View of the Admiral Jurisdiction, Chapter 12
CHAP. XII.
Of the Juriſdiction of the high Admiralty of England, Stat. 13 R. 2. cap. 5. Stat. 15 R. 2. cap. 3. Stat. 2. H. 4. cap. 11. & Stat. 27 Eliz. cap. 11.
THE Expoſition, Explanation, and Interpretation of the Statute-Laws being a right properly inherent in the Supreme Authority that enacted them, and in the Reverend Judges, the Lex Loquens, or voice of them; there remains no more to the good people of his Majeſties Dominions then to yield all obedience to them, and thereby claim their birth-right in them. In order whereto it is every mans prudence, as much as in him lyes, to clarifie his Intellect; yet with ſuch ſobriety, that as Ignorance may be no Obex to his Obedience on the one hand, ſo alſo that ſuper-curioſity may not quite dazle his Intellect on the other; It is not ignorantia juris, but facti, that can excuſe any; And though in a ſenſe it may properly be ſaid of Humane as of Sacred Laws, That they are not of any private interpretation, whoſe Oracles alone are intruſted with the expoſition thereof, yet it is every mans duty to know the Rule of his Duty; And he that will underſtand that he may obey aright, muſt have a right underſtanding of what he is to obey. Upon the…e Conſiderations it is moſt clear, That it well becomes all ſuch, who may be concerned in the ſubject matter of this Treatiſe, to have right-informed apprehenſions (not to make private Interpretations) of the true intent and meaning of the ſaid Statutes in order to a clearer proſpect of the Admirall Juriſdiction.
It is enacted by the Statute of 13 R. 2. cap. 5. That the Admirals and their Deputies ſhall not meddle from henceforth of any thing done within the Realm, but only of a thing done upon the Sea, as it hath been uſed in the time of the Noble Prince King Edward Grand-father of King R. 2. Whence it hath been inferred, that the Juriſdiction of the Admiralty is confined only to things done upon the Sea. The ſaid Statute ſays, That the Admirals ſhall not meddle with any thing done within the Realm, but only with things done upon the Sea, as it hath been uſed in the time of King Edward, Grand-father of R. 2. that is, in the time of Edward the Third, to the uſage in whoſe days the ſaid words ſeem to have reference, as Limitative with a Referendo. And admitting the word [duly] if not by the Letter of the Statute, yet by conſtruction of Law, it may ſeem almoſt as equally difficult, exactly to know what was the uſage as what was the due uſage or what was in this point duly uſed in the days of Edward the Third; only with this difference, that an uſage being matter of Fact, there may be Rei evidentia, in that caſe to prove it ſelf; whereas to know what was duly uſed, may be matter of Law, and capable of diverſities of opinion conſonant to various perſwaſions. And yet until it be known what was in this matter the due uſage in the time of Edward the Third, it ſeems not indubitably obvious to every running Intellect to conceive what may be the full ſcope and true intent or meaning, That the Admirals ſhall not meddle, &c. but only with things done upon the Sea, as it hath been uſed in the time of King Edward, Grand-father of King Richard the Second. For the clearer apprehenſion wherof it may not be impertinent (under ſubmiſſion to better Judgements, and without preſuming on any thing quod eſt ſupra nos, as formerly hinted) to inquire a little what was uſed or duly uſed in this point of Admiral Juriſdiction in the days of the ſaid Edward the Third, Grand-father to King Richard the Second.
