Synēgoros thalassios, 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 ...

ΣΥΝΗΓΟΡΟΣ 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 De Benefic. 12. 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 , Angel . in Rub. D. de Jurisdic . om. Judic . & 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 Terent. in Prolog . Enuchi . 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 confiscating 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 ch●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 Publ●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 . a a Senec. lib. de Morib . This Meum & Tuum is here understood Collective , for Jurisdictio being of Publick right is not competible with any Private interest exclusive to common good , b b L. 1. l. est receptum . ff. de Jurisd. om. Jud. & l. privatorum . Cod. de Jurisd. that being beside the design of Jus Gentium , whereby Jurisdictions were Originally constituted . c c Natta . Cons. 639. nu. 2. & 99. & Joach . Steph. de Jurisd. c. 1. nu. 19. 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 , over-flow its banks to the inundation of another , it 's most just and safe , seasonably to reduce them to their proper Channels . Were it true what Bald. says , d d Bald. Cons. 333. lib. 1. Jurisdictiones penes Principes residere quasi Scabellum , the Clashing of Jurisdictions might be an offence only to the Footstool of Majesty ; but if Jurisdictio ejus ossibus inhaeret , as Tapia and others assert , e e Car. Tap. in ff. de Const. Prin. cap. 4. nu. 14. & Marant . Distinct . nu. 3. then it may be of an higher nature .

Where divers persons are concredited with Juridical Trust or Authority , there the Jurisdiction is either Separate , or Concurrent , or in Common . A Separate Jurisdiction may appertain to a certain number of persons privative or exclusive to all others , whereby they are externally qualified to take Cognizance either of other Persons , f f L. 6. Cod. de Jurisdict. or of other Causes , g g L. ult. Cod. ibid. or of other Quantities , h h L. 11. cum seq. de Jurisd. or of other Places , i i Alex. tot. tit. de Offic. Juridic . then what other Judges are Juridically qualified for . A Concurrent Jurisdiction is that which appertaineth to many Cumulative , as when the same Cases are equally subjected to the Cognizance of many Judges : yet so that each of them , whether one or more , by himself or themselves , may in solidum hear and determine the Case , and he or they only may take Cognizance thereof to whom address L. penult. ff. de pet●t . haeredit . & l. 1. Cod. ubi de Crim ●gi . oport . by the Complainant is first made , and before whom the Suit is first Commenced , for in such Cases prevention takes place ; and in all Competent Jurisdictions wherever the Action is first Commenced , there Judgement ought to be given in the Case . l l L. 3. ubi coeptum . ff. de Judic . Thus the Emperial Chamber by an Ordinance there made hath Concurrent Jurisdiction with the Emperour himself , m m Gail . l. 1. obs. 29. nu. 3. & obs. 42. nu. 3. save in matters relating to the Fee or Inheritance of the Emperial Crown . A Jurisdiction in common appertaineth to many , and that cumulative , as to all of them , so to all of them together , and complexive ; insomuch that one of them may not proceed without the other , the Law obliging all of them to be present together in Judgement . n n L. tune autem . 37. ff. de re judic . But whatever Jurisdictions there are in a Nation , of how many kinds , degrees , orders , or subordinations soever , This is a sure Rule and without Exception , Jurisdictiones non sunt confundendae ; o o L. nemo . Cod. de Jurisd. om. Jud. The Bonum Publicum is more Rationally stated , and more concerned in rhe equal administration of Justice , then to admit the least Confusion in that which is the only Expedient to prevent Confusion ; for Justice ( whose office it is not only to doe that which is equal , but also to remove that which is unequal ) is never illustrable through any Mediums that hath the least tincture of Injustice ; and although for its material Object , it ever hath some one External action or other , as suppose Equality between Payment and Debt , yet for its Formal Object it ever hath Honesty and Conformity unto , at least an adequate Consistency with Natural reason , comprised in that external Act.

Of all Jurisdictions , That of the Admiralty or Sea-Affairs hath been the least beholding to the Auxiliaries of the Press in defence of its Ancient Rights and Priviledges against such as would without offence impair the same ; The Reason probably may be either from the paucity of such , as are more specially therein concerned , in respect of that numerous Host or Retinue , that in fealty to the other Jurisdictions are most prompt Notaries on all occasions ; o● rather in that it is of that excellent use in all Maritime Dominions , that the Friends thereof are well assured , its worth would be better valued , if the want thereof were more smartly felt . The Ensuing Treatise is to assert the Rights thereof in part , the design of whose highest Ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the Rights and Priviledges of so Ancient and Necessary a Jurisdiction , then to convince any by Arguments less perswasive then that Interest whereon some me●s Prejudice may be founded . Though Merchants and Mariners qua tales be not such able Lawyers as to know how their Maritime Cases should be determined according to the exact Rule of Law , yet they are such able Supports to any Nation or Kingdome , that they are not to be left sub incerto , where or in what Tribunal to find that Rule under such a quality of Juridical Competency , as not to run hazards by Land as well as by Sea ; yet this under the Notion of a Maritime Cause , when possibly it is of another Element , may not be strain'd in favour of one Jurisdiction in derogation of another ; nor under the notion of Merchants , when posibly they are at best but quasi Mercatores ; For not every one that buyes and sells , is thence presently to be denominated a Merchant , but he only who in the way of Trade and Negotiation deals in Moveables for gain or profit , upon design of disposing thereof in the way of Commerce either by Importation , Exportation , or otherwise , in the way of Emption , Vendition , Barter , Permutation or Exchange . p p L. Unic . Cod. de Nund . & Alceat , in L. Mercis 66. & l. Mercis 207. de Verb. Signif. So that he is not properly said to be a Merchant , who once and no more doth buy Commodities that he may sell the same , for it is not one Act that doth denominate a Merchant , q q Accurs. & alii in l. 1. §. Mercis . st. de Trib. but a certain Assidutiy or frequent Negotiation in the Mystery of Merchandizing , unless he be matriculated or entred as such in the Society or Corporation of Merchants . He also may be said to be a Merchant , who by common fame and in the opinion of men is commonly reputed a Merchant . r r Bart. in Rub. Cod. de Navic . They that buy Wares or Merchandizes to reduce them by their own Art or Industry into other forms then formerly they were of , are reputed rather Artificers then Merchants ; s s C. ejiciens 88. dist. unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby , in which case they may be said to be rather Merchants then Craftsmen or Artificers . And such as buy wares for present money , that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought , are reputed rather Usurers then Merchants . t t C. in civitate . &c. consuluit . Extra . de Usu . But Bankers , Money-changers , and such as deal by way of Exchange are reputed under the notion of Merchants . u u Paul . de Castr . in L. in eum . ff. de Instit. For whereas it is formerly said that a Merchant deals only in Moveables , understand that Money is comprised under that notion . w w L. moventium , ff. de Verb. Sign . So also are Ships .

The Isle of Rhodes anciently was the only Mart of Trade and Commerce in the whole world ; Antiquity describes that Isle and the City thereof as the only Metropolis of Merchants ; who , though they have a Latitude as wide as the Ocean in point of Trade and Negotiation , yet they may not in time of war transport Prohibited Goods or Commodities to an Enemy , though designed for the Redemption of Captives . x x C. Significavit . Extra . de Judaeis , ubi Abbas . Yet such is the Reputation of Merchants , that Credit is generally given , without the least distrust , unto their Count-Books , unless some Legal Exception may be raised against the same , or other just cause of suspicion . y y Decii Confil . 40. nu. 3. & Consil. 496 nu. 9. And whereas each Merchant hath his peculiar Mark wherewith his Goods are usually marked , by way of discrimination from the z ] Bald. in Auth. Dos data . Cod. de Donat. ant. Nupt. goods of other men , the Law in favour of so laudable a Custome doth presume the goods to be his , whose mark is thereon affixed ; Not that such marks , abstracted from other Concurrent Evidence , do of themselves amount to a full proof ; only they induce such a Presumption , as doth ( without stronger evidence or presumption on the other side more energetical ) carry the possession for him whose marks they are ; Nor is it therefore less hazardous then unlawful for one Merchant to make use of anothers mark , save when in time of war they strain a point to drive a Colourable Trade , which , with other the like stratagems , the Law will interpret no other then Solertia or Dolus bonus rather then Trade shall be totally obstructed , or the Merchants quite discouraged ; and where the goods controverted happen to have the marks of both the parties litigant , in that case his is the best Condition who hath the Possession , till by the other party better Cards can be shewed for the Property ; a a §. Commodum . Instit. de Interdict . for a Presumption grounded only upon the marks must ever give place to a Proof of the Title or Property grounded upon an Emption , Permutation , or the like . b b L. intra . §. vendentibus . ff. de Minor . Nor may the Plaintiff pendente lite , make use of that mark touching which the Dispute or Controversie is , till there be a Decision in the Case . c c Bald. in L. 1. Cod. Ut nemin . Liceat sine Jud. autoritat .

The Interest of the Merchant mainly depending on the Mariners , it concerns him to know wherein their Duty consists ; a right understanding whereof is not with more facility attainable then by a due perpension of those things which the Law it self ascribes as faults to Mariners ; such in part as these ; viz. The Mariner may not set sail The Skipper or Master is a Mariner , though no common Mariner . when under an Embargo or other restraint of Princes ; nor in Tempestuous weather ; nor after the time limited by Contract ; he may not during his Voyage in reference to Ship or Lading , doe ought mis-becoming an honest , able , skilful , and prudent Mariner ; he may not stay in Port or Harbour without cause when a fair wind invites his departure ; he may not deviate in his Course without just cause , or steer a dangerous or unusual way when he may have a more secure passage , yet to avoid illegal Impositions , he may somewhat change his Course and be excusable ; d d L. cum in debito . ff. de Probat . he may not unlade his Merchants Goods into another Vessel worse then his own ; he may not lade any Goods into a leaky or insufficient Vessel ; he may not over-charge or over-lade his Ship , nor stowe Goods above her birth-mark ; he may not sail without able and sufficient Mariners , both for quality and number ; he may not voluntarily sail by places infested with Pirats , Enemies , or other places notoriously known to be unsafe : he may not transport persons of an obscure and unknown Condition , without Letters of safe Conduct , or other suspected persons , to the rendring Ship or Lading liable or subject to a seizure or surreption ; he may not lade any Prohibited or unlawful goods , whereby the whole Cargo may be in danger of Confiscation ; he may not use any unlawful Colours , Ensigns , or Flags , whereby his Ship or Lading may incur a seizure ; * * L. ● . Cod. de Navib . non Excusand . he may not , being haled at Sea , behave himself otherwise then becomes a Prudent Master ; he may not carry counterfeit Cocquets or other Fictitious and Colourable Ship-papers to involve the Goods of the Innocent with the Nocent ; he may not with his Vessel engage among the Rocks , being thereto not necessitated by the violence of wind and weather , nor by night deceived or deluded by false Lights ; he may not refuse payment of the just and ordinary Duties , Port-charges , Customes , and Imposts , to the hazarding of any part of his Lading ; he may not sail with insufficient Rigging , or Tackle , or with other or fewer Cables and Anchors then is requisite , respect being had to the Burthen of the Vessel ; he may not sail with other Ship-provisions then what is good and wholesome , and sufficient for the Voyage ; he may not neglect the well moaring of his Vessel in Port ; he may not sail without one Cat or more in his Vessel ; he may not suffer the Lading to take wet , to be stoln or embeziled ; he may not permit Debates or Contests among his Mariners , to the prejudice of the Merchants Goods ; he may not let open the hatches of the ship , to endanger the Lading ; he may not prejudice any part of the Lading by any indiscreet or unskilful stowing of the Goods , respect being had to quantity , nature , and quality thereof ; he may not take up more money upon Bomeree or the Gross Adventure then his Interest is in ship or Lading ; he may not contrary to Order touch at Ports , not necessitated thereunto by contrary winds or otherwise . Many other are the faults and miscarriages incident to Mariners ; these only by way of hint to Merchants , who are the greatest sufferers hereby , having herein very seldome equivalent reparation , the offendors for the most part not sufficiently solvant .

But here note , that he that will charge a Mariner with a fault in reference to his Duty , must not think that a general Charge is sufficient in Law , but he ought to assign and specifie the very fault wherewith he is so charged . e e L. Praetor ●it , in prin. ff. de Injur . In like manner he that will infer such or such a sad disaster to have happened or been occasioned by reason of some fault in the Mariners , must not only prove the fault it self , but must also prove that that fault did dispose to such a sad event , or that such a misfortune could not have happened without such a fault precedent ; f f L. non omne , ff. de Stat. Libe . & l. is , ff. de Act. & Oblig . wherein the Mariners though legally qualified as good and competent witnesses for acts done a ship-board , g g L. Consensu . Cod. de r● yet to exculpate and excuse themselves , they are not witnesses without exception , save in certain Cases wherein the Law allows them a toleration by way of Juramental purgation ; And in case of loss or damage to the Lading or any part thereof by reason of such disaster occasioned by or in consequence of such fault of the Mariners , the Merchant hath his election in Law , whether he will sue the Master or the Owners of the Vessel , h h L. 1. §. igitur , ff. de Exerc . only he can recover but of one of them ; And having once determined his election , he ought to stick to that ; In which case if the Master happen to be Judicially condemned by reason of any default in his Mariners , he may detain their wages till payment be made , and satisfaction given for such damage as he suffered by their neglect ; for they ought by the Law to refund it out of their wages . i i Aret. post Joan. Fab. in §. item Exercitor , nu. 3. Instit. de Oblig . quae ex quasi Delict.

Ships and other Vessels of that kind were Originally invented for use and profit , not for pleasure and delight ; to plow the Seas , not to lie by the walls ; therefore upon any probable design the major part of Part-Owners may , even against the consent , though not without the privity and knowledge of the minor part , set a Vessel to Sea , under such Provisions , Limitations , and Cautions , as by the Law is in that behalf provided ; yea , the same thing may be also effected by the one party only , in case of equality in Partnership . k k Bart. & Paul . in l. haec distinctio . §. cum fundum , ff. Locat . But in the choice of a Master , where there are several Part-Owners of the same Vessel , not always he that is chosen by the major part , but he that is best qualified for that employment , is according to Law most eligible and to be preferred . l l L. non inter , ff. de usu & habi . If a ship be ript up or taken abroad into pieces , with design of converting the Materials thereof to some other use , and it be afterwards upon other advice or change of mind re-built with the same Materials , This is now another and not the same ship , m m L. inter stipulantem , in §. Sacram. ff. de Ver. Oblig . & in l. quod in §. fin . ff. de Leg. & in l. qui res , §. aream , ff. de Solut. & in l. quid tamen , in §. in Navis . ff. Quib. mod. Usufr . ami● . specially if the keel be ript up or changed , and the whole ship be at once all taken asunder and re-built ; It is otherwise if it be ript up in parts or taken asunder in parts , and so repair'd in parts ; In which Case it remains still the same ship , and not another , albeit it be so often repaired , that in tract of time there remain not one chip of the Original Fabrick . And although a man repair his ship with plank or other materials belonging to another , yet the ship shall not be his to whom the materials belong , but remains his who repaired it . n n L. Mutius , ff. de rei vendic . It is otherwise if one takes another man's planks or materials prepared for the use of shipping , and therewith build a Vessel ; for in that case the Owner of the materials shall be Owner also of the ship , for the property of the whole Vessel follows the Keel thereof . o o ff. lib. 6. tit . 1. Leg. 61. But if one prepare Tables and other Implements , as for the use of a dwelling house , or the like , with Oke or Deal belonging to another man , and afterwards with those Implements build a ship or other Vessel , in this case the ship is his who built the same . p p L. si ex meis , ff. de acq . rer. dom. & l. si convenerit , §. si quis sic , ff. de pign . act . If a ship be bought , together with all her Tackle , Apparel and Furniture , and other Instruments thereto belonging , in this case and by these words the ships boat is not conveyed . q q L. fin . ff. de fund . instruct . & l. Scapham , ff. de evict . & l. Marcellus , in §. armamenta , ff. de Rei Vendicat . And therefore if by reason of any offence the ship happen to be forfeited or confiscate , the said ships boat is not confiscate . r r Bald. in L. cum proponus . Cod. de Nautic . soenore . nu. 6. If one doth sell that ship or Vessel , wherewith he hath exercised the detestable acts of Piracy , whether the parties that suffered loss by such depredations , have any remedy in Law against such ship now bought bona fide , or against the buyer thereof now bonae fidei possessor , is a question much controverted ; Some are of opinion that he hath no remedy in Law , because the ship is a senseless thing , and not capable of offending . s s L. 1. ff. si quo ad . pau . fe . di . As also , because the buyer thereof ( supposing him not conscious of any such depredations , nor privy to , abettor or partaker thereof ) ought not to suffer being innocent ; t t Jas . in consil. 170. Nomine Magnifici , &c. Vol. 2. Others are of another opinion , for that it is lawful for every man to seize the goods of Pirats , u u Bald. Paul . & Sal. in l. autem navigiae . Cod. de furt . especially for that there lies a tacite obligation on the goods of all offendors for satisfaction ; w w Bal. in l. furt . Cod. de furt . whence some infer that the Merchants who are so despoyled of their goods , have a Legal recourse for satisfaction on the Pirats goods wheresoever or in whose hands soever they find them . But the more received opinion is , that whereas it is held lawful for every man to apprehend the goods of Pirats and be blameless , it is meant and intended only so long or whilest they are the goods of such Pirates ; x x L. in delictis . §. Si extraneus . ff. de Noxa . & Angel . in l. Sive manifestus , in §. tam diu , ff. de Com. fur . unless you can also affect the possessors of such goods with a participation of the same crime . And if any do bona fide , either buy or redeem a ship or other goods from such Pirats , he may upon restitution thereof to the true Proprietor recover of him the price of such emption or the redemption-money . y y L. mulier . ff. de Captiv . If a ship or other Vessel by stress of weather or through fear of Enemies or Pirats , be forced or chased into a Port , no Duties or Customes or other duties in that case ought to be exacted or paid . z z L. fin . §. si propter necessitatem . ff. de public . & l. Caesar . ff. de Public .

In fraighting of ships , respect is had either to the ship it self , or else to a certain part thereof ; as also either by the Moneth , or the Voyage , or by the Tun ; for it is one thing to fraight a ship , another thing to take Wearing Apparel and Victuals for the ships use , pays no fraight . ff. Naut . Caupo . stab . &c. l. 1. §. quamcunque rem . certain Tunnage to fraight ; So also one thing to be the Cape-Merchant , another to be an Under-fraighter ; and the Law of fraight ordinarily is regulated by the Contract , and varies according to the diversities of Agreement , for Convention makes Law . If fraight be contracted for the Lading of certain Slaves , Cattle , or the like , and some of them happen to dye before the Vessel arrives to her Port of discharge , the whole fraight is due , that is , as well for the dead as the living . a a L. si quis . Cod. de Instit. & Substit . It is otherwise if the fraight were contracted for the Transporting them , in which case fraight is due for no more then are alive at the ships arrival to her Port of discharge , and no fraight due for the dead . b b Arg. l. Seio . ff. de annuis legatis . & l. illis libertis . in fin . ff de Condit . & demon . ar● . 7. If it be not known or liquid , whether the Contract were for the Lading or Transporting them , the fraight is due for the Lading , and consequently as well for the dead as living . c c L. qui operas . & l. si aedes . §. cum quidam . & §. fin . ff. locati . If fraight be contracted for transportation of a Woman , and she happen during the voyage to be delivered of a child on Shipboard , no fraight is to be paid for the said Infant . d d L. Sed & addes . in §. Si quis mulierem . ff. Locat . If such misfortune happen to a Ship in her voyage that she cannot proceed therein , the fraight contracted for doth cease in some cases , only for so far and so much of the said voyage as the said Ship made before such misfortune , fraight shall be paid . e e Paul . in l. si uno . in §. cum quidam . & §. ubicunque ff. locat . & Sign . de Homod . Consil. 195. nu. 6. If the ship by reason of the fraighters fault , as for Lading Prohibited Commodities , or the like , be detained or impeded , he shal pay the fraight contracted and agreed ; f f L. penult. §. novem. ff. Locat . The Lading of a Ship in construction of Law is tacitly obliged for the fraight ; yea , the payment of fraight is preferr'd before any other Debts to which the goods so laden are liable , albeit such Debts in time were precedent to the said Fraight . g g Bald. in L. certi juris . in 4. q. in verb. Quid ergo . Cod. Locat . If a set time be fixed and agreed between the Merchant and the Master , wherein to begin and finish a Voyage , it may not be altered by the Supra-Cargo without special Commission ad hoc ; nor may the Master sail after the time Covenanted , without refunding the damage out of his owne purse , in case any happen at Sea after the said time . h h L. Qui Romae . §. Callimachus . ff. de verb. Obl. A Promise being made by a Master of a Ship to to sail Venice from the Port of London in two moneths , the promise is performed if he begin to sail the said Voyage within the two moneths , though he arrive not at Venice within the said time . i i Ang. Alex. & Jason in dict. §. Callimachus . And the sailing from one Port to another , thence to a third , fourth , &c. and so home to the Port whence she first set sayle , o● some other Port of her last discharge , is all but one and the same Voyage , k k L. Relegati . st. de poenis . & l. ult. ff. de Sep. Viol. so as it be in Conformity to the Charter Party .

As there is no Art more Necessary , so none more dangerous and uncertain , then that of Navigation ; insomuch that Bias the Philosopher ( One of the seaven Grecian Sophies ) had a Conceit that Navigators and Mariners , when under Sayle , might not properly be reputed either among the Living or the Dead ; and Plutarch in the Life of Cato , relates it as one of Cato's Three Penitentials at his death , if ever he conveyed any thing by water when he might have done it by Land ; hence it is that the Law is so favourable in Cases of Wreck , and in nothing more consults the reparation of any , then such as by that deplorable Casualty are reduced to misery . Now no man by the Law may be prohibited or denyed the Liberty of Sayling either upon the Seas or any publick Rivers . l l L. 2. §. Si quis in mari . ff. Ne quid in loc. publ . & §. & quidem . Inst. de rerum . divi. & l. uni . ff. Ut in flum . pub . navigate licear . that is , no man may be denyed that freedome , or prohibited by any Private persons , or other who have not Jura Regalia in that Territory , for some Princes and States have in all ages exercised that Prerogative in this point which no lesser Powers can pretend unto ; Witness the City of Peru , in her Concessions , and Interdictions or Prohibitions , touching a Liberty or restraint of Sayling on the Lake of Peru ; as also the like by the Venetians as to the Adriatick Gulfe ; m m Angel . Consil. 290. & Veronensis . Not here omitting to make an honourable mention of that undoubted Soveraignty which the Kings of Great Brittain in all ages have had in the Seas thereof . n n Bellissime . Seld. de Mar. Claus . Another duty of Merchants and Mariners is Contribution , which is not onely in the case of goods cast over-board for the Lightning of the Vessel , but also in Case of Redemption of ship or Lading , or any part thereof from Enemies or Pirates , o o ff. ad Leg. Rhod. de jactu . l. 2. §. si Navis à Piratis . insomuch that if a Master redeem the ship and Lading out of the hands of Pirates by promising them payment of a certain sum of money , for performance whereof himself remaines as a pledge or Captive in the Custody of the Pirates ; in this case he is to be ransomed or redeemed at the Costs and charges of the said Ship and Lading , ratably and proportionably as each mans Interest therein doth amount thereunto . p p Dict. §. si Navis à Piratis . & ibid. Juan . de Heuia lib. 3. p. 2. Cur. Philae . Naufragio . 13. nu. 18. And if there be Cash or mony in the Ship ; it is not in this case Exempt from paying its share of the Contribution proportionably to Ship and Lading , because the Master knowing the said money to be a Ship-board , was probably the more willing to Redeem the Ship , though at a dearer rate . In a storm , when the Ship is in danger of perishing , it is not lawful for the Master at his own discretion , without advice first had with the Merchants or their Factors or Supracargoes , to cast goods over-board for the Lightning the Vessel , or to Cut down the Mast , or the like ; but in case they consent not , and the Master see cause for it , he may even against their consents do the same , by the advice of the major part of his Mariners , who at the end of their Voyage are to make oath , that they did the same out of Necessity , and only for preservation of Ship and Lading , and by advice of the Mariners : And the Master in such case is to take as much care as in him lies , that such goods only be ejected and cast over-board as are of the heavyest weight , and least value ; q q Leg. Wisbicens . art. 20 , 21 , 38 , 39. for which Contribution is to be made , wherein the ejected goods are to be valued as other of the same species are sold for ; And Jewels , though of no burthen to the Vessel , yet in such case are liable to pay their share of Contribution according to their value ; And in such Cases the Custome of the Place is to be observed ; for by the Custome of some Places the Oaths of the Master and a Third part of the Mariners are required , by the Custome of other Places the Masters Oath with two or three of his Mariners doth suffice . But if only the Ship it self , or any of her Tackle happen by stress of weather to be damnified , there is no Contribution for the same , though the Lading be all preserved . r r ff. ad Leg. Rhod. l. 2. §. Si con●c●vatis . The persons of m●n , wearing appa el , and the Ships provisions are exempt from Contribution . Contribution is to be made and regulated in this manner ; First , the goods which are lost or were ejected for conservation of the rest , are to be valued and appraised ; then the goods saved are likewise to be estimated , that so the values of each being known , a proportionable valuation may be contributed by the goods saved , towards satisfaction for the goods ejected , lost , or thrown over-board ; wherein regard is to be had not to what might be got by the goods lost , but what the damage is by the loss thereof ; which are to be estimated not so much by what they might possibly be sold for , as by what they cost or were bought for . Though in truth the more received practise and Custome is , that the goods Some are of opinion that the goods saved are to be valued as they may be sold for , but the goods lost as they were bought . saved and lost are both estimated as the saved goods happen to be sold for , the fraight and other necessary charges being first deducted ; and the Estimation or Computation is to be made by such skilful Merchants and Mariners as adhere in their judgements and affections to neither party , farther then becomes indifferent Arbitrators ; which may be managed with most equality and least suspicion or exception , if the appraisment be made upon oath . And if any in the Ship hath Money , Plate , Jewels , or the like , in any Trunk , Chest , Pack , Fardel , or other thing now to be thrown over-board , he ought to discover it and shew it to the Master of the Ship before the ejection , or otherwise in casting up the Contribution , these things will come no farther into consideration , then what the bare Extrinsick value appeared to be . The goods Goods cast overboard to lighten the ship makes no Der●lict , §. ult. Inst. de Rer. Divis . & l. 9. §. ult. de acqrer . dom. preserved are by Law as liable to pay Contribution as Fraight , and are tacitely obliged for the one as for the other , and the Master may retain them as a pledge in Law as well for the satisfaction of the one as of the other ; If such ejected goods or the Merchandize be afterwards recovered out of the Sea , the Contribution for them ceases , saving for so much as they are thereby deteriorated . s s ff. ibid. l. navis . §. cum autem . But if by reason of the Masters over-lading the Vessel , or by his indiscreet stowing the Goods or the like , such ejection or casting goods over-board happen , in that case no Contribution to be made by the Merchants ; but Satisfaction by the Ship , the Master , or Owners thereof . t t Lusi Sernus . 27. §. & Si. 23. Ad Leg. Aquil. If to avoyd the danger of a Storm , the Master cut down the Masts and Sayls , and they falling into the Sea are lost ; this dammage is to be made good by Ship and Lading pro rata ; Not so in case the same had happened by the Violence of the Wind or Storm , or other Casualties . Also no Contribution in case one Ship strike against another , whereby dammage happens ; but full satisfaction in case of a fault or miscarriage in either , or an equal division of the dammage in ca●e it happen by a meer Casualty . Lastly , If a Lighter , or Skiff , or the Ships Boat into which part of the Cargo is unladen for the the lightning of the Ship , perish , and the Ship be preserved , in that Case Contribution is to be made ; Otherwise it is , in case the Ship perish , and the Lighter , Skiff , or Ships Boat be preserved ; for no Contribution but where the Ship arrives in safety . v v L. Navis . ff. Ad. Leg. Rhod. de jactu .

