a proclamation discharging the transporting of persons to the plantations of forraigners in america. scotland. privy council. 1698 approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). b05592 wing s1777 estc r183458 52529277 ocm 52529277 179034 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b05592) transcribed from: (early english books online ; image set 179034) images scanned from microfilm: (early english books, 1641-1700 ; 2776:23) a proclamation discharging the transporting of persons to the plantations of forraigners in america. scotland. privy council. scotland. sovereign (1694-1702 : william ii) 1 sheet ([1] p.) printed by the heirs and successors of andrew anderson, printer to the king's most excellent majesty, edinburgh : anno dom. 1698. caption title. intentional blank spaces in text. dated: given under our signet at edinburgh the 27 day of december and of our reign the tenth year 1698. signed: gilb. eliot, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -scotland -early works to 1800. international travel regulations -scotland -early works to 1800. broadsides -scotland -17th century. 2008-05 tcp assigned for keying and markup 2008-08 spi global keyed and coded from proquest page images 2008-10 mona logarbo sampled and proofread 2008-10 mona logarbo text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion a proclamation discharging the transporting of persons to the plantations of forraigners in america . william by the grace of god , king of great-britan , france and ireland , defender of the faith , to macers of our privy council , messengers at arms , our sheriffs in that part , conjunctly and severally specially constitute , greeting ; forasmuchas , it is inconsistent both with the honour and interest of this our ancient kingdom , that any persons should be transported out of the same , either by natives or forraigners to plantations belonging to forraigners not natives of this kingdom , without leave and allowance first obtained from our privy council : therefore we with advice of the lords of our privy council , do hereby strictly prohibite and discharge all persons masters or owners of ships and others whatsoever , whether natives of this kingdom or forraigners , to presume to take up , engadge or carrie abroad any of the subjects of this our antient kingdom , in order to their being transported to the foresaid plantations after the day and date hereof , without licence first obtained from our said privy council , under the pains to be repute and punished as men-steallers , and to be prosecute accordingly . our will is herefore , and we charge you strictly and command , that incontinent these our letters seen , ye pass to the mercat cross of fdinburgh , and to the remanent mercat crosses of the hail head-burghs of the several shires and stewartries within this kingdom , and there in our name and authority by open proclamation , make publication hereof , that none may pretend ignorance and ordains these presents to be printed . given under our signet at edinburgh the 27 day of december and of our reign the tenth year 1698. per actum dominorum secreti concilii gilb . eliot , cls. sti. concilii god save the king. edinburgh , printed by the heirs and successors of andrew anderson , printer to the king 's most excellent majesty , anno dom. 1698. at the court at whitehall the twenty sixth of march, 1684 present the kings most excellent majesty ... england and wales. sovereign (1660-1685 : charles ii) 1683 approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). a39410 wing e801 estc r27326 09811688 ocm 09811688 44148 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a39410) transcribed from: (early english books online ; image set 44148) images scanned from microfilm: (early english books, 1641-1700 ; 1355:31) at the court at whitehall the twenty sixth of march, 1684 present the kings most excellent majesty ... england and wales. sovereign (1660-1685 : charles ii) charles ii, king of england, 1630-1685. england and wales. privy council. 1 broadside. printed by the assigns of john bill, deceas'd, and by henry hills, and thomas newcomb, london : 1683. an order dealing with merchandise stolen at sea. reproduction of original in the huntington library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng prize law -great britain. maritime law -great britain. 2008-05 tcp assigned for keying and markup 2008-08 spi global keyed and coded from proquest page images 2008-10 megan marion sampled and proofread 2008-10 megan marion text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion royal blazon or coat of arms at the court at whitehall the twenty sixth of march 1684. present the kings most excellent majesty , lord keeper lord president lord privy seal duke of ormond duke of beaufort earl of huntingdon earl of bridgewater earl of peterborrow earl of chesterfield earl of clarendon earl of craven earl of aylisbury earl of rochester mr. secretary jenkins mr. chancellour of the exchequer . his majesty being desirous that the treaties between him and the neighbouring princes and states , his allies , be duly observed and executed , and in no wise misconstrued in this juncture of time , is pleased to declare , that the clause in the latter end of the fifth article of his late royal proclamation , bearing date at newmarket the twelfth of this month , ( purporting , that the goods or merchandizes of his own subjects found in prize-ships brought up to his majestie ports , shall upon due proof , be taken out and restored to the true proprietors ) is to be understood , onely of the goods or merchandizes of his majesties subjects , taken in the ships of such of his allies , as being in war with others , have in the treaties now subsisting between his majesty and them , no such clause o● provision as makes free-goods to become unfree , when laden and take● in unfree ships ; but as to those of his majesties allies who by treaty with him have stipulated and agreed , that whatsoever goods or merchandize shall be found laden by his majesties subjects , upon any ship whatsoever belonging to those with whom such allies are in hostility , may be confiscated ; it is his majesties meaning , that the goods or merchandizes of his own subjects so taken and brought up into port , be not taken out of any prize-ship , or restored to the proprietors ; but be left in the power and possession of the captor , as well as the proper goods of those he is in hostility with , that shall be taken in the same ship ; and this his majesty commands to be strictly observed by his officers in the sea ports of his kingdoms and dominions , whom it may or shall in any way concern . phi. lloyd . london , printed by the assigns of john bill deceas'd : and by henry hills , and thomas newcomb , printers to the kings most excellent majesty . 1683. act discharging boats, barks, or vessels from going to the bass, or furnishing supplys thereto. edinburgh, february 28. 1694. scotland. privy council. 1694 approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). b05313 wing s1409 estc r226039 52528906 ocm 52528906 178924 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b05313) transcribed from: (early english books online ; image set 178924) images scanned from microfilm: (early english books, 1641-1700 ; 2774:63) act discharging boats, barks, or vessels from going to the bass, or furnishing supplys thereto. edinburgh, february 28. 1694. scotland. privy council. 1 sheet ([1] p.) printed by the heirs and successors of andrew anderson, printer to their most excellent majesties, edinburgh : anno dom. 1694. caption title. initial letter. signed: gilb. eliot cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -scotland -early works to 1800. treason -scotland -early works to 1800. broadsides -scotland -17th century. 2008-10 tcp assigned for keying and markup 2008-12 spi global keyed and coded from proquest page images 2009-01 megan marion sampled and proofread 2009-01 megan marion text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion act discharging boats , barks , or vessels from going to the bass , or furnishing supplys there to . edinburgh , february 28. 1694. the lords of their majesties privy coucil , being informed , that several of the rebels who hold out the isle and rock of the bass , are at present come , or driven ashore , and that by the late storms , the boats belonging to the saids rebels are lost , which may prove an effectual mean of their reduction , do hereby strictly command and charge all persons , skippers , owners , or possessors of boats , barks , or other vessels , great or small , residing and possessing the saids boats , barks , or vessels , on either side of the firth , from stirling to st. andrews upon the one side , and from stirling to berwick one the other side of the said rock , that they carefully keep and secure the same , both night and day , from being either seized upon , stollen , or otherways taken away by the saids rebels , or any of them , or any other person for their use and service , under all highest pains ; and that neither they , nor any person whatsoever presume to hire , lend , or otherways furnish any boat , bark , or other vessel to the saids rebels , or any of them , or any other for their use and service , under the pains due to corresponders with , and supplyers of rebels and traitors . and farder , the saids lords , do hereby renew and assure the promise of twenty pound sterling , formerly made to any person who shall seize any of the saids rebels wherever they may be found , and shall deliver the person so seized to any of their majesties officers , either civil or military . and they ordain that these presents be printed and published at the mercat-cross of edinburgh , and also at all the towns on the coast of either side of the firth within the bounds foresaid , that none pretend ignorance . extracted by me gilb . eliot cls. sti. concilii . god save king vvilliam and queen mary . edinburgh , printed by the heirs and successors of andrew anderson , printer to their most excellent majesties , anno dom. 1694. a proclamation appointing all passes to ships to be granted hereafter by the high-admiral, his deputes, judges and officers scotland. privy council. 1680 approx. 4 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). b05537 wing s1700 estc r183412 52612306 ocm 52612306 179612 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b05537) transcribed from: (early english books online ; image set 179612) images scanned from microfilm: (early english books, 1641-1700 ; 2794:6) a proclamation appointing all passes to ships to be granted hereafter by the high-admiral, his deputes, judges and officers scotland. privy council. scotland. sovereign (1649-1685 : charles ii) 1 sheet ([1] p.) printed by the heir of andrew anderson, printer to his most sacred majesty, edinburgh : anno dom. 1680. caption title. royal arms at head of text; initial letter. dated at end: given under our signet, at edinburgh, the sixth day of may, one thousand six hundred and eighty years; and of our reign the thirty two year. signed: will. paterson, cl. sti. concilij. reproduction of the original in the national library of scotland. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -scotland -early works to 1800. foreign trade regulation -scotland -early works to 1800. broadsides -scotland -17th century. 