for a Prohibition and a Rule there given to shew cause why a Prohibition should not be granted to the Court of Ensurance it was then declared That if they had Jurisdiction of the Principal matter they had Jurisdiction of matters also incident thereto And what are Recognizances taken in the Court of Admiralty for Appearance and performance of its own Acts and Decrees more then Stipulations Judicio sisti judicatum solvi Insomuch as to deny the right or power of taking such Stipulations seems in effect as to imply an inhibition of the whole Jurisdiction for without such Stipulations in praeparatorio Litis the subsequent Judgement be it for Plaintiff or Defendant would prove but vain and elusory And a Judgement without due and effectual execution is quasi sententia inanimata without such stipulations Justice may be perverted into Injustice for default of that which is the complement or ultimate design of all Justice viz. Facultas suum cuique tribuendi The Practice of taking such Stipulations for the Legality thereof according to
that Law whereby that Court proceeds is nothing inferiour in point of Antiquity to the Jurisdiction it self the style of that Court in that point of Practice being as Ancient as the Court it self And whereas the right of taking such stipulations for Appearance and performance of the Acts Orders Judgements and Decrees of the Court of Admiralty hath not been without contradiction upon the foresaid ground That the said Court is no Court of Record it doth plainly appear by a Record of good Antiquity and with the Learned Mr. Selden of good Authority That the said Court is a Court of Record And if the Court of Admiralty be discharactered as no Court of Record by reason of its proceeding by the Civil Law it would thence seem to be implyed as if no part of the Civil Law were any part of the Law of England It is not concealed from the world by a person of no less honour then knowledge in the Laws of this Realm that the Imperial or Roman Law is in some cases the Law of the Land This worthy Authour speaking of the Right of Prerogative in absolute Kings and Princes as to Impositions upon Merchandizes doth upon that occasion in the fore-cited place declare himself in haec verba Forasmuch as the general Law of Nations which is and ought to be Law in all Kingdomes and the Law-Merchant is also a branch os that Law and likewise the Imperial and Roman Law have been ever admitted had received by the Kings and people of England in Causes concerning Merchants and Merchandizes and so are become the Laws of the Land in these Cases why should not this question of Impositions be examined and decided by the Rules of those Laws so far forth as the same doth concern Merchants and Merchandizes as well as by the Rules of our Customary or Common Law of England especially because the Rules of those other Laws are well known to the other Nations with whom we have commerce whereas the Rules of our own Municipal Laws are only known within our Islands What this worthy Authour here speaks of the Civil Law in England as to this point of Impositions by the King on Merchandizes is applicable in any case of Navigation Naval Negotiation or other affairs properly relating to Merchants or Mariners within the sphere of the Admiralty of England And the same Learned Authour in another place When the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world c. And again in the same place All Marine and Sea-Causes which do arise for the most part concerning Merchants and Merchandizes crossing the Seas our Kings have ever used the Roman Civil Law for the deciding and determining thereof Thus far goes the said worthy Authour in this point It is most true the Civil Law in England is not the Law of the Land but the Law of the Sea Great Brittain and the Dominions thereof comprizing the adjacent Seas as well as the Land The Law by which the high Admiralty of England proceeds being in all Causes cognizable in that Jurisdiction allowed owned and received by Prince and People Soveraign and Subject seems to be