Within the Cognisance of the Jurisdiction of the Admiralty , and wherein Merchants and Mariners are principally concerned , are also all causes of Reprizals , known to us by the Words Reprisaliae , or Letters of Marque , which in the Law have also other Appellations , as Pignoratio , Clarigatio , and Androlepsia ; For it is supposed that those Reprizals now commonly used , were first introduced in Imitation of that Androlepsia among the Greeks , with whom it was a certain Right in case of Murder , to apprehend and seize any three persons whether Citizens Demosthen . in orat . in Aristogit . or other of any such place or City , into which the Murtherer had fled for shelter , making it his place of Residence ; and such persons to keep in safe custody , until upon demand the said Murderer were delivered up to Justice ; This was Androlepsia with the Greeks , which ( as some suppose ) gave an hint to other Nations for these Reprizals , which are now of practice more common then commendable . The word Clarigatio is more acceptable to express Reprizals , then either Androlepsia or Pignoratio ; for Pignoratio is a word too Generall , and Androlepsia too Special , as being only by the Authority of such as required the Revenge of Murder , and upon no other accompt then that . The word [ Reprizals ] is from the French , reprendre & reprise , that is , to Retake , or to take again one thing for anorher ; albeit this may not be by any Private Authority , but only by the Authority of that Prince whose subject the Injured person is , and only in case Justice be denyed or illegally delayed by that Prince whose subject the Offender is : For before any concession of Letters of Reprizal or Marque , there ought to precede the Oath of the party Injured , or other sufficient proof touching the pretended Injurie , the certain lo●s and damage thereby sustained , the due prosecution for obtaining satisfaction in a Legal way , the denyal or protelation of Justice , the complaint thereof to his own Prince , Requision of Justice by him made to the supreme Magistrate where Justice in the ordinary course was denyed , persistency still in the denyal of Justice ; all which precedent , Letrers of Reprizal ( under such Cautions , Restrictions , and Limitations as are consonant to Law , and as the special Case may require ) may issue by the Jus Gentium ; for such Law-Casuists as question whether Reprizals are Lawful , are in that point rather Divines then Lawyers ; Grotius , who was both , resolves it in the Affirmative ; w w Grot. de jur . Bel. lib. 3. cap. 2. nu. 2. wherein Nations as well as Persons , the Jus Civile as well as the Jus Gentium agree the Legality thereof ; whether you understand General and Universal Reprizals , which is quasi Bellum Privatum , or Special and Particular Reprizals , which is quasi Duellum Publicum .

The precedent Requisites being duely observed , Reprizals may issue by the Authority of the Prince , in whom alone resides the power as of making War and Peace , so also of granting Letters of Marque ; And this notwithstanding any Lawes to the Contrary that seem to inhibite the same ; x x Ne alius pro alterius debito & paena teneatur . Auth. & omnino , Ne Uxor Marito C. l. providendum . de Decurio . li● . 19. c. titu . Ne fil . pro patre . Auth. imo . C. de acti . Cum Similib . But with respect to the National Treaties and Coventions , which in this point may at times vary and alter the Case in Conformitie to such National Contracts . A due Administration of Justice is not the Least sense wherein Princes are stiled Gods ; To deny or delay Justice is Injustice ; Justice is every mans Right who hath not forfeited what he might claim by the Jus Gentium ; therefore the Prince , within whose Territories Justice is denyed or delayed , is Accomptable to that other Prince whose Subjects suffer thereby ; and by the Law Subjects may be punished for their Prince's Omissions in what the Law of Nations requires . y y C. Si Sententiae . c. 16. de Sent. Excom. in 6. Constir . And that Prince who unlawfully detained the Rights of a Subject under another Prince , or suffers it within his Territories to be detained , and in the Ordinary Course of Law denies Restitution , he may at length be compelled to Restitution , vi & manu militari . z z L. qui restituere . De rei vindicat .

He that in the way of Reprizals apprehends at Sea another mans Goods , ought not to keep them in his own private Custody , and to Convert them by his own authority to his own private use , but ought to bring them to some Publick Place in order to a Judication according to Law ; yet they are to remain with the Captors till by them they are thus brought and submitted to Publick Justice ; by the authoritie whereof Commission may issue for Landing or unlading the said goods , for Inspection , for Inventorying , and for Sale , either of such part thereof as upon such Inspection shall appear to be Bona peritura , or of the whole in case the Court shall see Cause , which is to order payment out of the Proceed thereof to the party to whose use the Letters of Marque issued for and towards satisfaction of his debt and damages , after deduction of all dues , duties , necessary Costs and Charges relating to the Seizure , either Judicially or Extra-judicially ; And the said debt and damages ( with all Costs and Charges ) being fully satisfied , the Remainder or Overplus ( if any , which seldome happens in such cases ) is to be Restored to their Owners from whom they were taken , and the said Letters of Marque thenceforward to cease . Such Letters of Marque issue not without good and Sufficient Caution first given in Court for the due observance thereof according to Law , the transgression whereof creates a forfeiture of such Judicial Recognizance or Stipulation ; and the Captor for the better management of a Judicial Proof , in order to a right Decision according to the merits of the case , is to produce part of the Seized Mariners to be Sworn and Examined according to Law , as also to Exhibite all the Ship-papers and Evidences found a Shipboard ; and till Judication he may not break bulk of his own private authority , nor suffer any imbezilement of the Lading , nor Sell , Barter , or otherwise alter the property thereof , without Special Commission from the Court for so doing .

In the Law there are certain Persons and Things Exempt from being Lyable or Subject to Reprizals ; They whose Persons are Exempt , have also their goods Free. Reprizals granted against any Kingdome or State , are understood as against such only who inhabit therein , and not against such who though originally of that Countrey against which the Reprizals are , yet inhabit elsewhere , possibly in the same Kingdome whence the Letters of Marque issued ; for he is not in this point reputed of that Kingdome , State , Province , or City wherein he doth not inhabite , albeit he were born therein ; It is not the place of a mans Nativity but his Domicill , not of his Origination but of his Habitation , that subjects him to Reprizals ; the Law doth not consider so much where he was Borne , as where he Lives ; not so much where he came into the world , as where he improves the world ; provided he hath there Decenniated or inhabited Ten years , or less , in case he hath born Office there , or paid Scott and Lott , or removed his Family thither , or his Estate , or the greater part 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 J●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 ●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 Hom. Iliad. 2. 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 Gregor. lib. 9. 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 soon be Bankerupt ; So that if it escape the private Arrest of some Fained or Fictitious Action , there is no fear of a General Embarg .

Elenchus Authorum ; OR , The Names of the Authours Quoted in this TREATISE . AeSchilus . Accursius . Afflictus . Africanus . Albericus . Alexander . Alonzo de Chavez . Andreas Masius . Angelus . Annot. in Sac. Bib. Edit. 1651. Aristotle . Athenaeus . Aurelius . Aul. Gellius . Baldus . Bartolus . Bernar. Gerardus . Boerius . Boroughs . Brownlow . Bullenger . Caius . Caiciapulus . Cagnolus . Calvinus . Calistratus . Carbo . Cassanaeus . Castrensis . Casus . Caesars Comment. Coelus Rhod. Caepolla . Celsus . Cicero . Comines . Consul del Mar. Corp. Jur. Civil . Corp. Jur. Can. Codinus . Coke . Corvinus . Cowell . Crook . Curopalates . Curtius . Cynus . Cothereou . Pet. Coth . Demosthenes . Diodor. Sic. Dion . Afric . Doct. & Stud. Domin . Niger . Donellus . Durandus . Faber . Fascic . de sup. Adm. in arce Londinensi . Fazellus . Ferrandus . Fitzherbert . Fleta . Florus . Forster . Fragm. Hist. Aquit . Fragm. Ascript . Polib . Fulgosius . Galen . Gellius . Gerardus . Godwyn . Goldsborough . Gothofred . Granat . Decis . Greg. Gemist . Grotius . Herodotus . Hevedin . Rog. Heved . Hieron . de Chavez . Hobard . Homer . Horace . Huntindon . Jason . Isernia . Junius . Justinian . Larrea . Leonard . Leon. Marsisc . Leunclavius . Libanius . Littleton . Livius . Lucius Florus . Lupus de Magistr. Mainus . Maranta . Marsicius . Malmesburiensis . Math. Paris . Masius . MS. Admtis . voc. Liber Niger . Monstrelatus . Morisotus . Moursius . Noy . Omphalius . Oleron Sea-Laws . Ortelius . Oswaldus . Owen . Panormitan . Papinianus . Paris . Math. Paris . Paris de Puteo . Paulus . Paul . Emil. Peregrinus . Perinus . Petr. Cothereou . Plato . Plinie . Plutarch . Polybius . Pompeius Trog . Pomponeus . Pruckman . Fred. Pruck . Ptolimaeus . Purchas . Purpureus . Ramus . Ranulphus Castrensis . Raphael . Rhodiae Leges . Ridley . Rodorig . Zamerano . Rupertas , aliàs Robertus le Monachus . Sabellicus . Salycet . Scardius . Scaevola . Selden . Seneca . Siffridus . Sigebertus . Sigonius . Speculator . Spelm. Consul . Spelm. Glossar . Spiegelius . Strabo . Suetonius . Suidas . Tacitus . Tapia . Terms of Law . Theophanes . Thucidides . Tibullus . Triphoneus . Tullus . Turpinus . Tuschus . Valer. Max. Valer. Forster . Victor . Virgill . Vlpian . Vopischus . Zamerano . Zasius . Zonarus .

THE CONTENTS OF THIS TREATISE . viz. CHAP. I. ADmiral ; the Etymon or true Original of the word ; with the various Appellations thereof . CHAP. II. The Original of Navigation , and the Sea-Laws ; with the Antiquity of the Office of high Admiral in the Transmarine or Forraign parts of the world . CHAP. III. The Antiquity of the Maritime Authority , together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain . CHAP. IV. Of Persons Maritime ; As also , of such Things as are properly Cognizable within the Jurisdiction of the Admiralty of England ; And in what method it proceeds to Judgement . CHAP. V. Of Laws and Jurisdictions in general ; with the several kinds and degrees thereof . CHAP. VI. Of Prohibitions ; Their several kinds , Causes and Effects in the Law . CHAP. VII . Of Fictions ; what a Fiction in Law is ; how farre and in what cases Fictions may be used according to the Rules of Law . CHAP. VIII . That the Cognizance of all Causes and Actions arising of Contracts made , and other things done upon the Sea , is inherent in the Jurisdiction of the Admiralty . CHAP. IX . Of Contracts and Bargains made , and other things done Beyond the Seas . And whether the Cognizance thereof doth belong to the Admiralty . CHAP. X. Of Judicial Recognizances and Stipulations for Appearance , and performance of the Acts , Orders , Judgments , and Decrees of the Court of Admiralty ; As also whether the said high Court of Admiralty of England be a Court of Record . CHAP. XI . Of Charter-parties made on the Land , and other things done beneath the first Bridge next to the Sea ; vel infra fluxum & refluxum Maris ; and how far these may be said to be Cognizable in the Admiralty . CHAP. XII . Of the Jurisdiction of the high Admiralty of England , Stat. 13 R. 2. cap. 5. Stat. 15 R. 2. cap. 3. Stat. 2 H. 4. cap. 11. & Stat. 27 Eliz. cap. 11. CHAP. XIII . Of the Agreement touching the Admiralty in Anno 1575. As also of the Resolutions Hill. 8. Car. 1. upon the Cases of Admiral Jurisdiction .

A VIEW OF THE ADMIRAL JURISDICTION .

CHAP. I. Admiral : the Etymon or true Original of the word ; with the various Appellations thereof .

THE Glossographists and others have digg'd very deep to come at the Root of this word ; Some are of opinion that the word Admiralius is derived from the Greek 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Salsus , or from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Salsugo , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Salsigo , or from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 quasi Salmacidus & Salsus , à Salsugine Elementi cui imperat : a a Lupus de Magistr. Paul . Emil. Hist. de Fran. Guaguin . & Morisor . lib. 2. c. 3. de Orbe Maritimo . from the Saltness of that Element where properly his Authority and Jurisdiction doth reside ; b b Morisot . ib. lib. 2. cap. 7. vel quod in salso mari suum exercet imperium . But this not seasoned with sufficient reason , is held but as an unsavoury derivation , from the great improbability that any in imposing of Names should quit the thing it self , wherein the Denominated is most inherent , and flie only to the more remote qualities thereof ; As if you should say that the Admiral in rebus Maritin●s were rather Salinarius then Marinarius , as is truly observed by the Learned Sir Henry Spelman . c c Spelm. Gloss. verb. Admiral . So that if you offer this Derivation , though cum grano vel mica Salis , it will not pass .

Therefore others are of opinion that it is derived from the French [ Ameral ] signifying an high Officer or Magistrate in Sea-affairs ; But this is as if you should say , ( to keep to the Metaphor of a Liquid Element ) That Ice dissolved is the Mother of Water , rather then Water frozen the Mother of Ice ; No doubt but [ Ameral ] in French now signifies such an high Officer or Magistrate ; but where was that French word [ Ameral ] when the Office of Admiral , by other Appellations almost homophonous to that , was in being , but not in France ? That Office by other Names Appellative not much dissonant to this of Admiral was anciently known in the world , when no such thing in France ; for the Romans themselves anciently had not these Admirales ( for so then called ) till Constantine , in whose time isti Admirales Magistratus creati sunt ; d d Petr. Cothereau . in suo Schedul . Magistr. Civil . tit. de Praesibus Provin . & Purpur . in l. 1. col. 30. 9. Exemp. Dig. de Offic. ejus cui mandata , &c. Cassanae in Catalog . Glor. Mund. part . 9. Consid. 16. that is , among the Romans ; for they were known to other parts of the world long before Constantine the Great , Anno 330. So that it may be truly said that this high Officer or Magistrate in Sea-affairs is in the French now rendred by the word [ Ameral ; ] But not that the word Admiral is thence derived .

Therefore others conceive it is derived from the Saxon Aen Mere eal , that is , over all the Sea . This passes for a currant derivation and exposition of the word Admiral with us ; possibly because it sounds both so prettily and pithily ; for we are now as apt as our Neighbours t'other side the water to be alamoded as well with fine words as other vanities . Yet this being a derivation of our own Generation , it may not be much controverted , specially for that others as well as those of our own Nation , have acknowledged the word Admiral to be derived from the Saxons , with whom the word [ Hadmiral ] doth signifie Praefectum maris .

Others there are who will have it derived from neither of these , but from the Sarazens , [ Admirantes ] for that in the Infancy of that Empire there were Quatuor Admirantes , hoc est , Militum Praefecti , qui terra marique pugnarent . e e Morisot . Orb. Marit . lib. 2. cap. 3. But some think that this opinion hath no farther truth then in appearance only ; for that the Sarazens had no farther use of that office then in the Holy Wars . Therefore those Ancients that derive the word much higher then the time of the Holy Wars , will have it dr●wn rather from the Greek then Arabick ; So that they seem to come nighest of any to the truth , that derive the Pedegree of this word Admiral both from the Greek and Arabick .

For that Amir in the Arabick signifies Princeps , Praefectus ; And 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 in the Greek Marinus , both which amount to Admiralius , or rather to Amiralius , quasi Princeps vel Praefectus Anno 1216. in H. 3. Matth. Paris , viz. In the Wars between the Christians and the Sarazens in the Land of Promise , That John K. of Hierusalem with Christs Militia Castellanum ab equo stravit , & Admiraldum unum . Marinus . And this carries the greater probability with it , for that , as the said Sir Henry Spelman observes , such bilingue Compounds were much in request at the Court of the Eastern Empire ; And it seems Admiraldum capio pro Centurione sive Capitanio , says the Glossar . on that word , in that place . And the said Matth. Par. Anno 1244. in H. 3. viz. Potestas Januae , quem Admiratum vocant . The Gloss . there , viz. Ille Potestas , Podesta , sive Praetor urbanus , Nunc dierum Admirallii sive Thalassia●chae munere fungebatur . yet the more probable , for that in Homer we find the word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 pro Rectore maris , or Governour of the Sea ; yea , and for Neptune himselfe . Wherefore Amir , otherwise Emir , also Amira , Amirae , Amiras , and Amiradis , do signifie Regem , Principem , Eparchum , and Praefectum ; also with the Turks and Sarazens , it sometimes signifies their Great Emperours , and sometimes their Proto-symbol or President of the Senate . And so the Arabick [ Amira ] or the Hebrew [ Amar ] that is , dixit , edixit : illud praecepit , imperavit ; from whence [ Mamurem ] that is , praeceptum , edictum ; And [ Amirom ] that is , Dux , Capitaneus , Imperator , Praefectus . And so 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 in the Compound ; from whence [ Alamiro ] ( with the Article al ) 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the chief Captain . And from hence the Spanish [ Almirante ] or according to their ideom , el Amirante , and thence by turning l into d the word Admirans by some hath been used for Admiral ; whence others also , though very corruptly , yet by reason of their being so Consonant , have given it other such like names , as Admirabilis and Admirandus ; which words , if compared with the former , will , in the sense of such as have so express'd themselves , be found to be rather Syncatagorematical in their Signification , then Homophonous in their Accent or Pronunciation : And therefore the said Archiologist conceives that the word [ Amiratus ] ( which in Malmsb. is so often used for Admiral ) is not thence derived , but rather from [ Amiradis ] the Genitive singular of the foresaid Amiras , by an exchange of d for t , as was usual ; and adds , that the word [ Admiraldus ] is very Legible in the Antiquities of Turpin and Rupert or Robert the Monk f f This Rob. the Monk was one of K. Johns three Emissaries to Miramulalim K. of Morocco , to signifie his pleasure to him , how ready he was to resign his Kingdome . quasi Al Amiradus , that is , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , and by an Apocope of the letter d Admiral ' g g Fragm. Hist. Aquit . which others will have to be express'd by the word Admirarius . h h Leon. Marsic . in casinens . Hist. lib. 3. cap. 44.

This high Officer or chief Magistrate in Marine affairs with us is styled the Lord high Admiral of England ; with the Greeks 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ; with the Latines , Amira , About Anno 1213. when K. John sent Thomas Her●inton , Ralph Nicholson , and Robert the Monk to the K. of Morocco , we read Misir Nuncios ad Admirallium Murmelium , Regem Magnum Aphricae , Marrochiae , & Hispaniae , quem Vulgus Miramumelinum vocat . Amiras , Amireus , Ammiratus , Admirallus , Admiralis , Admirans , Admirandus , Admirabilis , Admiravisi , Almiramisi , Admiralius , Amiralius . In the Eastern Empire , Amerii , Admirantes ; also Drungarius , Drungarius Magnus , Drungarius Classis , Matth. Par. in Johannem Reg. Drungarius Navigiorum , Drungarius mari Praefectus . Ita , sed satis Corrupte , Regem Moroccae indigitarunt Nostrates . Sed Corruptius adhuc Roger. Hovedin . Almiramisi sive Almiramimoli . With the Athenians and others , Thalassiarchus , Archithalassus , Magistratus rei Nauticae Jurisdictionem habens . With the Romans there were Duum Hovedin . pars poster . in R. 1. pag. 381. viri Navales , afterwards Praefectus maris , Praefectus Classis , Drungarius Magn. Fragm. Ascripr . Polybio . Magnus Dux Classis , Archigubernius . With the Spaniard Almirante , el Amirante , Adelantado . With the French , L' Ameral , Praefectus maris & Litoris , Custos Limitis Maritimi , Comes Litoris . Besides these there are several other Appellations of this one and self-same high Officer , consonant unto the Ideom of such Nations and Countries respectively , where this great Office hath been constituted .

This word Admirallius , how it should signifie Bellicosus or Victoriosus , as Mat. Paris hints , i i Matth. Paris in R. 1. Circa dies istos Rex de Maroch . potentissimus , quem Mirabilem mundi Vulgus , vel quod melius , Admiralium Murmulin , id est , Admiralium Bellicosum & Victoriosum nominavit . seems not easily to be resolved without a far strained Notion ; for , without doubt , of all the presupposed Etymons of that word , that which Junius gives , seems to be the most Legitimate , that from the Arabick [ Amira ] Princeps , and the Greek 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Marinus ; it Et An. 988. Otho . 3. Imp. German . cognomin . Otho Rufus , iste cognominabatur Mirabilia Mundi . being generally agreed that this word is a Compound of an Exotick Extraction from two Sif●rid . Epit. lib. 1. p. 689. distinct Languages or Tongues ; And therefore although Gretserus k k Glossar . in Matth. Paris in verb. Admiral . be pleas'd to be displeas'd with this derivation thereof , yet it is supposed that others without the least hazard of Naufragating their Art of Glossographie , may securely cast Anchor and safely acquiesce therein .

CHAP. II. The Original of Navigation , and the Sea-Laws ; with the Antiquity of the Office of Admiral in the Transmarine or Foraign parts of the World .

THE World was no sooner Created , but Man had Dominion over the Fish of the Sea Jure Divino , which could not well be Gen. 1. 26. without Naval Architecture , and some skill in the Art of Navigation ; And it is now no less then nigh 3952 years since Noah , that Totius orbis Thalassiarchus , or high Admiral of the whole world in that general Cataclysme , with his ship , or vessel called the Ark of Gopher , laden with a Cargo of Gen. 6. 14. & 7. 24. & 8. 3 , 4. The Antiquity of Navigation . the whole Vniverse , after a nigh six moneths Voiage safely arrived at Ararat , his Port of Discharge in Armenia ; which though re-peopled by his Progeny , yet thence to believe and affirm , a a Fazel . li. 1. Decad. 2. Rer. Sicul. & Morisot . Hist. Orb. Marit . l. 1. c. 1. That by Naval Acquisitions his son Sem proprietated all Asia , his son Japhet all Europe , and his son C ham all Africa , is more then a meer Historical Faith hath sufficient warrant for , though less then Navigation hath Antiquity to possibilitate .

Whether Jupiter King of Crete , now the Isle of Candie , did purge the Seas of Pirats , and his son Minos by Sea-fights beat the Athenians into Tributaries , is also a question more ancient then certain , or easie to be resolved ; b b Sabellic . Aenead. 1. l. 1. & 4. Plutarch . in Theseo . yet that Theseus son of Aegeus , King of Athens , vanquished Taurus then high Admiral to Minos , is asserted by good Authority , c c Thucid. l. 1. c. 1. and drowned him in the Sea , hinc Fabula Minotauri . d d Moris . Ubi supra . But the Master or Steersman of Theseus his ship , not remembring to advance or display the White Eagle as the Ensign of Victory at his approach on his Arrival to Crete , his Father Aegeus betwixt fear and fury cast himself headlong into the Sea , which gives it the name of the Aegean Sea in the Archipelago to this day . In those days lived Daedalus , who to avoid the Tyranny of Minos fled , from Crete into Sicily , but the wings wherewith he is feigned to have fled , the more modest Mythologists expound to be only the Sails of his ship . e e Greg. Gemist . lib. 1. Rer. Graec. Some are of opinion that former Ages were ignorant of this Art of Navigation , for that they ingraved Non ultra upon Hercules Pillars : The Nations about Pontus supposing no Sea in the world like their own , and doubting whether there were any other Sea 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 The Antiquity of the Sea-Laws , or Laws of the Admiralty . 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 , f f Leg. Rhod. in Leunela . Jus Graec. Rom. Tom. 2. 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 , g g Gloss. mag. in l. 1. ff. Ad Leg. Rhod. & in Decre . dist. 2. c. Rhodiae . 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 . h h L. depraedatio . ff. Ad Leg. Rhod. & Le. unclavius . Ubi supra , in Leg. Rhod. To which Rhodian Law several other Emperours , as Tiberias , Hadrian , Vespatian , Trajan , Lucius Septimius , Severus and others do referre all Maritime Controversies ; i i Leuncla . in prin. LL. Rhod. 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 Tibullus . 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 , l l Herodot . Terpsi . so they exceedingly debauch'd them by their Luxurie , and insatiable avarice , which together with their Wares and Merchandise they first imported into Greece . m m Diodor. l. 5. c. 15. 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 . n n Morisor . in Orb. Marit . l. 1. c. 1. This Phoenicia is the Sea-Coast of Syria , o o Strabo l. 16. The Greeks call this Sea-Coast Phoenicia , but the Hebrews call it Chanaan , and the Inhabitants Chananites . p p Andr. Masius in Jos. 5. Dionysius also is of opinion that the Phoenicians were the First Mariners , Merchants , and Astronomers , q q Dionys. Afric . in vers. 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 Ezek. cap. 26. 27. to describe the vastness of the one , and the Judgments of the other . This City Tyrus is there styled a Merchant ; All whose cap. 27. v. 3. 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 cap. 27. ver. 5 , to 9. 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 . r r Herodot . l. 1. & Plin. l. 5. c. 5. & 19. & Athenaeus Deipn . l. 1. 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 . s s Morisot . ubi supra . The Egpptians used to coast the shores of the Red Sea upon Rafts , divided by King Erythrus .

