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 ...

CHAP. VIII. (Book 8)

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. (Book 8)

THis Truth in the Law is not denyed in the Judgements of men, though it hath not wanted at least a seeming Contradiction * 1.1 in Practice. Witness Susans Case against Turner in Noys Reports; where it is said, That if a Suit be in the Court of Admiral∣ty 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 1.2 That by the Laws of the Realm the Court of Admiralty hath no cognizance, power, or Jurisdiction of any matter of con∣tract, 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, ei∣ther 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 Admi∣ral 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 Ad∣miral hath and ought to have Jurisdiction. This was the Answer long since given to an Objection made by the Admiralty; But the Objection was, That whereas the Cognizance of all Contracts and other thiags done upon the Sea, belongeth only to the Juisdiction of the Admiralty, the same are made tryable at the Common Law, by supposing the same to have been done in Cheapside, and such like places. So that the sinew of the Objection is, That things done upon the Sea, being cognizable only in the Admiralty, are made tryable elsewhere by supposing them to be done in Cheapside, and such like plaees. The said

Answer speaking nothing as to the said man∣ner 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 * 1.3 done upon the Sea, and belonging only to the Admiralty, are made tryable at Com∣mon 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 1.4 The scruple touching the surmize implyed in the supposition mentio∣ned 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 sur∣mize or suggestion be translocated in opera∣tion of Law, and so thereby become as it were Infra Corpus Comitatus, the said ac∣knowledgement would seem to be disac∣knowledged, 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 1.5

Brownlow Reports, d 1.6 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 Roy∣all, or the like, in the Straights, may be tryed in other then the Admiral Court, by alledg∣ing 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 traver∣fed, it being as easie and as feasible to sup∣pose 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 1.7 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 1.8 That Jennings libelled in the Admiralty against one Audley, upon a Con∣tract laid to be made apud Malaga infra di∣strictum Maris vocat. The Straights of Gi∣bralter infra Jurisdictionem Maritimam; And because it appeared, That the Contract was made at the Island of Malaga, Prohibi∣tion 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 con∣trary. It was once said by Justice Wray in Sir Julius Caesars Case, g 1.9 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 pra∣ctise it.

The Law in all Jurisdictions is but Reason Regulated; No wonder therefore if some∣times a Cause as to the Merits of it meet with a right Decision in a wrong Jurisdiction; but less wonder if it oftner happeneth other∣wise. It is reported in the Case of Bright against Couper, h 1.10 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 ta∣ken 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 de∣fault 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 per∣forming the Agreement, was Super altum mare. And the same Reporter in Westons Case, i 1.11 A Merchant hath a Ship taken by a Spaniard, being enemy, and a moneth af∣ter an English Merchant with a Ship called the Little Richard, re-takes it from the Spaniard; And the Owner of the Ship su∣eth 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 al∣tum mare; and the property of Shipping called into question by reason of such su∣permarine 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 Cau∣sae super altum mare, A Prohibition would not be granted, k 1.12 A Dunkirker having sei∣sed 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 there∣fore 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 * 1.13 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 * 1.14

well as the thing it self in its own nature. Littleton, that Famous Oracle of the Law, as aforesaid, asserts, l 1.15 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 1.16 That the Lord Admiral hath and ought to have Jurisdiction of Contracts, pleas and que∣reles made upon the Sea, or any part thereof not within any County. And Sir George Crook says, n 1.17 That if a Suit be commen∣ced in the Court of Admiralty upon things done upon the Sea, no Prohibition is to be granted. Therefore it follows, that Con∣tracts made and other things done upon the Sea are inherent in the Jurisdiction of the Admiralty.

Notes

• * 1.1

  Noy Rep. M. 39 40 Eliz. C. B. This may be but a Surmize in one Jurisdi∣ction for a Sup∣position in a∣nother, as an ex∣pedient whereby to discover un∣to which Ju∣risdiction the Case doth properly belong.
• a 1.2

  Coke Inst. part. 4. cap. 22.
• * 1.3

  This is meant when the thing is so in truth and in fact, as well as sup∣posed.
• b 1.4

  Bart. in ••. Si is qui pro Em∣ptore. D. de Usucap.
• c 1.5

  In lib. Nig. Adm. fol. 36.
• d 1.6

  Brownl. Rep. part. 1. Mich. 10 Jac.
• e 1.7

  Littl. l. 3. c. 7. sect. 440.
• f 1.8

  Hob. Rep. in Cas. Palmer vers. Pope.
• g 1.9

  Leonard Rep. 30 Eliz. in Sir Jul. Caes. Case, in B. R.
• h 1.10

  Brownl. Rep. Par. 1. Case Bright vers. Couper. Trin. 9 Jac. Rot. 638. in Com. Plac.
• i 1.11

  Brownl. Rep. Par. 2. Westons Case. Mich. 8 Jac. 1610. in B. R.
• k 1.12

  Trin. 17 Char. in B. R. Grand Abridg∣ment of the Law. Verb. Admiral.
• * 1.13

  Res quae intra Praesidia per∣ductae nondum sunt, quan∣quam ab ho∣stibus occupa∣tae, Dominum non mutarunt ex Gentium jure.
• * 1.14

  Gror. de ••ur. Bel. l. 3. c. 9.
• l 1.15

  Littl. l. 3. c. 7. ••ect. 440.
• m 1.16

  Coke Inst. Par. 4. c. 22.
• n 1.17

  Cro. Rep. in Resol. upon the Cases of the Admiral Ju∣risdiction. Hill. 8 Char.