View of the Admiral Jurisdiction, Chapter 4
CHAP. IV.
of Perſons Maritime; As alſo, of ſuch Things as are properly Cognizable within the Jurisdiction of the Admiralty of England; And in what method it proceeds to Judgement.
THere are but three things that ſeem ſpecially to illuſtrate the ſplendour of a Juriſdiction, viz. Sceptrum Majestatis, or the Power and Legal Authority of the Prince, as to the Conſtitution thereof; Codex Adminiſtrationis, or the Right Adminiſtration of Juſtice; and Gladii potestas, vel Gladius Executionis, or the Coercive power. aPeregrin. de jur. Fiſc. lib. 1. tit. 1. nu. 10.That Juriſdictions thus conſtituted are inter Regalia Principum, no perſon not diſ-principled will deny; So as what was long ſince the Law as to the Emperour in point of Juriſdiction within the Empire, Imperator quoad Jurisdictionalia Dominus totius mundi appellatur, bL. Deprecatio, Dig. ad Leg. Rhod. de Jact.is the ſame and as true in abſolute Kings and Princes within their own Kingdomes, Dominions, Principalities and Territories; And no wonder, in that Kings and Princes tantum poſſunt in ſuo ſtatu, quantum Imperator in Imperio. cBart. in L. 1. Par. de quare. D. de Poſtul. & in L. infamem. D. de Public. Judic.Some without liſping ſay, that a King in his Kingdome hath a farre greater right and intereſt, then the Emperour hath in the Empire; for that a King is Loco Domini, and his Kingdome is more aſſimilated unto & hath a greater reſemblance with that which is Dominiū, properly ſo called, then with that which is but ſimply Regimen. dBald. Conſil 271. num. 3The Emperour is not Proprietarius, but chief Governour of the Empire; eIbid. Conſil. 327. nu. 7.And that only by Election, not by Succeſſion as the other. fAndr. Iſer. & Afflict. in cap. 1. de Vaſſal. decrept. aetat.Now as the Seas belong to Princes in reſpect of Juriſdiction and Protection; gJaſon Jac. de Are. & Bald. in l. 2. ff. de Rer. Deviſ.So alſo in them properly reſides the Right and Power of Commiſſionating Miniſters of Juſtice for the due Exerciſe and Adminiſtration thereof, in deciſion of all matters, whether Civil or Criminal within their Cognizance according to the known Laws of the Sea, not contradicting the Statute or Municipal Laws of that Kingdome or State, whereof the ſaid Prince is next and immediately under God Supreme.hGloſ. in verb. Criminalibus, in tit. de pace. Conſtan. Bald. in Auth. Caſſa. Cod. de Sacr. Sanct. Eccl. Alex. Con…. 8. col. 1. Cagnol. in L. 2. de Orig. jur. nu. 190
As to Perſons Maritime, it might be conſidered who they are that more peculiarly are of Marine capacities, and properly may be ſaid to be within the Juriſdiction of the Admiralty; what their Rights, Priviledges and Immunities are; and what their Office or Duty reſpectively is; Likewiſe as to Things properly Maritime, it might be conſidered either as they be in reſpect of the actions thence ariſing, Civile, and reſpecting only Commodum Privatum, between party and party, whether it be Contractus or quaſi Contractus, either by any Perpetual known Rights, or by ſome Caſual Occurrence; Or Criminal, and reſpecting the Fiſcus in reference ad utilitatem Publicam; but that the deſign of this Treatiſe is not to expatiate in the Law on any of theſe, but only (as moſt adequate to a Summary view of the Admiral Juriſdiction) to touch quaſi in tranſitu what referres to each of theſe under its own proper head, and no farther then may be of uſe for the clearer diſcovery of the ſubject matter of the Juriſdiction of the Admiralty of England; without engaging into Controverſal points; chuſing rather in a Treatiſe ſo compendious to be wind-bound in our own Ports, then to lanch forth into the wide Ocean of the Maritime Laws touching this Subject, ſpecially in an Engliſh Bottome, having an eye to the Burden of the Veſſel, and for whoſe accompt this Cargo was firſt ſhipp'd, whither bound, and for whom conſigned; as alſo how diſadvantageous it might prove for the Principals to have the returns of their expectation only in the Arbitrary altercations of croſs-opinions, rather then in ſuch ſtapletruths of the Law as are not only currant in all the Navigable parts of the world, but of moſt uſe and practice in the Admiralty of England. For theſe reaſons the Reader may expect only a taſte of Admirall varieties, and therein no more then may ſerve to excite his impatience after the excellency of that which in a ſet Treatiſe for this purpoſe might in its proper Dialect and due Latitude be emitted by an abler Artiſt.