To this purpoſe the Learned Mr. Selden in his impregnable Treatiſe of the Dominion and Soveraignty of the Brittiſh Seas, aSelden, de Mar. Clauſ. lib. 2. cap. 24.lets us to underſtand, That it appears by Ancient and Publick Records, bIbid. In Faſcic. de Superioriatate Maris, in Arce Lond. & Coke, de Antiquit. Admiral. in Par. 4. Inſtit. cap. 22.containing divers main points touching which the Judges were to be conſulted with for the good of the Kingdome in the time of King Edward the Third; That Conſultation was had for the more convenient guarding of the Sea. For the whole Bench of Judges were then adviſed with, To the end (ſo runs the Record) That the Form of Proceedings heretofore ordained and b…gun by Edward the Firſt, Grand-father to our Lord the King, and by his Councel, at the proſecution of his ſubjects, may be reſumed and continued, for the retaining and conſerving of the Ancient Superiority of the Sea of …ngland, and the Authority of the Office of Admiralty in the ſame, as to the Correcting, Expounding, Declaring, and Conſerving the Laws and Statutes long ſince made by his Predeceſſors, Kings of England, for the maintaining Juſtice among all people of what Nation ſoever paſſing through the Sea of England; And to take Cognizance of all attempts to the contrary in the ſame; and to puniſh offenders, and award ſatisfaction to ſuch as ſuffer wrong and damage; which Laws and Statutes were by the Lord Richard heretofore King of England, at his return from the Holy Land, interpreted, declared, and publiſhed in the Iſle of Oleron, and named in French, Le Ley Olyroun. That which Mr. Selden takes ſpecial notice of, and commends to our chiefeſt Obſervation, is what we find in theſe Records touching the Original of the Naval Laws publiſhed at the Iſle of Oleron. The ſaid Statute of 13 R. 2. makes mention of the uſage in the time of King Edward, Grand-father of R. 2. who was Edward the Third; in whoſe Reign (according to this Record) not only the Form of Proceedings ordained by King Ed. 1. and his Councel, were to be reſumed and continued for the retaining and conſerving the Authority of the Office of Admiralty, as to the Correcting, Expounding, Declaring and Conſerving the Laws and Statutes made long before by the Predeceſſors of the ſaid King Edward the Firſt, for the maintaining of Peace and Juſtice among the people of what Nation ſoever, and to take Cognizance of all attempts to the contrary, to puniſh offenders, and to award ſatisfaction to ſuch as ſuffered wrong and damage. But alſo, that thoſe very Laws and Statutes which were ſo to be Corrected, Declared, Expounded and Conſerved by the Authority of the Office of the Admiralty, were the Sea-Laws publiſhed at Oleron by King Richard the Firſt. So that the ſaid Laws of Oleron gave the Rule, and ſeems to be the uſage concerning the Admiralty in the time of Edward the Third, wereof the ſaid Statute of 13 R. 2. ſpeaks; and by which Laws all Maritime affairs, whether upon or beyond the Seas, are properly Cognizable in the Juriſdiction of the Admiralty. And in thoſe Laws of Oleron, ſo publiſhed by Richard the Firſt, are comprehended the matters of Admiral Cognizance, whereunto that Form of Proceedings (in theſe Records mentioned, to be ordained by Edward the Firſt, and afterwards to be reſumed, revived, and continued by Edward the Third) relates. Which very Records are alſo verbatim tranſcribed and publiſhed by the Lord Coke, in that part of his Inſtit. concerning the Court of Admiralty, which ſpeaks of the Superiority of England over the Brittiſh Seas, and of the Antiquity of the Admiralty of England, which he there proves expreſly as high as to the time of Edward the Firſt, and by good inference of Antiquity and Ancient Records much higher. cCoke par. 4. Inſtit. cap. 22. Rot. in Archivis in Turri Lond. De Superioritate Mar. Angl. & jure Officii Admiral. & in alio Rot. de Articulis ſuper quib. Conſult. Anno 12 Ed. 3.For it appears by Ancient Records, That not only in the days of King Edward the Firſt, but alſo in the days of King John, all Cauſes of Merchants and Mariners, and Things happening within the Floud-Mark, were ever tryed before the Lord Admiral.dCowel, Interp. verb. Admiral.
