View of the Admiral Jurisdiction, Chapter 3
CHAP. III.
The Antiquity of the Maritime Authority, together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain.
IN the precedent Chapter it is ſaid, that the name of Admirallius firſt came out of the Eaſtern Empire into Italy and Sicily, thence into France, and thence into England; And this (as the Learned Sir Hen: Spelman doth ſuppoſe) after the time of the Holy Warre. For that, as he obſerves out of Hovenden, when King Rich. the firſt prepared his Navy for that deſign, he appointed no ſingle perſon to the Command in chief of that Navy by the name or ſtyle of Admiral, but deputed five ſeveral perſons *Gerard. An…ienſ. Archiepiſcop. Bernard. Baon. Epiſc. Robertus de Sabul. Richardus de Canvil. Williel. de Forz de Ulerum (opinatur) Oleron.to that Command, by the name or ſtyle of Ductores, Juſticiarii, & Conſtabularii totius Navigii. aSpelm. Gloſ. ex Hovendeno. An. Domini 1264.The ſaid Learned Authour comes ſomething nigher to our times, and ſays that this Appellation or ſtyle of Admiral ſeems not to be received with us in An. 8 H. 3. for that the King in his Grant at that time to William de Lucy expreſſes himſelf only by the words of Conceſſit Maritimam Angliae, without any mentioning of the word Admiral in that Patent. Nor yet in the forty eighth year of his Reign, for that he then Conſtituted Tho: de Moleton, Capitaneum & Cuſtodem Maris (non Admirallium;) So that he is of opinion, that this high Officer was not known to us here in England by the name or ſtyle of Admirallius till the beginning of Ed. the firſt's Reign. And that William de Leiburn was the firſt with us that had the dignity of that Office by the ſtyle of Admiral, who at the Aſſembly at Bruges, Anno 15 Ed. 1. was An. Domini 1286.ſtyled Admirallus Maris Regis. And that ſoon after the ſaid Office became Tripartite, viz. Anno 22 Ed. 1. when the ſaid William An. Domini 1295.de Leiburne was made Admiral of Portſmouth, and the adjacent parts; John de Botecurts of Yarmouth, and the Neighbouring Coaſts thereof; and a certain Iriſh Knight of the Weſt and Iriſh Coaſts. After whom ſucceeded three other Admirals for the ſame Diviſions in the 19 year of Ed. 2. An. Domini 1325.viz. John Otervin, Nicholas Kiriel, and John de Felton. And in thoſe daies the Admiral was often ſtyled not Admirallus maris, but Admirallus flotae Navium, id eſt, Claſſis, or the Admiral of the Navy. And this Admiral had his power divided into two ſtations; the one was the North ſtation, which began at the mouth of the River of Thames, and thence extended it ſelf North-ward, compriſing Yarmouth and all the Eaſtern ſhore. The other was the Weſt ſtation, which beginning likewiſe at the mouth of the River of Thames, ſtretched it ſelf Weſt-ward, compriſing Portſmouth, and all the South and Weſt of England. But the firſt that was ſtyled Admirallus Angliae was Richard the younger ſon of Alan Earl of Arundel and Surrey, in the tenth year of R. 2.bSpelm. Gloſſar. verb. Admiralius. In temp. W. 1. Odo Admiralius. Ita Spelm. Gloſſ. De Admiralio Gall. An. 1142.