All Maritime affairs are regulated chiefly by the Emperial Laws, the Rhodian Laws, the Laws of Oleron, or by certain peculiar and Municipal Laws and Conſtitutions appropriated to certain Cities, Towns and Countries bordering on the Sea, within or without the Mediterranean, calculated for their proper Meridian; or by thoſe Maritime Cuſtomes and Preſcriptions or Perpetual Rights which are between Merchants and Mariners, each with other, or each among themſelves. This Maritime Government and Juriſdiction is by the King as Supreme, as well by Sea as at Land, concredited with the Lord high Admiral of England, who next and immediately under the Prince hath the chief Command at Sea, and of Sea-affairs at Land. This Lord high Admiral hath ſeveral Officers under him, ſome of a higher, others of a lower form; Some at Land, others at Sea; ſome of a Military, others of a Civil Capacity; ſome Judicial, others Miniſterial. Such as are Chief in the Judicial Capacity are in the Law known by the ſtyle of Magisteriani, Li Conſoli del mare.or Judges of Sea-faring debates and all Maritime controverſies; whereof one being the Judex ad quem in all Maritime cauſes of appeal from inferiour Courts of Admiralty, is with us known by the ſtyle of Supremae Curiae Admirallitatis Angliae Judex; within whoſe cognizance in right of the Juriſdiction of the Admiralty by the Sea-Laws, the Laws and Cuſtomes of the Admiralty of England, are comprized all matters properly Maritime or any way pertaining to Navigation. The Judicial Proceedings wherein are Summary, Velo Levato, & ſine figura Judicii. As by warrant of arreſt or other Original Mandate; Execution and Return thereof; Interpoſition of Caution given by the arreſted for his Legal Appearance according to the tenor of the ſaid Warrant of Arreſt; Appearance and Introduction of Sureties by way of Stipulation or Judicial Recognizance in the ſumme of the Action, de judicio ſiſti, de judicato & expenſis ſolvendis, cum ratihabitione Procuratorii; as alſo the Plaintiffs caution to pay coſts in caſe he fail in his ſuit; Contempt in caſe of non-appearance, and forfeiture of the ſaid caution in caſe of ſuch contempt; offering the Libel in caſe of Appearance; Litis conteſtation or joyning of iſſue; Decree for the Defendants perſonal Anſwer upon Oath to the ſaid Libel exhibited againſt him; a Decree for a viis & modis in caſe of a Non Inventus; a Decree againſt the ſureties to produce the party Principal in judicio; Production of him accordingly; his anſwer upon Oath to the Libel; Production of Witneſſes; Compulſory againſt ſuch Witneſſes as will not appear without it; Commiſſion for examining of Witneſſes at home, or ſub mutuae viciſſitudinis obtentu beyond Sea; The Oath of Calumny by both parties, if they pleaſe; Exception againſt the Witneſſes; The Supplementary Oath; Exhibition of Inſtruments; Publication of Witneſſes; Concluſion of the Cauſe; Sentence Definitive; Appeal made Ten days by the Law. Fifteen days by the Stat.within fifteen days of the ſaid Sentence; Aſſignment ad proſequendum, Proſecution of the Appeal; Remiſſion of the Cauſe to the Judge A Quo; Decree for Execution, and Sentence executed accordingly. Beſide the other way of proceeding by arreſt of goods, or of goods in other mens hands, and ſo to a Primum Decretum (as to the Poſſeſſion) upon four Defaults; and thence after one year) to a Secundum Decretum (as to the Propriety) in caſe of Nonintervention (upon laying down the coſts of the Prim. Decret.) in the interim. In the Proceedings there may be alſo Reconvention, alſo ſequeſtration of goods lite pendente; and ſentence Interlocutory, as well as Definitive; with many other particulars which may or may not happen according as the Court ſees cauſe and the merits of the Caſe require.