Again; For the clearer underſtanding of what was the Uſage in the time of Ed. 3. concerning the Admiralty, it may be obſerved, That in the beginning of theſe Records in Edward the Third's time it is ſaid, That a Conſultation was had, and the whole Bench of Judges adviſed with, To the end, that the Form of Proceedings heretofore ordained by Edward the Firſt and his Councel, ſhould be reſumed and continued, not only for the retaining and conſerving the ancient Superiority of the Sea of England, but alſo the Office of the Admiralty, as to the Correcting, Expounding, Conſerving, and Declaring the Laws and Statutes long ſince made by his Predeceſſors, for the maintaining of Peace and Juſtice, &c. If upon a full Conſultation in Ed. the Third's time, That Form of Proceedings which had been formerly ordained by Ed. the Firſt and his Councel, ſhall be again reſumed and continued, it ſeems then requiſite in the next place to inquire a little farther, what was ordained by the ſaid Edward the Firſt and his Councel, over and above what is already mentioned in the ſaid Record. And it appears, that in the days of the ſaid Ed. the Firſt, th…r… was a good proviſion and remedy ordained for ſuch Complainants as by Prohibit…ons iſſuing out of one Court to ſurceaſe the Legal proſecution of their rights in another, could obtain redreſs in neither. For by the Statute of the Writ of Conſultation in Anno 24 Ed. 1. It is enacted, That where there is a ſurceaſing of Proceedings upon Prohibitions, and the Complainants could have no remedy in the Kings Court, that then the Lord Chancellour, or Lord Chief Juſtice upon ſight of the Libel, ſhould write to the Judges before whom the Cauſe was firſt moved, that they proceed therein notwithſtanding the Kings Prohibition directed to them before. In a word therefore; The ſaid Statute of 13 R. 2. mentions the Uſage in the time of Ed. 3. Edward the Third reſumes and continues the Laws of Oleron publiſhed by Rich. 1. and what was ordained in the time of Ed. 1. And Edward the Firſt ordained as in the Records aforeſaid, and Statute of Conſultation.
The Expoſitor of the Terms of Law in his deſcription of the Lord Admiral, eTerms of Law, verb. Admiral.ſays, That he is an Officer to Judge of Con- Contracts between party and party concerning things done upon or beyond the Seas. And in another of ancient Authority it is ſaid in theſe words, fDoct. & Stud. Dialogue vel lib. 2. c. 2.viz. That if an Obligation bear date out of the Realm, as in Spain, France, or ſuch other, it is ſaid in the Law, and truth it is, (they are the Authours words) that they be not pleadable at the Common Law. Alſo the Learned Mr. Selden in the fore-cited place ſays, That the Jurisdiction of the Common Law extends not it ſelf beyond the Seas, and without the Realm of England; For (as he ſpeaks, gSeld. Mar. Clauſ. lib. 2. cap. 24.) In the Law of the Land it is reckoned among the Priviledges of ſuch as are abſent, That they, who ſhall be out of the Realm of England at the levying of a Fine of any Land, and making Proclamation thereupon, are not ſo bound either by a yearly preſcription, as heretofore, or by a five years preſcription, as is uſuall of later times, but that their right remains entire to them upon their return home. So that being beyond Sea, and without the Realm of England at that time, and nothing of prejudice in that caſe faſtned on them by reaſon of any Non-Appearance, it ſeems as without the reach of the Common Law. And Mr. Selden in the ſame place proves, That to be beyond the Seas, or extra quatuor maria, doth in the Common Law-Books ſignifie the very ſame thing with extra Regnum. And again Mr. Selden (for 'tis but due as well to the Truth as his Memory to repeat his Authority) in the ſame place aſſerts, concerning Things relating to Actions for Matters Maritime, That they were not wont to be entered in expreſs tearms heretofore, hTemp. Ed. 1. Fitzh. tit. Avowry 192. & Placit. 37. & 38 Hen. 3. rot. 10. Devon. …tim Suſſex. 