a Law of England though not the Law of England not the Land-Law but the Sea-Law of England For as in matters Terrene and in Land-affairs it is proper to say infra Corpus Comitatus so in matters Maritime and Sea-affairs it is no less proper to say Sur le hout mere The Jurisdiction of the Admiralty of England is one of the Jurisdictions of England which ever implyes a Law to proceed by that cannot be but of that Place whereof the Jurisdiction it self is It neither may nor ought to be denyed but that for the taking Recognizances against the Laws of the Realm Prohibitions have been granted yet possibly it may not thence by a necessary concludency follow that the high Court of Admiralty in taking Stipulations for Judicial appearance or performance of the Acts and Orders of the Court vel judicio sisti vel judicatum solvi and this according to that Law whereby it is to proceed is involved under such a guilt of transgression against the Laws of the Realm as eo nomine to incur a Prohibition which if grantable upon every such Recognizance or Stipulation for Appearance and performance of the Acts and Judgements of the Court without which it cannot proceed according to Law there could then be no Suit or Action depending in the high Admiralty of England be it for Place Nature or Quality in it self never so Maritime and of undoubted Admiral Cognizance but must be subject and lyable to a Prohibition and consequently to a removal from its proper Jurisdiction ad aliud examen to the great grievance of Merchants and Mariners and others the good people of these His Majesties Dominions by reason of the multiplicity of Suits protelation of Justice excess of Judicial expences together with the uncertainty of Jurisdictions and all as the unavoydable consequences of such Prohibitions CHAP. XI Of Charter parties made on the Land and other things done beneath the first Bridge next to the Sea vel infra fluxum refluxum Maris and how far these may be said to be Cognizable in the Admiralty TOuching this Subject it hath been asserted That if a Charter-party be made within any City Port-Town or County of this Realm although it be to be performed upon or beyond the Seas yet is the same to be tryed and determined in the ordinary course of the Common Law and not in the Court of Admiralty This is exclusive as to the Admiralty in matters of Charter-parties made upon the Land But yet it is agreed and resolved Hill 8. Car. upon the Cases of Admiral Jurisdiction That though the Charter-party happen to be made within the Realm so as the penalty be not demanded A Prohibition is not to be granted Were it otherwise or that the Jurisdiction of the Admiralty might not take Cognizance of such Maritime Contracts though made on Land then by thereunto adding what was formerly observed out of the same place viz. That the Court of Admiralty hath not any Jurisdiction of any Contracts made beyond Sea for doing of any act within this Realm or otherwise wherein the Common Law can administer Justice It would follow that if according to the one of these Assertions such Maritime Contracts when made upon the Land though to be performed upon or beâ—ond the Seas may not be tryed or determined in the Court of Admiralty and when according to the other of these Assertions made beyond the Sea for doing of any act within this Realm c. the Court of Admiralty hath not any Juriidiction thereof In such caâ—e it must necessarily follow that the Jurisdiction of the Admiralty
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