Notwithſtanding all this which hath been ſaid, intimating that William de Leiburn in the 15 of Ed. 1. was the firſt in England that had this Office by the name or ſtyle of Admirallus; yet it is evident by Matth. Paris in H. 1. (which is about 150 years before that of Ed. 1.) that at that time there was mention made of one Balac Ameralius here in England, who in Fight took and ſurprized Jocelyne Earl of Edeſſa, cEdeſſa, A Town in Meſopotamia, anciently called Antioch, one ſide of Euphrates. Edeſſa, Macedoniae urbs in Aemathia Regione. Ortelii Theſaur. Geogra.with his Couſin Galeranus. But at what point of Time preciſely that Office by the ſtyle or Appellation of Admiral was firſt known in England, it matters not much, ſince the thing it ſelf, which ſignified that Office now known to us by the ſtyle of Lord High Admiral, and the Juriſdiction thereof hath ever been in this Kingdome time out of mind; This will the more evidently appear if you conſult the Records of Hiſtory, and compare them with others National, touching that Ancient Dominion the Kings of England have ever had over the Seas of England, together with that Maritime Juriſdiction which hath ever aſſerted the ſame. That the Kings of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain, none but a few Seldeni Mar. Clauſ. ſeu de Domin. Maris, & Boroughs Soveraign. of the Seas.Mare Libertines (and that for their own Intereſt) ever ſcrupled. Sir Hen: Spelman gives us an Account of a very Ancient Record dSpelm. Conſil. p. 414. Leges Eccleſiaſticae Hoeli Dha (id eſt, Boni) Regis ſeu Principis totius Walliae, è Secularibus ſuis Mss. decerptae, ci…. an. 928. Malmesb. de Regib. l. 2. c. 8▪ Marthuſius Archiparata (id eſt, Princeps Nautarum) ita Spelm. Gloſſ. Rex Angliae Soli & Sali Orbis Brittanici Dominus.extracted out of the Laws of Hoelus Dha, Regis ſeu Principis Walliae, cir. An. 928. which for the proof of the ſaid Dominium quaſi uno intuitu, is here inſerted in haec verba, viz.
Variato aliquantulum Nominis Vocabulo, dici hic videtur Huwell Da, qui ſuperius Hoêl Dha, Latine Hoêlus & Hoelus, alias Huval, (quem Malmesburienſis unum fuiſſe refert e quinque Wallenſium Regibus) Quos cum Cunadio Rege Scotorum, Malcolmo Rege Cambrorum, & Maccuſio Achipirata (ſeu Principe Nautarum vel Marium Praefecto) ad Civitatem Legionum ſibi occurrentes, Rex Anglorum Eadgarus in Triumphi pompam deducebat. Una enim impoſitos, remigrare eos hanc coegit, dum in Prora ipſe Sedens, Navis tenuit gubernaculum: ut ſe hoc ſpectaculo, Soli & Sali orbis Brittanici Dominum praedicaret & Monarcham.
In this Ancient and Memorable Record King Edgar, Neptune-like rides in Triumph over the Brittiſh Seas, giving the world to underſtand, that Dominium Maris is the Motto of his Trident. Conſonant whereunto is that which the Law it ſelf ſays Bald. Conſil. 51. & Tuſch. Concl. 87. verb. m…e.Mare dicitur eſſe de diſtrictu illius Civitatis vel Loci, qui confinat cum mari, in quantum ſe extendit territorium terrae prope mare. In a word, to this purpoſe the Renowned Learned Mr. Selden, who hath left no more to ſay, but with Jo: Baptiſt Larrea in one of his Deciſions of Granada, That Authorum ſententias non ex numero, ſed ex ratione metiri oportet; & penſitari debent juris fundamenta, non Authorum Elenchum velut calculatione computarifLarreae Deciſ. Granat. Diſp. 4. nu. 32. & Leg. unic. fect. ſed neque. cod. de vet. jur. enucleando.