Within the Cognizance of this Juriſdiction are all affairs that peculiarly concern the Lord high Admiral, or any of his Officers quatenus ſuch; all matters immediately relating to the Navies of the Kingdome, the Veſſels of Trade, and the Owners thereof, as ſuch; all affairs relating to Mariners, whether Ship-Officers or common Mariners, their Rights and Priviledges reſpectively; their office and duty; their wages; their offences, whether by wilfulneſs, caſualty, ignorance, negligence, or inſufficiency, with their puniſhments. Alſo all affairs of Commanders at Sea, and their under-officers, with their reſpective duties, priviledges, immunities, offences, and puniſhments. In like manner all matters that cnocern Owners and Proprietors of ſhips, as ſuch; and all Maſters, Pilots, Steerſmen, Boteſwains, and other ſhip-Officers; all Ship-wrights, Fiſher-men, Ferry-men, and the like; Alſo all cauſes of Seizures and Captures made at Sea whether jure Belli Publici, or jure Belli Privati by way of Reprizals, or jure nullo by way of Piracy; Alſo all Charter-parties, Cocquets, Bills of Lading, Sea-Commiſſions, Letters of ſafe Conduct, Factories, Invoyces, Skippers Rolls, Inventories, and other Ship-papers; Alſo all cauſes of Fraight, Mariners wages, Load-manage, Port-charges, Pilotage, Anchorage, and the like; Alſo all cauſes of Maritime Contracts indeed, or as it were Contracts, whether upon or beyond the Seas; all cauſes of mony lent to Sea or upon the Sea, called Foenus Nauticum, Pecunia trajectitia, uſura maritima, Bomarymony, the Groſs Adventure, and the like; all cauſes of pawning, hypothecating, or pledging of the ſhip it ſelf, or any part thereof, or her Lading, or other things at Sea; all cauſes of Jactus, or caſting goods over board; and Contributions either for Redemption of Ship or Lading in caſe of ſeizure by Enemies or Pyrats, or in caſe of goods damnified, or disburdening of ſhips, or other chances, with Average; alſo all cauſes of ſpoil and depredations at Sea, Robberies and Pyracies; alſo all cauſes of Naval Conſort-ſhips, whether in War or Peace; Enſurance, Mandates, Procurations, Payments, Acceptilations, Diſcharges, Loans or Oppignorations, Emptions, Venditions, Conventions, taking or letting to Fraight, Exchanges, Partnerſhip, Factoridge, Paſſagemony, and whatever is of Maritime nature, either by way of Navigation upon the Sea, or of Negotiation at or beyond the Sea in the way of Marine Trade and Commerce; alſo the Nautical Right which Maritime perſons have in ſhips, their Appar…, Tackle, Furniture, Lading, and all things pertaining to Navigation; alſo all cauſes of Out-readers, or Out-riggers, Furniſhers, Hirers, Fraighters, Owners, Part-owners of ſhips, as ſuch; alſo all cauſes of Priviledged ſhips, or Veſſels in his Majeſties Service or his Letters of ſafe Conduct; alſo all cauſes of ſhipwrack at Sea, Flotſon, Jetſon, Lagon, Waiffs, Deodands, Treaſure-Trove, Fiſhes-Royal; with the Lord Admirals ſhares, and the Finders reſpectively; alſo all cauſes touching Maritime offences or miſdemeanours, ſuch as cutting the Bovy-Rope or Cable, removal of an Anchor whereby any Veſſel is moared, the breaking the Lord Admiral's Arreſts made either upon perſon, ſhip, or goods; Breaking Arreſts on ſhips for the King's Service, being puniſhable with Confiſcation by the Ordinance made at Grimsby in the the time of Rich. 1. Mariners abſenting themſelves from the Kings Service after their being preſt. Impleading upon a Maritine Contract or in a Maritime Cauſe elſewhere then in the Admiralty, contrary to. the Ordinance made at Hastings by Ed. 1. and contrary to the Laws and Cuſtomes of the Admiralty of England; Foreſtalling of Corn, Fiſh, &c. on ſhip-board, regrating, and exaction of water-oſficers; the appropriating the benefit of Salt-waters to private uſe excluſively to others without his Majeſties Licence; Kiddles, Wears, Blind ſtakes, Water-mills, and the like, to the obſtruction of Navigation in great Rivers; Falſe weights or meaſures on ſhip-board; Concealings of goods found about the dead Whales, Sturgeons, Porpoiſes, Bailines, Dolphins, and all Fiſhes ſtrange for bulk, rarity, or quality, are called Fiſhes Royal, and belong to the King.within the Admiral Juriſdiction, or of Flotſons, Jetſons, Lagons, Waiffs, Deodands, Fiſhes Royal, or other things wherein the Kings Majeſty or his Lord Admiral have intereſt; Exceſſive wages claimed by Ship-wrights, Mariners, &c. Maintainers, Abettors, Receivers, Concealers or Comforters of Pyrats; Tranſporting Prohibited goods without Licence; Draggers of Oyſters and Muſcles at unſeaſonable times, viz. between May-day, and Holy-rood-day; Deſtroyers of the brood or young Fry of Fiſh; ſuch as claim Wreck to to the prejudice of the King or Lord Admiral; ſuch as unduly