c. Adm. ut supra 1 Ed. 6. Tho. de S. Mauro Vulg. Seimor Knight Dom. de S. Mauro de Sudley Brother to Edw. D. of Somers Adm. Angl. Hib. Walliae Cales Bologniae c. 3 Ed. 6. John Dudley E. Warwic Vicecom Lisley c. Magnus Admirallus Angl. Hib. Wall Cales Bologn Marchiarum earundem Normanniae Gasconiae Aquitaniae Also Praefect Gen. Classis Marium Regis c. 4 Ed. 6. Edw. Clinton Knight Bar. Clinton Saius Admiral ut supra 1 Mar. Will. Howard Knight Bar. Effingham Adm. ut supra 3 Mar. Edw. Clinton Knight Bar. Clinton Saius Adm. ut supra 27 Eliz. Charles Lord Howard Knight of the Noble Order of the Garter Baro de Effingham E. of Nottingh Magn. Adm. Angl. Hiber ac Dominiorum Insularum earundem Villae Calesiae Marchiarum ejusdem Normandiae Gasconiae Aquitaniae Also Praefect Gen. Class marium dict Regnorum 16 Jac. Georgius Marchio Com. Buckingh Vicecom Villers Baro de Whaddon Deinde D. Buckingh Knight of the Noble Order of the Garter c. Constituted Magn. Adm. ut supra Non est dubium uti Spelman quin perplures Procerum istorum Equites fuerint Periscelidis sive Garterii Sed cum id sibi non prompte innotuerit aliis reliquit disquirendum AN Alphabetical Table of the Principal Things contained in this Treatise ADmiral it 's Etymâ—n or Original with the various Appellations thereof Page 1. to 7 The Antiquity thereof in Forraign Parts 7. to 21 The Antiquity thereof in England 22. to 37 Who the first Admiral in France 21 Twelve Admirals slain at once at the Siege of Antioch 17 Aegina where scituate Supposed by some to have first invented the Art of Navigation 12 Aegean Sea why so called 8 Africa by whom first peopled 8 Agreement National between England and France acknowledging the Soveraigntie of the Seas to be in the King of Great Brittain 28 29 Anchors hâ—w to be laid in Harbours where but little water 175 176 Alcibiades Admiral to the Athenians 15 Antonius Pius his Memorable Answer to Eudemon's Complaint touching shipwrack pag. 10 Arragon famous for Maritime Constitutions 13 Arrogatio what it is and how it differs from Adoptio 62 Aruad the Inhabitants thereof able Marinors 11 Asia by whom Originally peopled 8 Athenians their two chief Maritime Magistrates 15 Made Tributaries by the Sea-fights of Minos 8 Averidge what the Law is therein 170 Aureus how much in value among the Ancients 67 B. BArcelonians famous for Sea-Laws 13 Baxter Case against Hopes 116 Beast with Ten Horns what meant thereby 12 13 Bridgmans Case 99 Brights Case against Couper 95 Brittains of old famous for Navigation and how they anciently restrained all strangers Merchants excepted from approaching the Brittish Coasts 27 Boyes to the Anchors to have the name of the ship or Skipper engraven thereon 195 C. CAndie formerly called the Isle of Crete pag. 8 Canon-Law what the Original thereof 55 Carbonianum Edictum why so called the true meaning thereof in the Law 64 Caria where scituate the Inhabitants thereof anciently reputed Lords of the Sea 11 12 Carpathean Sea where scituate 9 Carthage when and how demolished 12 Carthaginians the Art of Navigation anciently ascribed to them ibid. Casting goods over board to be done at the Skippers discretion 169 Case of Baxter against Hopes in Brownl Rep. 2. part 116 Case of Bridgman in Hob. Reports 99 Case of Bright against Couper 95 Case of Admiral Court in Brownl Reports part 2. 107 Case of Don Diego Serviento de Acuna against Jolliffe and Tucker in Hob. Rep. 10 11 Case of Sir Hen. Constable in Coke's Reports 153 Case of the French man against the Vendee of a ship Trin. 17. Car. in Bro. Reports 97 Case of Goodwyn against Tompkins in Noy's Rep. 139 Case of Dr. James in Hob. Rep. 123 Case of Jennings against Audley in Br. Reports part 2. 116 Case of Sir Julius Caesar in Leonard's Rep. 95 Case of Leigh against Burley in Owen's Rep. 135 Case of Mariners against Jones in Whinch Rep. 133 Case of the Merchants Mich. 8. Jac. in Br. Rep. part 2. 117 Case of Oyles against Marshal in the Mod. Rep. 124 Case of Palmer against Pope in Hob. Rep. 94 111 135 Case of Record against Jobson in Noy's Rep. 125 Case of Susans against Turner in Noy's Rep. 91 115 Case of Weston in Brownl Rep. 96 Cases of Admiral Jurisdiction resolved Cro. Rep. 156 to 160 Cestertius how much in value 67 Chanaan so called by the Hebrews by the Greeks Phaenicia 11 Charondas Law-giver to the Thurians 53 Charter-parties properly cognizable in the Admiralty 129 to 140 Civil Law properly so called what And when first introduced 54 Colossus one of the worlds seven Wonders where scituate 9 Concurrency of Jurisdictions 33 Constantinople famous of old for