The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs, as well in reſpect of Jurisdiction as Protection. He is that high Officer or Magiſtrate to whom is committed the Government of the Kings Navy, with power of Deciſion in all Cauſes Maritime as well Civil as Criminal; So that befide the power of Juriſdiction in Criminals, he may judge of Contracts between party and party touching things done upon or beyond the the Seas. gTearms of Law, verb. Admiral.Wherein he may cauſe his Arreſts, Monitions, and other Decrees of Court to be ſerved upon the Land, as alſo may take the parties body or goods in execution upon the Land. hIbid.The Lord Coke in honour of the Admiralty of England, is pleaſed to publiſh to the world, that the Lord Admirals Juriſdiction is very Ancient, and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind, as appears not only by the Laws of Oleron, but alſo by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. & Ed. 2. iCoke part. 1. Inſtit. l. 1. c. 1. Sect. 3. & lib. 3. cap. 7. Sect. 439.Thus as the Laws and Conſtitutions of the Sea are nigh as Ancient as Navigation it ſelf, ſo the Juriſdiction thereof hath univerſally been owned and received by all Nations; yea, and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one, and eſtabliſhment of the other. For, otherwiſe without ſuch Maritime Laws, and ſuch an Admiral Juriſdiction, how could the Ancient Brittains, long before Julius Caeſar invaded this Iſle, reſtraine all Strangers (Merchants excepted) from approaching their Confines, kCaeſ. Com. de Bel. Gall. l. 4. fo. 72.or regulate ſuch Navies as were the wonder of that Age? lIbid. l. 3. fo. 53.Or, how could King Edgar in the Titles of his Charters have effectually ſtyled himſelf as well Imperator Dominuſque rerum omnium Inſularum Oceani qui Brittaniam circumjacent, as Anglorum Baſileus, mEx Charta fundationis Ecceſiae Cathed. Wigor. cit. per Sir Tho. Boroughs in his Soveraignty of the Britiſh Seas, p…. 21.or maintain in Naval Diſcipline theſe four hundred Sail of ſhips appointed by him to guard and ſcour the Brittiſh Seas? nRanulphus Ceſtrenſis.And did not Etheldred after Edgar for the ſelf-ſame end and purpoſe ſet forth to Sea from Sandwitch one of the greateſt Navies that ever this Kingdome prepared? Doubtleſs this was no Lawleſs Navy, without Maritime Conſtitutions for the due regulation thereof according to the Laws of the Sea, Conſonant to that of the Juriſdiction of the Admiralty then in uſe and received by all the Maritime Principalities of Europe.In Temp. H. 3. Rich. de Lucy had maritimam Angliae, & Tho. Moleton was Capit. & Cuſtos M…ris▪ Spelm. Gloſ.
Whereas it is univerſally acknowledged, That the Admiralty of England is very Ancient, and long before the Reign of Edward the third, who ever conſults Antiquity ſhall find it farre more Ancient, and long before the Reign of Edward the firſt; even time out of mind before the ſaid Edward the firſt. To this purpoſe very remarkable is that ancient Record in the Tower of London, entituled, De Superioritate Maris Angliae & jure Officii Admirallatus Record in the Tower of London.in eodem, and out of the old French rendred into Engliſh by Sir John Boroughs in his compendious Treatiſe of the Soveraignty of the Brittiſh Seas, pag. 25, &c. edit. Anno 1633. in which it evidently appears that the Admiralty of England, and the Juriſdiction thereof was farre more Ancient then Edward the firſt, and that from age to age ſucceſſively, and time out of mind even before the days of the ſaid Edward the firſt, it was ſo owned and acknowledged by this and all other Neighbour-Nations, as appears by the ſaid Record, which was occaſioned by a National Agreement of certain differences ariſing between the Kings of England and France in the 26 year of the Reign of the ſaid Edward the firſt, by reaſon of certain uſurpations attempted by Reyner Grimbald, then Admiral of the French Navy in the Brittiſh Seas; in which Agreement the Commiſſioners or Agents for the Maritime Coaſts of the