View of the Admiral Jurisdiction, Chapter 8
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. aCoke 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 plaees. The ſaid Anſwer ſpeaking nothing as to the ſaid manner of ſuppoſing, ſeems not to enervate the ſaid Objection; The Anſwer diſtinctly declares and ſets forth where and in what places the Juriſdiction of the Admiralty hath not Cognizance, viz. not upon Land or Water within any County; But why (according to the ſaid Objection) things 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. bBart. 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.cIn lib. Nig. Adm. fol. 36.
Brownlow Reports, dBrownl. 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, eLittl. 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, fHob. 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, gLeonard 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, hBrownl. 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, iBrownl. 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 monethmonth 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, kTrin. 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 monethmonth 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, lLittl. 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, mCoke 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, nCro. 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.