Sea-Laws 13 Corynth anciently reputed Lord of the Sea and by some supposed to have invented the Art of Navigation 12 Cyclades Isles where scituate ibid. Cymon another Admiral of the Athenians 15 Clergy anciently to be advised with in case of Treasure-Trove 194 Collision of one ship against another and damage thereby the Law in that case 174 175 Custome in Sea-matters to be observed 190 191 192 Cutting of Masts and Cables in a storm what the Law is in that case 170 D. DAmage happening to Goods at Sea what the Law is in that case 172 Debate or Difference between the Skipper and his Mariners The Law in that case 174 Decearchus his Memorable Sea-Commission 15 16 Demourage when to be paid by the Merchant 179 Demosthenes Another Admiral of the Athenians 15 Deportatio what and how it differs from Relegatio 58 59 Derelicts in what case Goods may properly be said to be Derelict 189 Daedalus what his wings were made of 8 9 Dominion of the Sea the Right and Antiquity thereof in the Kings of Great Brittain 24 to 30 38 49 Dominion of the Sea in General the Original thereof 7 Don Diego Serviento de Acuna his Case against Jolliff and Tucker 110 111 Draco Law-giver to the Athenians 53 Drungarius Drungarius Magnus the Admirals style in the Eastern Empire whence so called 16 E. EDgar his Marine style and title in all his Charters 27 Egyptians the strange way of their Navigation 12 Emancipation what and how it differs frâ—m Manumission 65 Erythraeum mare where that is and why so called 12 Etheldred his incomparable Navy for the Guard of the Brittish Seas 27 Europe by whom first peopled 8 Execution or the Coercive power the life of the Law and a Right of the Jurisdiction of the Admiralty 32 Extra Regnum or Things done out of the Kingdome where or in what place tryable 98 to 118 F. FIshes Royal to whom they belong Page 190 Fictions Legal what they are the several kinds thereof Two capital Instances of such in the Law And how the Practice of Fictions may be said to be prejudicial to the Admiralty 82 to 91 Fierro
where scituate the strange Tree that grows on that Island 36 Fraight how to be apportioned when the Voyage is imperfect 166 France when first an Admiral there 20 21 G. GEnuises famous for their Maritime Laws 13 Gold Silver Precious Stones and the like found in on or nigh the Sea in what cases may be kept by the Finder and in what cases not 190 192 194 Goods found that belonged to shipping how they were to be disposed of in Ancient times 192 193 Goods cast over board to lighten the ship no Derclict 188 189 Graecians by whom they were first Civilized 10 11 H. HAnnibal high Admiral of the Carthaginians 12 Hanno Hamilco famous for their Naval discoveries ibid. Hercules Pillars why the Motto of Non ultra engraven thereon 9 I. IEnnings Case against Audley 116 Imperium what the several degrees thereof in the Law 57 to 65 Impleaders of Marine Causes in a wrong Jurisdiction punishable by the Admiralty 31 32 Interdictum at the Civil Law how it differs from Prohibitio at the Common Law 71 Joh. Rex his Ordinance made at Hastings touching the Soveraignty of the Kings of England in the Brittish Seas 30 Ionean Sea where and why so called 11 Jurisdiction the Etymon of the word with the several kinds and degrees thereof in Law 56 to 69 Jurisdiction of the Admiralty of England the great Antiquity thereof 22 to 36 Jus Gentium the Original thereof 53 Jus Humanum Civile what and how introduced 54 Just the divers acceptations of that word in Law as in reference to Fictions 83 L. LAding or ships Lading in part disposed to supply the ships occasions the Law in that casâ— pag. 179 180 Law the true definition thereof 51 The Law of Nature of Nations The Civil Law The Law Sacerdotal and Canon 52 to 55 Law of the Sea or Law Admiral the great Antiquity thereof Laws Imperial their use and exeellency above other Laws in most Kingdomes 51 52 Laws of the Heathens fathered on their Heathenish Idols 53 Leigh's Case against Burley 135 Lycurgus Legislator to the Lacedemonians 53 Lye the lye given to or by either the Skipper or