2008-05 tcp assigned for keying and markup 2008-08 spi global keyed and coded from proquest page images 2008-10 mona logarbo sampled and proofread 2008-10 mona logarbo text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion c r honi soit qvi mal y pense royal blazon or coat of arms a proclamation appointing all passes to ships to be granted hereafter by the high-admiral , his deputes , judges and officers . charles , by the grace of god , king of great britain , france and ireland , defender of the faith ; to our lyon king at arms , his brethren heraulds , macers of our privy council , pursevants , and messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting ; we having by our proclamation in the-year 1676 , for the security of the trade of our subjects of this our ancient kingdom , appointed that passes might be granted by some in the several districts therein-mentioned ; discharging all others ( except those therein appointed ) to grant passes to any ships within this our kingdom , and appointed a general surveyer for the whole kingdom , who was to receive his commission from our council : but now finding that these methods have proved ineffectual , and being fully informed that the granting of such passes and safe-conducts to ships , do of right appertain to the authority , power and priviledge of the admiral ; and that it is now the only undoubted right of our dearest and only brother , who is great admiral of this our ancient kingdom , and who by being lately here , has had occasion fully to know the concerns thereof : we have therefore , with advice of our privy council , thought fit to declare it to be our royal will and pleasure , that in all time coming , all passes to ships within this our ancient kingdom shall be granted by the high admiral of the same , his deputes and judges of the high-court of admiralty , and written , and sealed by the clerks of the said court , as formerly they were in use to be ; hereby evacuating all former passes , granted by any person whatsoever , and declaring them void and null in all time coming . and to the end that this our royal will and pleasure may be known and obeyed , we do hereby require and command all our subjects within this our ancient kingdom , to take passes for their ships when they go to sea , from the said high admiral , his deputes and judges of the said high-court of admiralty , and from none else , as they will be answerable to us upon their highest peril : having left it entirely to the care of our dearest brother , high admiral of this our ancient kingdom , ( who knows all the several treaties concluded betwixt us and our allies ; ) to give such directions from time to time to his deputes and officers of the admira'ty , as may be effectual for the securing the trade of our subjects , and for preventing all abuses and inconveniencies that may occur any time hereafter . our will is herefore , and we charge you strictly and command , that incontinent , these our letters seen , ye pass to the mercat-cross of edinburgh , peer and shore of leith , and to the several mercat-crosses of the head-burghs of this kingdom , and other places needful ; and there by open proclamation , make publication of our royal pleasure in the premises , that all our subjects may have notice thereof , and give obedience thereto , as they will be answerable on their highest peril . and we ordain copies hereof to be posted up in every custom-house , to direct persons concerned where and from whom passes to ships hereafter are to be had . and we ordain these presents to be printed . given under our signet , at edinburgh , the sixth day of may , one thousand six hundred and eighty years ; and of our reign the thirty two year . will. paterson , cl. sti. concilij . god save the king. edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. 1680. a proclamation for observing the staple-port at camphire. scotland. privy council. 1692 approx. 6 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-03 (eebo-tcp phase 1). b05662 wing s1880 estc r183519 52528981 ocm 52528981 179080 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b05662) transcribed from: (early english books online ; image set 179080) images scanned from microfilm: (early english books, 1641-1700 ; 2776:69) a proclamation for observing the staple-port at camphire. scotland. privy council. scotland. sovereign (1689-1694 : william and mary) 1 sheet ([1] p.) printed by the heir of andrew anderson, printer to his most excellent majesty, edinburgh : anno. caption title. royal arms at head of text; initial letter. intentional blank spaces in text. dated: given under our signet at edinburgh, the eleventh day of august, and of our reign the fourth year, 1692. signed: gilb. eliot, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -scotland -early works to 1800. foreign trade regulation -scotland -early works to 1800. scotland -commerce -netherlands -early works to 1800. netherlands -commerce -scotland -early works to 1800. broadsides -scotland -17th century. 2008-01 tcp assigned for keying and markup 2008-01 spi global keyed and coded from proquest page images 2008-03 mona logarbo sampled and proofread 2008-03 mona logarbo text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion rr diev et mon droit honi soit qui mal y pense royal blazon or coat of arms a proclamation for observing the staple-port at camphire , william and mary by the grace of god , king and queen of great-britain , france and ireland , defenders of the faith ; to macers of our privy council , messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting : forasmuch as by many antient contracts past betwixt the royal burghs of this our antient kingdom , and the town of camphire in zeland , and which have been approved by the kings our predecessors , the whole trade and commerce , as to the staple-commodities exported from this our kingdom , to the seventeen provinces of the nether-lands , has been settled and established at the said town of camphire , as being found by experience the fittest place for the scots staple , and there being in the former reigns of our royal predecessors many proclamations issued forth , requiring all our subjects traveling to the seventeen provinces of the netherlands , to export all staple-goods and commodities to the said staple-port , and to no other port nor place , and ordaining the laws and acts of parliament , and acts of the convention of the royal-burghs to be put to due and vigorous execution , for the full observance of the same : and we being informed , that of late , the staple-trade of this kingdom , hath been altogether diverted from the said staple-port at camphire , and carried to roterdam , and other places in the nether-lands , to the great prejudice and discouragement of trade , and contrair to the foresaid agreement with camphire , from presences that the said town of camphire neither could , nor would furnish sufficient convoyes , for convoying the saids ships , both out-ward and in-ward bound , from and to the said port now in the time of war. and now it being certified to us , that the magistrats of the town of camphire have engadged to the royal-burghs , that they will furnish sufficient convoyes , for securing of the trade betwixt that port and the firth and road of leith , twice in the year , viz. against the middle of september , and the middle of march yearly , commensing from the middle of september next ; and we being fully resolved , that all the standing laws and acts of parliament , and acts of convention of our royal-burghs , be put to full and vigorous execution , for the more due observance of the said staple-port for the future ; do therefore with advice of the lords of our privy council , hereby require all our subjects to give all due and exact obedience to the foresaids acts made for observing of the staple-por● discharging all merchants and skippers , or any other our subjects , to export forth of this our kingdom , any goods or commodities , that are or shall be declared to be staple commodities , to any other port or place in the nether-lands , but only to the said staple-port and town of camphire in zeland , under the pains and certifications mentioned in the saids acts of parliament , and acts of the convention of burghs , which pains and penalties , we ordain to be exacted from the transgressors with all rigour , and that they be further proceeded against , as our council shall find cause . and further , we with advice foresaid , do hereby require the general farmers , tacksmen , or collectors of our customs , and their sub-collectors , surveyers for the time being , that they make exact search and tryal of all staple goods and commodities that shall be hereafter transported forth of this kingdom , to any port of the seventeen provinces of the nether-lands , and take sufficient security from the merchants or skippers transporters thereof , that they shall transport the same to the said staple-port at camphire , and at no other place nor port within the said seventeen provinces , and that they shall not break bulk before their arrival thereat , conform to the acts of parliament , oblidging the said exporters to report certificats from the conservator , or his deputs at camphire , bearing , that the said staple-commodities were livered thereat , without breaking bulk ; and we do ordain the saids testificats , to be delivered in quarterly by the collectors at the several ports , to the agent of our royal-burghs for the time , to the end exact diligence may be done by him , against all the transgressors of the said staple , conform to the saids acts. our will is herefore , and we charge you strictly and command , that incontinent these our letters seen , ye pass to the mercat-cross of edinburgh , and whole remanent royal-burghs of this kingdom , and other places needful , and thereat , in our name and authority , by open proclamation make publication of the premisses , to the effect , our royal-burghs , and all merchants and other persons , may have timeous notice hereof , and give due and punctual obedience thereto , as they will be answerable at their outmost perril , the which to do , we commit to you conjunctly and severally our full power by these our letters , delivering them by you duely execute , and indorsed again to the bearer , and ordains these presents to be printed . given under our signet at edinburgh , the eleventh day of august , and of our reign the fourth year , 1692 . per actum dominorum secreti concilii . in supplementum signeti . gilb . eliot , cls. sti. concilii god save king william and queen mary . edinburgh , printed by the heir of andrew anderson , printer to their most excellent majesties , anno dom , 1692 at the court at whitehall, the tenth of may, 1672 present the kings most excellent majesty ... england and wales. sovereign (1660-1685 : charles ii) 1672 approx. 7 kb of xml-encoded text transcribed from 3 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-03 (eebo-tcp phase 1). a70017 wing e805 estc r206907 15578881 ocm 15578881 103879 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a70017) transcribed from: (early english books online ; image set 103879) images scanned from microfilm: (early english books, 1641-1700 ; 1184:53 or 1355:32) at the court at whitehall, the tenth of may, 1672 present the kings most excellent majesty ... england and wales. sovereign (1660-1685 : charles ii) charles ii, king of england, 1630-1685. england and wales. privy council. 4 p. printed by the assigns of john bill and christopher barker ..., [london] in the savoy : 1672. caption title. imprint from colophon. an order dealing with maritime law. this item can be found at reels 1184:53 and 1355:32. wing number c2925b (at reel position 1184:53) cancelled in wing (cd-rom, 1996). reproduction of original in the huntington library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -england. great britain -history -charles ii, 1660-1685. 