There are others who ascribe this Art of Navigation to the Carthaginians ; t t Plin. Nat. Hist. l. 7. This seems to have more then fumum probationis in it ; for that these Poeni or Carthaginians originally were Phoeni or Phoenicians , u u Dom. Nig. it is most undeniable that their Naval Discoveries attempted by Hanno , w w Ramus . by Hamilco , and other Carthaginians are no less famous upon Historical Record , x x Diodor. Sicul. l. 5. c. 7. Gen. Chron. & Dom. Nig. 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 , y y Morisot . Orb. Marit . l. 1. cap. 16. & Polyb. Plin. Aurel. Victor . Livie , Sabel . Ennead . Val. Max. Sigon . Lucius Florus , & alii . 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 , Dan. 7. 7 , 19 , 20. with Teeth of Iron , and Nails of Brass ; which in truth is meant of the Syrian Monarchy under the Seleucidae , so called from Seleucus Vid. Annot. in Dan. per Theolog. Conv. Edit. an. 1651. 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 The Readers of the Lecture for the Art of Navigation at Sivil have published divers Treatises concerning Marine Causes , viz. Hieronymo de Chavez . Alonzo de Chavez , & Rodorigo Zamerano . 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 . z z Consul . del mare . 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 , Romans & Carthaginians have ascribed it to themselves ; But the Greeks confidently assert , that Minos King of Crete had the first Soveraign Empire over the Sea , and thence would fain have it over our Faith also , as if Saturn King of Crete , seeing his son Neptune to have invented the Art of Navigation , gave him the Command of his Navies at Sea , which he managed with such success , that after-Ages sacrificed to him as to a God of the Sea ; So that Minos being descended of Saturn by his son Jupiter , having afterwards obtained the Superintendency and Guard of the Seas , left it to his Successours . Notwithstanding which , the Syrians , Egyptians , Cyprians , Rhodians , but specially the Phoenicians have in all former Ages had the honour of being reputed the most valiant and expert Artists at Sea in Maritime affairs , and that from the excellent Conduct and Government of their Navies beyond all other Nations and Countries whatsoever . But the Corinthians are supposed to be the first that ever formed or modelled Navies at Sea in a Classical way . a a Thucid. Libanius , cels . Rhod. 21. c. 3.

The Athenians had two chief Magistrates for the Maritime affairs ; The one was to provide such a number of ships for this or that design , each Captain having in charge to see to the Equipping of his own vessel . These Captains they called Trierarchy . The other had power of setting them to Sea , and of ordering them home again at his pleasure , whom they called Magistratus rei Nauticae Iurisdictionem habens , qui Trierarchis jura reddebat , and ordered the several Squadrons to such or such stations and places of Rendezvous , and discharged them as he thought fit . This was That Thalassiarchus , or Admiral of the Athenians , b b Herod . 6. Thucid. 4. & Demosth . pro Clesiph . who sometimes had more Admiral 's then one at once , as Niceas and Demosthenes ; at other times but one only , as Alcibiades , Pericles , Simon and others . Likewise under Alexander the Great and his Successours , Kings of Syria and Egypt , there were divers Admirals , whereof some were Grecians ; others of other Countries , such were Nearchus , Onesicratu● , Beton , Diognot and others ; As also Patroclus , under Nicanor and Seleucus of the Syrian Monarchy ; But most Memorable is that Commission which was by Ptolomeus Philadelphus given to Decearchus , as if he had been to take an exact measure of the Circumfercnce of the whole world by a Line of Navigation .

Among the Phoenicians , the Tyrians and Zidonians were the most eminent in all Maritime affairs , as was formerly hinted . These not only transported from place to place varieties of Merchandizes till then unknown to other parts of the world , but also made divers new Discoveries , and planted Colonies therein , as at Vtick , Hippone , and Lepte in Africa ; at Thebes in Greece and Egypt ; and at Gades and Carthage , that Carthage which is in Spain ; But of all Africk , the other Carthage , once Lord of the Levant , the chiefest for Sea-affairs ; whose Admiral Hanno by order of the Senate discovered the utmost Coasts of Africk , even to one degree of the Aequinoctial ; And their other Admiral Hamilco discovered all that part of Europe , which till then lay as sub-incognito to the Carthaginians .

In the Eastern Empire he that was high Admiral was styled Drungarius , as Drungarius Navigiorum Constantinopoli ; Drungarius Classis ; Drungarius mari Praefectus ; Drungarius Magnus . c c Moris . Orb. Mar. l. 2. c. 5. ubi Zonarus , Codinus , Bulenger . Imp. Rom. l. 4. c. 35. Although some are of opinion that this was a general word with them , or a word which signified Generals as well by Land as by Sea , Qui Drungis , hoc est , globis militum imperabant . d d Vopiscus . This Magnus Drungarius Classis was a subordinate Officer or Naval Magistrate under their great Duke , e e Curopalates in Official . Aulae Constant . vixit an . cir . 1059. and was also styled Ameralius , which with them was likewise a Common Appellation for Terrene Princes ; Thus the Tyrant of Babylon was called Amiralius ; f f Huntindon . qui sub Steph. Reg. 1148. floruit & Sigeberti Auctuar . Thus Huntindon speaks of twelve Amiralios Paganorum , that were slain at the Siege of Antioch . Thus Matth. Paris in Will. 2. speaks of 29 Reges & Amiralios at once appointed for the Warres by Corbaranus . Thus Robert the Monk g g Rupertus aliis Robertus Monachus vixit An. 1095. Hist. suae de Bello Saracenico , l. 4. These are the same twelve Amiralios mentioned by Huntindon . makes mention of the Son of Cassianus King of Antioch , and twelve Admiraldi of the King of Babylon slain in battel , whom with an Army he had sent to aid the said King of Antioch . Thus the Agents or Ambassadours of the the King of Babylon styled the said King himself Admiraldum . h h Robertus , ibid. l. 5. in prin. & Turpinus Archiep. qui floruit an. 803. lib. de Gest. Caroli Mag. cap. 17. [ Si illus sit ] says the Learned Sir H. Sp. in his day , and we in ours . Dominus noster Admiraldus Babyloniae , mandat vobis Francorum Principibus Salutem . Thus Nabuchodonosor King of Babylon was styled Admiralius . i i Auth. Fra● . Hist. Aquitan . Thus we also find a Chieftain of a Bow-Militia styled Arcubalistariorum Admiralius . k k Monstreletus . So that anciently this word Ameralius or Admiralius did signifie as well the Commander in chief of the Armies by Land as of the Navies by Sea , and sometimes the office or dignity of Kings and Princes or other Soveraigns of Supreme Authority ; but this you are to limit only to the Turks and Asiaticks .

Again , In the Eastern Empire there were no less then Four Admirals or Amiraei ( there properly so called ) at once , for that Mahomet or rather Muhammad appointed Four Praetors in the Kingdome of the Sarazens which were called Ameraei . l l Sigebert . in suis Chron. an. 630. Chro. de Flandr . c. 16. & 46. And that Muhamed a little before his death constituted Four Ameraeos , qui debellarent omnes ex genere Arabum Christianos . m m Theophanes . in Chronico , à Moursio citatus . These Four Ameraei were also called Quatuor Admirantes . And of these Four Admirals with the Sarazens , the one had the Sea-Command of Egypt and Africa ; two others thereof divided the Spanish Coasts betwixt them ; and the Fourth had Palestine and the Coasts of Syria . But many are of opinion that before Charlemaigne the Sarazens had but one Admiral , viz. Addala : after him Aron ; and after him Mabarmad : which Charlemaigne having war with his Brother Haldala , and being more then half conquered by him , condescended that the Sarazens should have two Admirals for one . And Turpin , who was Secretary to the said Emperour Charlemaigne , acquaints us with an Admiral of Babylon , vvho came to the succour and relief of the Sarazens of Spain against the French ; as also of another Admiral , viz. Galaffre , a very potent Favorite with the said Emperour . n n Turpin . Hist. de Charlemaigne , cap. 17. & 20.

Under the Roman State , when Pompey banded with Caesar for the Soveraignty , there were several Admirals , well nigh as many as the Nations were which aided either party with Shipping , as the Egyptians , Asiaticks , Rhodians , Syrians , Achaians , and others , over whom M. Bibulus was Lord high Admiral . But when the Government was reduced to an establishment , the Admiralty was setled also ; which not long after was again divided into two parts , for there was one Admiralty at Misene and the adjacent Po●●s for the South ; another at Ravenne towards the East ; which two for distinctions sake they called the High and Low Seas ; each whereof was under the Command of his proper Admiral , whom they called Praefectus Classis , as the Captains of their Ships were known by the style of Navarchi .

It is also evident that in the Roman Empire there was anciently a Company or Society of Owners and Masters of Ships , as also of Merchant-Adventurers at Sea in the Isle and City of Rhodes , which above all other places in the world had once the Prerogative in deciding all Maritime Controversies ; Insomuch that the Emperour Antoninus , who though Imperious enough in styling himself Totius mundi Dominus , yet in all Nautical Controversies subscribed to the Rhodian Law , acknowledging that though himself was Lord of the world , yet the other was of the Sea . o o L. 9. Depr●catio , Di● . ●d Leg Rhod. de Jact● . There were also very Ancient Laws made and published by those of Rhodes , who were most exp●rt at Sea , as well touching Navigation , as Merchant-affairs , where the use thereof was of no less Consequence unto , then of Antiquity in that Mediterranean Isle p p C. Rhodiae , 2. Distinct . The Assertions upon Historical Record touching the Excellency of their Sea-Laws , their incomparable skill in Navigation , and the Trophies of their Naval Victories are almost incredible . q q Aul. Gell. l. 7. Noct. Attic . cap. 3. & Fred. Pruckman in sect. Soluta Potestas , cap. 3. nu. 134. usque ad nu. 149. p. 186. But this so famous Isle being at length reduced from the glory of a Splendid to the Eclipse of a Decaied Merchant , by reason of the many irruptions and incursions made thereon by several Nations , specially by the Turks , a little before the Reign of Charles the Great , ( when about the same time the Turks also possessed themselves of several other Isles in the Mediterranean ) the Gallantry of the Rhodian Navies soon after vanished ; which at length ( as some German Authours would have it ) was thence translated to the Oriental Ocean or Baltick Sea ; For that Wisby in Gotland anciently prescribed the Sea-Laws to Merchants and Mariners ; whereunto ( as afterwards to Lubeck ) the Neighbouring Cities did usually appeal in all affairs of Maritime Cognizance .

The word Admiralius from the Eastern Empire was first transported into Italy and Sicilia , thence into France , and from thence into England . The first high Admiral in France ( as supposed ) was one Rutlandus , so called by Aeginardus in the Life of Comes Maris . Charles the Great ; others called him Rolandus ; he was Constituted high Admiral of France about the time of King Pipin or Charles Martel . r r Morisot . Orb. Mar. l. 2. c. 7. in prin. Yet others are of opinion that the office of Ameral , that is , Admiral , was known to the French first in the daies of Lewis the seventh , from whose time till Philip the fourth there was only one Admiral ; After that , there were two Admirals in France at the same time . s s Idem l. 2. c. 9. in prin. And afterwards more then two at one and the same time , each dividing his Jurisdiction according to the Coasts of their several Provinces respectively . t t Bernard . Girard . de Stat. & Succes . rer. Galliae l. 4. 2. Calais . Admirallus seu Comes maris in Gallia , post Conestabilem praefertur . This high Officer L' Ameral in point of dignity is next to the High Constable of France . Anciently there were three Admirals in France : one in Aquitane , another in Brittany , and the other was Generalis in Francia ; which three are now reduced to one , who doth exercise his Jurisdiction at the Marble Table in Palatio Parisiensi . And whereas it is by some supposed that Rutlandus alias Rolandus ( as aforesaid ) in King Pipins daies was the first Admiral of France , yet the more probable opinion is , that either Enguarrantus An. cir . 1280. Dom. de Causy in King Philip the third's time ; Or Americus Vicount of Narbone in King Johns time , was the first that ever had the honour of that high An. cir . 1356. Office in the Kingdome of France .

CHAP. III. The Antiquity of the Maritime Authority , together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain .

IN the precedent Chapter it is said , that the name of Admirallius first came out of the Eastern Empire into Italy and Sicily , thence into France , and thence into England ; And this ( as the Learned Sir Hen: Spelman doth suppose ) after the time of the Holy Warre . For that , as he observes out of Hovenden , when King Rich. the first prepared his Navy for that design , he appointed no single person to the Command in chief of that Navy by the name or style of Admiral , but deputed five several persons * * Gerard. An●iens . Archiepiscop . Bernard . Baon . Episc. Robertus de Sabul . Richardus de Canvil . Williel . de Forz de Ulerum ( opinatur ) Oleron . to that Command , by the name or style of Ductores , Justiciarii , & Constabularii totius Navigii . a a Spelm. Glos . ex Hovendeno . An. Domini 1264. The said Learned Authour comes something nigher to our times , and says that this Appellation or style of Admiral seems not to be received with us in An. 8 H. 3. for that the King in his Grant at that time to William de Lucy expresses himself only by the words of Concessit Maritimam Angliae , without any mentioning of the word Admiral in that Patent . Nor yet in the forty eighth year of his Reign , for that he then Constituted Tho: de Moleton , Capitaneum & Custodem Maris ( non Admirallium ; ) So that he is of opinion , that this high Officer was not known to us here in England by the name or style of Admirallius till the beginning of Ed. the first 's Reign . And that William de Leiburn was the first with us that had the dignity of that Office by the style of Admiral , who at the Assembly at Bruges , Anno 15 Ed. 1. was An. Domini 1286. styled Admirallus Maris Regis . And that soon after the said Office became Tripartite , viz. Anno 22 Ed. 1. when the said William An. Domini 1295. de Leiburne was made Admiral of Portsmouth , and the adjacent parts ; John de Botecurts of Yarmouth , and the Neighbouring Coasts thereof ; and a certain Irish Knight of the West and Irish Coasts . After whom succeeded three other Admirals for the same Divisions in the 19 year of Ed. 2. An. Domini 1325. viz. John Otervin , Nicholas Kiriel , and John de Felton . And in those daies the Admiral was often styled not Admirallus maris , but Admirallus flotae Navium , id est , Classis , or the Admiral of the Navy . And this Admiral had his power divided into two stations ; the one was the North station , which began at the mouth of the River of Thames , and thence extended it self North-ward , comprising Yarmouth and all the Eastern shore . The other was the West station , which beginning likewise at the mouth of the River of Thames , stretched it self West-ward , comprising Portsmouth , and all the South and West of England . But the first that was styled Admirallus Angliae was Richard the younger son of Alan Earl of Arundel and Surrey , in the tenth year of R. 2. b b

Spelm. Glossar . verb. Admiralius . In temp. W. 1. Odo Admiralius .

Ita Spelm. Gloss. De Admiralio Gall. An. 1142.

Notwithstanding all this which hath been said , intimating that William de Leiburn in the 15 of Ed. 1. was the first in England that had this Office by the name or style of Admirallus ; yet it is evident by Matth. Paris in H. 1. ( which is about 150 years before that of Ed. 1. ) that at that time there was mention made of one Balac Ameralius here in England , who in Fight took and surprized Jocelyne Earl of Edessa , c c

Edessa , A Town in Mesopotamia , anciently called Antioch , one side of Euphrates . Edessa , Macedoniae urbs in Aemathia Regione .

Ortelii Thesaur . Geogra .

with his Cousin Galeranus . But at what point of Time precisely that Office by the style or Appellation of Admiral was first known in England , it matters not much , since the thing it self , which signified that Office now known to us by the style of Lord High Admiral , and the Jurisdiction thereof hath ever been in this Kingdome time out of mind ; This will the more evidently appear if you consult the Records of History , and compare them with others National , touching that Ancient Dominion the Kings of England have ever had over the Seas of England , together with that Maritime Jurisdiction which hath ever asserted the same . That the Kings of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain , none but a few Seldeni Mar. Claus . seu de Domin . Maris , & Boroughs Soveraign . of the Seas . Mare Libertines ( and that for their own Interest ) ever scrupled . Sir Hen: Spelman gives us an Account of a very Ancient Record d d

Spelm. Consil . p. 414. Leges Ecclesiasticae Hoeli Dha ( id est , Boni ) Regis seu Principis totius Walliae , è Secularibus suis Mss. decerptae , ci● . an. 928.

Malmesb. de Regib . l. 2. c. 8 ▪ Marthusius Archiparata ( id est , Princeps Nautarum ) ita Spelm. Gloss. Rex Angliae Soli & Sali Orbis Brittanici Dominus .

extracted out of the Laws of Hoelus Dha , Regis seu Principis Walliae , cir . An. 928. which for the proof of the said Dominium quasi uno intuitu , is here inserted in haec verba , viz.

Variato aliquantulum Nominis Vocabulo , dici hic videtur Huwell Da , qui superius Hoêl Dha , Latine Hoêlus & Hoelus , alias Huval , ( quem Malmesburiensis unum fuisse refert e quinque Wallensium Regibus ) Quos cum Cunadio Rege Scotorum , Malcolmo Rege Cambrorum , & Maccusio Achipirata ( seu Principe Nautarum vel Marium Praefecto ) ad Civitatem Legionum sibi occurrentes , Rex Anglorum Eadgarus in Triumphi pompam deducebat . Una enim impositos , remigrare eos hanc coegit , dum in Prora ipse Sedens , Navis tenuit gubernaculum : ut se hoc spectaculo , Soli & Sali orbis Brittanici Dominum praedicaret & Monarcham .

In this Ancient and Memorable Record King Edgar , Neptune-like rides in Triumph over the Brittish Seas , giving the world to understand , that Dominium Maris is the Motto of his Trident. Consonant whereunto is that which the Law it self says Bald. Consil . 51. & Tusch . Concl. 87. verb. m●●e . Mare dicitur esse de districtu illius Civitatis vel Loci , qui confinat cum mari , in quantum se extendit territorium terrae prope mare . In a word , to this purpose the Renowned Learned Mr. Selden , who hath left no more to say , but with Jo: Baptist Larrea in one of his Decisions of Granada , That Authorum sententias non ex numero , sed ex ratione metiri oportet ; & pensitari debent juris fundamenta , non Authorum Elenchum velut calculatione computari f f Larreae Decis . Granat . Disp. 4. nu. 32. & Leg. unic. fect. sed neque . cod . de vet. jur . enucleando .

The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs , as well in respect of Jurisdiction as Protection . He is that high Officer or Magistrate to whom is committed the Government of the Kings Navy , with power of Decision in all Causes Maritime as well Civil as Criminal ; So that befide the power of Jurisdiction in Criminals , he may judge of Contracts between party and party touching things done upon or beyond the the Seas . g g Tearms of Law , verb. Admiral . Wherein he may cause his Arrests , Monitions , and other Decrees of Court to be served upon the Land , as also may take the parties body or goods in execution upon the Land . h h Ibid. The Lord Coke in honour of the Admiralty of England , is pleased to publish to the world , that the Lord Admirals Jurisdiction is very Ancient , and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind , as appears not only by the Laws of Oleron , but also by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. & Ed. 2. i i Coke part . 1. Instit. l. 1. c. 1. Sect. 3. & lib. 3. cap. 7. Sect. 439. Thus as the Laws and Constitutions of the Sea are nigh as Ancient as Navigation it self , so the Jurisdiction thereof hath universally been owned and received by all Nations ; yea , and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one , and establishment of the other . For , otherwise without such Maritime Laws , and such an Admiral Jurisdiction , how could the Ancient Brittains , long before Julius Caesar invaded this Isle , restraine all Strangers ( Merchants excepted ) from approaching their Confines , k k Caes . Com. de Bel. Gall. l. 4. fo. 72. or regulate such Navies as were the wonder of that Age ? l l Ibid. l. 3. fo. 53. Or , how could King Edgar in the Titles of his Charters have effectually styled himself as well Imperator Dominusque rerum omnium Insularum Oceani qui Brittaniam circumjacent , as Anglorum Basileus , m m Ex Charta fundationis Eccesiae Cathed . Wigor . cit . per Sir Tho. Boroughs in his Soveraignty of the British Seas , p● . 21. or maintain in Naval Discipline these four hundred Sail of ships appointed by him to guard and scour the Brittish Seas ? n n Ranulphus Cestrensis . And did not Etheldred after Edgar for the self-same end and purpose set forth to Sea from Sandwitch one of the greatest Navies that ever this Kingdome prepared ? Doubtless this was no Lawless Navy , without Maritime Constitutions for the due regulation thereof according to the Laws of the Sea , Consonant to that of the Jurisdiction of the Admiralty then in use and received by all the Maritime Principalities of Europe .

In Temp. H. 3. Rich. de Lucy had maritimam Angliae , & Tho. Moleton was Capit. & Custos M●ris ▪

Spelm. Glos .

Whereas it is universally acknowledged , That the Admiralty of England is very Ancient , and long before the Reign of Edward the third , who ever consults Antiquity shall find it farre more Ancient , and long before the Reign of Edward the first ; even time out of mind before the said Edward the first . To this purpose very remarkable is that ancient Record in the Tower of London , entituled , De Superioritate Maris Angliae & jure Officii Admirallatus Record in the Tower of London . in eodem , and out of the old French rendred into English by Sir John Boroughs in his compendious Treatise of the Soveraignty of the Brittish Seas , pag. 25 , &c. edit. Anno 1633. in which it evidently appears that the Admiralty of England , and the Jurisdiction thereof was farre more Ancient then Edward the first , and that from age to age successively , and time out of mind even before the days of the said Edward the first , it was so owned and acknowledged by this and all other Neighbour-Nations , as appears by the said Record , which was occasioned by a National Agreement of certain differences arising between the Kings of England and France in the 26 year of the Reign of the said Edward the first , by reason of certain usurpations attempted by Reyner Grimbald , then Admiral of the French Navy in the Brittish Seas ; in which Agreement the Commissioners or Agents for the Maritime Coasts of the greatest part of the Christian world , of Genoa , Spain , Germany , Holland , Zealand , Freezland , Denmark and Norway , then present , made this memorable Acknowledgment and Declaration , which is extracted out of the said Record , as to so much thereof as relates to the Jurisdiction of the Admiralty , viz. That the Procurators of the Admiral of the Sea of England , and of other places as of the Sea-Coasts , as of Genoa , Catalonia , Spain , Almayne , Zealand , Holland , Freezland , Denmark and Norway , do shew that the Kings of England time out of mind have been in peaceable possession of the Seas of England , in making and establishing Laws and Statutes and Restraints of Arms and of Ships , &c. and in taking Surety , &c. and in ordering of all other things necessary for the maintaining of Peace , Right and Equity , &c. and in doing Justice , Right and Law , according to the said Laws , Ordinances and Restraints , and in all other things which may appertain to the Exercise of Soveraign Dominion in the places aforesaid . And A. de B. Admiral of the Sea deputed by the King of England , and all other Admirals ordained by the said King of England have been in peaceable possession of the Soveraign guard , with the Cognizance of Justice , &c. And whereas the Masters of the Ships of the said Kingdome of England in the absence of the said Admiral have been in peaceable possession of taking Cognizance and judging all actions done in the said Sea , &c. the said Procurators in the names of their said Lords , do pray , &c. that speedy delivery of the Goods and Merchandizes taken and detained , be made to the Admiral of the said King of England , to whom the Cognizance of the same of right appertaineth , so that without disturbance of you or any other he may take Cognizance thereof , and do that which appertaineth to his Office . In which Record it is observable , that even in those days , that is , before the time of Edward the first , the Kingdome of England had not only the Soveraignty of the Brittish Seas , but also an Admiral empowered with a Jurisdiction Maritime to take Cognizance and judge all actions done on the Sea ; to doe Justice , execute the Laws of the Sea , maintain Peace , Right and Equity , according to the Laws and Ordinances of the Sea ; and in a word , to minister Justice in all things that to the Office of an Admiral appertain . To this might be added King John's Ordinance made at Hastings , touching the Soveraignty of the Brittish Seas in the point of striking Sail or veiling Bonnets by the vessels of Forraign Nations to the Kings Ships ; which Ordinance was made long before the Reign of Edward the first , and wherein mention is likewise made of the high Admiral of England ; But this that hath been said , may abundantly suffice both to prove and illustrate the Antiquity of the high Admirall of England , and his Jurisdiction in matters Maritime .

If it be granted , that Frustra sunt Arma foris , nisi est Consilium domi , it cannot well be denied but that Frustra sunt Arma domi nisi est Dominium Maris , to which as undeniably may be added , that Frustra est Dominium Maris , nisi est Jurisdictio domi . If therefore the Ancient Rights of the Jurisdiction of the Admiralty of England , should at any time happen to be impeded by ought , not so properly qualified Judicially to conserve the Rights of the Soveraignty of the Brittish Seas , might not a Decay of Trade , that Cornucope of all National Provisions , be justly suspected ? specially if Neighbour-Nations should thence pretend to spy any thing like a flaw in Englands Trident , as if her Dominium Maris were in part dismantled ; the Plenty as well as the Safety and Security of these Kingdomes , much ( under God ) consisting in the Power of the Royal Navy , those Pyramids of Majesty , or Floating Garisons . The Dominium & Jurisdictio Maris are such Confederates , you cannot prejudice the one , and not the other ; And therefore to scruple that Jurisdiction , those Ancient Rights , whereby our own are conserved and secured , may not be convenient ; So that to doubt whether the established Jurisdiction of the high Admiralty of England may judge of Marine Properties , is implicitely and in effect to inferre , that the Navy Royall is equipped only to enamel the Seas and take the Air , or that their Captures at Sea must evaporate ; if Bargains and Sales made super altum mare can transferre and alienate properties , then doubtless the Admiralty can finally judge and determine thereof . Nor let any man think the Admiralty of England is without remedy , in case one man impleads another for an Admiral cause in another Jurisdiction ;

Jurisdictionem cujusvis Judicis impediens ab co puniri potest , & coerceri , licet ejus subditi non sint .