claim priviledges in a Port; Diſturbers of the Admiral Officers in execution of the Court-Decrees; Water-Bayliffs and Searchers not doing their duty; Corruption in any of the Admiral-Court-Officers; Importers of unwholeſome Victuals to the peoples prejudice; Fraighters of ſtrangers Veſſels contrary to the Law; Tranſporters of ptiſoners or other prohibited perſons not having Letters of ſafe Conduct from the King or his Lord Admiral; Caſters of Ballaſts into Ports or Harbours, to the prejudice thereof; Unskilful Pilots, whereby ſhip or man periſh; Unlawful Nets, or other prohibited Engines for Fiſh; Diſobeying of Embargos, or going to Sea contrary to the Prince his command, or againſt the Law; Furniſhing the ſhips of Enemies, or the Enemy with ſhips; All prejudice done to the Banks of Navigable Rivers, or to Docks, Wharſfs, Keys, or any thing whereby Shipping may be endangered, Navigation obſtructed, or Trade by Sea impeded; Alſo embezilments of ſhip-tackle or furniture; all ſubſtractions of Mariners wages; all defraudings of his Majeſties Cuſtomes or other Duties at Sea; alſo all prejudices done to or by paſſengers a ſhipboard; and all damages done by one ſhip or Veſſel to another; alſo to go to Sea in tempeſtuous weather, to ſail in devious places, or among Enemies, Pyrats, Rocks, or other dangerous places, being not neceſſitated thereto; all clandeſtine attempts by making privy Cork-holes in the Veſſel, or otherwiſe, with intent to deſtroy or endanger the ſhip; Alſo the ſhewing of falſe Lights by Night either on ſhore or in Fiſhing Veſſels, or the like, on purpoſe to intice Sailers, to the hazard of their Veſſels; all wilful or purpoſed entertaining of unskilful Maſters, Pilots or Mariners, or ſailing without a Pilot, or in Leaky and inſufficient Veſſels; alſo the over-burdening the ſhip above her birth-mark, and all ill ſtowage of goods a ſhipboard; alſo all Importation of Contrabanda goods, or Exportation of goods to prohibited Ports, or the places not deſigned; together with very many other things relating either to the ſtate or condition of perſons Maritime, their rights, their duties, or their defaults; all which only to enumerate would require a Volume of it ſelf; Theſe therefore may ſuffice for a hint of perſons and things properly Cognizable within the Juriſdiction of the Admiralty of England; Omitting what might be here likewiſe added as to the Naval Military part within the Cognizance of the ſaid Juriſdiction; As that ſhips in the Brittiſh Seas not amaining at the firſt Summons to any of his Majeſties ſhips, may be aſſaulted and taken as Enemies; That no Prize ought to be carried from the Fleet without the Admirals leave; That all above hatches, ſaving the ſhipfurniture, ought upon a ſeizure jure belli to goe to the Captors; That the Veſſels of Forraigners met with at Sea, may be viſited and examined, if ſuſpected, ſpecially in times of Warre, their Cocquets, Paſports, Charter-parties, Invoyces, Bills of Lading, Ship-Roll, with other Inſtruments & ſhip-papers peruſed, that ſo, if there be cauſe, they may be brought before the Admiral.
There are many other particulars, referring as well to the Civil as to the Criminal part of this Juriſdiction, which might be here inſerted; but the deſign of this Compendious Treatiſe being (as formerly hinted) rather to touch then handle things, it may not be expected that the great Continent of the Admiralty ſhould be comprized in ſo ſmall a Map. To conclude therefore with that great Oracle of the Civil Law, Baldus, touching the Marine Jurſdiction. In mari Jurisdictio eſt, ſicut in terra. Bald. ad Leg. 2 D. de Rer. Divi….Nam Mare in terra (h. e.) in alveo ſuo fundatum est, quum Terra ſit inferior Sphaera: & videmus de jure Gentium, in mari eſſe Regna distincta ſicut in arida terra: Ergo & Jus Civile (id eſt) Praeſciptio illud idem potest (in mari ſcilicet quod in terra) operari. So that all ſuch, as out of a ſubtile humour would fain inſinuate into the world, as if there were no ſuch thing as Jurisdictio maris, or Dominium maris, with its preſcript limits and bounds (ſome arguing from the perpetual motion of that liquid element; Others, from a ſuppoſed parity between the Sea and the Air in point of Community) are by this Learned Oracle left without any hopes or poſſibility of the leaſt Orthodox ſupport for their Anti-thalas-monarchical opinion; For in this place he is poſitive, That both the Juriſdiction and the Dominion of the Sea, with their diſtinct limits and bounds, as well as that of the Land, are duly conſtituted, and that not by force and power, but by Law, not only by the Civil, but alſo by the Law of Nations; and this not in the Emperours alone, but alſo in ſuch Kingdomes and States as by Preſcription, Cuſtome, or otherwiſe may claim the ſame.