2008-01 tcp assigned for keying and markup 2008-02 spi global keyed and coded from proquest page images 2008-03 mona logarbo sampled and proofread 2008-03 mona logarbo text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion cr diev et mon droit honi soit qvi mal y pense royal blazon or coat of arms at the court at whitehall , the tenth of may , 1672. present , the kings most excellent majesty . his highness prince rupert lord archbishop of canterbury lord keeper duke of lauderdaill duke of ormonde marquess of worcester lord chamberlain earl of bridgwater earl of essex earl of anglesey earl of bathe earl of carlisle earl of craven earl of arlington earl of shaftesbury viscount fauconberge viscount halifax lord bishop of london lord newport lord holles lord clifford mr. vice chamberlain mr. secretary trevor mr. chancellor of the dutchy master of the ordnance sir thomas osborne . it was ordered by his majesty in council , that an order this day read and approved as the board for dispensing for some time with certain clauses of several acts , concerning trade , shipping , and navigation , be forthwith printed and published . edw. walker . his majesty by and with the advice of his privy council is pleased to declare , and order , that an act of parliament , made in the parliament begun at westminster the five and twentieth day of april in the twelfth year of his majesties reign , and confirmed by the parliament , begun at westminster the eighth day of may in the thirteenth year of his majesties reign , reign , intituled , [ an act for encouraging and increasing of shipping and navigation ] and all the proceedings therein , or thereby directed , be totally suspended in all the matters and things therein contained , concerning or relating to any ships or vessels , their masters or mariners , their guns , furniture , tackle , ammunition , and apparel , or to any goods or commodities imported or exported to , or from norway , or the baltique sea. and his majesty doth further order , that the said act , and all the proceedings therein or thereby directed , be totally suspended in all the matters and things therein contained , concerning or relating to any ships or vessels , their masters or mariners , their guns , furniture , tackle , ammunition and apparel , or to any goods or commodities imported or exported to , or from any parts of germany , flanders , or france , whereof the merchants and owners shall be his majesties natural born subjects . and his majesty is graciously pleased to declare and grant , that not onely his majesties natural born subjects , but all merchants of any nation , may import from any ports whatsoever , hemp , pitch , tarr , masts , salt-peter , and copper , and upon importation thereof shall be liable to pay only such duties as by the act of tonnage and poundage are imposed upon his majesties natural born subjects and no other ; any thing in the said act to the contrary notwithstanding . and his majesty doth further order , that notwithstanding the said act for encouraging and increasing of shipping and navigation . and one other act made in the said parliament , begun at westminster the eighth day of may in the thirteenth year of his majesties reign , intituled , [ an act for the encouragement of trade ] or either of them , or any clause or clauses in them , or either of them to the contrary ; it shall and may be lawful for any english merchants , and they are hereby authorized freely and without interruption to make use of , and imploy any foreign ships , or vessels whatsoever , navigated by mariners , or seamen of any nation , for importing , or exporting of all goods and commodities , to or from any port in england or wales , or to or from any of his majesties plantations , they paying only the aforesaid duties imposed upon his majesties natural born subjects , as for goods exported in english-built bottoms , and no other . provided , that no goods or commodities whatsoever , be by them imported into any of his majesties said plantations , but what shall be without fraud , laden , and shipped in england or wales , and thence directly carried , and from no other place to his majesties said plantations . provided also , that such goods and commodities as shall be by them laden and taken on board at his majesties said plantations , or any of them , be brought directly from thence to some of his majesties said ports in england or wales ; and all governours and officers of the customs , are hereby charged , and required strictly to observe all rules , directions , and orders for taking of bonds or other securities , and exacting all forfeitures and penalties by the said acts , or either of them required or enjoyned , save only in the two clauses concerning english ships , and english mariners herein before dispensed with . and lastly his majesty doth declare , that this shall continue and be in force during his majesties pleasure : and when his majesty shall think fit to determine the dispensation hereby granted , he will by his royal proclamation give six moneths notice thereof , to the end no merchant or other person herein concerned may be surprized . lord keeper duke of lauderdaill duke of ormonde marquess of worcester lord chamberlain earl of bridgwater earl of essex earl of anglesey earl of bathe earl of carlisle earl of craven earl of arlington earl of shaftesbury viscount fauconberge viscount halifax lord newport lord holles lord clifford mr. vice-chamberlain mr. secretary trevor mr. chancellor of the dutchy sir thomas osborne edw. walker . in the savoy , printed by the assigns of john bill and christopher barker , printers to the kings most excellent majesty , 1672. to the most honourable assembly of knights, citizens, and burgesses of the house of parliament the humble petition of the adventurers in the ship called the pearle. pearle (ship) 1621 approx. 7 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2004-03 (eebo-tcp phase 1). a09209 stc 19519 estc s2839 25224474 ocm 25224474 27893 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a09209) transcribed from: (early english books online ; image set 27893) images scanned from microfilm: (early english books, 1475-1640 ; 1857:20) to the most honourable assembly of knights, citizens, and burgesses of the house of parliament the humble petition of the adventurers in the ship called the pearle. pearle (ship) england and wales. parliament. 1 broadside. s.n., [london : 1621?] a complaint that they have been deprived of their goods or the value thereof since april 1615.--cf. (2nd ed.) place and date of publication suggested by stc (2nd ed.). reproduction of original in the guildhall library (london, england). created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng pirates -east indies. maritime law -cases. 2003-08 tcp assigned for keying and markup 2003-09 aptara keyed and coded from proquest page images 2003-10 mona logarbo sampled and proofread 2003-10 mona logarbo text and markup reviewed and edited 2003-12 pfs batch review (qc) and xml conversion to the most honourable assembly of knights , citizens , and burgesses of the house of parliament . the humble petition of the aduenturers in the ship called the pearle . hvmbly shewing : that shee departed out of the port of london in nouember 1611. and returned two yeeres after laden with goods , to the value of 20000.li. vpon the 26. of nouember 1613. before the goods came to london , morris , one of the aduenturers , was sent for before diuers of the lords of his maiesties councell , who deliuered that the spanish embassador had made a great complaint to his maiestie , that the pearle had beene in the east indies , and rob'd the king of spaines subiects , desiring therefore that the goods might be sequestred into his maiesties custodie ( as indifferent betweene the embassador , and the aduenturers , vntill the point of piracie was tryed . morris answered he neuer was pirate , but a merchant , and had paid the king many thousands for custome and impost ; and yet if he were , the law of england was , that giuing securitie , he was to possesse the goods vntill the law had tryed the title ; but this would not be granted . but their lordships ordered that the goods should be put into ware-houses ( the weights and contents first taken by morris ) vnder three locks , whereof his maiesty had one key committed to sir lionel cranfield and sir arthur ingram ; the embassador another key ; and morris a third key : and if by law they appertained to him , god forbid ( said the earle of northampton ) but they should haue them . afterwards the cause was brought into the admirall court , and in aprill 1614. after seuerall daies of hearing of the same , before sir daniel donn , knight ; and doctor treuor doctors of the laws , chiefe iudges of the said court ( in the presence of master manning proctor for the embassador , and francis fowler sollicitor for his lordship , and of iames ireland proctor for morris ) it was vpon the 21. of the said month of aprill ordered , that the goods so sequestred , should be prized , and sold by the publique officers of his maiesties exchequer , or by any other that were able at the full value with all celeritie that might be , and the moneis arising thereof to be sequestred , and safe kept in the hands of sir lionel cranfield , and sir arthur ingram knights , they giuing fit caution to pay the moneis to the true proprietors . but vpon the 23. of the said month of aprill 1614. sir arthur ingram came before the said iudges , and altogether refused , both for himselfe , and sir lionel cranfield , to giue any caution for the said moneis , as they had ordered them to doe : whereupon the iudges the same day ordered , that the said goods should be by sir lionel cranfield and sir arthur ingram , prized , and sold to such as would giue most for the same ; and that the moneis thereof accruing , should be deposited in safe keeping in his maiesties receipt at westminster , for whom right had . that in aprill 1615. the said cause receiued finall hearing before the right honourable sir iulius casar , knight ; sir daniel donn , knight , chiefe iudge of the admirall court ; sir iohn crooke , knight ; and diuers others his maiesties iudges of the admiraltie of england : where the point of piracie was legally acquitted , and discharged by proclamation . since which , they haue often attended the lord embassador of spain , that as he was the author of this their misfortune , so he would be pleased to get them restitutiō of their said goods , or the moneis they were sold for , with such damages as they haue sustained for want thereof : from whom , they haue receiued many faire and hopefull answers , and in truth neuer went from his lordship vnsatisfied with strong assurance to effect their request within some short time after : and in these hopes they haue spent many moneths , but yet no reliefe thereby , but they , their wiues and children still suffred to languish in great miserie ; besides diuers others to whom they are indebted , are also like to be vndone , for that the petitioners are not able to giue them satisfaction , by reason their goods are kept from them as aforesaid . that they haue likewise diuers other waies endeuoured to haue restitution of their goods , or the true value thereof , but neuer could obtaine the same , nor certainely vnderstand how they haue beene disposed . therefore the humble suite of the complainants is , that this honourable house will be pleased to take into their considerations these points following , as well for the reliefe of the complainants , in