Bart. & Alex. in L. Omnibus . Sect. is videtur . D. Si quis jus dic . non obtemp . & Larrea . Decis . Gran. Disput. 1. nu. 13.

for if the Admiralty cannot summon and proceed according to the ancient style , practice and known Rights , Laws and Customes of that Jurisdiction , against such who in matters of Admiral Cognnizance prosecute the Law elsewhere , then what is it more then a meer Idaea that hath no real existence beyond the pleasure of the parties litigant ; nor is that other mis-opinion , viz. ( That the Admiralty may not enforce its own Decrees and Orders ) worth Consideration ; for

Jurisdictione concessa , censetur concessum Imperium mistum , h. e. potestas Exequendi . Quoniam ca concessa , censentur etiam tradita ea sine quibus Exerceri non potest .

Carbo de Legib. lib. 11. Disp. 10. pag. 503. Lit. c.

the Executive part is so inherent in a Jurisdiction , quatenus such , that in effect it is but a lame and imperfect Jurisdiction without a Power Coercive , which breaths life and vigour into a Jurisdiction by Execution , which otherwise would be but like a Body without a Soul , or like an expert Commander Commissioned to fight with his hands manacled behind him ; Sententia absque Executione , est quasi splendidum Justitiae Cadaver . This mis-conceit may Where the Place is the Foundation , it is more then a bare Circumstance . not be much inferiour to theirs who are dextrous at Translocations by surmises and suggestions ; if the the circumstance of Locality be too light to be traversable , yet it is of weight enough to be surmised or suggested . It is not impossible but that the Cognizance It may not be hence imagined but that it is as legal at Common Law to surmise in a Declaration an act possibly done at Sea to be indeed done at Land : As at the Admiralty , to alledge in a libel an act possibly done at Land , to be indeed done at Sea , vel infra Jurisdictionem maritimam . of the Admiralty , being in part essentiated by the Marine Circumstance of Place , may be obstructed by a meer missurmise as to the Locality . Suum cuique tribuere is the ultimate Result or Summa Totalis of all Justice , whose Ballance is then best poized , when it weighs each Individuals , Policy with a Consistency to common Interest . It may be not less hazardous then chargeable for the Client to complement Justinian with one Fee , and Littleton with another ; If so , it will be expedient that he provide two Purses , which is but the beginning of sorrows , for he must also provide a good stock of Patience to await the event of what will put no issue to the merits of his Cause . And in Concurrencies of Jurisdictions a Concurrency of Jurisdictional A Concurrency of Jurisdiction seems to imbly a Divisibility thereof . But Jurisdictio est quid Incorporale , nec divisionem recipit nec patitur . Dur. Spec. l. 4. de praescript . nu. 22. qualifications as well Intrinsick as Extrinsick seems to be requisite ; for , admitmitting that by a Dedimus potestatem , or other Writ of like nature , witnesses might be Legally examined at Venice , Lisboa , or other transmatine parts ; Sub mutuae vicissitudinis obtentu , yet what Judicial improvement can be made thereof , especially quando ex facto jus oritur , without due intrinsick qualisications calculated for the Meridian of a Maritime Cause . But to digress , may be to transgress ; To return therefore to the Antiquity of the Office and Juisdiction Admiral .

The Authour of the Book entituled , Rights of the Kingdome , hath several Passages concerning the Office and Jurisdiction of the Admiralty , whereof one is ( pag. 90. ) That Edgar that Great Monarch , was as great a Conquerour by Sea , as Aethelstane by Land ; That it might be easier to shew his four Seas , then to set their exact Bounds . But in ( pag. 132. ) he is pleas'd to say , that the Law Maritime is Dark enough , with all the Jurisdiction of the Court Admiral ; ( So is the Sun to him that will not see ) where he farther seems to please himself with saying , That that Office may be harder then the Name , by calling it a strange mixture of Greek and Arabick . Yet for the Antiquity of the said Office , he doth the Admiralty that right , as withal in the same place to assert , That the old Ms. del'Office del' Admiral hath divers Records of H. 1. Rich. 1. and King John , speaking of Trials by twelve ( as at Common Law ) But that now the practice is much otherwise . And that in the Rolls of Ed. 1. the Name of Admiral : But not in our Printed Laws ( that the said Authour knows of ) till Edward the second . And then adds , That in Edward the third the Rolls are 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 Car. Richlieu . 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 Purch . 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 . a a Peregrin . de jur . Fisc . lib. 1. tit. 1. nu. 10. 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 , b b L. Deprecatio , Dig. ad Leg. Rhod. de Jact . 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 . c c Bart. in L. 1. Par. de quare . D. de Postul . & in L. infamem . D. de Public . Judic . 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 . d d Bald. Consil 271. num. 3 The Emperour is not Proprietarius , but chief Governour of the Empire ; e e Ibid. Consil. 327. nu. 7. And that only by Election , not by Succession as the other . f f Andr. Iser . & Afflict . in cap. 1. de Vassal . decrept . aetat . Now as the Seas belong to Princes in respect of Jurisdiction and Protection ; g g Jason Jac. de Are. & Bald. in l. 2. ff. de Rer. Devis . 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 . h h Glos . in verb. Criminalibus , in tit . de pace . Constan . Bald. in Auth. Cassa . Cod. de Sacr. Sanct. Eccl. Alex. Con● . 8. col . 1. Cagnol . in L. 2. de Orig . jur . nu. 190

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 , Li Consoli del mare . 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 Ten days by the Law . Fifteen days by the Stat. 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 Appar●● , 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 Whales , Sturgeons , Porpoises , Bailines , Dolphins , and all Fishes strange for bulk , rarity , or quality , are called Fishes Royal , and belong to the King . 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 . Bald. ad Leg. 2 D. de Rer. Divi● . 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. a a Val. Forst . Hist. Jur. Civil . l. 3. c. 40. upon this subject of Jurisdictions , that Raphael Fulgosius , that Jaspis virtutum , utroque jure stupor , as his Epitaph in S. Anthonies Church at Padua ( where he also dyed above one hundred years before the other ) styles him , b b Ibid. c. 32. 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 . c c Jason . in ff. de Jurisdict. Om. Jud. Rub. nu. 1. 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 De Legibu● 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 L. 1. De Legibus . 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 L. in t . Cler. C. de Sum. Trin. 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 Cic. Phil. 11. L. 2. ff. de Legib. 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 : Coel. Rhod. l. 18. c. 19. Charondas , who to the Thurians , on Saturn : Lycurgus , who to the Lacedemonians , on Apollo : Draco and Solon , who to the Athenians , on Minerna : Mahomet , Plat. in Min. 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 Rom. 2. 14 , 15 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 ; Tusc. 1. 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 11. 4. 17. 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 ●●mnes pop. ●f . de just. & ●ure . 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 ●reat God in the way of a Publick wor●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 Gen. 4. 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 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 W●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 . d d In Arb. Jurisd. lit . a. 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 . e e Inst. jur . Civil . in Proem . Par. quorum . But this pleaseth not Calvin , who in this matter following Ferrand ▪ f f Ferrand . l. 1. Explicat . in lib. 3. Jurisdict. 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 g g L. potestas . De verb. Sig. de jure Publico introducta h h L. 1. Par. hujus , ff. de Just. cum necessitate juris dicendi i i L. munerum . Par. judicandi , ff. de Muneribus . & aequitatis statuendae . k k L. placui● . Cod. de Judiciis . 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 . l l L. 1. ff. de Jurisd. & Jas . in Rub. & l. 10 nu. 10. ibid.

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 . m m Bart. in Arb. Jurisd. lit . c. This hath the power of the Sword contra homines facinorosos , and all Capital Offenders . n n Corvin . de Jurisd. & Fulgos , l. 3. de Jurisd. nu. 1. And is so called from its purity , simplicity and immixture with either of the other kinds of Jurisdictions . o o Bart. ubi supra . Of this Imperium Merum Bartoll makes Six several degrees p p Bart. ib. which Jason contracts into Four , but Zasius into Three .

Of these Six degrees of Imperium Merum , the First is Merum Imperium Maximum ; 1. And this resides only in the Prince , or in the Supreme Authority . q q L. 1. ff. de Const. Princip. 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 . r r Cacialup . in L. Imperium , ff. de jurisd. om. Jud. 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 . s s Jun. & alii in C. cum Pub. Tabellio , de fin . just. & Bald. in tit . de Jurisd. om. Jud.

The Second degree is Merum Imperium Majus . This extends to the taking away 2. of life , and hath the power of the Sword . t t Bart. ubi supra , lit . c. Under this head also is that Potestas gladii in homines facinerosos forementioned ; u u Bart. de Jurisd. nu. 8. but derivative from the Prince .

The Third degree is Merum Imperium Magnum , under which head is comprehended 3. Deportation or perpetual banishment . w w Ibid. nu. 9. But these two last degrees Jason comprehends under one and the same head , x x Jas . in l. 3. ff. de Jurisd. nu. 24. in prin. 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 . y y Cyn. in l. si quis non dicā . q. 19. C. de Episc. & Cler. & in L. Transigere , q. 4. c. de Transact . 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 . z z Jas . ubi sup.

The Fourth degree is Merum Imperium Parvum , under which head is comprehended 4. Relegation or temporal exilement ; a a Bart. & Jas . ibid. & l. nulli , C. de sent. 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 , 1 King . c. 2. v. 8 , 36 , &c. 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 , b b L. Si quid erit , ff. de Offic . Procons . 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 5. 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 . c c Bart. ibid. & l. magistratib . ff. de Jurisd. Also Cognizance of such crimes as are of the lesser and inferiour kind . d d Bart. ibid. Of this and the last precedent degree or member of Imperium Merum , Jason makes but one , as forme●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 Minimum , which comprehends whatever is imposed by way of pecuniary mulct upon some crime , e e L. fin . C. de modo Mulct . & l. 1. ff. si quis jus dicen . ō . obtemp . & l. 2. C. de Sportul . 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 ; Imperium Mixtum . And it is that Jurisdiction which respecting only private utility is exercised Officio Judicis Nobili . f f Bart. ibid. nu. 15. 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 Maximū , Medium , & Minimū g g In l. Imperium , nu. 27. ff. de Jurisd. om. Jud. 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 ; h h L. 2. C. de his qui veniam aetatis impet . yet it may be al●o in the ordinary Magistrate , but then it must be by way of derivation from the Prince . i i L. 8. ff. de Jurisd. This Imperium Mixtum Maximum comprehends veniam aetatis impetranti , k k Bart. ibid. nu. 17. 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 . l l L. 2. C. de his qui ven. aetat . impet . Also under this head is comprehended that which the Civilians call Arrogatio , which is a kind of Adoption , but something different from it ; m m Caius in l. 2. tit . de Adop . For the Prince did interponere Authoritatem Arrogationi , n n Ibid. Likewise under this head is comprehended Legitimation , or the power of legitimating such as are unlawfully begotten ; o o Auth. quibus mod. Nat. effic . legit . Par. illud . 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 ●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 . p p Flet. lib. 1. cap. 7. Par. idem emancipat . & Cowel . Instit. jur . Angl. l. 1. c. 12. Par. 2. 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 . q q L. 1. C. de sen. Praef. & Auth. Quae supplicatio . C. de Praecib . imper. Off. & Barr. ubi sup. nu. 18. & in Arb. Jurisd. lit . m. This is that Remedy of a Judicial Sentence which the Canonists call Revisionem Sententiae , or the Review of a Sentence . r r C. ex Literis . De Integ . Restitut . 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 . s s L. 1. ff. de Offic. Praef. Praetor . 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 ; t t L. ea quae Par. Magistratib . ff. ad Municipalem . 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 . u u Bart. Fulgos , & alii ubi supra .

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 . w w Fulgos , in L. Imperium . ff. de Jurisd. om. jud. nu. 40. 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 da●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 . x x Casus in glos . in l. 1. ff. de Carbon . Edict . Likewise under this head falls Manumission , y y Bart. in L. Imperium . ff. de jurisd. om. jud. nu. 22. 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 . z z Salyc . & Rubr. l. 2. De Pedan . Judic .

The Third and last species or kind of Jurisdictio taken in this large sense is Jurisdictio Jurisdictio Simplex . Simplex ; And it is that Jurisdiction which is exercised Officio Judicis Mercenanario ; Respecting only Private utility , Jure Actionis . a a Barr. ubi sup. nu. 23. Jas . ubi sup. nu. 31. Fulg. de Jurisd. om. jud. nu. 42. 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 . b b Jas . in L. Imperium , ff. de jurisd. om. jud. 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 . c c Rub. in ff. de Lib. Caus . & l. 42. § 1. ff. Sol. Ma rim . & l. 32. § liberali , st. De Receptis , qui arb. receper . These Causae Liberales , are understood in the Law as certain species opposite to such things as are either of Merum or Mixtum Imperium . d d L. placet . C. de Pedan . Jud. The Actions that hence do arise are as formerly Actiones Liberales , cogni●able only before the Superiour Judges . e e Rub. & glos . de Lib. Caus . & Fulg. in l. Imperium , ff. de Jurisd. nu. 44. 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 . f f Defin. Jur. nu. 18. ff. de Jurisd. & C. ex ratione . De Appell . & Jason . sup. nu. 31. And therefore Inferiour Judges ( who by interpretation of Law according to the Civil Laws account are Judices Municipales g g Fulg. ubi sup. are no way competent to take cognizance of such Cases . h h Rub. & glos . min. ff. deLiber . Caus . & Bart. ubi sup. nu. 24. 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 , i i Bart. Jas . & Fulg. ubi sup. nu. 43. according to that smart Proverb in Law , Qui non habet in aere , Luat in corpore . k k L. quicunque C. de Ser. Fug . & l. Divus , ff. de Injuriis . 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 . l l Desin . Jurisd. nu. 19. ff. de Jurisd. Or such Actions Quae Civiliter ex Maleficiis intentantur . m m Fulg. ubi sup. nu. 42.

The Second Degree of Jurisdictio Simplex is Gradus Medius , under which are comprized all such Peouniary Causes as in value exceed Treoent' Aureos . n n DD. ib. 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 . o o Calvin . ver. Aureus . Which is something less then Centum Cestertii , according to the Roman Account , which some would have the Aureum Antiquum to amount unto , p p Tacit. l. 17. de Othone . if every Cestertius must be in value three half pence farthing according to our Account . q q Godw. Rom. Hist. li. 3. Sect. 4. cap. 3.

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 . r r Bart. ubi sup. nu. 26. & Jas . ibid. nu. 32. Bartol would state , liquidate and ascertain these petty summes to the value of Centum Aureos : s s Bart. ibid. Others to Twenty , others to Ten Duckets . t t Fulg. ubi sup. nu. 44. 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 , u u Jas . ib. nu. 32. according to that Rule in Law in ff. de jur . delib . w w L. 1. § fin . ff. de jur , elib. d

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 ; x x Bart. in l. interdum . § qui furem , ff. de Furt. 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 . y y Anth. de Test . § Si vero ignoti , col. 7. 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 . z z Ang. & Jason . in L. Imperium , ff. de Jurisd. 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 . a a Panor . in cap. Cum contingat . col . 5. De Foro Competent . 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 . b b Alb. Bald. Sal. Alex. Jas . in dict. Imperium . 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 . c c Definit . Jurisd. nu. ult. ff. de Jurisd.

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 . d d L. 2. ff. De Offic. Procons . 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 , e e Spec. de Jurisd. in prin. 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 . f f Bart. in L. Imperium . ff. De Jurisd. om. Jud. nu. 26. 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 ; g g L. Si Convenerit . ff. eod. & l. sed & si . ff. de Precario . 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 , and so to conclude this point with Omphalius , that famous and Modern German Lawyer , h h Omphal . l. 1. Civil . Polit. cap. 105. nu. 14. & L. Lucio . ff. de Aqu. quot . & aestiv . & Ang. in l. 2. § ex his . ff. de verb. Sig. 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 . i i Car. Tap. in ff. de Const. Prin. cap. 4. nu. 10. & Marant . Distinct . nu. 3. The Law ranks them inter Regalia Principum . k k Auth. Quae sunt Regalia . Coll. 10. 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 . l l L. 1. ff. ubi sup. & l. 1. § cum urbem . ff. de Off●c . Praes. Urb. & l. 1. Cod. eod. tit. 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 , m m Tap. ubi supra nu. 14. 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 ; a a L. 1. § interdictum , & l. 2. ff. de interdict ▪ & § Prohibitoria . Instit. cod . tit. 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 ; b 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. 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 c 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.

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 Fitzh . N. B. verb. Prohibit . 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 d d Terms of Law , verb. Prohibit . 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 , e e D. Cowel Interp. ver. Prohibitio . That this Writ of Prohibition in those days may well be spared ; For although 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 . 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 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 ; f f Num. 21. 8. & 2 Kin. 18. 4. yea , though of Divine Institution , yet when it became a snare to the people , that good King did not scruple to call it Nehushtan . Nehushtan , h. e. Brass , or Brazen , or a piece os Brass . 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 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 . 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 Fitzh . N. B. fo. 39. Cowel Interp. verb. Prohibit . 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. Ridley View of the Civil and Ecclesiastical Law , part. 3. cap. 1. sect. 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 , h h Ibid. 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 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 . 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 Cognizance of the Cause grounded upon that suggestion , so that the Place seems to be of 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 . such Jurisdictional weight , as not capable of being translocated by the highest strength of Imagination , which may present strange things in Apparitions , but cannot possibly enervate the energy of Truths and Reallities ; And thence possibly it is , that for prevention of improbable surmizes , as a suggestion may be quasi Causa sine qua non of a Prohibition , so the said Statute of 2 Ed. 6. cap. 13. provides that probability by witnesses ( which cannot be without verity ) be a due requisite of suggestions . The Lord Coke upo● this Subject of suggesting and surmizing , viz. of places beyond Sea to be as within the Body of some County within this Realm , doth acknowledge , i i Cok. Inst. l. 3. c. 7. sect. 440. in sin . That there is variety of Opinions in the very Books of the Common Law upon this point . This kind of suggesting and surmizing did in late years of fatal memory much impede the Judicial Proceedings of the Admiralty , when it was no rare thing to meet with a suggestion of a Contract to have been made or other thing done upon the Land in some certain place within the Body of some County , that really and in truth was made or done upon or beyond the Seas , and farther possibly then the suggestor ever saw in a Map . The Civilians say , there are certain Cases wherein Prohibitio vim suam non exercet , whereof one is , Quando aliquid prohibetur sinel Causa ; and the Law of this Realm allows another , and that is , Quando Consultatio conceditur .

Prohibitions in the Law there are of other kinds , though not so pertinent to the purpose in hand ; Such is the Writ Indicavit , as in matter of Tithes ; k k Fitzh . N. B. tit . Prohibitio . This lyeth also for the Patron , where the Incumbent is impleaded for the Advowson or right of Patronage in a Spiritual Court ; though it lyeth not till the Libel be brought to be viewed in Chancery , Et Lis Contestata ; l l Fitzh . Ibid. And it lyeth only before Sentence is given in the Ecclesiastical Court , being afterwards void . Lastly , a Prohibition ceaseth and loseth his vertue after a Consultation is granted , as appears by the Statute of 24 Ed. 1. which declares in what Cases a Consultation is grantable ; which again is afterwards more full in the Statute of 2 Ed. 6. cap. 13. whereby it is enacted , That a Consultation shall be granted for default of proving the suggestion , and double Costs and Damages ( as aforesaid ) awarded to the party hindred by such Prohibition , against him that so pursued the same . And where a Consultation is once truly granted , the Judge formerly prohibited , shall according to the Statute of 50 Ed. 3. cap. 4. proceed in the Cause , notwithstanding any other Prohibition thereupon , provided the matter in the Libel be not altered .

CHAP. VII . Of Fictions ; what a Fiction in Law is ; how farre and in what cases Fictions may be used according to the Rules of Law .

BY Fiction is here intended no other then such as the Law it self intends , no other then such as being authorised by Law , and introduced upon a warrant of Law , hath in operation the due effect of Law . As for other Fictions , the Law understands them but as meer Cyphers , tollerating none but such as are grounded upon and regulated according to the just Principles of the Law ; The Essence of Law being more Rational , her Designs more Equitable , her Mediums more feasible , and her style more serious and venerable , then to hazard either under the Conduct of any Notions inconsistent either with Equity or Possibility ; For the Law doth imitate Nature ; Such Fictions therefore as cannot endure the Test of Law , are Fictions indeed , proper only for a Comment upon Lucians Dialogues . To proceed therefore to the Law .

A Fiction in the eye of the Law , and such whose Practice may be warranted by Law , is Legis adversus veritatem in re Possibili ex justa causa dispositio . a a Schard . ver. Fictio . So that it is Legis non hominis dispositio ; it must be a Fiction framed according to the Rules of Law , not whatever is imaginable in the conceptions of Man . This word [ Dispositio ] is sometimes taken for a quality of the mind , or imperfect habit , that is , an Inclination or Affection . b 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.

But in this place it signifies an Act proceeding from good Authority of Law ; for it must be Ex justa Causa ; which word [ Just ] hath divers acceptations or significations in the Law ; As sometimes it is opposed to that which is wicked or contrary to Justice and Equity ; whence it follows , that the Suggestor may not frame or model a Fiction opposite thereto ; Sometimes the word [ Just ] is in the Law taken for Full or Perfect ; And hereby all defects and imperfections for want of any Legal Requisites in the Suggestors Notions to the fabricating of a Fiction , are excluded ; Such are the defects or imperfections in respect either of Equity or Possibility ; For as the suggestions are to arise ex justa causa , so they are to center in re possibili . But to prevent mistakes , let it not be hence inferred , as if it were here implyed , that all Surmizes and Suggestions at Law in order to remove or transplea a Cause from one Jurisdiction to another , were such Fictions as fall not within the compass of the said Definition of a Legal Fiction ; If any such inconsequent construction be made of the Premises , or shall be made of what follows , it is no mans errour but the Readers ; For though all Fictions , whether Legal or illegal , may be Surmizes , Suggestions , or Suppositions , yet all Surmizes or Suggestions are not illegal Fictions ; And many of the Suggestions used in the Practick part of the Law for the end aforesaid , are both true , equitable , and possible , and consequently probable , and so of good and necessary use in practice , according to the Law in the Statute of Prohibitions in that behalf provided . And this not by way of digression , but ad majorem & necessariam Cautelam , to prevent all mis-apprehensions .

The foresaid Definition of a Fiction Legal , not finding general entertainment among the DD , it may be free to incline with the more received opinion to Bartols definition thereof ; whose words are c c Bart. in l. Si quis pro Emptore . D. de usucapionib . these , viz. Fictio , est in re certa , ejus quod est possibile adversus veritatem , pro veritate a jure facta assumptio . A Fiction is an Assumption of Law upon an untruth for a truth , against the truth , in some thing possible to be done , but not done . So that Surmizes and Suggestions in Judicial Practice that are true , are not ( as was aforesaid ) Fictions . In this definition it is said to be in re certa , to difference it from Presumption , which ever fixes upon something that is dubious , d d L. Sive possidetis , Cod. de Probat . & Cyn. ibid. & l. non est verisimile . D. Quod metus causa . yet carries so much of truth with it , as without better evidence is not counterpoized ; But Fictio fit super Certo , e e Ibid. in glos . mag. in l. non est verisim . Super Falso & Certo fingitur ; Super Vero & Incerto praesumitur . f f Gothof . ad Rub. D. de Probat . Likewise , in in this definition it is said to be Ejus quod est possibile , because Super eo quod est impossibile non potest fingi . g g Bart. ibid. nu. 22. 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● . h h L. Adoptio . ff. de Adopt . 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 . i i Le. Cornelia . ff. de Testam . & l. Cornel . ff. de Vulg. substi● . 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 ; k k L. retro . & l. in bello . § 1. & l. bona . ff. de Capt. & § 4. D. Quibus mod. jus . patr. solvit . 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 . l l L. Absent● , ff. de verb. Sign . 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 . m m L. ibid. glos . mag. 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 . n n L. qui in utero , & l. pen. ff. de stat. hom. 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 . o o ff. Ad Leg. Aquil. & Rub. ibid. & l. Si ex causa . D. Pro Socio . 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 . p p L. quia licet ff. Pro Socio . 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 . q q L. 1. § Si Filius . ff. de suis & legitimis , & l. 2 , 3 , 4. Cod. cod . 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 . r r § Sed si in bello . Inst. de Excusat . Tutor . 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 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 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 . 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. a a Coke Inst. part. 4. cap. 22. 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 places . 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 This is meant when the thing is so in truth and in fact , as well as supposed . 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 . b b Bart. in ● . Si is qui pro Emptore . D. de Usucap . 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 . c c In lib. Nig. Adm. fol. 36.

Brownlow Reports , d d Brownl . Rep. part . 1. Mich. 10 Jac. 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 , e e Littl. l. 3. c. 7. sect. 440. 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 , f f Hob. Rep. in Cas. Palmer vers . Pope . That Jennings libelled in the Admiralty against one Audley , upon a Contract laid to be made apud Malaga infra districtum Maris vocat . The Straights of Gibralter infra Jurisdictionem Maritimam ; And because it appeared , That the Contract was made at the Island of Malaga , Prohibition was granted , for it was not regarded , that he added infra Jurisdictionem Maritimam , which appeared contrary . If in another Case it happen to be elsewhere supposed that the Contract is made at Burdeaux in France in Islington , though by the very light of nature it appears , as soon as it is put , to be contrary , yet there may be that reason of Law to hold the place is not traversable as to the Infra Corpus Comitatus , which the Infra Jurisdictionem Maritimam cannot duly expect , when that appears to be contrary . It was once said by Justice Wray in Sir Julius Caesars Case , g g Leonard Rep. 30 Eliz. in Sir Jul. Caes . Case , in B. R. That it was hard that his Jurisdiction should be tryed before himself . It hath been observed for these last twenty years , that it is far more easie to preach good doctrine then to practise it .