Mariners the ancient penalty in that case 173 M. MAhomet Law-giver to the Arabians 53 Manumission what and how it differs from Emancipation 65 Marcelleis famous for Marine Constitutions 13 Mariner's Case against Jones 133 Mariners their duty in case of disaster to the Vessel 102 Not to desert the ship till the Voyage be ended 165 Not to go out of the ship without the Skippers leave 167 In what case they may 178 If hurt or wounded in what case not to be healed at the ships charge 167 168 Messine where scituate the people thereof famous for their Sea-Laws 13 Minos he gave Laws to the Cretians 53 Minotauri Fabula why so called 8 Murderers of ship-broken men their strange and cruel punishment 185 N. NAmes of ships and Skippers to be engraven on the Buoyes of the Anchors 195 Navigation the Antiquity thereof to whom Originally ascribed 7 to 12 Nearchus Admiral to Alex. the Great 15 Neptune why feigned to be God of the Sea 14 Niceas Another Admiral to the Athenians 15 Noah how long since he arrived at Ararat 7 North-Starre its use in Navigation by whom first invented 10 Numa Law-giver to the Romans 53 O. OLeron where scituate most famous for their Sea-Laws and Maritime Constitutions when and by whom first published pag. 13 14 Onesicratus Admiral to the Assyrians 15 P. PAtroclus Admiral to the Syrians 15 Palmer's Case against Pope 94 111 135 Partnership in a Fishing design the Law in that case 182 Paeni or Carthaginians originally Phoeni or Phoenicians 12 Phoenicia where scituate the People thereof supposed to be the first Mariners Merchants and Astronomers As also the first Inventors of Arithmetick and the Art of Navigation 10 11 Pilots the punishment of an unskilful Pilot in case of Damage thereby 180 The punishment of treacherous Pilots 186 187 The strange punishment of their Abettors 188 Pirates their punishment 122 196 Who supposed to be the first that purged the Seas of such Vermin 8 Pisa the Inhabitants thereof famous for their Maritime Laws 13 Poles who first descryed the two Poles 11 Pericles another Admiral of the Athenians 15 Pontus the reason why the Sea is so called 9 Port and Port-Town how they differ 112 113 Prohibition what the Original thereof with its several kinds causes and effects in Law 72 to 81 Properties created at Sea Super altum mare whether cognizable in the Admiralty 31 R. REd Sea who there first Invented ships and sailed thereon and why called Erithraeum mare 12 Relegatio what how it differs from Deportatio 58 59 Reâ—â—er Crimbald the French Admiral his 〈◊〉 and illegal attempts on the Brittish Seas in derogation of the Soveraignty of England 28 29 Rhodes where scituate their precedency to all other Nations in Marine Constitutions 9 Rhodian Law generally referred to by the Emperours in decision of Maritime Controversies 10 19 20 Richard the First the first that published the Sea-Laws of Oleron and when 14 Ridley's opinion touching Prohibitions 78 79 Roman Admirals 18 19 S. SAles of ship or Lading or any part of either made by Skippers or Mariners without special Procuration in what cases good or not good in Law 164 165 179 180 Salvage how to be paid and satisfied 166 183 Sarazen Admirals 16 17 Seleucidae over the Syrian Monarchy why so called 13 Ship forced from her Cables and Anchors the Law in that case 194 195 Not to stay for a sick Mariner 168 When broken the Mariners not to be hindred from saving the goods 182 183 In King Edgar's time 400 Sail for the Guard of the Brittish Seas 27 Sick Mariners how to be provided for 168 And what wages such may challenge 169 Skipper's duty before he leaves a Port. 164 How to finish his Voyage in case of some disaster to his own ship 166 Slings for hoysing of goods 171 172 If damage happen thereby who must make it good 181 Solon Legislator to the Athenians 53 Soveraignty of the Brittish Seas publickly acknowledged by the Agents and Procurators of no less then ten Neighbour-Nations Kingdomes and States at once to be de jure in the Monarch of Great Brittain 28 Striking a ship-board whether by the Skipper or Mariners the Law in that case 173 Statutes 13 R. 2. cap. 5. 15 R. 2. cap. 3. 2 H. 4. cap. 11. 27 El. cap. 11. touching the Jurisdiction of the Admialty 141 to 154 Super altum mare properly within the Jurisdiction of the Admiralty 91 to 98 Supplicatio what it imports in Law 63 Surmizes Suppositions or Suggestions of places beyond Sea to be locally as within the body of some County within the Realm Variety of Opinions touching the same in the Common Law-Books 80 Susans Case against Turner 91 115 130 Sydonians famous and able Mariners 11 16 T. TAckle ship-tackle pawned pledged or hypothecated for the ships