restitution of their goods , or the true value , with such further damages , as they haue sustained for want thereof , as for the generall good of the people . whether the goods were sold to the full value , and according to the true intent of the order in the admirall court. whether the moneis they were sold for , were deposited in his maiesties receipt at westminster , or what is became of them . and whether it be not a iust grieuance to the common-wealth , that vpon complaint , and suggestion of piracie by any forraigne princes minister , the subiects , by strong hand , and powerfull proceedings , should be kept from their goods , and the moneis they were sold for , after the point of piracie legally cleared , and acquitted by proclamation , as the complainants haue beene euer since aprill 1615. and if these , or any of them shall in the high wisedome of this honourable court be found to be grieuances ▪ then , the complainants humbly pray , that they may be relieued therein , as the iustice of their cause shall require . notes, typically marginal, from the original text notes for div a09209-e10 heerein the petitioner was debarred of the benefit of the law , as he conceiues . the key of the ware-house morris had , yet the locks were broken open , the goods carried away , and sold without his priuitie . of these goods , to the value of 2600. li. were deliuered to the spanish embassador , who was to giue securitie to pay them to the proprietors , if the suggestion of the piracie made by his lordship was acquitted , but yet they neither haue the money , nor the securitie . that after the piracy acquitted , so much of the goods as came to 2800. li. or thereabouts , were sold , and the moneis disposed of without their consents . a vindication of a national-fishery wherein is asserted that the glory, wealth, strength, safety, and happiness of this kingdom, with the flourishing of trade, and growth of navigation, as also the employing of the poor of this realm, doth depend (under god) upon a national-fishery : and all the general, vulgar, (tho' erroneous) objections against encouraging the fishery of england, answer'd, and confuted : to which is added the sovreignty of british-seas. gander, joseph. 1699 approx. 97 kb of xml-encoded text transcribed from 56 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2008-09 (eebo-tcp phase 1). a42117 wing g196 estc r227035 31355838 ocm 31355838 110708 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a42117) transcribed from: (early english books online ; image set 110708) images scanned from microfilm: (early english books, 1641-1700 ; 1739:14) a vindication of a national-fishery wherein is asserted that the glory, wealth, strength, safety, and happiness of this kingdom, with the flourishing of trade, and growth of navigation, as also the employing of the poor of this realm, doth depend (under god) upon a national-fishery : and all the general, vulgar, (tho' erroneous) objections against encouraging the fishery of england, answer'd, and confuted : to which is added the sovreignty of british-seas. gander, joseph. gander, joseph. sovereignty of the british-seas asserted. [14], 96 p. printed for f. coggan ..., london : mdcxcix [1699] "epistle dedicatory" signed: joseph gander. "sovereignty of the british-seas asserted"-p. 69-96. reproduction of original in the huntington library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng fisheries -economic aspects -great britain -early works to 1800. fisheries -economic aspects -netherlands -early works to 1800. maritime law -great britain -early works to 1800. 2007-01 tcp assigned for keying and markup 2007-01 aptara keyed and coded from proquest page images 2007-06 elspeth healey sampled and proofread 2007-06 elspeth healey text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion a vindication of a national-fishery : wherein is asserted , that the glory , wealth , strength , safety , and happiness of this kingdom ; with the flourishing of trade , and growth of navigation : as also the employing the poor of this realm , doth depend ( under god ) upon a national-fishery . and all the general , vulgar , ( tho' erroneous ) objections against encouraging the fishery of england , answer'd , and confuted . to which is added , the sovereignty of the british-seas . england's a perfect world ; 't has indies two : correct your maps ; the fishery ▪ is peru. london : printed for f. coggan , in the inner temple lane. mdcxcix . to the most noble and mighty prince , thomas duke of leeds , marqvess of carmarthen , earl of danby , viscount latimore , baron osbourne of kiveton , lord president of his majesty's most honourable privy-council ; lord lieutenant of york-shire , governour of kingston upon hull , and knight of the most noble order of the garter . may it please your grace , the great applause you have so deservedly meritted , hath encouraged me to dedicate this small epitomy to your honour ; and not knowing any man , that can with more lively colours represent this important affair to the wisdom of the nation , i lay it at your lordship's feet , as an undertaking , ( which if your grace be pleased to espouse , for the good of the kingdom ) you will thereby add another trophy to your former atchievements ; and the glory of the action will be recorded to all posterity : for upon a national-fishery , under god , doth depend the safety , honour , and happiness of this kingdom , the flourishing of trade , and the supporting of credit , as in the sequel of my discourse , i hope , i have made appear . my lord , this age gives us too many examples , of discouraging ingenuity ; many excellent qualities lying often hid under humble looks , and mean habits , which soon are discountenanc'd , and suppress'd by insulting greatness and popular opulancy : but you have shewed by the constant example of your actions , that you have agreed with seneca , in his renowned maxim ; that sola virtus vera nobilitas , when so many others , are blinded with their absurd vanity and airy greatness . but you have rendred your self a true patriot to your country ; and therefore i most humbly implore this book may be sheltred under the wings of your graces protection : who am , right honourable and renowned sir , your graces most humble and most obedient servant , joseph gander . to the barons of the cinque-ports , and the members of parliament for the coasting-towns and burroughs of the kingdom of england . honoured and worthy senators , the cinque-ports of this kingdom , having signalized their loyalty and valour by sea , in several expeditions , for the glory of the king 's , honour of their country , and safety of the realm , our preceding kings confirmed several dignities on them , and amongst the rest , made their members of parliament barons , as an encouragement to navigation , and their prowess . and gave them the honour of supporting the canopy over his head at his coronation ; as is supposed by way of similitude : that whereas they had defended , supported , and maintained his honour by their courage against his enemies by sea , he gave them the honour to support the canopy over his head ; as a mark of honour to them , and his acknowledgement of the greatness of their service . and many coasting-towns and burroughs , have from time to time , been endowed with great priviledges , some of them remaining to this day ; as a mark of honour , by several kings , to encourage navigation ; from whence originally , we have beyond all dispute , arrived to the knowledge we are now attained to in marine affairs ▪ but now most of those towns and burroughs ( that formerly flourished by their fishing ) are reduced to miserable poverty , and thousands of families ruined for want of the fishery . and the gentlemen who have estates in those places , or near the coast , are exceedingly impair'd . of which calamity , king henry the 8th had undoubtedly a fore-sight of , as appears by the sratute of 33 of his reign , 't is there thus inserted ; because the english fishermen dwelling on the sea coasts , did leave off their trade of fishing in our seas , and went the half seas over ; and thereupon they did buy fish of pickards , flemmings , normands and zealanders , by reason whereof , many incommodities did grow to the realm , viz. the decay of the wealth and prosperity , as well of the cinque-ports , and members of the same , as of other coasting-towns by the sea-side , which were builded , and inhabited by great multitudes of people , by reason of using , and exercising the feat , and craft of fishing . secondly , the decay of a great number of boats and ships . and thirdly , the decay of many good mariners , both able in body , by their diligence , labour , and continual exercise of fishing ; and expert by reason thereof , in the knowledge of our sea-coasts , as well within the realm , as in other parts beyond the seas . it was therefore enacted , that no manner of persons , english denizons , or strangers , at that time , or any time after , should buy any fish of any foreigners in the said ports of flanders , zealand , pickardy , or france , or upon the sea between shoar and shoar . this shews what great care our former kings , and parliaments have taken to preserve the nursery for sea-faring men , for the defence of the kingdom , and for the preservation of our coasting towns , &c. and , have therefore thought fit in all humility to dedicate this book to you , as before-mentioned . if my sincere intentions to serve the kingdom , have its desired success , i have my wish , who am your most humble and most obedient servant , j. gander . a vindication of a national fishery , &c. by the benign goodness of god , and by the wise conduct of our king , and the admirable wisdom , and prudent care of our sage senatours at home : england , after a tedious and chargeable war , hath obtained an honourable peace . and the sword being now sheathed ; his majesty in his most gracious speech to both houses of parliament , hath declared his royal inclination , for the preservation of the saftety , honour , and happiness of the kingdom , &c. so that it is not to be doubted but that the genius of our government , will make it the chiefest of their care , to settle the affairs of trade , upon the most firmest foundation , for the publick good of our nation . for the most destructive consumption that can happen to a kingdom , and the only nurse of idleness and beggary , is want of trade ; whereas on the contrary , increase of trade , encourageth labour , art and invention , and enricheth the common-weal . and beyond all dispute , the fishery of england , is the main trade of this kingdom , rightly managed ; the good patriots of our country are to weigh the matter : and it is so comprehensive a blessing , that were those advantages but industriously improved , that providence hath bestowed on this island , we might consequently be the most flourishing people in the whole world , both by sea and land. and seeing by the decay of the fishing trade , we have lain open to france , and holland , by neglecting our own preservation , and ill management of the fishery amongst our selves , it may be supposed , it is high time to look to it . but whether this great loss to the kingdom hath been occasioned by our wilful , or inadvertised neglect : i shall not determine ; and hope it will speedily be taken into the consideration of the most judicious patriots of our countrey . and then we shall draw back the trade from foreign nations , and employ our own people . the great and weighty question upon this point of trade to be considered , is : whether it is not the general