The Law in all Jurisdictions is but Reason Regulated ; No wonder therefore if sometimes a Cause as to the Merits of it meet with a right Decision in a wrong Jurisdiction ; but less wonder if it oftner happeneth otherwise . It is reported in the Case of Bright against Couper , h h Brownl . Rep. Par. 1. Case Bright vers. Couper . Trin. 9 Jac. Rot. 638. in Com. Plac. That an Action of Covenant being brought upon a Covenant made by a Merchant with a Master of a Ship , viz. That if he would bring his Fraight to such a Port , then he would pay him such a summe ; it was shewed that part of the goods were taken away by Pyrats , and that the residue of the goods were brought to the place appointed , and there unladen ; And that the Merchant had not paid , and so the Covenant broken : And the question was , whether the Merchant should pay the mony agreed for , since all the Merchandizes were not brought to the place appointed : And the Court was of opinion , that he ought not to pay the mony , because the Agreement was not by him performed . Here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed , albeit there was Vis major , or Casus Fortuitus , without any default in the Master or Mariners , in the Case ; the Court being of opinion that he ought not to pay the mony , because the Agreement was not by him performed ; nor had it been performed in case of stress of weather , part of the goods had Navis Levandae causa , been thrown over-board ; probably this Pyracy , whereby came this casual incapacity of performing the Agreement , was Super altum mare . And the same Reporter in Westons Case , i i Brownl . Rep. Par. 2. Westons Case . Mich. 8 Jac. 1610. in B. R. A Merchant hath a Ship taken by a Spaniard , being enemy , and a moneth after an English Merchant with a Ship called the Little Richard , re-takes it from the Spaniard ; And the Owner of the Ship sueth for that in the Admiralty Court . And Prohibition was granted , because the Ship was gained by battel of an enemy . Probably this Capture and Re-capture , the occasion of this plea and querele , was only Super altum mare ; and the property of Shipping called into question by reason of such supermarine accidents , the matter of this plea and querele , is of every days practice in the Admiralty , and so accustomed time out of mind . But at another time in a Case something parallel to that quoad merita Causae super altum mare , A Prohibition would not be granted , k k Trin. 17 Char. in B. R. Grand Abridgment of the Law . Verb. Admiral . A Dunkirker having seised a French mans Vessel Super altum mare , sold the same with her Lading at We●mouth , whither it had been driven before its brought infra praesidia Dom. Regis Hispan . whereupon the French man Libelled in the Court of Admiralty against the Vendee pro interesse suo , who shewed that it was taken not by Letters of Mart , as was pretended , but by Piracy ; And prayed a Prohibition . And it was agreed by the Justices , That if a Ship be taken by Piracy , or by Letters of Mart , and be not brought infra praesidia , of that Prince by whose subject it was taken , that it is no lawful Prize , and the Property is not altered : and such was said to be the Law of the Court of Admiralty . And therefore the Court would not grant a Prohibition . In the former Case where Prohibition was granted , the property of the Ship seems not to be altered , for though she were , as that Case puts it , taken by an Enemy , and a moneth intervened between the Capture and re-Capture , and so did pernoctare with Res quae intra Praesidia perductae nondum sunt , quanquam ab hostibus occupatae , Dominum non mutarunt ex Gentium jure . the Captors , yet it does not appear by that Case that she was ever brought infra praesidia hostium before such re-capture , or that ever Judication passed thereon ; And if there were any alteration of Property of that ship , the Property must have been altered Super altum mare , which is properly Cognizable in the Admiralty in respect of the Place as Gror. de ●ur . Bel. l. 3. c. 9. well as the thing it self in its own nature . Littleton , that Famous Oracle of the Law , as aforesaid , asserts , l l Littl. l. 3. c. 7. ●ect . 440. That a thing done out of the Realm may not be tryed within the Realm by the oath of twelve men . The Lord Coke ( as aforesaid ) acknowledgeth , m m Coke Inst. Par. 4. c. 22. That the Lord Admiral hath and ought to have Jurisdiction of Contracts , pleas and quereles made upon the Sea , or any part thereof not within any County . And Sir George Crook says , n n Cro. Rep. in Resol . upon the Cases of the Admiral Jurisdiction . Hill. 8 Char. That if a Suit be commenced in the Court of Admiralty upon things done upon the Sea , no Prohibition is to be granted . Therefore it follows , that Contracts made and other things done upon the Sea are inherent in the Jurisdiction of the Admiralty .

CHAP. IX . Of Contracts and Bargains made , and other things done Beyond the Seas . And whether the Cognizance thereof doth belong to the Admiralty .

IF the Jurisdiction of the Admiralty in this point should seem to be pretermitted or waved , by saying that Bargains and Contracts made beyond the Seas ( wherein the Common Law cannot administer Juflice ) do belong to the Lord High Constable and Earl Marshal of England , It might seem tacitely to imply , as if Charter-parties , Bills of Lading , Cockets , Invoyces , Commissions of Mart , Marine Consortships , and other Contracts or things made or done beyond Sea touching Trade and Navigation , were not within the Conusance of the Jurisdiction of the High Admiralty of England . Whereas it is well known , That they are only Contracts and Deeds of Arms , and of War , and the like , out of the Realm , that do properly belong to the Lord High Constable and Earl Marshal of England , and the like within the Realm ; whose Jurisdiction is of a distinct and diversified nature , both from that of the Common Law and of the Admiralty also . It is said , o o Coke Inst. par. 4. c. 22. That if an Indenture , Bond , or other Specialty , or any Contract be made beyond Sea , for the doing of any Act or payment of mony within the Realm , or otherwise , wherein the Common Law can administer Justice , and give ordinary remedy ; In these Cases neither the Constable and Marshal , nor the Court of Admiralty hath any Jurisdiction . So that the Admiralty seems hereby to be of little use as to Contracts though Vltra-marine . But the Lord Hobard in Bridgmans Case goes farther , and says , p p Hob. Rep. in Bridgmans Case . That it hath been often Resolved , That if any Obligation were made at Sea , yet it could not be sued in the Admiralty Court , because it is an Obligation which takes his course , and binds according te the Common Law . So that it hence follows , that if it be made beyond Sea , wherein the Common Law can administer Justice , the Court of Admiralty hath not any Jurisdiction ; And if it be made at Sea , it cannot be sued in the Admiralty Court , because it takes its course , and binds according to the Common Law . Thus betwixt Land and Water , between Contracts made beyond Sea , and Obligations made at Sea , the Admiralty seems like a kind of Derelict . But probably it is not hereby meant or intended that every Contract made beyond Sea shall be tryed at the Common Law , but only such as are there made for doing some Act within the Realm , or otherwise , wherein the Common Law can administer Justice , and give ordinary remedy ; Nor every thing done at Sea , but only Obligations , which have their course , and bind according to the Common Law , and also when these things done at Sea , be not ( as Bridgmans Case farther puts it ) of the same nature and respect , that is , ( as the said Case explains it ) an Obligation made at Sea for security of a debt growing before at Land , cannot be sued in the Court of Admiralty , because it is not for a Marine cause . No man , 't is presumed , doth question but there may be debts growing at Land for Marine Causes , as in respect of Shipping , Navigation , and the like ; Otherwise a Skipper signing Bills of Lading at Land , might pretend such Bills of Lading so signed by him did not oblige him to a delivery of the goods therein expressed according to the consignation thereof . A Marine Contract may be made , and a Nautical debt contracted as well by Land as by Sea , for security whereof Obligation may be afterwards made at or beyond the Sea , and be within the Cognizance of the Jurisdiction of the Admiralty ; which would not signifie much in this or any Nation , if it could not administer Justice in any Cases save only such as have their Birth , Life and Death , their foundation , negotiation , and consummation precisely Super altum mare ; specially where a surmize or suggestion may be material quoad examen , though the Case oft times happens to prove otherwise , quoad merita . Sir George Croke in the foresaid Resolutions upon the Cases of Admiral Jurisdiction , q q Croke Rep. Hil. 8 Char. seems to be of another opinion , where it is said , That if a Suit be commenced in the Court of Admiralty upon Contracts made or other things done beyond the Seas , or upon the Seas , no Prohibition to be granted or awarded . There respect seems to be had more to the Place where the Contract is made , then whether it be for a Marine cause ; There are some things that wherever they be made or done ( whether this side the Sea , upon the Sea , or beyond the Sea ) may be properly Cognizable in the Admiralty ; Such are Charter-parties , Bills of Lading , and the like ; There are other things wherein the Jurisdiction of the Admiralty is limited as to the Locallity upon or beyond the Sea ; Personal Actions may sometimes be or not be of Admiral Cognizance , according as they are here or there Local , at other times they are regulated quoad subjectam materiam , about which they are conversant ; for as there are some certain Places that sui natura are subject to the Jurisdiction of the Admiralty , so there are some certain Things that are likewise sui natura , subject to the same Jurisdiction ; And as a Maritime Place may without respect to the sub●ect matter entitle that Jurisdiction to a Cognoslibility of a Case ; so sometimes the subject matter as the said Charter-parties , Bills of Lading , and such like , may without such absolute respect had to the Place , have the same operation ; were it otherwise , it might be something difficult to find a Case simply and absolutely of an Admiral Cognizance ; for Contracts though made even upon or beyond the Seas , are generally to take effect at Land ; And that which is purely Marine in the Cause , may be Terrene in the Effect ; Bills of Lading , that are so properly inherent in the Admiralty , take effect at Land , though made and firm'd a ship-board for the most part , upon or beyond the Seas ; Likewise Contracts for Fraight and Mariners wages , take effect at Land ; yet for the most part are made a ship-board upon or beyond the Seas . These Obligations ( for they are Obligations ) though they are for doing some Act within the Realm , as in Bills of Lading for the safe delivery a shore ( the dangers of the Sea excepted ) of such goods to the Consignatory as are therein mentioned ; and in Contracts of Fraight and Mariners wages for the due payment of mony on the Land , yet are all within the Jurisdiction of the Admiralty . When a Contract is really made Super altum mare vel ultra quatuor maria , specially in matters sui natura maritime , though in order to something afterwards to be done or performed in whole or in part upon the Land ; This seems by the Ancient Customes , style and practice of the Admiralty to be within the Jurisdiction thereof ; yea , properly and exclusively , unless you hold the doctrine of Universal Concurrency . And herein the Admiralty may safely appeal to the words of that great Oracle of the Law , whereof mention hath been made in the precedent Chapter , r r Littlet . l. 3. c. 7. sect. 440. viz. Que chose fait hors del Royalme n' aient poet estre trie diens Le Royalme per Le serement de 12. A thing done out of the Realm may not be tryed within the Realm by the oath of twelve men . This is the judgement of him whom the Lord Coke styles not only by the name of a Lawyer , but of the Law it self .

No surmize or suggestion can cause that to be , which in sui natura is not , nor cause that legally to seem to be , which in rerum natura is not capable of being . The Question is not whether an Alien born out of the Dominions of the Realm of England may as a Demandant bring his real Action ; nor is it imagined by any , that because he is an Alien , that therefore his Case may not come to Tryal for want of a suggestion ; To feign a Native of France to be born in such a certain place in England , doth not reach the Case in hand ; For though it be impossible for one and the same individual person to be born in both places , yet it is not impossible but that he who is surmized or suggested to be born in one place , might in truth be born in another ; nor contrary to the Rules of Law to surmize a translocation of a mans Nativity , which admits a possibility in any place within the habitable parts of the whole Universe ; therefore such a surmize or suggestion may be regularly consiste●t with the Law of Fictions , and consequently practicable for the foundation of Process , Action , or Judicial Proceedings ; But it may be otherwise of certain Things , which if you assay by a surmize to remove from their proper element , you may seem as it were to annihilate the thing it self . Or endeavouring a representation of such non-entities by a meer conception of words , you may seem as it were to attempt incapabilities , which the Law understands not , or no other then the ebolitions of fancy ; for ex nihilo nihil fit . Nor is it controverted whether a Delinquent for adherency with the Kings Enemies beyond Sea , shall be tryed in England ; no question but such adherency without the Kingdome ( to accommodate the matter for Tryal somewhere , and to prevent a total failure of Justice ) may according to Law be alledged to have been made in some place within the Kingdome ; because a Fact of that kind is within the Notion of Nature and Reason capable of a being in either ; But it does not thence follow , that the Collision of one Ship against another by the violence of Wind and Tide , being and capable of happening where Terra firma is not , may according to Rules of Law be supposed to have happened in the Ward of Cheap , when possibly or in truth the said casualty did happen Super altum mare , it may be sixty Leagues West-ward of the Cassiterides , or Isles of Scilly ; And this not so much to accommodate the matter for a Tryal at Law somewhere for prevention of a total failure of Justice , as in the former cases ; as to remove a Tryal , already in being , from one Jurisdiction to another , & lite pendente ad aliud examen . There is a double difference and of wide dimensions between the said instances and the true state of the Case in hand . First , that way of arguing holds well and rationally to create a Tryal in case of Necessity , where otherwise Justice might totally fail for want of a competent Tribunal in order thereto ; And here there is no opponent , for the objection is of another nature , as when surmizes and suggestions are used as a remedy extraordinary , where the ordinary means fail not , and that not so much to beget a Tryal which otherwise could have no being , as to remove a Tryal actually in being . Secondly , there is a vast difference in Law between Persons and Things , in reference to Legal Fictions , as to their operation in Judicial Proceedings ; For Persons in one place will without offence to the Law admit of Fictions to suppose them in any place ; but Things and Actions are ever to be accommodated as unto a possibility in Nature , so to Rationality and Equity in Act ; Insomuch that if by any manner of supposing they happen to be strain'd beyond either of these , all the Superstructure may fall for want of sufficient foundation . Though it be very true what Spiegelius once said , Fingi Lites poterunt , ut transactio fiat citra Praetoris authoritatem , yet most apt and true also is that of Ulpian , s s L. cum hi § si cum lis. D. de transact . Fictio privata & illicita nihil distat à fraudulent a simulatione ; The Reason in Law is , because as all Legal Fictions must ever imitate Nature it self in re possibili , though it be adversus veritatem : so it must also be Legis ex justa causa dispositio .

It is said , t t Coke par. 1. Instit. l. 3. c. 7. sect , 440. That an Obligation made beyond the Seas , may be sued in what place in England the Plaintiff please ; Insomuch that notwithstanding it bear date at Burdeaux in France , yet it may be alledged to be made in quodam loco vocat' Burdeaux in France in Islington in the County of Middlesex , and there it shall be tryed ; For , ( as it is there farther added ) in that case it is not traversable whether there be such a place in Islington or no. But yet the Renowned Littleton says plainly , as is before observed , That a thing done out of the Realm may not be tryed within the Realm by the Oath of twelve men . u u Littl. l. 3. c. 7. sect. 440. If an Obligation

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 .

made beyond the Seas , may be sued here in England , in whatsoever place the Plaintiff please , admitting the intraversability of the place , it follows , That a thing done at Burdeaux in France may be tryed in Middlesex in England , and that which was done in the East-Indies may be tryed in the Ward of Cheap . If it be admitted that the words of the incomparable Littleton , viz. [ Out of the Realm ] And the words of the Lord Coke , viz. [ Beyond the Seas ] do according to the intendment here agree in parity of sense , though in other Cases very distinguishable , then it would seem as if there were some need of a person dexterous at Gordian knots in this point , that may not Alexander-like cut instead of untying the same ; who withal must remember what the Lord Coke himself there says in the close of that Burdeaux Case in Islington , viz. That these Points are necessary to be known in respect of the variety of opinions in our Books ; whereby it is evident , that there is not that universal unanimity of consent in this point , as to render it indubitable ; So that although a surmize or suggestion should translocate Burdeaux into Islington , yet 't is not to be gain-said but that the great Oracle of the Law asserts , That Things done without the Realm cannot be tryed within the Realm by the Oath of twelve men . Where the Locality is meerly Circumstantial to the Fact , and not withal Essential to a Jurisdiction , in that case the intraversability of the Place need not be so considerable , as when a Right of Cognizance admits dispute by reason of such Locality , or the claim of another Jurisdiction not inadmissable , specially of such a Jurisdiction as mainly calculates her Cognizance according to the Meridian of that Place , where the Thing or ground of Action received its Origination , and where the very Locality becomes as it were one Essential to the Jurisdiction it self , and where by such an intraversability of the Place , though only surmized , it becomes not impossible but that a competent Jurisdiction may happen to be quoad hoc excluded .

The Jurisdiction of the Admiralty having ever been of the complaining hand touching the inconveniencies through uncertainty of Jurisdiction as to the Cognizance and Tryal of Causes Maritime , may aptly say with the Lord Coke , w w Coke par. 4. Instit. c. 74. Misera est servitus ubi jus est vagū aut incognitum . It hath been said , x x Coke ibid. cap. 22. That if an Indenture , Bond , or other Specialty , or any Contract be made beyond the Sea , for the doing of any Act or payment of any mony within the Realm , That in such Cases the Court of Admiralty hath not any Jurisdiction ; And that therefore Prohibitions have been granted , as by Law they ought , when the Court of Admiralty hath dealt therewith in derogation of the Common Law . If Instances of awarding Prohibitions should amount to a general Rule without Exception , the Admiralty would seem to have made in former times many frivolous complaints ; it is presumed all men will not deny , but that it is possible for a Transmarine Contract to be a Maritime Contract ; if so , then possibly the Admiralty may seem to deal therewith not in derogation to the Common Law , specially if Things done without the Realm may not be tryed within the Realm by the Oath of twelve men . That no Maritime Contract shall be tryed elsewhere then in the Court of Admiralty , appears plainly by the Sea-Laws , by the Customes of the Admiralty , and by the Act made at Hastings by King Edward the First . y y Cod. Ms. de Adm. Angl. Vulgo Vocar . Lib. Nig. Adm. in fo. 29. For Maritime Contracts may be made as well beyond the Seas , as at Sea ; And the performance of something ex post facto within the Realm , in pursuance of a precedent Contract made beyond Sea , not altering the Maritime quality of the Original Fact , doth not seem to make it cease being Maritime , nor render that incapable of continuing Maritime , which was of a Maritime Nativity .

Justice Croke in the Resolution upon the Cases of Admiral Jurisdiction , subscribed 4 Febr. 1632. by all the Reverend Judges of both the Honourable Benches , Reports , z z Hill. 8 Char. That if there be a Suit commenced in the Admiralty for Fraight or Mariners wages , or for breach of Charter-parties , though the Charter-party happen to be made within the Realm , so as the penalty be not demanded , A Prohibition is not to be granted . Much less then , if the Charter-party happen to be made without the Realm . Such Charter-parties , as also Bills of Lading , and the like , are Contracts frequently made beyond Sea for the delivery of goods to whom they are consigned within the Realm ; if the Admiral Cognizance of such Transmarine Contracts be in derogation of the Common Law , then it should seem as if Things done out of the Realm might be tryable within the Realm by the Oath of twelve men ; in variation from the precedent assertion of the Renowned Littleton . The Concessions of the said Reverend Judges in Anno 1632. seem not so much by way of enlargement as in affirmance of the Admiral Jurisdiction , for prevention of future uncertainties in point of Jurisdictions . In the Case of Don Diego Serviento de Acuna , Ambassador Lieger for the King of Spain , against Jolliff and Tucker , a a Hob. Rep. case of Don Diego Serviento de Acuna , against Jolliff and Tucker . It was said , That when the Case is laid at Land , no man may by a new-found form of Suit draw it ad aliud Examen , but he must submit his forms to the Law , and not è Contra. If this be the Law , which no man questions , as being visibly founded upon good Reason , it follows , That when the Case is laid at Sea , no man should by a new-found form of Suit draw it ad aliud examen ; For Surmizes and Suggestions or Suppositions will admit of any forms , and assume what shape you please , so may not Suits and Actions ; This would seem rather to prostitute the Law to forms , then to submit the forms to the Law .

Remarkable is the Case of Palmer against Pope . b b Hob. Rep. Mich. 9 Jac. Case Palmer against Pope . The Case was this ; Pope agreed with Palmer Super altum mare , to transport him certain Sugars ; This Agreement was afterwards put in writing in the Port of Gado on the Coast of Barbary ; The Sugars happened to be spoyled at Sea by Salt water ; For which Palmer sues Pope in the Admiralty ; For that the Original Contract and the Breach also were both Super altum mare ; yet upon a Suggestion that the Charter-party was made in the Port of Gado , upon the Continent of Barbary ; it was resolved , that a Prohibition lay , because the Original Contract , though it were made at Sea , yet was changed when it was put into writing Sealed , which being at Land changed the Jurisdiction as to that point . This was the Case , and this the Resolution thereupon . It is here said , that the Original Contract and the Breach thereof were both Super altum mare . But it is said withal , That upon a Suggestion of the Charter-parties being made in the Port of Gado , upon the Continent of Barbary , the Contract originally made at Sea was changed by being afterwards put into writing sealed at Land , whereby the Jurisdiction was also changed . It doth not appear that there was any variation , as to the substance of the Agreement , in the writing sealed ( as supposed ) at Land , from the Contract originally made at Sea ; nor any alteration , as to Circumstance , other then that of Locality where the writing was sealed , containing that Contract or Agreement which was bonae sidei Contractus , and therefore good and valid among Merchants without any writing at all , whether sealed or not . The Charter-party is suggested to be made in the Port of Gado , upon the Continent of Barbary ; in a Port upon a Continent ; by a Continent is meant terra firma ; and a Port or Portus , 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 . est locus conclusus quo importantur & exportantur merces . c c L. 59. D. de Verb. Sig. Thamesim , Prolemaeus Jamissam , Dio Himensam , Vocat . A Vessel designed for the Port of London is intended for the River of Thames ; A Port is Navigable , a Port-Town is upon the Continent ; A Charter-party made in London , is made upon the Continent of 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 affirmed of a ●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 . England ; A Charter-party made in the Port of London , is made upon the River of Thames ; The said Original Contract was upon the Sea ; the Breach thereof was also upon the Sea ; the Concurrence of which two makes the cause of the Suit entire , as in the said Case more at large ; And the suggestion it self lays the Charter-party to be made in the Port , which Nature hath adapted for Importation and Exportation . It was in that Case agreed , that if it had been a writing only without seal , it had wrought no change of the Contract , Morisot . Histor. Orb. Marit . lib. 1. cap. 24. and consequently no change of the Jurisdiction . Put the Case , the like Contract or Agreement had originally been made at Land , afterwards put into writing sealed at Sea ; the Question is , whether the Contract be changed , and with that change another change in consequence thereof . Seals may be Essential to Deeds , being but as Embrio's till thereby animated , and as abortive till by the obstetricy of witnesses well delivered ; But Bargains , Contracts , and Agreements among Merchants and Mariners , proceeding only Secundum aequum & bonum , and being Contracts bonae fidei , do oblige ultro citroque without any Seal to the same ; And such made at Sea though but parole , are with Merchants and Mariners as valid , as if in writing sealed at Land ; And this is consonant to that Law which is most conversant in such Affairs . A Seal ( as aforesaid ) may be Essential to a Deed , or the like Instrument , so is the place of making a Contract or Agreement Essential suo genere , to the Admiral in point of Cognizance ; which in effect is not denyed in the Report of that Case between Palmer and Pope , where it is said , That the Jurisdiction of the Admiralty groweth not from the Cause ( as of Tithes and Testaments in the Spiritual Courts ) but from the Place ; yet this may not be understood exclusively to such things as are properly Maritime , and consequently within the Cognizance and Jurisdiction of the Admiralty , such as Reprizals , Derelicts , matters touching Navigation , Charter-parties , Bills of Lading , Mariners wages , and the like , whereof you have a Summary enumeration in the Fourth Chapter of this Treatise , to which the Reader is referred . A Surmize or Suggestion in certain Cases is doubtless a very Legal Expedient ; yet possibly some men will no more agree with others of their fellow-rationals in suggesting a Contract to be made in the Port of New-haven upon the Continent of France , then if they surmiz'd it to be made in the Bay of Biscay , upon the Continent of Spain .

To this purpo●e very memorable is that fore-mentioned Case of Susans against Turner , d d Noys Rep. M. 39 , 40 El. Case , Susans against Turner . where it is said , That if a Suit be commenced in the Court of Admiralty for a Contract supposed to be made Super altum mare , the Defendant upon a Surmize or Suggestion that it was made upon the Land , within the Realm , may have a Prohibition . The Fact is re vera super altum mare ; notwithstanding which , the Jurisdiction of the high Admiralty A Surmize at Common Law may be as Legally qualified to call the Right of Cognizance into question , as an Allegation at th● 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 . of England seems , as that Case puts it , to be in point of Cognizance subordinated to a bare surmize or suggestion , though in re minus vera . In matters of an inferiour alloy it is no superlative argument to infer , a thing ought to be so , because it hath been so , much less in point of Jurisdiction . Though it be a common Rule in Law , that ex facto jus oritur , yet this is ever to be understood non de facto supposito , sed vero .

It is yet too fresh in memory to escape observation , how of late unhappy years Prohibition have been prayed , even by such as in the self-same Case had before admitted the Jurisdiction of the Admiralty , by pleading there ; yea , when by the Libel it could not appear that the Contract , whereon the Action was grounded , was made out of that Jurisdiction ; Insomuch as it became most mens policy that suspected the success of their Cause in one Jurisdiction , to endevour by the art of surmizing the removal thereof to another ; And this though the Case in it self never so clear of Admiral Cognizance , and after themseves had submitted to the Jurisdiction . This had but a slender affinity with what is reported in the Case between Jennings and Audley , e e Brownl . Rep. part. 2. in Cas. Jennings against Audley , Mich. 1611. 9 Jac. in Com. Ban. where Prohibition was prayed to the Admiral , and the Libel shewed to the Court , which contained the Contract was made in the Straights of Malago , within the Jurisdiction of the Admiralty , and doth not say , upon the deep Sea . And it was agreed , That in all Cases where the Defendant admits the Jurisdiction af the Admiral Court , by Pleading there , Prohibition shall not be granted , if it do not appear by the Libel that the Act was done out of their Jurisdiction . The like we find in the Case of Baxter against Hopes . f f Brownl . Rep. part. 2. ibid. in Cas. Baxter against Hopes . In which it is said , That if the Defendant admits the Jurisdiction of the Court , then the Court will not upon a bare surmize grant a Prohibition , after the admittance of the party himself , if it be not in a thing which appeareth within the Libel , that is , that the Act was not made within the Jurisdiction of the Sea ; And to this difference all the Court agreed . So that for the same party in the same cause to surmize and move for a Prohibition against that Jurisdiction , to which himself had formerly submitted , and in a Cause which by the Libel appears not other then Maritime , seems quite beside the Rule and Practice of Law .

