View of the Admiral Jurisdiction, Title page – To the reader
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 longbreath'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 foreign, 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 nicknamed, 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 miſreprehenſions; 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.