greateſt part of the Chriſtian world, of Genoa, Spain, Germany, Holland, Zealand, Freezland, Denmark and Norway, then preſent, made this memorable Acknowledgment and Declaration, which is extracted out of the ſaid Record, as to ſo much thereof as relates to the Juriſdiction of the Admiralty, viz. That the Procurators of the Admiral of the Sea of England, and of other places as of the Sea-Coaſts, as of Genoa, Catalonia, Spain, Almayne, Zealand, Holland, Freezland, Denmark and Norway, do ſhew that the Kings of England time out of mind have been in peaceable poſſeſſion of the Seas of England, in making and eſtabliſhing Laws and Statutes and Reſtraints of Arms and of Ships, &c. and in taking Surety, &c. and in ordering of all other things neceſſary for the maintaining of Peace, Right and Equity, &c. and in doing Juſtice, Right and Law, according to the ſaid Laws, Ordinances and Reſtraints, and in all other things which may appertain to the Exerciſe of Soveraign Dominion in the places aforeſaid. And A. de B. Admiral of the Sea deputed by the King of England, and all other Admirals ordained by the ſaid King of England have been in peaceable poſſeſſion of the Soveraign guard, with the Cognizance of Juſtice, &c. And whereas the Maſters of the Ships of the ſaid Kingdome of England in the abſence of the ſaid Admiral have been in peaceable poſſeſſion of taking Cognizance and judging all actions done in the ſaid Sea, &c. the ſaid Procurators in the names of their ſaid Lords, do pray, &c. that ſpeedy delivery of the Goods and Merchandizes taken and detained, be made to the Admiral of the ſaid King of England, to whom the Cognizance of the ſame of right appertaineth, ſo that without diſturbance of you or any other he may take Cognizance thereof, and do that which appertaineth to his Office. In which Record it is obſervable, that even in thoſe days, that is, before the time of Edward the firſt, the Kingdome of England had not only the Soveraignty of the Brittiſh Seas, but alſo an Admiral empowered with a Juriſdiction Maritime to take Cognizance and judge all actions done on the Sea; to doe Juſtice, execute the Laws of the Sea, maintain Peace, Right and Equity, according to the Laws and Ordinances of the Sea; and in a word, to miniſter Juſtice in all things that to the Office of an Admiral appertain. To this might be added King John's Ordinance made at Haſtings, touching the Soveraignty of the Brittiſh Seas in the point of ſtriking Sail or veiling Bonnets by the veſſels of Forraign Nations to the Kings Ships; which Ordinance was made long before the Reign of Edward the firſt, and wherein mention is likewiſe made of the high Admiral of England; But this that hath been ſaid, may abundantly ſuffice both to prove and illuſtrate the Antiquity of the high Admirall of England, and his Juriſdiction in matters Maritime.
If it be granted, that Fruſtra ſunt Arma foris, niſi est Conſilium domi, it cannot well be denied but that Frustra ſunt Arma domi niſi est Dominium Maris, to which as undeniably may be added, that Frustra eſt Dominium Maris, niſi est Jurisdictio domi. If therefore the Ancient Rights of the Juriſdiction of the Admiralty of England, ſhould at any time happen to be impeded by ought, not ſo properly qualified Judicially to conſerve the Rights of the Soveraignty of the Brittiſh Seas, might not a Decay of Trade, that Cornucope of all National Proviſions, be juſtly ſuſpected? ſpecially if Neighbour-Nations ſhould thence pretend to ſpy any thing like a flaw in Englands Trident, as if her Dominium Maris were in part diſmantled; the Plenty as well as the Safety and Security of theſe Kingdomes, much (under God) conſiſting in the Power of the Royal Navy, thoſe Pyramids of Majeſty, or Floating Gariſons. The Dominium & Jurisdictio Maris are ſuch Confederates, you cannot prejudice the one, and not the other; And therefore to ſcruple that Juriſdiction, thoſe Ancient Rights, whereby our own are conſerved and ſecured, may not be convenient; So that to doubt whether the