To conclude this point of Forraign Contracts made , and other things done beyond the Seas , The Merchants Case , Mich. 8 Jac. in the Kings Bench , g g Brownl . Rep. par. 2. Mich. 8. Jac. in Ban. Reg. may not be omitted . It is therein thus reported , viz. Henry Yelverton moved the Court for a Prohibition to the Admiralty Court : And the Case was , There was a Bargain made between two Merchants in France , and for non-performance of this Bargain , one Libelled against the other in the Admiralty Court . And upon the Libel it appeared , that the Bargain was made in Marcelleis in France , and so not upon the deep Sea , and by consequence the Court of Admiralty had nothing to do with it ; And Flemming Chief Justice would not grant a Prohibition ; for though the Court of Admiralty hath nothing to do with this matter , yet insomuch as this Court cannot hold Plea of that ( the Contract being made in France ) no Prohibition ; but Yelverton and Williams , Justices , to the contrary ; for the Bargain may be supposed to be made at Marcelleis in Kent , or Norfolk , or other County within England , and so tryable before us ; and it was said , that there were many Presidents to that purpose , and day given to search for them . This was the Case , wherein it appears the Bargain was made beyond the Seas , and between Merchants , yet said the Admiralty hath nothing to do therewith , because not upon the deep Sea ; nor that Court hold Plea thereof , because made in France , therefore according to Flemming , Chief Justice , no Prohibition ; but Yelverton and Williams , Justices , to the contrary , the Contract being supposable to be made at Marcelleis in Kent or Norfolk ; Therefore a search for Presidents of Contracts , though really made beyond Sea , yet supposed to be made in some Forraign parts beyond Sea in England , as Marcelleis in Kent or Norfolk , or the like . This could not be so much out of any necessitous ground to accommodate the matter to a tryal somewhere for prevention of a total failure of Justice , as in order to a removal thereof from the Court of Admiralty , where it actually depended . It is now nigh thirty years since in the Royal Presence it was unanimously resolved and subscribed by all the Reverend Judges of both the Honourable Benches , viz. Febr. 1632. upon the Cases of the Admiralty-Jurisdiction , h h Croke Rep. Hil. 8 Char. That if a Suit be commenced in the Court of Admiralty upon Contracts , or other things done beyond the Seas , no Prohibition is to be awarded .

CHAP. X. Of Judicial Recognizances and Stipulations for Appearance , and performance of the Acts , Orders , Judgments , and Decrees of the Court of Admiralty ; As also whether the said high Court of Admiralty of England be a Court of Record .

ALthough the Court of Admiralty time out of mind hath ever used to take such Recognizances and Stipulations for Judicial Appearances , and due performance of such Acts , Orders , and Judgments , as are made and given in the said Court ; yet this Ancient Practice of the Admiralty , though so adequate to the genuine rights of Judicatories and Tribunals of Justice , quatenus , such , hath not escaped a Contradiction founded upon this assertion , That the Court of Admiralty is no Court of Record .

Such as hold Prohibitions may be granted to the Court of Admiralty upon the ground or reason aforesaid , seem to model the Argument Syllogistically , and say , That for the taking of Recognizances against the Laws of this Realm , Prohibitions have been and ought to be granted : But the Court of Admiralty doth take Recognizances against the Laws of this Realm , Ergo , &c. The Minor Proposition is said to be proved thus , viz. No Court being not a Court of Record , can take such Recognizances : But the Court of Admiralty is no Court of Record ; Ergo , &c. That unhappy Minor 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 , i i Coke on Littl. par. 1. Instit. lib. 2. c●p 11. sect. 195. 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 Mr. Seld. in suo Mar. Claus . l. 2. cap. 22. styles the Judge of the Admiralty , Summae cutiae Regiae Admiralitatis Judicem . 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 , k k Hil. 8 Char. 4. Febr. 1632. 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 . l l Stat. 15 R. 2. cap. 3. 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 . m m Cowels Interpreter , verb. 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 . n n Fit●h . N. B. Writ of Errour . 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 . o o Cowel , ubi supra . And whereas Brook seemeth to say , That no Court Ecclesiastical is of Record ; p p Brook tit . 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 . q 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. 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 ; r r Glanvil , lib. 8. c. 8. Britton , cap. 121. & Cowel , verb. Record . 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 . s s Noys Rep. Cas . Reord against Cornel . Jobson . 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 , t t Hob. Rep. in Dr. James 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 , u u Moder . Rep. Trin. 1654. in Banc. Reg. 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 . w 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. 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 . x x Sir Jo. Davies . Jus imponendi Vectigalia , c. 6. 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 , y y Idem . Jus imp. Vect . c. 4. 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 . a a Coke Part. 40 Instit. c. 22. in the Answ. to the fourth Objection . 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 . b b Croke Rep. Hill. 8. Car. Resolution upon the Cases of Admiral Jurisdiction . 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 , c c Coke ibid. in the Answ. to the second Objection . 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 be●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 ca●e it must necessarily follow , that the Jurisdiction of the Admiralty ( 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 ; d d Noy Rep. in Cas . 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 ; 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 count●nance of a Litis Contestation . So that the Law is good , if it be used lawfully . 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 ●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 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 . 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 wic● 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 them●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 . e 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 . Ye● , 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 Commo● 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 Dem●ndants , to introduce a joynt Action . To this purpose it is reported , f f Winch Rep. Easter Term 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 , g g Coke par. 4. Instit. c. 22. Answ to the first Object . 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 , h h Ibid. Answ. to the sixth Object . 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 . i 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 . 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 m●in stream of great Rivers , only beneath the Bridge of the same Rivers nigh to the Sea ] For the difference may be material . In the Case of Palmer against Pope it is reported , k k Hob. Rep. Case . Palmer versus Pope . Mich. 9 Jac. That the Statute saith , ad prim●s pontes . And in the Case of Leigh and Burley , l l Owen Rep. in casu Leigh against Burley . Mich. 7 Jac. It is said , that the 15 of R. 2. is mis-printed , viz. that the Amiral shall have Jurisdiction to the Bridges : for the Translator mistook Bridges for Points , that is to say , the Lands end . So reported in the said Case . The words of the Statute are , viz. [ In the main stream of great Rivers , only beneath the , &c. of the same Rivers nigh to the Sea , and in no other places of the same Rivers the Admiral shall have cognizance ] It is not denyed by the Statute , but the Admiral hath Jurisdiction in Cases of Mayhem and Death in the main stream of great Rivers ; Rivers are not found beneath the Lands end ; if Bridges be mistaken by the Translator for Points , and Points be taken for the Lands end , then Rivers and the main stream of great Rivers should be beneath the Lands end , where they empty them●elves into the main Ocean . Again , the words of the Statu●e are , [ In the main stream of great Rivers only beneath the , &c. ] And the words in that Ca●e of Leigh against Burley are , [ That the Admiral shall have Jurisdiction to the , &c. ] question is , whether there also be a mistake in the Translation ? For the difference is great and very significant between to a place , and beneath a place . In the said Case of Leigh against Burley , it is said , That the Statute of 15 R. 2. is mis-printed ; yet probably the Press followed the Copy , and in so doing it may be excused from an errour of mis-impression ; In the said Case it is also said , That the Translator mistook Bridges for Points , that is to say , the Lands end ; A right impression of a mis-translation ( if any such be ) seems not to render the word Bridges , in stead of Points or Lands end , as mis-printed , so long as the Press agrees with the Copy . Pons in the Latine rendred into English seems rather to be a Bridge then Points , or a Lands end ; Pons in the Latine sounds more like Points then Bridge , and so doth Pont in the French , which yet is a Bridge , and not Point or Lands end ; which in the French seems to be more properly rendred by the word La poincte or un poinct ; But a Point of Land at which Rivers or Waters meet , seems to be most properly rendred by the word Bec in the French , which seems sufficiently dissonant from the word Points . And those Navigators , that by experience know the meaning of doubling the Point , probably do ●eldome sail over Rivers , either great or small , beneath such Points . But this only by way of observation upon the said mistake , as reported in the ●aid Case of Leigh against Burley ; and not in the least by way of any thing else in reference to what is not of any private interpretation , but reserved only for ●uch as unto whom are specially committed the Oracles of the Law .

The Assertion , [ That it is not held material , whether the Place be upon the Water , infra fluxum & refluxum maris , but whether it be upon any water within any County ] was formerly hinted ; yet possibly it may be material to know what waters are held to be within a County , specially if the question put by Doderidge Serjeant in the same Case of Leigh against Burley be duly considered . In which Case it is reported , That the Lord Coke said , That the Admiral should have no Jurisdiction where a man may see from one side to the other : but the Coroner of the County shall inquire of Felonies committed there ; which was held to be good by all the other Justices ; And he gave this difference , that where the Place was covered over with Salt-water , and out of any County or Town , there est altum mare : but where it is within any County , there it is not altum mare : but the tryal shall be per Vicenetum , of the Town . Doderidge Serjeant demanded this question , The Isle of Lunday de Corpore Comitatus of Devonshire , and lyes twenty miles within the Sea ; whether is that within the County . Foster , If the Sea there be not of any County , the Admiral hath Jurisdiction , or else not . In this Case it is said , that the Admiral hath no Jurisdiction where a man may see from one side to the other ; which in a transparent Horizon a man may do from the Lands end to the Cassi●erides , or Isles of Scilly , which lye seven Leagues at least thence distant in the main Ocean ; and almost the like from some part of England to the other side the water over to France . The said Isles of Scilly are de Corpore Comitatus Cornubiae , yet doubtless the high Admiral of England ( notwithstanding both sides are mutually visible ) hath Jurisdiction on the interflux there , though the said word [ within ] should be taken in a sense as large as the Ocean it self . And whereas it is said , that the Admiralty hath not any Jurisdiction of Contracts , Pleas , or Quereles made or done upon a River , Haven , or Creek , within any County of this Realm , probably it is not thereby meant or intended to be limited or restrained otherwise then according to the Statute-Law , the Laws and Customes of the Realm , whereof those of the Sea are a part ; the Realm of England consisting of more elements then one . And if you consult the Topography of several of the Harbours , Havens , Ports , Rhodes , Bayes , Sounds , and Creeks of this Kingdome , probably the Admiralty might have in more senses then one a more liquid demonstration , then so to be disjuri●dictioned by any meer supposition , which had no small operation to the prejudice of the Admiralty in the days of the late Licentious Times , when fancies were much in fashion ; thereby reducing Jurisdictions to uncertainty , the common fate of all things , in the said days of Legerde Brain , but especially to the needle●s protelation of Justice , as to Merchants and Mariners in the Legal prosecution of their Maritime Contracts , notwithstanding the Resolutions upon Cases of Admiral Cognizance , subscribed by all the Reverend Judges and Justices of both the Honourable Benches in the Eighth year of the Reign of our late Soveraign Charles the First , of blessed Memory ; wherein among other things relating to that Jurisdiction , it was then unanimously resolved , l l Cro. Rep. Hil. 8 Car. 1632. That in Cases arising upon the Thames , the Admiralty hath Jurisdiction , specially in the point mentioned in the Statute of 15 R. 2. And by Equity thereof may inquire of and redress all annoyances and obstructions in those Rivers that are any impediment to Navigation , or passage to or from the Sea , and in all Navigable Rivers . And no Prohibition to be granted . But in the Case of Goodwin against Tompkins , it seems something otherwise ; According to the Report , m m Noy Rep. in Cas . Goodwin against Tompkins . the Case was this . A Suit was in the Admiral Court for setting a Ship in a Wharf to the damage of the Plaintiff : So that none could come to his Wharf , which is said within 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 w●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 the●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 , a a Selden , de Mar. Claus . lib. 2. cap. 24. le ts us to understand , That it appears by Ancient and Publick Records , b b Ibid. In Fascic . de Superioriatate Maris , in Arce Lond. & Coke , de Antiquit. Admiral . in Par. 4. Instit. cap. 22. 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 b●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 , of●ngland ●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 , and to award satisfaction to such as suffered wrong and damage . But also , that those very Laws and Statutes which were so to be Corrected , Declared , Expounded and Conserved by the Authority of the Office of the Admiralty , were the Sea-Laws published at Oleron by King Richard the First . So that the said Laws of Oleron gave the Rule , and seems to be the usage concerning the Admiralty in the time of Edward the Third , wereof the said Statute of 13 R. 2. speaks ; and by which Laws all Maritime affairs , whether upon or beyond the Seas , are properly Cognizable in the Jurisdiction of the Admiralty . And in those Laws of Oleron , so published by Richard the First , are comprehended the matters of Admiral Cognizance , whereunto that Form of Proceedings ( in these Records mentioned , to be ordained by Edward the First , and afterwards to be resumed , revived , and continued by Edward the Third ) relates . Which very Records are also verbatim transcribed and published by the Lord Coke , in that part of his Instit. concerning the Court of Admiralty , which speaks of the Superiority of England over the Brittish Seas , and of the Antiquity of the Admiralty of England , which he there proves expresly as high as to the time of Edward the First , and by good inference of Antiquity and Ancient Records much higher . c 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. For it appears by Ancient Records , That not only in the days of King Edward the First , but also in the days of King John , all Causes of Merchants and Mariners , and Things happening within the Floud-Mark , were ever tryed before the Lord Admiral . d d Cowel , Interp. verb. Admiral .

Again ; For the clearer understanding of what was the Usage in the time of Ed. 3. concerning the Admiralty , it may be observed , That in the beginning of these Records in Edward the Third's time it is said , That a Consultation was had , and the whole Bench of Judges advised with , To the end , that the Form of Proceedings heretofore ordained by Edward the First and his Councel , should be resumed and continued , not only for the retaining and conserving the ancient Superiority of the Sea of England , but also the Office of the Admiralty , as to the Correcting , Expounding , Conserving , and Declaring the Laws and Statutes long since made by his Predecessors , for the maintaining of Peace and Justice , &c. If upon a full Consultation in Ed. the Third's time , That Form of Proceedings which had been formerly ordained by Ed. the First and his Councel , shall be again resumed and continued , it seems then requisite in the next place to inquire a little farther , what was ordained by the said Edward the First and his Councel , over and above what is already mentioned in the said Record . And it appears , that in the days of the said Ed. the First , th●r● was a good provision and remedy ordained for such Complainants as by Prohibit●ons issuing out of one Court to surcease the Legal prosecution of their rights in another , could obtain redress in neither . For by the Statute of the Writ of Consultation in Anno 24 Ed. 1. It is enacted , That where there is a surceasing of Proceedings upon Prohibitions , and the Complainants could have no remedy in the Kings Court , that then the Lord Chancellour , or Lord Chief Justice upon sight of the Libel , should write to the Judges before whom the Cause was first moved , that they proceed therein notwithstanding the Kings Prohibition directed to them before . In a word therefore ; The said Statute of 13 R. 2. mentions the Usage in the time of Ed. 3. Edward the Third resumes and continues the Laws of Oleron published by Rich. 1. and what was ordained in the time of Ed. 1. And Edward the First ordained as in the Records aforesaid , and Statute of Consultation .

The Expositor of the Terms of Law in his description of the Lord Admiral , e e Terms of Law , verb. Admiral . says , That he is an Officer to Judge of Contracts between party and party concerning things done upon or beyond the Seas . And in another of ancient Authority it is said in these words , f f Doct. & Stud. Dialogue vel lib. 2. c. 2. viz. That if an Obligation bear date out of the Realm , as in Spain , France , or such other , it is said in the Law , and truth it is , ( they are the Authours words ) that they be not pleadable at the Common Law . Also the Learned Mr. Selden in the fore-cited place says , That the Jurisdiction of the Common Law extends not it self beyond the Seas , and without the Realm of England ; For ( as he speaks , g g Seld. Mar. Claus . lib. 2. cap. 24. ) In the Law of the Land it is reckoned among the Priviledges of such as are absent , That they , who shall be out of the Realm of England at the levying of a Fine of any Land , and making Proclamation thereupon , are not so bound either by a yearly prescription , as heretofore , or by a five years prescription , as is usuall of later times , but that their right remains entire to them upon their return home . So that being beyond Sea , and without the Realm of England at that time , and nothing of prejudice in that case fastned on them by reason of any Non-Appearance , it seems as without the reach of the Common Law . And Mr. Selden in the same place proves , That to be beyond the Seas , or extra quatuor maria , doth in the Common Law-Books signifie the very same thing with extra Regnum . And again Mr. Selden ( for 't is but due as well to the Truth as his Memory to repeat his Authority ) in the same place asserts , concerning Things relating to Actions for Matters Maritime , That they were not wont to be entered in express tearms heretofore , h h Temp. Ed. 1. Fitzh . tit. Avowry 192. & Placit . 37. & 38 Hen. 3. rot. 10. Devon . ●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 . in the ordinary Courts of the Common Law , whose Jurisdiction was ever esteemed of such a nature , that an Action Instituted about a matter arising in any other place then within the bounds of the Realm , was by the ancient strict Law always to be rejected by them . After which manner as it hath been a Custome now for many years , that an Action ought to be rejected , unless the matter have its rise within the Body , as they call it , of the County , that is , within some Province or County of the Island , usually given in charge to certain Governours or Officers known to us by the name of Sheriffs ; So also is it in the Sea-Province belonging by the ancient received custome , to the high Admiral or his Deputies , not only so far as concerns its defence and guard , but also as to matter of Jurisdiction . Likewise in the same place Mr. Selden in honour of the Admiralty says , That in ancient Records , i i Ms. fo. 12. concerning the Customes of the Court of Admiralty , It was an usual custome in the time of King Henry the First , and of other Kings both before and after him , That if any man accused of a capital crime done by Sea , being publickly called five times by the voice of the Cryer ( after so many several days assigned ) did not make his Appearance in the Court of Admiralty , he was banished out of England , & de mer appurtenant au Roy d'Angleterre , or out of the Sea belonging to the King of England , for forty years , more or less , according to the pleasure of the Admiral . This hath Mr. Selden the Lawyer , as well as Mr. Selden the Antiquary ; there is far less feasibility of contesting with him , then of gaining honour by subscribing to his authority .

Wherefore , upon an Interestless perpension of what hath been only touch'd , not so largely handled as might have been in a set Treatise proportionable to this subject matmatter , the Jurisdiction of the Admiralty may be found not only a Body of more Solidity then to dissolve only into Water , and not only a Jurisdiction proceeding by such Laws as have from age to age successively been owned by the Supreme Authority of this Nation , but also such a Jurisdiction as though it hath its due bounds , yet possibly ( according to what hath been duly used in the time of King Edward Grand-father of King Rich. 2. ) not so exceedingly straight-laced as some in the late Licentious times imagined ; specially if in addition to the Premises they consider what hath been formerly said to have been urged by Haughton , k k Brownl . Rep. Par. 2. Admiral Court-Case . viz. That the intent of the Statute of 13 R. 2. cap. 5. was not to inhibit the Admiral Court , to hold Plea of any thing made beyond Sea , but only of things made within the Realm , which pertains to the Common Law , and is not in prejudice of the King or Common Law , if he hold Plea over the Sea ; And that this was the intent of the Statute , appears by the Preamble . And in the same Report it is farther said , That Walmesly and Warburton Justices agree , That if a thing be done beyond Sea , as if an Obligation bears date beyond Sea , or be so Local , that it cannot be tryed by the Common Law , if the Admiral hold plea of that , Prohibition shall not be awarded , for it is not to the prejudice of the King or of the Common Law .

By the Statute of 15 R. 2. cap. 3. It is Enacted and Declared , That the Court of Admiralty shall have no cognizance of Contracts , Pleas , and Quereles , or other things done within the Bodies of the Counties , as well by Land as by Water ; Nevertheless of the Death of a man , and of Mayhem done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea , and in no other places of the same Rivers , the Admiralty shall have cognizance . From hence it hath been observed by way of Inference , how Curious the Makers of this Statute were to exclude the Admiralty of all manner of Jurisdiction within any water which lyeth within any County of this Realm ; possibly it hath not been so exactly observed by way of Redress , how unfortunate specially of late years the same hath been , in having its Jurisdiction impeded and obstructed in Waters without any County of this Realm , by the Prohibitory Consequences of a Surmize or Suggestion , when in rei veritate , the matter was otherwise then surmized or suggested . This is that Statute whereof mention is made in the precedent Chapter , touching the mistake of the word [ Bridge ] instead of [ Points ] . It seems something more then strange in Nature , to find a main stream , or great Rivers ( whereof this Statute speaks ) beneath the Points which beak out into the main Sea , as Navigators well know when they double the Point , the main Sea or great Rivers being commonly emptyed into the main Ocean above , not beneath such Points , and usually cease to be streams or Rivers before the Waters thereof reach the said Points . And it were no prejudice if it were ascertained what Havens and Harbours may be held as within the Bodies of some County , because possibly Geographers know not with what Counties to incorporate Milford-Haven , Mounts-Bay , Tor-Bay , Plymouth-Sound , and the like . The Law in express tearms hath put the difference , Res facta in Portu , non facta in Terra . l l Caepol . de Servit . Rust. cap. 28. nu. 5. & Bald. in Rub. de R●r . Divis . The Law knows no preternatural confusion of Elements , Lex semper imitatur Naturam . Time was ( & olim meminisse dolebit ) in the late Licentious days , when the Admiralty of England between Land-imagined , and the Sea-County-corporated , could scarce keep above water ; But now that Justice once more looks like it self , and suum cuique tribuitur , miraculously arrived instead of sic volo , sic jubeo , &c. Insomuch that it might then be as truly as sadly said , Terras Astraea reliquit ; yet now that Justice by an over-ruling hand of Divine Providence is again turned into its ancient and proper Channel , and it being well known to the whole world of what lustre and value the Jewel of the Admiralty is ( when well set ) in the Diadem or Crown of Great Brittain , it may not now be unseasonable to alledge what is asserted , ( as is aforesaid ) to be of ancient Record , m m Cowel Interp. verb. Admiral . viz. That not only in the days of Edward the First , but also in the days of King John , All Causes of Merchants and Mariners , and things happening within the Floud-Mark were ever tryed before the Lord Admiral . Consonant to what was resolved in Sir Hen. Constables Case , n n Coke Rep. in Cas. Sir Hen. Constable . That the soyl betwixt the high and low Water-Mark may be the Subjects ; but when covered with water , the Admirals Jurisdiction reaches to it .

By the Statute of 2 H. 4. cap. 11. It is Enacted , That the Statute of 1. 3 R. 2. cap. 5. shall be firmly holden , and kept , and put in execution . This Statute therefore seems as a reviver , or in confirmation of that , which ( as aforesaid ) mentions according to that which hath been duly used in the time of King Edward , Grand-father of King Richard the Second ; which being formerly insisted on , a retrospect may here suffice .

By the Statute of 27 Eliz. cap. 11. It is 5 Eliz. cap. 5. Cokes Instit. par. 4. cap. 22. Enacted , That all and every such of the said offences before mentioned , as hereafter shall be done upon the main Sea , or Coasts of the Sea , being no part of the Body of any County of this Realm , and without the Precinct , Jurisdiction , and Liberty of the Cinque-Ports , and out of any Haven or Pier , shall be tryed and determined before the Lord Admial , &c. It hath been hence inferred , That by the Judgement of the whole Parliament , the Jurisdiction of the Admiralty is wholly confined to the main Sea , or Coasts of the Sea , being no parcel of the Body of any County of this Realm ; And that this Statute is a particular description of that Jurisdiction as to the limits thereof . This Statute gives the Jurisdiction of the Admiralty a power of Cognizance in such Offences done upon the main Sea , or Coasts thereof ; there 's the Ampliation : Being no part of the Body of any County , and without the precinct of the Cinque-Ports , and out of any Haven or Pier ; there 's the Limitation . Where either of these is part or parcel of the Body of any County within this Realm , the Admiralty may not claim Jurisdiction therein . Touching Contracts made beyond Sea the said Letter of this Statute is silent ; In the Resolutions upon the Cases of Admiral Jurisdiction , o o Croke Rep. Hil. 8. Car. 1. Resolution upon Cases Admirall . the substance of the first Article or Proposition is , That no Prohibition be awarded against the Court of Admiralty in Suits there Commenced upon Contracts made beyond the Seas .

CHAP. XIII . Of the Agreement touching the Admiralty in Anno 1575. As also of the Resolutions Hill. 8. Car. 1. upon the Cases of Admiral Jurisdiction .

THE Non-observance of the said Agreement , being for the more quiet and certain execution of Admiral Jurisdiction , was one of the Objections of the Admiralty in Anno 8 Jac. Reg. whereof mention is made by the Lord Coke , in Par. 4. Instit. cap. 22. And where it is said to be a supposed Agreement , and that it had not been delivered to the then Judges , but acknowledged to have heard the same read over in His Majesties Presence ; And to which Answer was then made , That for so much thereof as differeth from those Answers , ( viz. to the other Objections then made ) it is against the Laws and Statutes of this Realm : And therefore the Judges of the Kings Bench never assented thereunto , as is pretended , neither doth the phrase thereof agree with the tearms of the Laws of the Realm . This was the Answer then given to that Objection grounded upon the said Agreement . Whether the same were no more then supposed , may be referred to the matter of Fact ; wherein , if so , the evidentia rei will easily liquidate the scruple , and dissipate dubieties . Though the said Agreement be disagreed , yet the Law like the Axis of the Body Politick , remains fixed notwithstanding the rotation of opinions ; And whether so much thereof , as differed from the Answers then made to the other Objections , were repugnant to the Laws and Statutes of the Realm , or the phrase discrepant from the tearms thereof , would be more visible upon an Inspection , were it free to insert that as an Imprinted Agreement here , which is called but a supposed Agreement there ; Therefore to inquire how far the said Agreement made , or supposed to be made , in one age , may be obligatory in another , may possibly have an implication of more verity and reality , then the thing it self with general consent doth or may challenge ; yet being in substance Consonant to the subsequent Resolutions upon the Cases of Admirall Jurisdiction , and being an Objection long since under a former Impression , with the Answer thereto as aforesaid , it may be now a less Transgression to omit the Thing it self , saltem in terminis , then Digression to have given this short hint thereof , quasi in nubibus .