interest of england , to revive and encourage a national fishery , it being the main pillar of the trade of this nation ; and humbly offer my weak opinion of the necessity of it ; for england being situated in the very jaws of neptune , by her commodious harbours , rivers and bays , &c. must be defended by shipping ; and she is the best accommodated with sea-ports of any place in christendom , and stands fairest to be lords of the sea of any people in the world. this kingdom being an island comparatively , were it , not for that isthmus or neck of land to the north , that joyns it to scotland . it must be universally allow'd , that her floating castles must defend her from all foreign invasions or incursions . and since she is obliged to defend her self by naval-force . it should be considered how that must be maintain'd and preserved : for , without those bul-warks , the kingdom , and consequently the rest of the dominions must be in a few years , in a very deplorable condition . and nothing is more certain than , that it is the sea enricheth the land , which is confirmed by the great advantages of getting treasure , by navigation both at home and abroad ; as is manifested by the grandeur that merchants generally live in , in england , holland , france , &c. history gives a very satisfactory account of this truth ; how the venetians have arrived to that greatness they now live in by navigation , and by their naval force , claim a prerogative of the adriatick sea. and also , to what greatness hath the french king attained to by navigation in a few years , that he gives laws in the mediteranean sea. and the hollanders by their navigation are grown , as opulent ( almost ) if not altogether , as any people in the world. but in queen elizabeths reign of blessed memory , england gave so fatal an overthrow to the spanish armado in anno 1588 , that she was the terror of the whole universe , by being so potent by sea ; and after her majesties success of that famous victory , she was as much aggrandized by foreign princes , for her conquest , as she would undoubtedly have been despised , had she been overcome . but how england has declined since her reign , for want of the fishery for nursery for sea-faring men , is obvious to the whole world. woful experience tells us , how much our neighbours have grown upon us ; by this neglect of ours , by the wealth they have got within this forty or fifty years ; and also by their daily increase of of shipping . and for want of true telescope to see clearly how this national fishery may be preserv'd and maintain'd , we are and have been many years , in the dark . it is not only the fish that we loose , and the impoverishing the coasting towns , and burroughs , the only loss that this nation sustains ; but for want of a prudent method to manage this fishery . we have only the colour for a nursery for seamen , which will not breed a tenth part of the men we have occasion for in time war , as we are an island . further , the hollanders and french , finds these advantages ( by encouraging of the fishery's , that they do not only get wealth , but it inures their men to the hardship of the sea , and makes them skilful in handling their tackling in pilotage and navigation . ) so that they know our own coasts , shoals and harbours , better than we do . but the antient britains permitted none to fish on our coasts , or in our seas , nor any to sail into the island , without their leave , and those only merchants ; nor would not permit any foreigner to view or sound their sea-coasts , which was undoubedly a great security to them , and encouragement to their pilots ; but now , 't is observable , that the hollanders seldom make use of english pilots , to come into any of our harbours ; and if they have occasion to man out a fleet of men of war , 't is but making a draught out of the fishery , and they are put on board their own climate . whereas , to the great detriment of this nation , and loss of our men ; when we have occasion to man the royal navy , we are forc'd to press tag , rag , and bob-tail , a parcell of lowsy vagrants and vagabonds , that have not prowess to make them soldiers , nor genius to make them mariners ; and while they are in harbour , eat up the nations provision : and when they come to be roll'd and toss'd by the waves at sea , they are as sick as so many dogs , and infect great numbers of sea-faring-men , * by which great inconveniecy , renders them more fit for an hospital , than a fighting navy ; as is seen in time of war , and our sea commanders the daily witness of this calamity . and it cannot be deny'd , but that it was the fishery of england , that supplied queen elizabeths navy with seamen , and made her so potent , to give so fatal an overthrow to the spaniards , that , that one blow was so great a loss , that they will never retrieve it , nor be able to oppose us either by sea or land. and her clemency to the hollanders , in giving them permission to fish on our coasts , was the very first foundation that they laid , to raise themselves to their present grandeur , and by the wealth they have got , and shipping , by their breeding of sea-faring men , they are rendred very formidable at sea. it is worth the while , saith the reverend mr. cambden , to observe what an extraordinary gain the hollanders , and zealanders , do make by fishing on the english seas , ‡ having first obtained leave from the castle of scarbourough ; for the english have ever granted them leave to fish , reserving always the honour and the priviledge to themselves ; but through negligence resigning the profit unto strangers , 't is almost incredible , saith he , what a vast sum of money the hollanders do make by this fishing upon our coast . and in edward the fourth's reign , * he ordered commanders with a naval power , to protect and guard the fisher-men upon the coasts of norfolk , and suffolk , and the charges of the guard were defrayed by the fishermen ; the english nation were ever in past ages renowned for sea-affairs , in all countries near the seas ; and they had also a numerous navy , that the people of all countries esteemed , and call'd the king of england , king and sovereign of the seas . and why england should not now insist upon the sovereignty of the british seas , as in former times , seems very wonderful ! but some people may say , that in case this fishery were encouraged , it may be a means to prevent eating so much flesh , as we do now in england : and so consequently , be very prejudicial to our landed-men , and bring the rents of the farms lower . but this with submission , is a very erroneous notion . for example : the fish that may or should be caught in the british seas , is not intended to be eat in england , and perhaps not one huudredth part of it , but to be sold at foreign markets ; as in due time shall be observed . and to make it appear , that if a national fishery be encouraged , it will cause a greater consumption of flesh than is now in england , and consequently , rather encrease than diminish the rents of our landed gentlemen , and in few years might double the rents , as the fishery flourished , and our trade encrease both at home , and abroad . i humbly offer these reasons ; first , our coasting towns , bouroughs and villages adjacent , that formerly had their dependance on the fishery , are reduced to so great poverty , for want of being employ'd , that they are now constrain'd to feed upon coarse-bread , butter , cheese , milk , turnips , carrots , or on such roots and herbs , as they can get : whereas if they were employed in this fishery , they would then have money to go to market , and buy flesh , as their ancestors did before them , for themselves , and families : and i suppose there is not any man , but what is sensible that the english naturally loving flesh , the meanest man or woman in the kingdom would have roast and boyl'd meat for themselves and families , as well as their landlords , if their purses would bear it . so that then there would be a greater consumption of flesh than there is now , not only in our coasting towns , &c. but in all probability , through the whole kingdom , when once we flourish in this fishery . this great and glorious undertaking will not only enrich us , but employ thousands of people that are now so miserable poor , that they gradually starve for want of having this encouragement . and what is worthy your particular notice , it would prevent abundance of sea-faring men from going into foreign service in times of peace , for want of employment at home ; many of them leaving their wives and children to be maintained by the parish , which undoubtedly is a great grievance to the respective parishes , and a burthen to the inhabitants . and this fishery would not only preserve thousands of families from starving , but then they would wear better cloaths , and promote our woollen manufactury ; for 't is only poverty makes people wear rags ; and being disheartned , it oftentimes prevents their devotion . and it will also prevent a great many inconveniencies , that now attend this nation , for want of being employed . for example : there would not be so many vagrants and vagabonds , nor so many people that take illegal courses ; as thieving , robbing , &c. to the ruine of themselves and others . nor so many export our corn , nor carry our wooll unwrought out of the kingdom , if they were employed another way . this fishery would also employ abundance at land , so well as by sea ; as clerks , accomptants , ware-house and store-keepers , and the like , and great numbers of artists and tradesmen : so that then there would be provision for a great many men , that go crawling about the streets , like so many snails , for want of employ , that have been well educated . besides , 't is an universal maxim , that idleness is the root of all evil ; and a great many people fear starving more than hanging , as is seen almost every session , or assizes ; for let the judge enquire of the criminals , what induced them to take the lewd courses they are indicted , or arraigned for , the general reply , is want. further , it is supposed by all that have travelled , in the low-countries , that where one male-factor is executed in holland or in france , there is above one hundred in england ; and the only reason that can be given , why there are so few in holland and france , and so many executed in england , is , that they take care to employ their subjects ; and those that are uncapable by age , or any other infirmity for labour , are provided for , by allowing them a competent maintenance to live on ; ( but 't is the fishery of england , that employs and enricheth them . ) and the hollanders themselves will boast , that god blesseth them in their tradring , and defends them from their enemies , for being so good to the poor . and it is a confirmation of the sacred writ , that he that considereth the indigent , the lord will remember him in the day of his tribulation . and what a great glory will it be to the king and kingdom , to preserve so many thousand subjects , that are now involv'd in such miserable necessity , that in all probability they must perish , if this method be not speedily taken . and since his majesty has been instrumental in delivering these kingdoms from slavery , and popery , &c. 