47 Hen. 3. rot. 22, & Trin. 24 Ed. 3. in Brevib. Reg. inter Pilke & Venore, quae in Arcis Londin. Archiv. Ejuſmodi item ſunt alia.in the ordinary Courts of the Common Law, whoſe Jurisdiction was ever eſteemed of ſuch a nature, that an Action Inſtituted about a matter ariſing in any other place then within the bounds of the Realm, was by the ancient ſtrict Law always to be rejected by them. After which manner as it hath been a Cuſtome now for many years, that an Action ought to be rejected, unleſs the matter have its riſe within the Body, as they call it, of the County, that is, within ſome Province or County of the Iſland, uſually given in charge to certain Governours or Officers known to us by the name of Sheriffs; So alſo is it in the Sea-Province belonging by the ancient received cuſtome, to the high Admiral or his Deputies, not only ſo far as concerns its defence and guard, but alſo as to matter of Jurisdiction. Likewiſe in the ſame place Mr. Selden in honour of the Admiralty ſays, That in ancient Records, iMs. fo. 12.concerning the Cuſtomes of the Court of Admiralty, It was an uſual cuſtome in the time of King Henry the Firſt, and of other Kings both before and after him, That if any man accuſed of a capital crime done by Sea, being publickly called five times by the voice of the Cryer (after ſo many ſeveral days aſſigned) did not make his Appearance in the Court of Admiralty, he was baniſhed out of England, & de mer appurtenant au Roy d'Angleterre, or out of the Sea belonging to the King of England, for forty years, more or leſs, according to the pleaſure of the Admiral. This hath Mr. Selden the Lawyer, as well as Mr. Selden the Antiquary; there is far leſs feaſibility of conteſting with him, then of gaining honour by ſubſcribing to his authority.
Wherefore, upon an Intereſtleſs perpenſion of what hath been only touch'd, not ſo largely handled as might have been in a ſet Treatiſe proportionable to this ſubject matmatter, the Juriſdiction of the Admiralty may be found not only a Body of more Solidity then to diſſolve only into Water, and not only a Juriſdiction proceeding by ſuch Laws as have from age to age ſucceſſively been owned by the Supreme Authority of this Nation, but alſo ſuch a Juriſdiction as though it hath its due bounds, yet poſſibly (according to what hath been duly uſed in the time of King Edward Grand-father of King Rich. 2.) not ſo exceedingly ſtraightlaced as ſome in the late Licentious times imagined; ſpecially if in addition to the Premiſes they conſider what hath been formerly ſaid to have been urged by Haughton, kBrownl. Rep. Par. 2. Admiral Court-Caſe.viz. 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. And in the ſame Report it is farther ſaid, That Walmeſly and Warburton Juſtices agree, That if a thing be done beyond Sea, as if an Obligation bears date beyond Sea, or be ſo Local, that it cannot be tryed by the Common Law, if the Admiral hold plea of that, Prohibition ſhall not be awarded, for it is not to the prejudice of the King or of the Common Law.
By the Statute of 15 R. 2. cap. 3. It is Enacted and Declared, That the Court of Admiralty ſhall have no cognizance of Contracts, Pleas, and Quereles, or other things done within the Bodies of the Counties, as well by Land as by Water; Nevertheleſs of the Death of a man, and of Mayhem done in great Ships being and hovering in the main ſtream of great Rivers only beneath the Bridge of the ſame Rivers nigh to the Sea, and in no other places of the ſame Rivers, the Admiralty ſhall have cognizance. From hence it hath been obſerved by way of Inference, how Curious the Makers of this Statute were to exclude the Admiralty of all manner of Juriſdiction within any water which lyeth within any County of this Realm; poſſibly it hath not been ſo exactly obſerved by way of Redreſs, how unfortunate ſpecially of late years the ſame hath been, in having its Juriſdiction impeded and obſtructed in Waters without any County of this Realm, by the Prohibitory Conſequences of a Surmize or Suggeſtion, when in rei veritate, the matter was otherwiſe then ſurmized or ſuggeſted. This is that Statute whereof mention is made in the precedent Chapter, touching the miſtake of the word [Bridge] inſtead of [Points]. It ſeems ſomething more then ſtrange