The Resolutions , Hill. 8. Car. 1. upon the Cases of Admiral Jurisdiction , being the Articles , Propositions , and Agreement made and subscribed in Febr. 1632. by all the Reverend Judges of both the Honourable Benches , for the accommodating and setling the Differences concerning Prohibitions , are very Energetical in Affirmance of much of the Rights of the said Jurisdiction . The Sun need not borrow the Auxiliaries of Art to demonstrate his Light . These Articles and this Agreement ( whatever the former be ) are more then supposed , being reall and true . You have it here ( as to the Body and Substance thereof ) in no other words then Sir Geo. Croke in his Reports delivers it ; with the requisite Addition of the style or Preface thereto , together with the names of the Lords of His Majesties most Honourable Councel then present ; As followeth , viz.

At White Hall , 18 Febr. 1632. Present , The Kings Most Excellent Majesty . Lord Keeper . Lord Arch-Bishop of York . Lord Treasurer . Lord Privy Seal . Earl Marshal . Lord Chamberlain . E. of Dorset . E. of Carlisle . E. of Holland . E. of Denbeigh . Lord Chancellour of Scotland . E. of Morton . Lord V. Wimbleton . Lord V. Wentworth . Lord V. Faulkland . Lord Bishop of London . Lord Cottington . Lord Newburgh . Mr. Treasurer . Mr. Controller . Mr. Vice-Chamberlain . Mr. Secretary Coke . Mr. Secretary Windebank .

This day His Majesty being present in Councel , the Articles and Propositions following for the accommodating and setling the Difference concerning Prohibitions , arising between His Majesties Courts at Westminster , and His Court of Admiralty , were fully Debated and Resolved by the Board ; And were then likewise upon reading the same as well before the Judges of his Majesties said Courts at Westminster , as before the Judge of His said Court of Admiralty , and His Atturney General , Agreed unto and subscribed by them all in His Majesties Presence , viz.

1. If Suit should be commenced in the Court of Admiralty upon Contracts made , or other things Personal , done beyond the Seas , or upon the Sea ; No Prohibition to be awarded .

2. If Suit be before the Admiral for Fraight , or Mariners wages , or for breach of Charter-parties , for Voyages to be made beyond the Seas : 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 . But if the Suit be for the Penalty ; Or if the question be , whether the Charter-party were made or not ; Or whether the Plaintiff did release or otherwise discharge the same within the Realm ; This is to be tryed in the Kings Courts at Westminster , and not in His Court of Admiralty .

3. If Suit be in the Court of Admiralty for Building , Amending , Saving , or necessary Victualling of a Ship , against the Ship it self , and not against any party by name , but such as for his Interest makes himself a party ; No Prohibition is to be granted , though this be done within the Realm .

4. Although of some Causes arising upon the Thames beneath the first Bridge , and divers other Rivers beneath the first Bridge , the Kings Courts have Cognizance ; Yet the Admiralty hath also Jurisdiction there , in the point specially mentioned in the Statute of 15 R. 2. And also by Exposition and Equity thereof , he may inquire of and redress all annoyances and obstructions in these Rivers , that are any impediment to Navigation or Passage to or from the Sea : And also to try Personal Contracts and Injuries done there which concern Navigation upon the Sea . And no Prohibition is to be granted in such Cases .

5. If any be imprisoned , and upon Habeas Corpus brought ; If it be certified , that any of these be the Cause of his Imprisonment , the party shall be remanded .

Subscribed Febr. 1632. By all the Judges of both Benches .

AN EXTRACT , By way of APPENDIX , Of the Ancient LAVVS of Oleron . Rendred into English out of GARSIAS aliàs FERRAND . Together with Some Marginal Observations thereon .

LONDON , Printed in the Year 1661.

AN EXTRACT ( By way of APPENDIX ) of the Ancient Sea-Laws of OLERON ; Rendred into English out of Garsias , aliàs Ferrand . The Judgements of the Sea , and the Isle of OLERON . For the Regulation and Government of Merchants , Owners of Ships , Part-Owners , Masters of Ships , and Common Mariners in all Maritime Affairs .

WHen a Ship or other Vessel , whereof a Master is made , belonging to several Part-Owners , and departing from her own Port , arrives at Burdeoux , Rouen , or such like place , and is there Fraighted to sail for Scotland , or some other Forraign Country ; The Master in such case may not sell or dispose Skippers Sale , without speciall Procuration , not good . the said Vessel without Licence or a special Procuration for that purpose from the said Owners ; But in case he want monies for the Victualling , or other necessary provisions of the said Vessel , he may for that end with the advice of his Mariners , hypothecate , pawn , or pledge part of the Tackle or Furniture Ship-Tackle pawned for Ship-necessaries , good . of the said Ship .

II.

If a Ship or other Vessel be in a Port or Haven , waiting for her Fraight , therewith to depart ; the Master , before he depart thence , ought first to Consult with his Company , and say , ( Sirs ) We have now an opportunity Skipper not to quit a Port without advice of his Mariners . to set Sail ; Some of them possibly will say , The Weather as yet seems not good enough , the Wind being but now newly changed , and we ought to see it somewhat setled ; Others of them possibly will say , The Weather is good and fair : In this Case the said Master is to concur with the Opinion of the major part of his Company ; If he does otherwise , and the Vessel happen to miscarry thereby , he is obliged to make good the same , according to the value upon a just appraisement .

III.

If any Vessel through misfortune happen to be cast away , in whatsoever place it be , the mariners are bound to use their best endevour for the saving as much of the Ship and Lading as possibly they can ; And if Mariners in case of that like Wreck , to save what may be saved . they preserve part thereof , the Master is bound to allow them reasonable Consideration , whereby to get home to their own Country ; And in case they save so much as whereby the Master may do this , then may he lawfully pledge to some honest persons such part thereof as may serve for that occasion . But if they have not endevoured to save as aforesaid , then the Master is not bound to provide for them in any thing ; but rather they lose their wages when the Vessel is lost . And the Master may not sell the Furniture of the Vessel , or her Lading without a Procuration for that purpose from the Owners and Merchants ; But yet he Skippers Sale , in case of disaster , not good without speciall procuration . ought , if it may be , to have the Mariners in a readiness , until he knows the pleasure of the Owners ; And herein he ought to doe as becomes a prudent Master ; for if he does otherwise , he is obliged to satisfaction .

IV.

A Vessel Laden , departing from Rochel , or some other place , happens in the Course of her Voyage to be rendred unfit to proceed therein , yet the Mariners save as much of the Lading as possibly they can ; The Merchants and Master are at variance , requiring to have their Merchandize or the Lading from the Master ; They ought indeed to Part of fraight to be paid for part of a Voyage . have them , paying Fraight for so far as they made the said Voyage , Kenning by Kenning , and Course by Course , if it so please the Master . But if he will , he may repair his Vessel , if so be she be in such case as that readily she may be repaired ; but if otherwise , and he cannot hire another Vessel The Skipper , to hire another Ship to finish his Voyage , in case of disaster to his own . to finish his said Voyage , then the Master shall have his Fraight for so far of the said Voyage , and for so much of the Lading as is there saved . And the Fraight of the Goods that are saved , ought all of it to be reckoned Liver by Liver , and the saved Goods to pay the Costs of their salvage , according as they shall happen to be . And in case it happens that the Master , Merchant , or Mariners promised the People of the Country , where such misfortune is , a third or one moity of what by their help should 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 . be saved of the Ship and Lading , out of the dangers they were in ; In that case the Justice of that Country , where such misfortune happens , ought well to consider what pains they bestowed , and what hazards they did run in the saving thereof , and to reward them accordingly , notwithstanding what promise in such distress so made them as aforesaid by such Master , Merchant , or Mariner .

If a Vessel depart from any Country Laden or Empty , and arrive at any Port , the Mariners ought not to leave the Ship , or to go out of her without the Masters Leave or Mariners ( without the leave of the Skipper ) may not go out of the Ship , when arrived to a Port. Licence ; For if otherwise , and the Vessel should happen to be lost , or by any misfortune be damnified , they are obliged to make satisfaction for the same . But if the Vessel was in such a place , as wherein she was Anchored and Moared with two or three Cables , they may then lawfully go out of her without the said Masters Licence , provided In some cases some of them may . they leave behind them on Ship-board such a number of the Ships Company , their Fellow-Mariners , as is sufficient to keep the Decks , and the Merchandize or the Lading of the Ship , provided also that they return again in due time and season to their said Ship . For if they make unnecessary delays , or stay from the Ship longer then is meet , they ought to make satisfaction , if they have wherewithal .

VI.

If some of the Mariners , that hired themselves with the Master , go out of the Ship without his Leave , and drink themselves drunk , or the like , whereby there happens Contempt to their Master , besides Debates , Fightings and Quarrellings among themselves , whereby some happen to be wounded ; In this Case the Master is not obliged Mariners drunk a shore , and wounded , not to be healed at the Ships charge . to get them healed , or in any thing to provide for them , but rather to discharge them of the Vessel , and to turn them out of the Ship , both them and their Comrades . But if by the Masters Order and Command any of the Ships Company be in the service of Mariners wounded in the Ships service , are to be healed at the Ships charge . the Ship , and therein happen to be wounded or otherwise hurt , in this Case they ought to be healed and provided for at the Costs and charges of the said Ship .

VII .

If it so happens that Sickness doth seize on any of the Mariners of the Ship , while he is in the service of the said Ship , the Master How sick Mariners are to be provided for . ought to set him on shore , and to let him have Candle-Light , and to provide him a Lodging , as also to spare him one of the Ship-boyes to look to him , or hire a woman to attend him ; Likewise to afford him such Diet as is usual in the Ship , that is to say , so much as he had a Ship-board in his health , and nothing more , unless it please the Master to allow him more ; And if he will have better Diet , the Master is not bound to provide it for him , unless it be at his own Costs and Charges . And if The Ship not to stay for a sick Mariner . the Vessel be ready for her departure , she ought not to stay for the said sick party ; If he recover , he ought to have his full wages or competent hire , rebating or deducting Sick Mariners ought to have their full wages , deducting the charge of his sickness . only such Charges as the Master hath been at for him ; And if he dyes , his wife or next of kin ought to have it . * * Executors of a deceased Mariner , ought to receive the wages due to him .

VIII .

A Vessel is Laden to sail for Rouen , or some other place ; it happens that a storm overtakes her at Sea , and so violent that she cannot escape without casting some of her Lading and the Merchandize over board , for lightning the said Vessel , and preserving the rest of the Lading , as also of the Vessel it self ; In this Case the Master ought to say , Sirs , It is fit or expedient to cast over board some part of the Lading to save the Vessel ; And if there be no Merchant that answers his pleasure herein , or accords and approves thereof by his silence ; Then the In case of storm , Skipper to use his discretion in casting goods over board , to lighten the Vessel , and to preserve the same . Master ought to use his discretion , and to do what in him lyes , and to cast part of the Lading over board ; And if this please not the Merchants , but that they gain-say or contradict it , yet the Master , notwithstanding this , ought not to forbear casting out so much goods as he shall see may be for the common good and safety ; he and the third part of his Mariners making Oath on the Holy Evangelist , when they arrive at their right Port of Discharge , that he did it only for the preservation of the Vessel , and the rest of the Lading that remains yet in her . And the Wines ( or other goods ) that were cast over board , ought to be valued and prized according to the just value of the other goods that arrive in safety . And when these What the Law is in the case of Averidge . shall be sold , the price or value thereof ought to be divided Liver by Liver among the Me●chants ; And the Master ought to make the division , and to compute the damage of the Vessel , or the Fraight at his own choice for the recovery thereof ; And the Mariners also ought to have one Tun free , and another divided by Cast of the Dice , according as it shall happen , if he make it appear he did the part of an able Sea-man . But if he make not this to appear , then he shall have nothing freely ; and the Merchants in this Case may lawfully put the Master to his Oath .

IX .

If it happen that by reason of much foul weather the Master is like to be constrain'd to cut his Masts , he ought first to call the Merchants , if there be any a board the Ship , and such as have goods and Merchandize in the Vessel ; and to say unto them , Sirs , It is requisite to cut down the Mast , to save the What the Law is in case of cutting Masts or Cables in a storm . Ship and Lading , it being in this case no more then becomes my duty ; And oft times it comes to pass that they also cut their Moaring Cables , leaving behind them their Cables and Anchors to save the Ship and her Lading . All these things are reckoned and computed Liver by Liver , as goods are that were cast over board ; And when the Vessel arrives in safety at her right Port of Discharge , the Merchants ought to pay their shares or proportions without delay , or sell the goods and pledge the mony thereof proceeding to satisfie the same before such time as the said goods may be unladen out of the said Ship . And if the Vessel be such as usually is let out for hire upon Fraight , and there happen Controversies and Debates touching the premises , if the Master observes Collusion therein , he ought not to depart , but is to have his compleat Fraight as if his Tunnage were full .

When a Master arrives in safety at the right Port of his Discharge with his Vessel , he ought to shew his Merchants the Cordage , Ropes , or Slings , wherewith he intends to hoyse the goods over board ; And The ship-ropes or slings to hoyse out goods withal , to be viewed before used . if they find that they need mending , he ought to mend the same ; For if a Pipe , Hogshead , or other Vessel , should happen by default of such Cordage , or Slings , to be spoyled or lost , the Master and Mariners ought to make satisfaction for the same to the Merchants . So also if the Ropes or Slings break , the Master not foreshewing them to the Merchants , he is obliged to make good the damage . But if the Merchants say the Cordage , Ropes , or Slings are good and sufficient , and it notwithstanding happen that they break , in that case each of them ought to divide the damage , that is to say , the Merchant to whom such goods belong , and the said Master with his Mariners .

XI .

A Vessel being Laden with Wines or other Goods , hoyses Sail to transport the same to Brest , or some other place , but the Master and Mariners trim not their Sails so as they might or ought to have done , and it happens that ill weather overtakes them at Sea , and so as that the main yard shakes or strikes out the head of one of the Pipes , or Hogsheads of Wine ; This Vessel being in safety arrived at her Port of Discharge , the Merchant says to the Master , That by reason of his main yard his Wine was lost ; Goods damnified at Sea , whether by the Ship-tackle or not , to be purged and cleared by the Oath of the Skipper and part of his Company . The Master replying , says , It was not so : In this case if the Master and his Mariners will make Oath ( be it four or six , and such of them as the Merchant hath no exception against ) That the Wine perish'd not by the main yard , nor by them , or through their default , as the Merchant charges them , they ought then to be acquitted thereof ; But if they refuse to make Oath to the effect aforesaid , they are then obliged to make satisfaction for the same , for that they ought to have ordered their Sails aright before they departed from the Port where they took in their Lading .

XII .

A Master having hired his Mariners , he ought to keep the Peace betwixt them , and to be as their Judge at Sea ; so that if there be any of them that gives another the Lye , The Law in case of the Lye , or a stroak given by or to the Skipper or his Mariners . whilest they have Wine and Bread on the Table , he ought to pay four Denieres ; And if the Master himself give any the Lye , he ought to pay eight Denieres ; And if any of the Mariners give the Master the Lye , he also ought to pay eight Denieres . And if the Master strike any of his Mariners , he ought to bear with the first stroak , be it with the fist or open hand ; but if the Master doth fiercely assault him with more stroaks , the said Mariner may defend himself ; but and if the said common Mariner doth first assault the Master , he ought to pay five Solz , or lose his hand .

XIII .

If a difference happen between the Master of a Ship , and any one of his Mariners , the Master ought three times to take away from him , or lift up before the said Mariner the Towel , ere he turn him out of the Ship , The Law in case of difference between the Skipper and any of his Mariners . or discharge him thereof ; But if the said Mariner offer in the presence of the rest of the Mariners to make the Master satisfaction , and the Master be so resolved that he will accept of no satisfaction from him , but notwithstanding such offer of satisfaction will put him out of the Ship ; In such case the said Mariner may betake himself to follow the said Vessel to her Port of Discharge , and ought to have as good hire or wages as if he had come in the Ship , or as if he had made satisfaction for his fault in the sight and presence of the Ship-Company ; And if the Skipper to take an able Mariner in the absence of another , or to make good the damage , if any thereby . Master take not another Mariner into the Ship in his stead , as able as the other , and the Ship or Lading happen thereby to be through any misfortune damnified , the Master is obliged to make good the same , if he hath wherewithal .

XIV .

If a Vessel lying at Anchor be struck or grapled with by another Vessel under Sail , that is not very well steer'd , whereby the Vessel at Anchor is prejudiced , as also Wines , or other Merchandize in each of the said Ships damnified ; In this case the whole damage is to be in common , and to be equally divided and appraized half by In case of Collision , one ship against another , the damage to be in common , and equally divided , yet so as they both ( if need be ) purge themselves of all wilfulness by Oath . half ; And the Master and Mariners of the Vessel that struck or grapled with the other , are bound to swear on the holy Evangelist that they did it not wittingly or wilfully . And the reason why this Judgement was first given , was , That an old decayed Vessel might not purposely be put in the way of a better , which will the rather be prevented when they know that the damage must be divided .

XV.

Suppose two or more Vessels in a Harbour where there is but little water , so as that the Anchor of one of the Vessels lyes dry ; The Master of the other Vessel ought in that case to say unto him whose Anchor lyes dry ; Master , Take up your Anchor , for it is too nigh us , and may do us a prejudice ; if neither the said Master nor his Mariners will take up the said Anchor accordingly , What the Law is in placing of Anchors in Harbours , specially where there is but little water ; as also of Boys to the said Anchors . then may that other Master and his Mariners ( who might be otherwise thereby damnified ) take up the said Anchor , and let it down again at a farther distance from them ; And if the others oppose or withstand the taking up of their Anchor , and there afterwards happen damage thereby , they are bound to give full satisfaction for the same ; In like manner it is , if they neglect the placing of a Boy to the Anchor , and damage happen thereby , they are obliged to repair the same ; And so also it is in case damage so happen in a Haven at low water , for they ought to fasten such Boys or Anchor-marks , and such Cables to their Anchors , as may plainly appear and be seen at full Sea .

XVI .

A Vessel going to seek a Fraight , arrives at her place of Lading in England , or elsewhere ; the Master ought then to say to his Company ; Sirs , Will you Fraight by your selves , What the Mariners Immunity or Priviledge anciently was in Fraight ; which is now grown obsolete . or be allowed at the Fraight of the Ship ? They are to answer which of the two they intend ; if they take as the Fraight of the Ship shall happen , they shall have proportionably as the Ship hath . And if they will Fraight by themselves , they ought to Fraight so as that the Ship be not impeded or hindred thereby . And if it so happen , that Fraight may not be had , the Master is blameless ; and he ought to shew them their Ship-fare , which he may weigh out to each of them . And if they will there lade a Tun of Water in stead of so much Wine , they may ; And in case there should happen at Sea a casting of goods over board , the Case is the same for a Tun of Water as in a Tun of Wine , or other goods , Liver by Liver . And if so be that Merchants do Fraight the said Vessel for Transportation of Goods , what freedome and immunity the said Mariner hath , the said Merchant shall also have .

XVII .

The Mariners of Brittain ought to have but one meal a day from the Kitchin , because It seems in those days this was the Law ; Now no such thing in use . they have Beverage or Drinkings out and home ; But those of Normandy are to have two meals a day , because they have only water at the Ships allowance ; only when the Ship arrives at a Wine-Country , there the Master is to procure them Wine to drink .

XVIII .

When a Vessel doth discharge or unload , and the Mariners demand their wages , whereof some have neither Bed , Chest , nor The Skipper may compel the Mariner to complete the Ships Voyage . Cabbin aboard , the Master may lawfully retain part of their wages till they have brought back the Ship to the Port from whence she came , unless they give good caution to serve out the whole Voyage .

XIX .

If the Master hire the Mariners in that Town whereunto the Vessel belongs , whereof some at their own finding , others of them at his own costs and provision ; And it happen that the Ship cannot procure Fraight in those parts where she is now arrived , but must sail yet farther to obtain it ; In such Case they that are at their own finding , ought to follow the Master , and such as are at his own costs , ought to have their wages advanced Kenning by Kenning , and Course by The Contract for wages must be performed , though the Voyage be not ; so as the fault be not in the Mariners . Course , for that he hired them to one certain place . And if they go not so far as to that place for which the Contract was made , yet they ought to have the whole promised hire , as if they had gone thither ; But they ought to bring back the Vessel to the place from whence they took her .

XX.

When a Vessel arrives at Rouen , or any other place , two of the Mariners at a time may go a shore and take with them one meal of such Victuals as is in the Ship , therein cut and provided , as also Bread proportionably What the Law is touching Mariners going a shore when the ship is in Port. as much as they eat at once , but no Drink : And they ought very speedily and in season to return to their Vessel , that thereby the Master may not lose the earnest or hire of the Ship ; for if so , and damage come thereby , they are bound to make satisfaction ; or if any of their Company be hurt for want of their help , they are to be at such charge of his recovery as one of his Fellow-Mariners , or the Master , with those of the Table shall judge or arbitrate .

XXI .

If a Master lets his Ship to Fraight to a Merchant , and set him a certain time within which he shall lade his Vessel , that she may be ready to depart at the time appointed , and he lade it not within the time , but keep the Master and Mariners by the space of eight days , or a fortnight , or more , beyond the time agreed on , whereby the Master loseth the opportunity of a fair wind to depart , by reason of this the Merchants said default ; The Merchant to pay Demourage , when it happens through his own default . The said Merchant in this case is obliged to make the Master satisfaction for such delay , the fourth whereof is to go among the Mariners , and the other three fourth parts to the Master , because he finds them their expences .

XXII .

When a Merchant Fraights a Vessel at his own charge , and sets her to Sea , and the said Vessel enter into an Harbour , where she is wind-bound , that she stays so long till her monies be all spent , the Master in that What the Law is in ●ase a Skippe● on his Voyage be reduced to Necessities in a Forraign Port. ease ought speedily to send home to his own Country for mony ; but he ought not to lose his armogan , or desert his Voyage or main design ; for if so , he is the● obliged to make good to the Merchant all such damag●s as shall ensue thereby ; But yet the Master may take part of the Wines or other Merchand-goods , and dispo●e thereof to compass In some cases the Skipper may sell part of his Lading . his return ; And when the said Vessel shall be arrived at her right Port of Discharge , the said Wines that the Master hath If part os a Merchants Carge be sold to supply the Necessities of the Ship , the value and fraight thereof is to be made good to and by the said Merchant . so disposed of , ought to be valued and appraized at the same rate as the other Wines shall be commonly sold for , at no more nor less , and accordingly be accounted for to the Merchant ; And the Master ought to have the Fraight of such Wines as he hath so taken and disposed of for the use and reason aforesaid .

XXIII .

If a Pilot undertaking the Conduct of a Vessel , to bring her to St. Mallo , or any other Port , fail of his duty therein , so as the Vessel miscarry by reason of his ignorance in what he undertook , and the Merchants sustain damage thereby , he is obliged The head of an unskilful Pilo must go for the loss of a Vessel occasioned by his unskilfulness , in case he hath not wherewith to make satisfaction . to make full fatisfaction for the same , if he hath wherewithal : And if he be not able to make satisfaction , he ought to lose his head . And if in that case the Master or any of the Mariners , or the Merchants , cut off his head , they are not bound to answer for it ; But yet before they do this , they ought to know whether he hath wherewith to make satisfaction .

XXIV .

A Vessel being arrived at her Port of Discharge , and hoysed up there into dry ground , and so as the Mariners deeming her to be in good safety do take down her Sails , and so fit the Vessel a loof and aft , the Master now cught to consider an increase of their wages Kenning by Kenning ; And if in winding or hoysing of Wines , it happens that they leave open any of the Pipes , or other Vessels , or that they fasten not the What the Law is in case of damage to goods , by reason of the Ship-ropes or Slings in hoysing of goods over board . Ropes well at the ends of the Vessel , by reason whereof it slips , and falls , and so lost , or falling on another , both are damnified , or lost ; In these Cases the Master and Mariners are bound to make them good to the Merchants , and the Merchants must pay the Fraight of the said damnified or lost Wines , because themselves are to receive for them from the Master and Mariners , according to the value that the rest of the Wines are sold for ; And the Owners of the Ship ought not to suffer hereby , because the damage happened by default of the Master and Mariners , in not fastning the said Vessels of Wine .

XXV .

It two Vessels go on a Fishing design in Partnership , as for Mackerel , Herring , Rayes , or the like , and do set their Nets , What the Law is as to Partnership in the Fishing Craft . and lay their Lines for that purpose ; The one of the Vessels ought to imploy as many Fishing Engines as the other , and so shall go in equal shares as to the gain , according to the Agreement betwixt them made . After this , if it so happen , that one of the said Vessels with her Fishing Instruments and Engines perish , the other escaping , arrive in safety ; the surviving friends of In case of such Partnership , part of the profits upon such a Fishing design , accrue to the next of kin , to the deceased in that design . those that perished , may require of the other to have their part of the gain , as also of their Fish and Fishing Instruments ; And they are to have it accordingly upon the Oaths of those that escape ; But in or of the Vessel it self , they are to have nothing .

XXVI .

If any Ship or other Vessel sailing to and f●o , and Coasting the Seas , as well in the way of Merchandizing , as upon a Fishing design , happen by some misfortune through the violence of the Weather to strike her self against the Rocks , whereby she becomes so bruised and broken , that there she perishes , be it on what Coasts , Country or Dominion soever , and the Master and Mariners , Merchant or Merchants , or any one of these escape and come safe to Land ; In this Case the Lord of that place or Country , where such misfortune shall happen , ought not to let , hinder , or oppose such as have so escaped , or such , to whom the said Ship , or Vessel , and her Lading belong , in Ship broken , men not to be impeded or h●ndred , but aided and assisted in preservation of Ship and Lading . using their utmost endevour for the preservation of as much thereof as may possibly be saved . But contrariwise , the Lord of that place or Country , by his own interest , and by those under his power and Jurisdiction , ought to be aiding and assisting to the said distressed Merchants and Mariners , in saving their Ship-broken-goods , and that without the least imbezilment or taking any thereof from them . Nevertheless there may be a Remuneration or Consideration for Salvage to such as took pains therein , answerable to their Conditions , according to right Reason , Salvage to be regulated , not according to promise made by the distressed , but as the Court of Admiralty shall judge in equity . and a good Conscience , and as Justice shall appoint , notwithstanding what promise in that Case was made to the Salvers by such distressed Merchants and Mariners , as before is declared : And in case any shall do contrary hereunto , or take any part of the said goods from the said poor , distressed , ruin'd , undone , Ship-broken persons , against their Art. 4. Naufragium , quasi Navis Fractio . The penalty of such Thieves as steal from persons that are Ship-broken . wills , and without their consent , they are Excommunicated by the Church , and ought to receive the punishment of Thieves , without speedy Restitution be made by them ; And there is no Custome or Statute whatever that can protect them against the said penalties .

