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. IV. (Book 4)

of Persons Maritime; As also, of such Things as are properly Cognizable within the Jurisdiction of the Ad∣miralty of England; And in what method it proceeds to Judgement. (Book 4)

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; Co∣dex Administrationis, or the Right Admini∣stration of Justice; and Gladii potestas, vel Gladius Executionis, or the Coercive pow∣er. a 1.1 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 1.2 is the same and as true in absolute Kings and Princes within their own Kingdomes, Dominions, Princi∣palities and Territories; And no wonder, in that Kings and Princes tantum possunt in suo statu, quantum Imperator in Imperio. c 1.3 Some without lisping say, that a King in his Kingdome hath a farre greater right and in∣terest, then the Emperour hath in the Empire; for that a King is Loco Domini, and his King∣dome is more assimilated unto & hath a grea∣ter resemblance with that which is Dominiū, properly so called, then with that which is but simply Regimen. d 1.4 The Emperour is not Proprietarius, but chief Governour of the Empire; e 1.5 And that only by E∣lection, not by Succession as the other. f 1.6 Now as the Seas belong to Princes in respect of Jurisdiction and Protection; g 1.7 So also in them properly resides the Right and Power of Commissionating Ministers of Ju∣stice for the due Exercise and Administra∣tion 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 immedi∣ately under God Supreme. h 1.8

As to Persons Maritime, it might be considered who they are that more peculi∣arly are of Marine capacities, and properly may be said to be within the Jurisdiction of the Admiralty; what their Rights, Privi∣ledges 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, be∣tween party and party, whether it be Con∣tractus or quasi Contractus, either by any Perpetual known Rights, or by some Ca∣sual Occurrence; Or Criminal, and re∣specting the Fiscus in reference ad utilita∣tem 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 Jurisdi∣ction) to touch quasi in transitu what re∣ferres to each of these under its own pro∣per 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 in∣to 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 Eng∣lish 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 dis∣advantageous it might prove for the Prin∣cipals to have the returns of their expecta∣tion only in the Arbitrary altercations of cross-opinions, rather then in such staple∣truths of the Law as are not only currant in all the Navigable parts of the world, but of most use and practice in the Admi∣ralty of England. For these reasons the Reader may expect only a taste of Admi∣rall varieties, and therein no more then may serve to excite his impatience after the excellency of that which in a set Trea∣tise for this purpose might in its proper Dialect and due Latitude be emitted by an abler Artist.

All Maritime affairs are regulated chief∣ly by the Emperial Laws, the Rhodian Laws, the Laws of Oleron, or by certain peculiar and Municipal Laws and Constitutions ap∣propriated to certain Cities, Towns and Countries bordering on the Sea, within or without the Mediterranean, calculated for their proper Meridian; or by those Mari∣time Customes and Prescriptions or Perpe∣tual Rights which are between Merchants and Mariners, each with other, or each among themselves. This Maritime Go∣vernment

and Jurisdiction is by the King as Supreme, as well by Sea as at Land, con∣credited with the Lord high Admiral of Eng∣land, who next and immediately under the Prince hath the chief Command at Sea, and of Sea-affairs at Land. This Lord high Ad∣miral hath several Officers under him, some of a higher, others of a lower form; Some at Land, others at Sea; some of a Mili∣tary, 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, * 1.9 or Judges of Sea-faring debates and all Maritime controversies; whereof one be∣ing 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 Ju∣dex; 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 Man∣date; Execution and Return thereof; In∣terposition of Caution given by the arrested for his Legal Appearance according to the tenor of the said Warrant of Arrest; Ap∣pearance 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 rati∣habitione 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 De∣fendants personal Answer upon Oath to the said Libel exhibited against him; a Decree for a viis & modis in case of a Non Inven∣tus; a Decree against the sureties to pro∣duce the party Principal in judicio; Pro∣duction of him accordingly; his answer upon Oath to the Libel; Production of Witnesses; Compulsory against such Wit∣nesses as will not appear without it; Com∣mission 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; Pub∣lication of Witnesses; Conclusion of the Cause; Sentence Definitive; Appeal made * 1.10 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 Execu∣tion, and Sentence executed accordingly. Beside the other way of proceeding by ar∣rest 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 Decre∣tum (as to the Propriety) in case of Non∣intervention (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 De∣finitive; 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 Jurisdicti∣on are all affairs that peculiarly concern the Lord high Admiral, or any of his Offi∣cers quatenus such; all matters immediate∣ly relating to the Navies of the Kingdome, the Vessels of Trade, and the Owners thereof, as such; all affairs relating to Ma∣riners, whether Ship-Officers or common Mariners, their Rights and Priviledges re∣spectively; their office and duty; their wages; their offences, whether by wilful∣ness, casualty, ignorance, negligence, or in∣sufficiency, with their punishments. Also all affairs of Commanders at Sea, and their under-officers, with their respective duties, priviledges, immunities, offences, and pu∣nishments. 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, An∣chorage, 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 up∣on the Sea, called Foenus Nauticum, Pecu∣nia trajectitia, usura maritima, Bomary∣mony, 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, Ex∣changes, Partnership, Factoridge, Passage∣mony, 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 Priviledg∣ed ships, or Vessels in his Majesties Ser∣vice or his Letters of safe Conduct; also all causes of shipwrack at Sea, Flotson, Jetson, Lagon, Waiffs, Deodands, Trea∣sure-Trove, Fishes-Royal; with the Lord Admirals shares, and the Finders respective∣ly; also all causes touching Maritime of∣fences 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 Ma∣ritine Contract or in a Maritime Cause else∣where 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; Forestal∣ling of Corn, Fish, &c. on ship-board, re∣grating,