eſtabliſhed Juriſdiction of the high Admiralty of England may judge of Marine Properties, is implicitely and in effect to inferre, that the Navy Royall is equipped only to enamel the Seas and take the Air, or that their Captures at Sea muſt evaporate; if Bargains and Sales made ſuper altum mare can transferre and alienate properties, then doubtleſs the Admiralty can finally judge and determine thereof. Nor let any man think the Admiralty of England is without remedy, in caſe one man impleads another for an Admiral cauſe in another Juriſdiction; Juriſdictionem cujuſvis Judicis impediens ab co puniri poteſt, & coerceri, licet ejus ſubditi non ſint. Bart. & Alex. in L. Omnibus. Sect. is videtur. D. Si quis jus dic. non obtemp. & Larrea. Deciſ. Gran. Diſput. 1. nu. 13.for if the Admiralty cannot ſummon and proceed according to the ancient ſtyle, practice and known Rights, Laws and Cuſtomes of that Juriſdiction, againſt ſuch who in matters of Admiral Cognnizance proſecute the Law elſewhere, then what is it more then a meer Idaea that hath no real exiſtence beyond the pleaſure of the parties litigant; nor is that other miſ-opinion, viz. (That the Admiralty may not enforce its own Decrees and Orders) worth Conſideration; for Juriſdictione conceſſa, cenſetur conceſſum Imperium miſtum, h. e. poteſtas Exequendi. Quoniam ca conceſſa, cenſentur etiam tradita ea ſine quibus Exerceri non poteſt. Carbo de Legib. lib. 11. Diſp. 10. pag. 503. Lit. c.the Executive part is ſo inherent in a Juriſdiction, quatenus ſuch, that in effect it is but a lame and imperfect Juriſdiction without a Power Coercive, which breaths life and vigour into a Juriſdiction by Execution, which otherwiſe would be but like a Body without a Soul, or like an expert Commander Commiſſioned to fight with his hands manacled behind him; Sententia abſque Executione, est quaſi ſplendidum Justitiae Cadaver. This miſ-conceit may Where the Place is the Foundation, it is more then a bare Circumſtance.not be much inferiour to theirs who are dextrous at Tranſlocations by ſurmiſes and ſuggeſtions; if the the circumſtance of Locality be too light to be traverſable, yet it is of weight enough to be ſurmiſed or ſuggeſted. It is not impoſſible but that the Cognizance It may not be hence imagined but that it is as legal at Common Law to ſurmiſe in a Declaration an act poſſibly done at Sea to be indeed done at Land: As at the Admiralty, to alledge in a libel an act poſſibly done at Land, to be indeed done at Sea, vel infra Juriſdictionem maritimam.of the Admiralty, being in part eſſentiated by the Marine Circumſtance of Place, may be obſtructed by a meer miſſurmiſe as to the Locality. Suum cui que tribuere is the ultimate Reſult or Summa Totalis of all Juſtice, whoſe Ballance is then beſt poized, when it weighs each Individuals, Policy with a Conſiſtency to common Intereſt. It may be not leſs hazardous then chargeable for the Client to complement Juſtinian with one Fee, and Littleton with another; If ſo, it will be expedient that he provide two Purſes, which is but the beginning of ſorrows, for he muſt alſo provide a good ſtock of Patience to await the event of what will put no iſſue to the merits of his Cauſe. And in Concurrencies of Juriſdictions a Concurrency of Juriſdictional A Concurrency of Jurisdiction ſeems to imbly a Diviſibility thereof. But Juriſdictio eſt quid Incorporale, nec diviſionem recipit nec patitur. Dur. Spec. l. 4. de praeſcript. nu. 22.qualifications as well Intrinſick as Extrinſick ſeems to be requiſite; for, admitmitting that by a Dedimus potestatem, or other Writ of like nature, witneſſes might be Legally examined at Venice, Lisboa, or other tranſmatine parts; Sub mutuae viciſſitudinis obtentu, yet what Judicial improvement can be made thereof, eſpecially quando ex facto jus oritur, without due intrinſick qualiſications calculated for the Meridian of a Maritime Cauſe. But to digreſs, may be to tranſgreſs; To return therefore to the Antiquity of the Office and Juiſdiction Admiral.