't is to be supposed that he will also make it his chiefest care , to preserve his subjects from destruction ( that have so bravely ventur'd their lives , both by sea and land ; and have paid their money with so much chearfulness to carry on the war. and have so long languished under their afflictions . ) and he * having maugred all opposition , both at home and abroad , it now remains , that he attacks himself , that his goodness and greatness , may vye with each other , by enquiring , b what is to be done to retrieve them from their withering calamity . and 't is believed by all well-wishers to the welfare of these kingdoms , that his majesty will sign all those acts , that shall be for his glory , the senatours honour , and the preserving so well as enriching of his subjects . when he shall be advised to it by his parliament , in whom he has so great confidence , as he hath often declared for the good of his people , in his most gracious speech to both houses of parliament , which are too tedious here to insert . and having made the proud lillies of france stoop to him , and recovered the principality of orange , he will now assume his trident. and to emulate his royal predecessor , william the i. conquerour of england , who , after being possessed of the kingdom , took a view of it in a royal progress , and then did see there was an incumbent necessity to defend this realm by shipping ( altho' he set fire of his own fleet at his landing , to let his men know his intentions : aut caesar aut nullus . ) whereupon he demolished several villages in hampshire , and there planted a large forrest of oaks , c which to this day is call'd new forrest , it being above two and twenty miles in length , and eleven miles over . this shews what care our ancestors from time to time , have taken to secure this island by navigation , and for providing ships of force , as well as for commerce ; the one to enrich , the other to defend , as well our trading by sea ) as the island from invasion . for there is no dominion that can expect to flourish in trade , or be enriched by commerce , if they do not secure themselves by force , either by sea or land , as opportunity offers , or the necessity requires . 't is undoubtedly the interest of the nation to stand as well upon their guard in times of peace , as in war ; that they may give no opportunity to an enemy to surprise us , by sea , or land. and since there is so great a necessity for the defence of the nation , to support our navgation by this fishery , certainly our senatours will take care that the grandeur of these glorious kingdoms shall not be ecclipsed by the growing greatness of our neighbours , who have , and still do encroach upon the sovereignty of the british seas , which is the only diadem of the imperial crown of these dominions ; and the port cullizes and guard of the realm . but the fishery , if encouraged , will be for the good of the kingdom in general , from the king to the peasant ( or meanest subject ) and in some measure take off the burthen of the taxes this nation hath so long struggl'd under ; and not only make the exchequer the greatest bank in the world , but oblige the treasure of the east and west-indies , comparatively , to meet in our streets ; and also preserve a perpetual union amongst the subjects of england , let them be never so retrogade in their opinion , as to their profession of religion . and this happy union will prevent all intestine commotions ; and bid defiance to all foreign invasions , or incursions . and it cannot be denied , but that england had formerly the richest fishery in the world ; when we maintain'd the sovereignty of the british seas ; and by computation , had above 800 fishing ships ; and had it been encourag'd , by a reasonable . increase , we must have had now , between 2 and 3000 fishing ships ; and nothing can be more true , than that the fishery of england , is the main pillar of the trade and defence of this nation . and it will not only raise the naval force of england , but by its growth and flourishing , be a curb , to keep under the growing power of the french and hollanders , and bring in great treasure to the kingdom , as aforesaid . and further , if this nursery for seamen were encouraged , the merchants would never want men to carry their ships to sea , nor be in danger of having their men press'd in time of war ( which is a great detriment to our trade , and loss to the king and kingdom ) for then we should have sea-faring men , and mariners enough , to serve the kingdom . and in regard that some people may say that there will not be constant employ for our seamen in the fishery in times of peace ; and so prevent their going into foreign service for want of employ at home : i have particulariz'd the respective seasons for fishing , throughout the year , in the british seas . of the miraculous treasure of the british seas . the coast of great-britain doth produce a continual harvest of profit and benefit to all that do fish there ; and such shoals and multitude of fishes are offer'd to the takers , that it makes an admiration to those that are employ'd among them . the summer ▪ fishing for herrings , beginneth about midsummer , lasteth some part of august . the winter fishing for herring , from september , to the middle of november ; both which extend from bonghoness in scotland , to the river thames mouth , being a run of above a hundred leagues . the fishing for cod , at allum by , whirlington , and white-haven , near the coast of lancashire , from easter till whitsuntide . the fishing for hake , at aberdenie , abveswitch , and other places between wales and ireland , from whitsuntide , to st. james-tide . the fishing for cod and ling , about padstow , within the land ; and of severn , from christmas to midlent . the fishing for cod on the west part of ireland , frequented by those of biscay , and portugal , from the beginning of april until the end of june . the fishing for cod and ling on the north and north-east of ireland , from michaelmas to christmas . the fishing for pilchers on the west-coast of england , from st. james tide until michaelmas . the fishing for cod and ling , upon the north east of england , from easter to midsummer . the fishing of great staple-ling , and many other sorts of fish lying about the island of scotland , and in the several parts of the british seas all the year long . in september , not many years since , upon the coast of devonshire near minegal , five hundred tun of fish were taken in one day . and about the same time , three thousand pounds worth of fish , in one day were taken at st. ives in cornwal , by small boats. our five men boats and cobles , adventuring in a calm , to launch out amongst the hollands busses , not far from robinhood's bay , returned to whitby , full freighted with herrings , and reported that they had seen some of those busses take ten , twenty , and twenty four lasts at a draught of herring , and returned into their own country with forty , fifty , and a hundred lastes of herring in one buss . our fleet of colliers , not many years since , returning from newcastle , laden with coals , about the wells , near flamborough head , and scarborough , met with such multitudes of cod , ling , and herring , that one among the rest , with certain ship hooks , and other like instruments , drew up as much cod , and ling , in a little time , as sold for well nigh as much as her whole lading of coals . and many hundred of ships might have been laden in two days , and two nights . now what great inconveniency and detriment is this to the english nation ; that we do not encourage a national fishery , that we may retrieve those great advantages , that we have so long taken no notice of , in regard we can employ our seamen throughout the whole annual ? and out of which wonderful affluence and abundance of fish , swarming in our seas ; that we may the better perceive the infinite gain , which foreign nations make : i will especially insist upon the fishing of the hollanders on our coasts ; and thereby shew , how by this means principally they have risen , to the greatness of their present grandeur : 1. in shipping . 2. in mariners . 3. in trade , at home and abroad . 4. in towns and fortifications . 5. in power at home and abroad . 6. in publick revenue . 7. in private wealth . 8. in all manner of provisions , and stores of things necessary for the preservation of mankind , and munitions of war. encrease shipping . besides seven hundred strand boats , four hundred evars , and four hundred sullits , drivers , and tod-boats , wherewith the hollanders fish upon our coasts , every one of these employing another ship , to fetch salt , and carry the fish into other countries , being in all three thousand sail ▪ maintaining and setting on work , at least twelve thousand persons ; fishers , tradesmen , women and children . they have above ( as it is supposed ) one hundred doyer-boats , of one hundred and fifty tuns apiece , or thereabouts , seven hundred pinks and well-boats , from sixty to one hundred tuns burthen , which altogether fish upon the coast of england , and scotland , for cod and ling only . and each of these employ another vessel , for providing salt , and transporting of their fish , making in all , one thousand six hundred ships ; which maintain and employ persons of all sorts , four thousand at least ▪ for the herring season , they have one thousand six hundred busses at the least , all of them fishing only on our coast , from bonghoness in scotland , to the mouth of the thames . and every one maketh work for three other ships , to attend her ; the one to bring salt from foreign parts ; another to carry the said salt and cask to the busses , and to bring back their herring , and the third to transport the herring into foreign markets ; so that the total number of ships and busses , plying the herring-fare , is six thousand four hundred ships ; where every buss , one with another , employs forty men , mariners and fishers within her own hold ; and rest , ten men apiece , which amounteth to one hundred twelve thousand fishers and mariners . all which maintain double , if not treble so many tradesmen , women , and children by land. besides , they have generally four hundred vessels at least , that take herring at yarmouth , and there sell them for ready-money ; so that the hollanders ( besides three hundred ships , beforementioned , fising upon their own coasts or shoars : have at least four thousand eight hundred ships , onely maintain'd by the seas of great-britain . and to this number , they undoubtedly add every day ; although their countrey neither affords victuals , nor materials , nor merchandize to set them forth . yet by the great advantages that they have got by fishing on our coast , they abound in every thing that is fit for the use of mankind . encrease of mariners . the number of ships , fishing on our coasts , as being aforesaid , four thousand eight hundred , if we allow but twenty persons to every ship , one with another , the total of mariners and fishers amounteth to one hundred sixty eight thousand , out of which number they daily furnish their ships , to the east and west-indies , to the meditereanean , and for their grand fleet of men of war ; for by this means they are not only enabled to brook the seas and know the use of their tackles and compass , but are likewise instructed in the knowledge of navigation and pilotage , insomuch , that from hence their greatest navigators have had their educations and knowledge of the seas . encrease of trade . by reason of those multitude of ships and mariners , they have extended their trade to all parts of the world , exporting for the most part , in all their voyages , our herrings , and other fish , which they catch upon our coasts , or in the british seas , for the maintenance of the same . in exchange whereof they return these several commodities from other countries : from the southern parts , as france , spain , and portugal ; for our herrings , and other fish , they return oyls , wines , pruens , honey , woolls , leather , with store of coin in specie . from the streights ; velvets , sattins , and all sorts of silks , aloms , currants , oyls , and all grocery-ware , with much money . from the east-countries for our herrings , and other french , and italian commodities , before returned , they bring home corn , wax , flax , hemp , pitch , tarr , soap-ashes , iron , copper , steel , clap-board , wain-scot , timber , deal-board , dollars , &c. from germany , for herrings and other salt fish , iron , mill-stones , rhenish-wines , plate-buttons for armour , with other munition , too tedious to insert ; silks , velvets and rushes fustians , baratees , and such like frankford commodities ; with store of rix dollars . from brabant and flanders : they return for the most part ready-money , with some tapestries , and some other commodities ; and some of our herrings are carried so far as brassil . and that which is more strange , and to our great dishonour , they have generally four hundred ships , which fish in sight of yarmouth , and vend the herrings in england , and make us pay ready-money for our own fish . sir josiah child in his discourse of trade , in the end of his preface , is pleased to say , that he hath exposed his conceptions to the publick censure , with an assurance , that they will be received and honoured with a publick sanction , and past into laws ; and thus begins his book . the prodigious increase of the netherlands in their domestick and forreign trade , riches , and multitude of shipping , is the envy of the present , and may be the wonder of future generations . here he sets out the riches of holland , and backs it on with an addition , in several subsequent expressions in his book : they are sampsons , and goliah's , in trade : sons of anach ; men of renown , masters of the field ; like a prevailing army that scorns to build castles and fortresses , to secure themselves as we do by act of our navigation ; and to advance their glory herein , he tells us , that we are but dwarfs , and pigmies , in stocks and experience , &c. but he takes no notice that they have attained to their greatness by fishing on our coasts ; and that we were the sampson's and goliah's in queen elizabeths reign , and they the pigmies , as shall be made appear more at large . and the honoured author goes further on in his preface , and tells us , that were they freed from the french fears , they would be worse than task-masters over us in trade , considering their treasure . that the trade of the english nation is in a very bad circumstances , is plainly seen by all thinking men ; and since it is practical among kings and princes , and sates , to joyn one with another ( or enter into a confederacy ) to oppose a king , or prince , that is growing too great , that if they do not endeavour to suppress him , it may be a means to lie open to them whenever he intends to make an invasion or incursion into their dominions , or invade their territories . and whether it is not now high time , considering those vast improvements of the hollanders and french , to depress the growing greatness of our neighbours , must be left to the great wisdom of our senatours ; and also , whether a longer continuance of their fishing on our coasts will not be a further encouragement to their encroachments , and our own title , as to the antient sovereignty of the british seas ? by this their large extent of trade , they are become citizens of the whole world , whereby they have so enlarged their towns , that most of them within this hundred years , are full as big again as they were before ; as amsterdam , rotterdam , dort , middleburgh , &c. having been twice enlarged , their streets and buildings are orderly set forth , that for beauty and strength , they may compare with any other cities in the world ; upon which they bestow infinite sums of money ; all this originally flowing from the bounty of the british seas , from whence by their labour and industry , they derive the beginning of all that wealth and greatness ; and particularly for the havens of the aforesaid towns , whereof some of them cost forty , fifty , or an hundred thousand pounds : their fortifications , both for number and strength , ( upon which they have bestowed innumerable sums of money ) as well upon their frontiers , as ports , and may vye with any people in the world. encrease of power abroad . such being the number of the ships and mariners , and so great their trade , occasioned principally by their fishing , they have not only strengthned , and fortified themselves at home , and to repel all foreign invasions ; but have likewise stretched their power to the east and west indies , and in many places thereof , they are lords of the sea-coasts ; and have likewise fortified upon the main : and more than this , all the neighbouring princes , in their differences by reason of this their greatness at sea , are glad to have them of their party , as was exemplified , when the wars were between the danes and the swedes , the hollanders were for the king of denmark , and lent him vantrump to be his admiral , who had the success of sinking the swedish admiral , and overthrew the swedish fleet. this is a confirmation how much they are in esteem for their strength at sea , and that one would think ought to be a president for england , to preserve our naval-force . encrease of publick revenue . moreover ; how mightily the publick revenue , and custom of that state is increased by their fishing on our coasts , may appear in this ; that above forty years since , over and above the customs of other merchandize , excises , licenses , waftage and lastage , there was paid to the states for custom of herring , and other salt fish , above five hundred thousand pounds in one year , besides the tenth fish , and cask paid , and for waftage , which cometh to at least as much more , among the hollanders only : whereto the tenth of other nations being added , it amounteth to a far greater sum. we are likewise to understand that great part of their fish that they take out of our seas upon our coasts , is sold in other countries for ready money , and they generally import from foreign countries , of the finest gold and silver ; coming home , recoin it of a baser allay under their own stamp , by which means they exceedingly augment their publick treasure . observation . so that if england would encourage this national fishery , we should heap the same advantages ; ( the allay of the coin only excepted , ) which we cannot permit in england . encrease of private wealth . as touching their private wealth ; if we consider the abounding stores of herrings , and other fish by them taken on our coasts , and the usual prices that they are sold for ; as also the multitude of tradesmen and handicrafts men , that by reason of this their fishing , are daily set on work , we must needs conclude , that the gain and profit thereof , made by private men , must of necessity be exceeding great ; as by observing the particulars following , will appear ; by dunkirk spoyling and burning the busses of holland , and setting great ransom upon their fishermen , enforced them to compound for great sums of money ; that they might fish quietly for one year ; whereupon the next year after the fishermen agreed amongst themselves to pay to the states of holland a dollar , for every last of herring , towards the maintenance of certain ships of war , to secure them in their fishing on our coasts , they having obtained liberty from england for the same ; by reason whereof there was a record kept of the several lasts of herrings that year , and it appeared thereby , that in one half year they had taken thirty thousand lasts of herrings , which at twenty pound per last , amounteth to three millions six hundred thousand pounds , at sixteen , twenty , and thirty , pounds a last , as they are ordinarily sold ( according as they pick them ) and then transported into other countries , it cometh at least to five millions , whereunto , if we add the herrings taken by other nations ; as france , lubeck , hamborough , bremen , biscay , portugal , spain , &c. which for the most part fish in our seas ; together with cod , ling , hake , and other fish , and taken by the hollanders upon the british coasts , all the year long , the total will modestly and evidently arise to above ten millions . per annum . but admit it did amount to but five millions ; what a vast loss is it for our nation to sustain ? the great trade of fishing , employing so many ships at sea , must likewise maintain an innumerable number of tradesmen and artists by land ; as spinners , hemp-winders to cables , cordage , yarn , twine for nets and lines ; weavers , to make sail-cloths , cesive , packers , tollers , dressers , and cowchers , to sort and make the herrings lawful merchandize ; tanners , to tan their sails and nets ; coopers , to make cask , block , and boultmakers for ships , keelmen , and labourers for carrying and removing their fish : sawyers for planks , carpenters , shipwrights , smiths , carmen , boatmen , brewers , bakers , and a great number of others , whereof many are maimed persons , and unfit to be otherwise employed , children and families ; and further , every man and maid-servant having any poor stock , may venture the same in their fishing-voyages , which affords them ordinarily , great increase , and is duly paid according to the proportion of their gain . encrease of provision . and further it is well known , that holland it self , only doth afford a few hops , madders , butter and cheese , and yet aboundeth in a very bountiful manner , ( by reason of this art of fishing ) in all kind of provision , so well for life as commerce ; as in beef , mutton , veal , corn , &c. in cloths and leather , and wines , silks , spices ; and for to defend themselves by sea , they have pitch , tarr , cordage , and timber , iron , steel , cannon , and all manner of small arms , for the service of their land forces . of all which they have not only enough to supply themselves , but from their magazines , are able to furnish their neighbouring countries . and if this fishery is not encouraged , it must certainly redound to the ignominy of the english nation , to permit strangers to fish on our seas , and impoverish our selves to make them rich ; insomuch that for want of encouraging this fishery , above two hundred towns , burroughs and villages are ruin'd ( that formerly were enriched by fishing ) and the inhabitants reduced to miserable want. whereas on the contrary , by our sedulous endeavouring to make use of this great blessing , we might in a few years , repair the decayed towns , and the losses of this kingdom ; and not only prevent the destruction of thousands of families , and grow so potent by sea , that none durst oppose us . and beyond all dispute , had our ancestors ( in the reign of queen elizabeth ) been told that either the french or hollanders , should ever have been so powerful by sea , as to appear with that naval force as they have done on our seas , they would have thought they had been the greatest lyars and impostors in the world , which is now too manifestly known , not only to this kingdom , but to the whole universe . and how can it be supposed , that we shall be able to defend our selves against any invasion or incursion , that a foreign enemy may make , unless we preserve the foundation of those floating castles that must secure the island ? which without controversie is a