§ cum urbem ff de Offâ—c Praes Urb. l. 1. Cod. eod tit m Tap. ubi supra nu 14. a L. 1. § interdictum l. 2. ff de interdict § Prohibitoria Instit cod tit b Boer Decis 114. nu 2. ibi Faber in L. ante fin Cod. de Off. Praef. Urb. per Tex in C. Transmissa De Foro Compet Paris de Put. in Syndicat Tit. de Excess Baron cap. ult Ang. in l. haeredi De Usu fruct Legat ut voluit Saldus in Prooem 2. lib. Decret Colum 2. c Boer Decis 9. nu 15. Bar. Alex. in L. omnibus § is videtur ff Si quis jus dic non obtemp Sir Tho. Ridleys View of the Civil and Ecclesiastical Law in part 3. cap. 1. sect 2. Fitzh N. B. verb. Prohibit d Terms of Law verb. Prohibit e D. Cowel Interp. ver Prohibitio It may not be hence inferred That what seems to cease of use in one respect may not remain of use in another As indeed this is in Conservation not Derogation of Jurisdictions and for prevention of Trials Coram non Judice Competente by an expedient of Law whereby the Gognizance of a Cause may not be drawn from its proper Jurisdiction ad aliud Examen f Num. 21. 8. 2 Kin. 18. 4. Nehushtan h. e. Brass or Brazen or a piece os Brass This implyes not but that Prohibitions are still of necessary use where Inferiour Jurisdictions meddle with matters which do not concern them and wherein they are incompetent Fitzh N. B. fo 39. Cowel Interp. verb. Prohibit Ridley View of the Civil and Ecclesiastical Law part 3. cap. 1. sect 2. h Ibid. Though by Warrant from the Proverb Losers have leave to speak yet in case of Interest such as cannot hold their own may hold their peace This hinders not but that a thing really done super altum mare though not yet so in proof may be surmized or suggested to be done at Land in order only to bring it to issue whether a Prohibition lyes in the Case This is but the Law of one Jurisdiction without any derogation of another i Cok. Inst l. 3. c. 7. sect 440. in sin k Fitzh N. B. tit Prohibitio l Fitzh Ibid. a Schard ver Fictio b Cas Tract Dialect 2. part cap. 20 21. Vid. Larrea Decis Granar Disp 8. nu 58. Semper Fictio Licet veritati contraria tamen veritatem imitatur § Minorem De Adopr l. Si Filius 14. D. Si Cer. per. l. Triennio 18. D. de Stat. Liber Et solum extenditur ad id quod per veritatem rerum Naturam fieri potest Glos in l. 3. D. Pro Socio Curr l. 2. Conject ad fratrem cap. 13. Oswald l. 14. ad Donel. cap 19. lit A. c Bart. in l. Si quis pro Emptore D. de usucapionib d L. Sive possidetis Cod. de Probat Cyn. ibid. l. non est verisimile D. Quod metus causa e Ibid. in glos mag in l. non est verisim f Gothof ad Rub. D. de Probat g Bart. ibid. nu 22. h L. Adoptio ff de Adopt i Le. Cornelia ff de Testam l. Cornel ff de Vulg. substiâ— k L. retro l. in bello § 1. l. bona ff de Capt. § 4. D. Quibus mod jus patr solvit l L. Absentâ— ff de verb. Sign m L. ibid. glos mag n L. qui in utero l. pen. ff de stat hom o ff Ad Leg. Aquil. Rub. ibid. l. Si ex causa D. Pro Socio p L. quia licet ff Pro Socio q L. 1. § Si Filius ff de suis legitimis l. 2 3 4. Cod. cod r § Sed si in bello Inst de Excusat Tutor Noy Rep. M. 39 40 Eliz. C. B. This may be but a Surmize in one Jurisdiction for a Supposition in another as an expedient whereby to discover unto which Jurisdiction the Case doth properly belong a Coke Inst part 4. cap. 22. This is meant when the thing is so in truth and in fact as well as supposed b Bart. in â— Si is qui pro Emptore D. de Usucap c In lib. Nig. Adm. fol. 36. d Brownl Rep. part 1. Mich. 10 Jac. e