XXVII .

If a Ship or other Vessel entring into an Harbour , or elsewhere , happen by misfortune to be broken and perish , insomuch that the Master , Mariners , and Merchants , which were on board her , are all drowned ; so that the Goods thereof in part are driven a shore , the rest floating on the Sea , without being sought after by those to whom they belong , they being ignorant of this sad disaster , and knowing nothing thereof ; In this Case , which is very lamentable , the Lord of that place or Country ought to send persons to VVhat the Law is in case of wreck . save the said Goods , which he ought to secure and to put into safe custody ; and thereof ought also ( if it may be ) to give notice to the Friends or next of Kin to the deceased , and to satisfie for the salvage thereof , not out of his own purse , but of the Goods saved , according to the hazard and pains taken therein ; and the remainder to reserve in safe custody for one year or more ; And if in that time they to whom the said Goods did appertain , do not appear and claim the same , and the said year or more be fully expired , he may publickly sell and dispose thereof to such as will give most , and with the monies proceeding of the sale thereof , he is to procure prayers to be made for the * * As if the gift of Salvation might be purchased with mony . Good meanings will never exculpate blind and superstitious Devotion . This is the Law of Rome by Land at this day , as well as of Oleron at Sea , nigh 500 years since . Remission of the sins of the deceased , or to provide Marriages for poor Maids , and to do therewith such other works of piety and charity as is consonant to Reason and a good Conscience . But if he assume the said goods either in whole or in part unto himself , he shall incur the Curse or Malediction of our Mother the holy Church , with the foresaid pains and penalties , without ever obtaining Remission , unless he make satisfaction .

XXVIII .

If a Ship or other Vessel happen to be lost by striking on some Rock , or elsewhere nigh the shore , and the Mainers thinking to escape and save their lives , attempt to come nigh the shore or brink of the Sea in hope of help , but in stead thereof it sometimes happens Covetousness which is Idolatry , sometimes is also Bestiality . that in many places they meet with people more barbarous , cruel , and inhumane , then mad Dogs , or ●nraged Wolves , who to gain their monies , apparel , and other goods , do sometimes murder and destroy these poor distressed Mariners ; In this Case , the Lord of that Country ought to execute Justice on such Wretches , to punish them They that lived like beasts , might not dye like men ; By the Law of Oleron . as well corporally as pecuniarily , and in their goods , and they are to be plunged into the Sea until they be half dead , then to be drawn forth out of the Sea , and stoned or knock'd down as you would do even to a Dog or a Wolf .

XXIX .

If a Ship or other Vessel arriving at any place , and making in towards a Port or Harbour , set out her Flag , or give other sign to have a Pilot come a board , or a Boat to towe her into the Harbour , the Wind or Tide being contrary , and Contract be made for Piloting the said Vessel into the said Harbour accordingly ; But ( by reason of an unreasonable , yea , accursed and damnable custome in some places , That the third or fourth part of the Ships that perish and are lost , shall accrue to the Lord of the place where such sad Casualties happen ; as also the like proportion to the Salvers , and only the remainder to the Master , Merchant , and Mariners ) the Persons contracting for the Pilotage of the said Vessel , to ingratiate themselves with their Landlords , and to gain to themselves part of the said Ship and her Lading , do like faithless Villains and treacherous persons sometimes even wittingly , willingly , and out of design to ruine Ship and Goods , guide and bring her upon the Rocks ; And then feigning to aid , help , and assist the now distressed Mariners , themselves are the first in dismembring and pulling the Ship to pieces ; Then purloyning Behold and wonder at the Diabolical Practice of some treacherous Pilots . and carrying away the Lading thereof contrary to all Reason and a good Conscience ; And that they may be the more welcome to their Landlord , do with all speed post to his house with the sad Narrative of this unhappy disaster ; whereupon the said Landlord with his Retinue appearing at the place takes his share , the Salvers theirs ; and what remains the Merchants and Mariners may have . But seeing this is contrary to the Law of God , the Edict and Judgement is , That ( notwithstanding any Law or Custome to the contrary ) the said Lord of that The penalty of such thieves as steal goods from poor distressed ship-broken persons . place , Salvers , and all others ●hat take away or embezil any of the said Goods , shall be Accursed , Excommunicated , and punished as Robbers and Thieves , as fotmerly hath been declared .

XXX .

Touching such false and treacherous Pilots , the Judgement is , That they ought to suffer a most rigorous and unmerciful death ; For there ought to be very high Gibbets erected for them in the very same place , or as nigh as conveniently may be , where they so guided and brought the said Ship or Vessel to ruine as aforesaid , and thereon these accur-Pilots are with ignominy and most shamefully The exemplary punishment of all treacherous Pilots . to end their days ; Which said Gibbets are to be made substantially strong , to the intent that they may abide and remain to succeeding ages on that place , as a visible Caution to other Ships that shall afterwards sail thereby .

XXXI .

If the said Lord of that place were so feloniously inclined , and so barbarous withal , as not only to permit such inhumane people , but also to maintain and abet them in such villanies , that he may participate of the spoil , and have a share in such Wrecks ; In such case the said Lord of that place ought to be apprehended , all his goods confiscate , and sold to be converted into pious uses , and An Adequate punishment , & without respect of persons ; which will not counterpoize one grain of honesty in the ballance of Justice ; So exact was this Law in punishing such politickly Covetous Miscreants . for restitution and satisfaction to such as of right it appertaineth ; And himself to be fastned to a poste or stake in the midst of his own Mansion house , which being fired on the four Corners or quarters thereof , all are to be burnt together ; which done , the walls thereof are to be demolish'd , the stones thereof pull'd down , turn'd to rubbish , and then to be converted to a Market place , for the sale only of Hogs and Swine to all posterity .

XXXII .

If by reason of tempestuous weather it be thought expedient , for the lightning of any Ship or Vessel at Sea , or riding at Anchor in any Road , to cast part of the Lading over board , and it be so done accordingly for the preservation of themselves ; know , taht the said goods so ejected and cast over board do become his that can first possess himself thereof , and carry them away ; Nevertheless , it is here to be farther known and understood , that this holds true only in such Goods cast over board for lightning the Ship , quatenus such , are not Derelicts . case , as when the Master , Merchant , and Mariners have so ejected or cast out the said goods , as that withall they quit all hope or desire of ever recovering them again , and so leave them as Derelict , or as things utterly Merces è Nave jactae , Derelictae non videntur . lost and forsaken , without ever making any inquiry or pursuit after them ; In which Case only , the first Occupant becomes the lawful Proprietor thereof . Leg. 7. Dig. Pro Derelict .

XXXIII .

If a Ship or other Vessel hath cast over board several Goods or Merchandize , which are in Chests well lock'd and made fast ; or Books so well secured , and so well conditioned , that they may not be damnified by Salt-water ; In such cases it is to be presumed , that they who did cast such Goods over What symptomes for a Presumption in certain cases of goods cast over board , that they are not Derelict . board , do still retain an intention , hope , and desire of recovering the same ; For which reason such as shall happen to find such things , are obliged to make Restitution thereof to him who shall make a due inquiry or pursuit after them ; or at least to imploy them in charitable uses according to a good Conscience .

XXXIV .

If any man happen to find any thing in the Sea , or Sea-sand , or on the Shore , ( be Res nullius , & Noviter inventa , fit primo Occupantis . it precious stones , Fishes , or the like , which never belonged to any man in point of property ) it becomes his own ; for such things belong to the first finder , who carries it away .

XXXV .

Touching Great Fishes that are taken or Now called Royal Fishes . Out of the mouth of a Fish the King of Kings himself will work a Miracle to pay Tribute , rather then offend by denying it where it is due . Matth. 17. 27. found dead on the Sea-shore , regard must be had to the Custome of that Country where such Great Fishes are taken or found ; For by the Custome the Soveraign Prince of that Country ought to have his share , his demand or pleasure therein . And good reason , for the Subject owes Obedience and Tribute to his Soveraign .

XXXVI .

In some Cases also the Lord of the place where some Fishes are found may have his share , respect being always had to the laudable In such things Custome is to be observed . Custome of the Country where such Fishes are found ; And he that there finds them is no farther obliged then to save them by bringing them without the reach of the Sea , and then forthwith to make it known to the said Lord of the place , that so such care may be taken therein as appertaineth to Justice .

XXXVII .

If the Lord of the place please , and it be the Custome of that Country where the said Fish was found , he may cause the same to be brought to him that found it , or to the publick and open Market-place , but to no other place ; And there the said Fish ought Consuetudo in tract of time may evaporate into Desuetudo ; as in this Case . to be Inventaried and Appraised by the said Lord according to the custome . And the price being set , the other party that made not the price , shall have his choice or election either to take or leave at that price ; And if either of them whether per fas , or nefas be an occasion of loss or damage to the other , though but to the value of a Deniere , he is obliged to make him Restitution .

XXXVIII .

If the Costs and Charges of carrying the said Fish to the said Market-place , may probably This hath reference only to such times and places , as wherein such Custome did prevail . amount to a greater summe then the Fish it self may be worth , then the said Lord is bound to take his share at the place where such Fish was found .

XXXIX .

Also the said Lord ought to submit to the foresaid Costs and Charges , for that he ought Locupletari nemo debet cum alterius injuria . Leg. 14. tit . 6. Cod. lib. 5. & Dig. lib. 23. tit. 3. leg . 6. § 2. & Dig. lib. 2. tit. 15. leg . 8. § 22. & Dig. lib. 12. tit. 6. leg. 14. not by anothers damage to inrich himself ; otherwise he sins .

XL.

If by some chance or misfortune the said Fish happen to be lost , or otherwise stoln away from the place where it was first found , and this about the time of the said Lords going Non tam tenetur , qui non tenet , quam qui detinet . to see it , or before ; in this Case he that first found it is not any way obliged to make it good .

XLI .

In all other things found by the Sea-side , which have formerly been in the possession of some or other , as Wines , Oyls , and other Merchandize , although they have been cast over board , and left by the Merchants , and so ought to appertain to him that first finds Consuetudo est Lex non scripta , & Natura postscripta . the same ; yet herein also the Custome of the Country is to be observed as formerly in the Case of Fish . But in case there be a presumption that these were the Goods of Goods found and presumed to have belonged to Shipping , are dedicated not to profane but pious uses . some Ship that perished , then neither the said Lord , nor Finder thereof , ought to take any thing thereof so as to convert it to their own use ; but they ought to doe th●rewith as before hath been said , that is , to cause therewith that Prayers be made for the deceased , as also other special good works ; Or Art. 26. If in Heaven , they need no Prayers ; if in Hell , Ab inferis nulla Redemptio ; if in Purgatory , 't is pity to trouble them , the longer there , the better purged ; This is Rom●s Utopia . otherwise they shall incur the forementioned Maledictions .

XLII .

If any Ship or other Vessel at Sea happen Res capta sit Captentis , was Law well meant at Oleron ; but very ill expounded by our late Interpreters . to find a Fish , it is wholly theirs that found it , in case no due pursuit be made after it ; And no Lord of any place ought either to challenge it or demand any part thereof , although they bring it to his ground .

XLIII .

If any seek for Gold or Silver on the Sea-shore , Presupposing the Finders knowledge of of the true Owner thereof . and findeth some ; he ought to restore it all , without any diminution thereof .

XLIV .

If any going along the Sea-shore to fish , or otherwise , happen to find Gold , or Silver , What the Law is in Case of Treasure Trove . or the like , he is bound to make restitution thereof , deducting for his own pains ; Otherwise if he be poor , he may retain it to himself , that is , if he know not to whom to restore it ; yet he ought to give notice of such his sinding the same , to the neighbourhood and parts next adjacent to the place where he found it . Moreover he ought to You may not Note or infer hence , as if in all Ages the Clergie had a finger in all Elements . advise with his Prelate , Curate , or Confessor , who ought to weigh and take into Consideration the indigency and poverty of the Finder , and the quantity of the Silver , and then to give him such advice as is consonant to a good Conscience .

XLV .

If a Vessel by stress of weather be constrained to cut her Towes and Cables by the end , and so to quit and leave behind her both Cables and Anchors , and make to Sea as please the wind and weather ; in this Case the said Cables and Anchors ought not to be What the Law is in case a Ship by stresse of weather be forced from her Cables and Anchors . as lost to the said Vessel , if there were any Boy at them ; And such as fish for them are bound to restore them , if they know to whom : but withal they ought to be paid for their pains , according as Justice shall determine . But because sometimes they Well meaning devotion in a Superstitious way , opens a dore to Idolatrie ; And Politick devotion in an hy-pocritical way Le ts in Blasphemy . know not to whom to restore them , the Lords of the place have their shares , and the Finders theirs , and they neither cause Pater Noster to be said , nor Avie Maria , as they ought . And therefore it hath been ordained , That every Master of a Ship cause to be ingraven , or set upon the Boyes thereof , his own name , or the name of his Ship , or of the Port or Haven whereof she is ; which will prevent great inconveniencies ; for it sometimes happens , that he that left The Names of Skippers or of their Ships to be engraven on their Boyes . his Anchor in the morning , hath recovered it again by night ; And such as detain it from him , are no better then Thieves and Pirates .

XLVI .

If any Ship , or other Vessel by any Casualty or misfortune happen to be wreck'd and perish ; in that case the pieces of the bulk of the Vessel as well as the Lading thereof What the Law is in case of Wreck . ought to be reserved and kept in safety for them to whom it belonged , before such disaster happened , notwithstanding any Custome to the contrary . And all takers , partakers , abettors , consenters , or contrivers in the said wreck , if they be Bishops , Prelates , or Clerks , they ought to be deposed and deprived of their Benefices respectively ; And if they be Lay-men , they are to incur the penalties aforesaid .

XLVII .

Which is to be so understood , when the said Ship or Vessel so wreck'd did not exercise Pirates and other unreasonable men are to be dealt with like other irrational Animals . the Thievish mystery of Robbing and Free booting , and when the Mariners thereof are not Pirates , Sea-Rovers , or Enemies to our holy Catholick Faith . But in case they be Pirates , Robbers , Sea-Rovers , Turks , or other Enemies to our said Catholick Faith , Catholick signifies General or Universal ; But Orthodoae hath a far better Signification . every man may then deal with such as with meer Brutes , and despoil them of their goods without any punishment for so doing .

A SERIES or Catalogue ( according to Sir H. Spelman's Computation ) of such as have been Dignified with the Office of Lord High Admiral in this Kingdome , since King John's time to to the Reign of King Charles the First of Blessed Memory .

Wherein No mention is made of Marthusius , that Princeps Nautarum , in K. Edgars time ; Nor of those other Tetrarchs of his Navy , who for the guard of the ●rittish Seas had no less then a thousand Sail of Ships under their Command ; Nor of those other Commanders in Chief touching the Sea-Affairs , who have been , beside the common and usual mode , Constituted by his Successors , Kings of England ; But of such only , as in the Ordinary way have been Dignified with the said Office and Marine Authority in this Kingdome , viz.

8 H. 3. RIchard de Lucy is said to have Maritimam Angliae . 48 H. 3. Thomas de Moleton was Constituted Capitaneus & Custos maris & Portuum Maritimorum . 25 Ed. 1. William de Leiburne is styled at the Assembly at Bruges , 8 Martii , 15 Ed. 1. 1286. Admirallus maris Angliae . 22 Ed. 1. John de Botetort , Admiral of the North , for the Coast of Yarmouth , and that station . William de Leibourn , Admiral of the South , for Por●●●outh , and that station . A certain Irish Knight , Admiral of the West , and the parts thereof .

Admirals of the North , viz. Admirals of the West , viz. From the mouth of the River of Thames North-ward . From the mouth of the River of Thames West-ward . 34 Ed. 1. Edward Charles . Gervase Allard . 8 Ed. 2. John Botetort . William Cranis . 10 Ed. 2. Nichalds Cryoll . 10 Ed. 2. John Perbrun , aliàs Perburn . Robert Leiburn , Knight . 12 Ed. 2. John Athey . 15 Ed. 2. John Perburn . Robert de Leiburn , Knight , Admiral of the Western Ports of England , Wales , and Ireland . 16 Ed. 2. John Perburn . Robert Battail , aliàs Batall , one of the Barons of the Cinque-Ports . 18 Ed. 2. John Sturmy . Robert Bendon . 19 Ed. 2. John Otervin . Nicholas Keriel . Walsingh . calls these the three Admirals of the three Coasts of England , viz. of Yarmouth , Portsmouth , and the West . And here note , That the South Coast is comprehended in the West . John de Felton . 19 Ed. 2. John de Stormy . Nicholas Criell . 20 Ed. 2. John Sturmy . Nicholas Criell . 20 Ed. 2. John Layborne . 1 Ed. 3. John Perbrun . Wares . de Valoniis . 7 Ed. 3. William de Clinton . 8 Ed. 3. John de Norwico . Roger de Hegham , aliàs Higham . 10 Ed. 3. Thomas Ughtred . 10 Ed. 3. John de Norwico . Walter de Say , Baronet . 10 Ed. 3. Robert Ufford , & William de Manton . John de Roos . Admiralli Flotae . 11 Ed. 3. Walter de Manney . Barthol . de Burghershe , K t. 12 Ed. 3. Thomas de Draiton . This Thomas elsewhere appears not as Admiral , but only as Vice-Admiral to Walter de Manney : So possibly in some others there may be some Errors also . Peter Dardus , aliàs Bard. 13 Ed. 3. Ro●ert Morley , Robert Trussell . Bar. de Hengham . 14 Ed. 3. Richaard , Fil. Alani , Com. Arundeliae . 15 Ed. 3. Robert de Morley . William Clinton , Com. Huntingd . 16 Ed. 3. William Trussel . Robert Beaupell . 17 Ed. 3. William Trussell . John de Monte Gomerico . 18 Ed. 3. Robert Uffer . Com. Suffolk . Reignald de Cobham . 19 Ed. 3. Richard , Fil. Alani , Com. Arundeliae . 20 Ed. 3. Robert de Ufford , Comes Suff. Richard , Fil. Alani , Com. Arundeliae . 21 Ed. 3. John de Howard , Knight . John de Monte Gomerico , Knight . 22 Ed. 3. Walter de Manny , Bar. S. Salvato . Reignald de Cobham , Knight . 24 Ed. 3. Robert de Causton . John de Bello Campo , Knight of the Noble Order of the Garter . 25 Ed. 3. Robert de Morley . 25 Ed. 3. William de Bohun . Com. Northampt. Henry D. of Lancaster . 26 Ed. 3. William de Bohun . Com. Northampt. Tho. de Bello Campo , Senior , Com. Warwicen . 29 Ed. 3. Rob. de Morley , Bar. de Hengham . John de Bello Campo , Brother to the said Thomas . 30 Ed. 3. Robert de Morley . Guido de Brian , Knight . 31 Ed. 3. Guide de Brian . 33 , 34 Ed. 3. Robert de Morley . Guido de Brian . 34 Ed. 3. John de Bello Campo aforesaid , was Constituted High Admiral as well of the North as of the West of England , 18 Julii , 34 Ed. 3. At which time he was also Lord Warden of the Cinque-Ports , Constable of the Tower of London , and of the Castle of Dover ; And dyed Decemb. 2. the same year in possession thereof . 35 Ed. 3. Robert Herle , Knight . Admirallus omnium Flotarum utriusque partis . 38 Ed. 3. Ralph Spigornell . Admirallus utriusque partis . 43 Ed. 3. Nicholas Tamworth , Knight . Robert Aston , Knight . 44 Ed. 3. John Nevill , Kt. Bar. de Raby . Guido Brian . 45 Ed. 3. Ralph de Ferrariis . Robert Aston , Knight . 46 , 47 , 48 Ed. 3. W. de Nevill . Phillip Courtney . 50 Ed. 3. William de Ufford , William de Monteacuto . Com. Suff. 50 , 51 Ed. 3. Mich. de la Poole , Knight , Dn. de Wingfield . Brother of Rob. de Hales , Prior of the Hospitall of S. Jo. of Hierusalem . 1 R. 2. Thomas de Bello Campo , Jun. Com. War . Richard , Fil. Alani . Com. Arundel . 2 R. 2. Thomas Percy , Frat. Com. Northumb. Hugh Calveley , Knight . 3 , 4 R. 2. William de Elmham , Knight . Phillip Courtney , Knight . 5 R. 2. William de Elmham . John Roches , Knight . 6 R. 2. Walter , Fil. Walt. Knight , Dn. de Woodham . John Roches , aliàs de Rupibus , Knight . 7 R. 2. Henry Percey , Com. Northumb. Edward Courtney , Com. Devon . 8 R. 2. Tho. Percey , Frat. Hen. Com. Northumb. Jo. Radington , Prior of Saint John of Hierusalem . 9 R. 2. Phillip Darcy , K t. Thomas Trivet , Knight . 10 R. 2. Richard , Fil. Alani , Com. Arundel , Admirallus Angliae . 12 R. 2. Jo. de Bello monte , Bar. de Folkingham . Jo. Holland , Com. Huntington . 12 R. 2. Jo. de Rupibus , Kt. 13 R. 2. Jo. de Bello monte , praedict. Jo. Holland , Com. praedict. 14 R. 2. Edward Com. Rutland . Jo. Holland , Com. praedict. 15 R. 2. Edward , Com. Rutland , & Cor●●giae , afterwards D. of Albemarle . Constituted high Admiral as well of North as Western parts . 21 R. 2. John Beaufort , Marq. Dorset , & Com. Somerset . Fil. Jo. de Gandavo , D. of Lancaster , Admiral 〈◊〉 North and West . ●● R. 2. Thomas Percey , Com. Winchester , Frat. Hen. Com. Northumb. he was then Constituted Admiral of both parts . 2 H. 4. Rich. Gray , Bar. de Codenore . Thomas Reniston , Knight . 5 H. 4. Tho. Beaufort , Frat. praed. Marq. Dors. Tho. Dom. Berkley , Knight . 7 H. 4. Nicholas Blackburn , Esquire . Richard Cliderhow , Esquire .

Admirals of England , &c. 6 H. 4. Tho. Lancastrius , Reg. H. 4. Fil. Vice-Roy of Ireland , high Steward of England ; afterward D. of Clarence . Admirallus utriusque partis . 8 H. 4. John Beauford , praedict. Com. Somerset . Admirallus Angliae . 8 H. 4. Edmund Holland , Earl of Kent . Admirallus Angliae . 9 H. 4. Thomas Beuford , praed. Adm. Angliae . 4 H. 6. John Lancastrius , D. of Bedford , E. of Richmond and Candale , high Constable of Engl. Fil. Reg. H. 4. Admirallus Angliae . 14 H. 6. Joh. Holland , D. of Exon. E. of Huntington . Constituted ( together with his son ) Admirals of England , Ireland , and Aquitain , for life . 25 H. 6. Will . de la Poole . Mar. & E. of Suffolk , made Admiral of England , Ireland , and Aquitain , during the minority of Hen. D. of Exon ; who with his Father had that Office by the Kings ●rant , ad terminum vitae eorum , &c. 28 H. 6. Hen. Holland , D. of Exon. Adm. Angliae , Hiberniae & Aquitaniae . 1 Ed. 4. Rich. Nevil , Comes Warwic . & Sarisb . Admirall of England , Ireland & Aquit . 2 Ed. 4. Will . Nevil , E. of Kent , & Bar. Falconberg . Adm. of Engl. Ireland , & Aquit . Ed. 4. Richard D. of Gloucester , Brother to the King ; Adm. of Engl. Irel. & Aquit . 49 H. 6. Rich. Nevil , E. of Warwic . & Sarisb . Capt. of the Town and Castle of Calice . Constable of the Castle of Dover , & Custos 5. Portuum . Adm. ut supra . 11 Ed. Richard D. of Gloucester , praedict. Constituted Admiral , ut supra . 1 R. 3. John Howard , D. of Norfolk . Adm. of Engl. Ireland & Aquit . 1 H. 7. Jo. de Veer , E. of Oxford , high Chamberlain of England , &c. Adm. ut supra . 4 H. 8. Edw. Howard , Knight , Fil. Tho. E. of Sur. afterwards D. of Norf. Adm. ut supra . 5 H. 8. Tho. Howard , eld . brother of the said Edw. E. of Sur. afterwards D. of Norf. Adm. ut supra . 17 H. 8. Henr. Fil. Nothus , Reg. H. 8. D. of Richm. & Somers . E. of Nottingh . Adm. ut supra . 28 H. 8. Will . Fitz William , E. of Southampt . Adm. ut supra . 32 H. 8. John Russel , Knight , Dom. Russel . Admirall , ut supra . 34 H. 8. John Dudley , Knight , Vicecom. Insulae , & Bar. de Malpas , &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 Etym●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 ; h●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 fr●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 cas● . 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 Re●●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 use in case of necessity , good . 164 Taurus , high Admiral to Minos , King of Crete . 8 Theft committed at Wrecks , the penalty thereof . 183 , 187 Tortura , the different respects and acceptations thereof in construction of Law . 68 Treasure Trove , the old Law in that case . 193 Trismegister , Legislator of the Egyptians . 53 Tyrus , the Maritime Metropolis of Phoenicia ; the costly Materials of her Navy ; her Prosperity and Misery . 11 Tyrians , famous and able Mariners . 11 , 16 V. VEnetians , famous for their Sea-Laws , and Maritime Ordinances . 13 W. VVAges of Mariners to be paid according to Contract . 178 If deceased in the Voyage , to whom payable . 169 Weston's Case . 96 Wounded Mariners , the Law in that case . 168 Wreck ; the ancient Provisional Laws of Oleron in that case . 184. 194 , 195 Z. ZOroaster , the Bractians and Persians Law-giver . 53 FINIS .

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