in Nature, to find a main ſtream, or great Rivers (whereof this Statute ſpeaks) beneath the Points which beak out into the main Sea, as Navigators well know when they double the Point, the main Sea or great Rivers being commonly emptyed into the main Ocean above, not beneath ſuch Points, and uſually ceaſe to be ſtreams or Rivers before the Waters thereof reach the ſaid Points. And it were no prejudice if it were aſcertained what Havens and Harbours may be held as within the Bodies of ſome County, becauſe poſſibly Geographers know not with what Counties to incorporate Milford-Haven, Mountſ-Bay, Tor-Bay, Plymouth-Sound, and the like. The Law in expreſs tearms hath put the difference, Res facta in Portu, non facta in Terra. lCaepol. de Servit. Ruſt. cap. 28. nu. 5. & Bald. in Rub. de R…r. Diviſ.The Law knows no preternatural confuſion of Elements, Lex ſemper imitatur Naturam. Time was (& olim meminiſſe dolebit) in the late Licentious days, when the Admiralty of England between Land-imagined, and the Sea-County-corporated, could ſcarce keep above water; But now that Juſtice once more looks like it ſelf, and ſuum cuique tribuitur, miraculouſly arrived inſtead of ſic volo, ſic jubeo, &c. Inſomuch that it might then be as truly as ſadly ſaid, Terras Aſtraea reliquit; yet now that Juſtice by an over-ruling hand of Divine Providence is again turned into its ancient and proper Channel, and it being well known to the whole world of what luſtre and value the Jewel of the Admiralty is (when well ſet) in the Diadem or Crown of Great Brittain, it may not now be unſeaſonable to alledge what is aſſerted, (as is aforeſaid) to be of ancient Record, mCowel Interp. verb. Admiral.viz. That not only in the days of Edward the Firſt, but alſo in the days of King John, All Cauſes of Merchants and Mariners, and things happening within the Floud-Mark were ever tryed before the Lord Admiral. Conſonant to what was reſolved in Sir Hen. Conſtables Caſe, nCoke Rep. in Caſ. Sir Hen. Conſtable.That the ſoyl betwixt the high and low Water-Mark may be the Subjects; but when covered with water, the Admirals Juriſdiction reaches to it.
By the Statute of 2 H. 4. cap. 11. It is Enacted, That the Statute of 1. 3 R. 2. cap. 5. ſhall be firmly holden, and kept, and put in execution. This Statute therefore ſeems as a reviver, or in confirmation of that, which (as aforeſaid) mentions according to that which hath been duly uſed in the time of King Edward, Grand-father of King Richard the Second; which being formerly inſiſted on, a retroſpect may here ſuffice.
By the Statute of 27 Eliz. cap. 11. It is 5 Eliz. cap. 5. Cokes Inſtit. par. 4. cap. 22.Enacted, That all and every ſuch of the ſaid offences before mentioned, as hereafter ſhall be done upon the main Sea, or Coaſts of the Sea, being no part of the Body of any County of this Realm, and without the Precinct, Jurisdiction, and Liberty of the Cinque-Ports, and out of any Haven or Pier, ſhall be tryed and determined before the Lord Admial, &c. It hath been hence inferred, That by the Judgement of the whole Parliament, the Juriſdiction of the Admiralty is wholly confined to the main Sea, or Coaſts of the Sea, being no parcel of the Body of any County of this Realm; And that this Statute is a particular deſcription of that Juriſdiction as to the limits thereof. This Statute gives the Juriſdiction of the Admiralty a power of Cognizance in ſuch Offences done upon the main Sea, or Coaſts thereof; there's the Ampliation: Being no part of the Body of any County, and without the precinct of the Cinque-Ports, and out of any Haven or Pier; there's the Limitation. Where either of theſe is part or parcel of the Body of any County within this Realm, the Admiralty may not claim Juriſdiction therein. Touching Contracts made beyond Sea the ſaid Letter of this Statute is ſilent; In the Reſolutions upon the Caſes of Admiral Juriſdiction, oCroke Rep. Hil. 8. Car. 1. Reſolution upon Caſes Admirall.the ſubſtance of the firſt Article or Propoſition is, That no Prohibition be awarded againſt the Court of Admiralty in Suits there Commenced upon Contracts made beyond the Seas.