Littl. l. 3. c. 7. sect 440. f Hob. Rep. in Cas Palmer vers Pope g Leonard Rep. 30 Eliz. in Sir Jul. Caes Case in B. R. h Brownl Rep. Par. 1. Case Bright vers Couper Trin. 9 Jac. Rot. 638. in Com. Plac. i Brownl Rep. Par. 2. Westons Case Mich. 8 Jac. 1610. in B. R. k Trin. 17 Char. in B. R. Grand Abridgment of the Law Verb. Admiral Res quae intra Praesidia perductae nondum sunt quanquam ab hostibus occupatae Dominum non mutarunt ex Gentium jure Gror. de â—ur Bel. l. 3. c. 9. l Littl. l. 3. c. 7. â—ect 440. m Coke Inst Par. 4. c. 22. n Cro. Rep. in Resol upon the Cases of the Admiral Jurisdiction Hill 8 Char. o Coke Inst par 4. c. 22. p Hob. Rep. in Bridgmans Case q Croke Rep. Hil. 8 Char. r Littlet l. 3. c. 7. sect 440. s L. cum hi § si cum lis D. de transact t Coke par 1. Instit l. 3. c. 7. sect 440. u Littl. l. 3. c. 7. sect 440. Brownl Rep. 2. Admiral Court ibi in haec verba Note says the Report that it was urged by Haughton 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 w Coke par 4. Instit c. 74. x Coke ibid. cap. 22. y Cod. Ms. de Adm. Angl. Vulgo Vocar Lib. Nig. Adm. in fo 29. z Hill 8 Char. a Hob. Rep. case of Don Diego Serviento de Acuna against Jolliff and Tucker b Hob. Rep. Mich. 9 Jac. Case Palmer against Pope Morisot lib. 1. cap. 36. Port-Town The Lord Coke in par 4. Instit cap. 22. in his Answ there to the fourth Objection makes mention thereof by the name of Port-Town as infra Corpus Comitatus The Port of Gado is part of the Sea the Port-Town of Gado is upon the Continent of Barbary c L. 59. D. de Verb. Sig. Thamesim Prolemaeus Jamissam Dio Himensam Vocat An Testamentum factum in Portu cujusdam Civitatis Soldani dicatur factum in Terris-Soldani Bald. in Rub. D. de Rer. Divis in 6. Col. in prin dicit quod tempore suo hoc fuit revocatum in dubium Dicatur Quod Non Quia Portus est Publicus ita Christianorum sicut Sarecenorum Nam hoc est introductum Jure Gentium
vid. Barth Cepol de Servit Rust Praed cap. 28. De Portu nu 1. Which could not be assirmed of a â—ort-Town this plainly shews a wide difference between a Port and a Port-Town and proves Portus to be Locus Publicus uti Pars Oceani Yet in the Case of Don Diego Serviento de Acuna against Jolliff and Tucker in Hob. Rep. It is said That no Port is part of the Sea but of the Continent So says that Report But may we not distinguish between Portum Naturalem Portum Artificialem Portum Naturalem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 manu artificio factun 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Graeci vocant Morisot Histor Orb. Marit lib. 1. cap. 24. d Noys Rep. M. 39 40 El. Case Susans against Turner A Surmize at Common Law may be as Legally qualified to call the Right of Cognizance into question as an Allegation at thâ— Civil Law to lay a soundation for a Definitive Sentence and possibly in a Case whereof it hath no right to determine For neither a Surmize in the one nor an Allegation in the other are more then suppositions till reallized by proof e Brownl Rep. part 2. in Cas Jennings against Audley Mich. 1611. 9 Jac. in Com. Ban. f Brownl Rep. part 2. ibid. in Cas Baxter against Hopes g Brownl Rep. par 2. Mich. 8. Jac. in Ban. Reg. h Croke Rep. Hil. 8 Char. i Coke on Littl. par 1. Instit lib. 2. câ—p 11. sect 195. Mr. Seld. in suo Mar. Claus l. 2. cap. 22. styles the Judge of the Admiralty Summae cutiae Regiae Admiralitatis Judicem k Hil. 8 Char. 4. Febr. 1632. l Stat. 15 R. 2. cap. 3. m Cowels Interpreter verb. Record n Fitâ—h N. B. Writ of Errour o Cowel ubi supra p Brook tit Record q Cowel ubi supra Ubi Brook tit Bastardy Fleta li. 6. cap. 39 40 41 42. Lamb. Eirenareha lib. 1. cap. 13. Glanvile lib. 7. cap. 14 15. The Register Orig. fol. 5. b. Bracton lib. 5. Tract 5. cap. 20. nu 5. Britton cap. 92 94 106 107 109. Doct. Stud. lib. 2. cap. 5. Cosins Apol. par 1. cap. 2. r Glanvil lib. 8. c. 8. Britton cap. 121. Cowel verb. Record s Noys Rep. Cas Reord against Cornel Jobson t Hob. Rep. in Dr. James Case u Moder Rep. Trin. 1654. in Banc. Reg. w Cod. Ms. de Adm. viz. Lib. Nig. Adm. fol. 