View of the Admiral Jurisdiction, Chapter 9
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, oCoke 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 Ʋltra-marine. But the Lord Hobard in Bridgmans Caſe goes farther, and ſays, pHob. 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, 'tis 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, qCroke 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, rLittlet. 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 nonentities 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, sL. 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, tCoke 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. uLittl. 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 'tis 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, wCoke par. 4. Inſtit. c. 74.Miſera eſt ſervitus ubi jus eſt vagū aut incognitum. It hath been ſaid, xCoke 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. yCod. 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, zHill. 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, aHob. 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. bHob. 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. cL. 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 aſſirmed 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 foreign, manu & artificio factun foreign, 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, dNoys 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, eBrownl. 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. fBrownl. 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, gBrownl. 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, hCroke 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.