The Authour of the Book entituled, Rights of the Kingdome, hath ſeveral Paſſages concerning the Office and Juriſdiction of the Admiralty, whereof one is (pag. 90.) That Edgar that Great Monarch, was as great a Conquerour by Sea, as Aethelstane by Land; That it might be eaſier to ſhew his four Seas, then to ſet their exact Bounds. But in (pag. 132.) he is pleas'd to ſay, that the Law Maritime is Dark enough, with all the Juriſdiction of the Court Admiral; (So is the Sun to him that will not ſee) where he farther ſeems to pleaſe himſelf with ſaying, That that Office may be harder then the Name, by calling it a ſtrange mixture of Greek and Arabick. Yet for the Antiquity of the ſaid Office, he doth the Admiralty that right, as withal in the ſame place to aſſert, That the old Ms. del'Office del' Admiral hath divers Records of H. 1. Rich. 1. and King John, ſpeaking of Trials by twelve (as at Common Law) But that now the practice is much otherwiſe. And that in the Rolls of Ed. 1. the Name of Admiral: But not in our Printed Laws (that the ſaid Authour knows of) till Edward the ſecond. And then adds, That in Edward the third the Rolls are full of that Office. And ſo proceeds, That in Rich. 2. it was brought to a Weldy (that's the Epethite it pleaſes him to afford it) Model. Being Uncertain rather then Infinite before, as the ſaid Authour is there pleaſed to determine; For (ſays he) the Bounds were ever ſtraighter much, then ſome may imagine. Alſo that they were again diſputed in Henry the fourth, Q. Elizabeth, and King James. And then he is pleas'd moſt facetiouſly to add, That it lies more open to the Common Law, then to the Wind. Yet withal he doth not there conceal, but that beſides the Laws of Arthur the Brittain, and Edgar the Saxon, we have ſome Records of Cuſtome by Sea as well as by Land; with Priviledge to ſome, below the King, before the Norman: whom they make the Founder, yet he was (in the ſaid Authours judgement) but Patron of the Ports, and Wardens of the Sea. And the ſame Authour, ſpeaking of the Sea-ſtatutes of Rich. 1. how that they were made, de Communi probarum virorum Conſilio, refers to the very expreſſion of the Charter it ſelf; in Hovenden, Wendover, or Matthew Paris, who doth add, that per Conſilium Magnatum, there were made Juſticiarii ſuper totum Navigium Angliae, &c. which with divers Records of Henry the third may be added to the Admiral: or Saxon Aen Mere eal, Over all the Sea. To which much might be added from the Rolls of Hen. 3. and Ed. 1. But this that hath been ſaid, may ſuffice to ſatisfie ſome and convince others, touching the Antiquity of the Office and Juriſdiction of the High Admiralty of England.
For the Utility of this Ancient Juriſdiction of the Admiralty in this Kingdome of Great Brittain, if you have retroſpect to the Honour thereof in Precedent Generations, Antiquity can witneſs with what effectual ſucceſs (if not to the nonplus of Neighbour-Nations) the Dominium Maris Brittanici hath been from Age to Age Judicially aſſerted; If you conſider the plenty and ſplendour of a flouriſhing Kingdome, the preſent Generation cannot yet forget to give ample teſtimony thereof in reference to the Trade and Commerce of this Nation; And if you will not be ſo irregular as to deny the Conſequence that naturally flowes from theſe Premiſes, you cannot but inferre this Poſitive Concluſion, That the ſucceeding Generations are like to ſuffer as well an Eclipſe of their Honour, as an Abatement of intereſt, without the influence of that Juriſdiction; Inſomuch Car. Richlieu.as the late Cardinal (ſave one) of France did wiſely (according to the laſt cited Authour) diſpoſe, or rather retain that Office, as the beſt Jewel of that Kingdome, which yet muſt yield to this. But in a word, the Juriſdiction of the Admiralty of England may not unaptly be compared to that Tree in the Iſland of Fierro, being one of the Sept. inſulae of the Canaries, which as Purch.Historians tell us, doth with the droppings of his leaves yield water for the ſuſtenance of the whole Iſland; It is farther added, that the Moors having taken that Iſland from the Chriſtians, attempted to fell down that Tree, but each blow recoyled on the ſtriker. The former part of this ſtrange Relation with a ſmall variation paſſes for a Truth, as known unto and acknowledged by moſt of the Ancient Travellers and Geographers; The other part being probably but a fabulous Addition, To keep hands off, has not (as the other) the Credit of an Application. To conclude, if this Chapter ſeems to a Genius more ratified by acuteneſs for Apprehenſion, then endued with Patience for Expectation, more prolix then may be regularly conſiſtent with a Treatiſe only by way of Summary view, let him only conſider, that where Eagle-eyes, who are ſeldome dazeled with too much light, are to be dealt with, it may be leſs diſ-ingenious to borrow a Point of Expatiation, then to remain too much in debt to the Truth for want of room to diſplay her Beams in.