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 * 1.11 within the Admiral Jurisdiction, or of Flotsons, Jetsons, Lagons, Waiffs, Deo∣dands, Fishes Royal, or other things where∣in the Kings Majesty or his Lord Admiral have interest; Excessive wages claimed by Ship-wrights, Mariners, &c. Maintainers, Abettors, Receivers, Concealers or Com∣forters of Pyrats; Transporting Prohibi∣ted 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 Ad∣miral; such as unduly claim priviledges in a Port; Disturbers of the Admiral Officers in execution of the Court-De∣crees; Water-Bayliffs and Searchers not doing their duty; Corruption in any of the Admiral-Court-Officers; Importers of unwholesome Victuals to the peoples pre∣judice; Fraighters of strangers Vessels con∣trary to the Law; Transporters of ptisoners or other prohibited persons not having Let∣ters 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 pe∣rish; Unlawful Nets, or other prohibited Engines for Fish; Disobeying of Em∣bargos, 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, Na∣vigation obstructed, or Trade by Sea im∣peded; 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 de∣vious places, or among Enemies, Pyrats, Rocks, or other dangerous places, being not necessitated thereto; all clandestine at∣tempts 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 Ves∣sels; 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-burden∣ing the ship above her birth-mark, and all

ill stowage of goods a shipboard; also all Im∣portation of Contrabanda goods, or Exporta∣tion of goods to prohibited Ports, or the pla∣ces 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 visi∣ted and examined, if suspected, specially in times of Warre, their Cocquets, Pas∣ports, 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, refer∣ring as well to the Civil as to the Crimi∣nal part of this Jurisdiction, which might be here inserted; but the design of this Com∣pendious

Treatise being (as formerly hin∣ted) rather to touch then handle things, it may not be expected that the great Con∣tinent of the Admiralty should be compri∣zed in so small a Map. To conclude there∣fore with that great Oracle of the Civil Law, Baldus, touching the Marine Jursdi∣ction. In mari Jurisdictio est, sicut in ter∣ra. * 1.12 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) Prae∣sciptio illud idem potest (in mari scilicet quod in terra) operari. So that all such, as out of a subtile humour would fain insi∣nuate into the world, as if there were no such thing as Jurisdictio maris, or Domi∣nium 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 con∣stituted, 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.

Notes

• a 1.1

  Peregrin. de jur. Fisc. lib. 1. tit. 1. nu. 10.
• b 1.2

  L. Depre∣catio, Dig. ad Leg. Rhod. de Jact.
• c 1.3

  Bart. in L. 1. Par. de qua¦re. D. de Po∣stul. & in L. infamem. D. de Public. Ju∣dic.
• d 1.4

  Bald. Con∣sil 271. num. 3
• e 1.5

  Ibid. Con∣sil. 327. nu. 7.
• f 1.6

  Andr. Iser. & Afflict. in cap. 1. de Vas∣sal. decrept. ae∣tat.
• g 1.7

  Jason Jac. de Are. & Bald. in l. 2. ff. de Rer. Devis.
• h 1.8

  Glos. in verb. Crimi∣nalibus, in tit. de pace. Con∣stan. Bald. in Auth. Cassa. Cod. de Sacr. Sanct. Eccl. Alex. Con••. 8. col. 1. Cagnol. in L. 2. de O∣rig. jur. nu. 190
• * 1.9

  Li Consoli del mare.
• * 1.10

  Ten days by the Law. Fifteen days by the Stat.
• * 1.11

  Whales, Sturge∣ons, Porpoises, Bailines, Dol∣phins, and all Fishes strange for bulk, rari∣ty, or quality, are called Fishes Royal, and belong to the King.
• * 1.12

  Bald. ad Leg. 2 D. de Rer. Divi••.