19. ibid. in Art 39. Artic. Inquisit Adm. Citat per D. Seld. in Suo Mare Clauso lib. 2. c. 24. x Sir Jo. Davies Jus imponendi Vectigalia c. 6. y Idem Jus imp Vect c. 4. a Coke Part. 40 Instit c. 22. in the Answ to the fourth Objection b Croke Rep. Hill 8. Car. Resolution upon the Cases of Admiral Jurisdiction c Coke ibid. in the Answ to the second Objection d Noy Rep. in Cas Susans against Turner Q. Whether in matters of dubiovs Jurisdiction meerly depending upon future Contingency of proof a bare Surmize at Common Law may not as rationally expect the relief of a Prohibition as a naked allegation at Civil Law the countâ—nance of a Litis Contestation So that the Law is good if it be used lawfully Therefore to prevent this Inconvenience and obviate such Objections as these before any Prohibition doth actually issue upon such Surmizes the Courts of Westminster have ever used to prefix a day wherein to shew cause if any why a Prohibition should not be granted So that although there be a Surmize yet there is no Surprize in the Case e Coke ubi supra Mich. 31 H. 6. Rot. 315. in Banc. Hill 2. Ph. M. Rot. 130. Cr. Hil. 17 El. Rot. 410. Cr. The Common Law in some Cases doth take notice of Conjunct Persona but not as does the Civil Law f Winch Rep. Easter Term g Coke par 4. Instit c. 22. Answ to the first Object h Ibid. Answ to the sixth Object i Croke Rep. Hil. 8 Car. Resolution upon the Cases of Admiral Jurisdiction Subscribed 4 Feb. 1632. by all the Judges of both Benches Beneath the Bridges So the Expos Terms of the Law verb. Admiral k Hob. Rep. Case Palmer versus Pope Mich. 9 Jac. l Owen Rep. in casu Leigh against Burley Mich. 7 Jac. l Cro. Rep. Hil. 8 Car. 1632. m Noy Rep. in Cas Goodwin against Tompkins a Selden de Mar. Claus lib. 2. cap. 24. b Ibid. In Fascic de Superioriatate Maris in Arce Lond. Coke de Antiquit Admiral in Par. 4. Instit cap. 22. c Coke par 4. Instit cap. 22. Rot. in Archivis in Turri Lond. De Superioritate Mar. Angl. jure Officii Admiral in alio Rot. de Articulis super quib Consult Anno 12 Ed. 3. d Cowel Interp verb. Admiral e Terms of Law verb. Admiral f Doct. Stud. Dialogue vel lib. 2. c. 2. g Seld. Mar. Claus lib. 2. cap. 24. h Temp. Ed. 1. Fitzh tit Avowry 192. Placit 37. 38 Hen. 3. rot 10. Devon â—tim Sussex 47 Hen. 3. rot 22 Trin. 24 Ed. 3. in Brevib Reg. inter Pilke Venore quae in Arcis Londin Archiv Ejusmodi item sunt alia i Ms. fo 12. k Brownl Rep. Par. 2. Admiral Court-Case l Caepol de Servit Rust cap. 28. nu 5. Bald. in Rub. de Râ—r Divis m Cowel Interp verb. Admiral n Coke Rep. in Cas Sir Hen. Constable 5 Eliz. cap. 5. Cokes Instit par 4. cap. 22. o Croke Rep. Hil. 8. Car. 1. Resolution upon Cases Admirall Skippers Sale without speciall Procuration not good Ship-Tackle pawned for Ship-necessaries good Skipper not to quit a Port without advice of his Mariners Mariners in case of that like Wreck to save what may be saved Skippers Sale in case of disaster not good without speciall procuration Part of fraight to be paid for part of a Voyage The Skipper to hire another Ship to finish his Voyage in case of disaster to his own The Reward of Salvage not to be paid according to promise made in time of distresse but as the Court of Admiralty shall determine according to Equity Mariners without the leave of the Skipper may not go out of the Ship when arrived to a Port. In some cases some of them may Mariners drunk a shore and wounded not to be healed at the Ships charge Mariners wounded in the Ships service are to be healed at the Ships charge How sick Mariners are to be provided for The Ship not to stay for a sick Mariner Sick Mariners ought to have their full wages deducting the charge of his sickness * Executors of a deceased Mariner ought to receive the wages due to him In case of storm Skipper to use his discretion in casting goods over board to lighten the Vessel and to preserve the same What the Law is in the case of Averidge What the Law is in case of cutting Masts or Cables in a storm The ship-ropes or slings to hoyse out goods withal to be viewed