national-fishery . when 't is daily visible that the french and hollanders had never attained to that force by sea , they are now arrived to , if it had not been encouraged by this neglect of ours ; which in all probability may prove the giving the sword out of our own power , and to the last degree prove fatal to the english nation , if not speedily prevented . and since god and nature hath offered so great a treasure , and lays it at our own doors ; should we not be exceedingly to blame , if we do not accept of such a wonderful blessing , which no people in the world but our selves can boast of , to enjoy in so bountiful a manner as this is bestowed on us ? the right method to be taken to retrieve and secure our priviledges , ought to be the great and speedy care of the best patriot of our country ; i might give here many reasons for defending the right of the fishery to our own subjects , as upon the reason of justice , prudence and interest , and the right of our sovereignty of the british seas , admits of no dispute . some men may say , that it is not a proper time to insist upon , or dispute the sovereignty of the british seas . for these reasons . first , the king is a hollander born. secondly , that he hath an estate and revenues in holland . thirdly , if the states of holland had not assisted his majesty with their navy and army , in his expedition against king james , he would not have succeeded in his design . fourthly , that the states of holland may insist , that if they had not assisted england in the distress they were involved in king james's reign , they had not been delivered from tyranny and popery , &c. in answer to these objections , i humbly offer these considerations . as to the first , it is true , the king was born in holland , and by the mothers side english , but now his majesty is espoused to england by his coronation oath , and therefore , according to the sacred writ , will ( no doubt ) cleave unto his wife . and let some mens mistakes be what they will ▪ he must undoubtedly have a greater esteem for the english and for england , that hath crowned him with the imperial diadem of these kingdoms and dominions , than for the hollanders , if once they should oppose the sovereignty of the british seas , which is now his right , as hath been acknowledged by hugo grotius , upon the innaugaration of king james the first of england , he rendreth this magnificent character of him . tria sceptra profundi in magne cojere ducem ; which is , that the rights of english , scottish , and irish seas , are united under one scepter , neither is he satisfied with this bare profession , but he goes on , sume animos à rege tuo , quis det jura mari ; which is , take courage from the king , who giveth laws to the sea : and in the same book , in contemplation of so great a power , he concludeeth . finis hic est qui fine caret , &c. that is , this is an end beyond an end , a bound that knoweth no bound ; a bound which even the wind and the waves must submit unto ; this is the acknowledgment of hugo grotius himself , that before he had disowned the sovereignty of the british seas in his mare liberum . as to the second objection . the king is not unsensible , that his revenues in england doth far exceed those of holland , and the only way to secure his interest there , must be by dint of sword , for without that , he had never regained the principality of orange ; and it cannot be supposed that his majesty should value these kingdoms and dominons at so slender a rate , as to lie open to a foreign enemy for want of encouraging a national-fishery , which will be for his glory , the honour of the kingdom , and the publick good in general ; when he is convinced it is to be done , and thereby secures the interest and safety of his dominions , both at home and abroad . as to the third objection . 't is allowed , the states of holland did assist his majesty with their navy and army ; and in answer to this , the king knows it may be proved from undeniable record ; that if queen elizabeth ( of blessed memory ) had not assisted the states both by sea and land , when they first revolted from the king of spain , they would never been freed from the spanish yoke , nor a free state ; and further , for her majestie 's assistance , offer'd her the sovereignty of the netherlands , in consiederation of her royal bounty , and goodness to them , after she had sent threescore thousand pounds , upon on the account of sir thomas gresham , in anno , one thousand five hundred seventy and two ; so that it is supposed that not only the king but all christendom knows , that the hollanders owe their ab-origine , and the greatness they are now attained to , from england : so this is but one service done for another . as to the fourth objection . beyond all dispute the king and kingdom hath taken care to pay the hollanders , all the charges they were at for the navy and army . but it cannot be supposed that they would quit their pretensions to the sovereignty of the british seas , which is the main pillar of the nation . as in the preamble , of an act of parliament made in the 14. year of the reign of king charles the second , it is thus inserted . that the wealth , honour and safety of this realm ; as well for the maintainance of trade , and encouragement of navigation , as in many other respects , doth in a high degree depend on the fishery . and should god almighty , out of his infinite mercy and goodness , inspire the king and senatours , to revive and promote this national-fishery ; it would be such a comfort in danger to this nation , as the honey sampson found in the lyons jaws : and not onely the coasting towns , burroughs and adjacent villages , be enriched thereby ; but the king and kingdom in general , would find the sweetness of it . for did we but secure the sovereignty of the british seas , it would not only make the whole world stand in awe of us , but court us to buy our fish . for without , it is impossible the east and northern countries should subsist , and in many other places , herrings are every days meat , winter and summer , as well to draw on drink , as to satisfie hunger and in many places , the greatest part of the year , they are scarce to be had ; for soon after michaelmas , the sound is frozen , so that no herrings can be transported thither ; and france , spain , italy , and the rest of the catholick countries , could not keep lent ( without our fish ) which next to their own salvation , they tender most dear , in obedience to the command of the church of rome . 't is observable , that the hollanders make it their business to infect the people of england , that we cannot make the advantage of the fishery as they do ; and therefore it will be convenient to remove all the vulgar objections : some will have it that we want men , and others , that our men will never take to it . as to the first , i answer , that we have men enough , but they are idle and live upon the publick , without making any return of their labour , but let these people be employ'd in the fishery , and they protected by an act of parliament , we shall soon have enough , and to spare ; and it is a great happiness to this kingdom , that we can employ our sea-faring men in times of peace , and 't is so great a blessing , that no nation in the world has the like opportunity of employing and enriching themselves . the second ( exception or ) objection is ; that the genius of this nation will never endure the hardships of this employment . to which i answer , that the english do run greater hazards , and suffer greater hardships in their long , tedious , and unhealthy voyages ; as to the east and the west-indies , and the turkey voyages , where many men are lost , by reason of the heat of the climate , want of provisions and water , which in the fishery , there is none of these inconveniences to attend them , they being so often in and out of port ; and as to labour , the working of a mine is far beyond that of fishing , where the men sometimes work up to the middle in water . — but to come nearer to the point , the english is so far from having an aversion against fishing , that they apply themselves to it ; for example , after harvest is in , and the herring-season comes on , the country fellows and boys do go to the coasting towns , to be hired into the fishery ; and do generally take such a liking to it , that after 2 or 3 voyages they very rarely return to their rural employment , but take to the sea altogether . and further , i cannot imagine what hardships the hollanders can undergo in the fishing , more than the english are willing to do ; this is another objection . but this , beyond all dispute , is a very erroneous notion ; for the herring fishing in the english seas begins in june , and goes out in november ; and that for the first four months , it is the best time for profit , pleasure , and fair-weather ; for we seldom look out after the herring fishing till september , and so continue to the end of november , which is the most tempestuous season in the whole annual ; and then in january , we fit out for the north seas , and spend the remaining part of winter in all extremities of cold and hardship ; this is enough to satisfie , that we are able to undergo as much hardships as the hollanders . but however , i 'le strain this point a little further ; suppose that the winter fishing would be too hard for us , what excuse can we have for not makeing our improvements on the summer fishing , which is more advantageous abundantly ; another objection is , that the hollanders can fare harder than the english , in their course feeding , and great stress is laid upon this ; and that an english man will never be able to live on so sparing a diet as they do . now if it were so , and that an english diet could not be had , and that a dutch diet would not serve us ; but that is not our condition : for he that cannot brook with the one may have the other ; and i am induced to believe that pork , pease , and beef , are much better and more strengthening , than roots and cabbage , for the hollanders victualling is the same with ours , for beer , biscuite , butter , cheese ; all which we can provide our selves with , much cheaper than they : and to make good the defect of their ordinary provisions , they drink a great deal more brandy than the english do ; so then to take one thing with another , we victual with good provisions , as cheap or cheaper than they do . but besides the very suggestion of leaving a good diet , to go to a bad , is a very great error ; for the countrey men that enter themselves on board the fishery , fare far better at sea than they did at land ; for besides their general victualling , which they carry with them to sea , they feed upon the fish they catch , which for variety , being fresh taken , is a treat , to what a person of quality has at his table a shoar ; and of pitiful weak men at land , in a voyage or two , become stout , hearty , and healthful men. there are two more wolves in the way ; first , that our herrings are in no esteem abroad , because we have not the right way to cure them . secondly , we shall never make nothing on 't , for the hollanders will under-sell us , for freighting cheaper , and consequently beat us out of the trade . in answer to which ; first , there are two ways of curing the herrings , the one at sea , where they are gipp'd , immediately upon their taking , and barrell'd ; the other at land , where they are gipp'd , and pack'd some days after they are taken ; these we call shoar-made-herrings , and we know very well , that one barrel of the other for goodness , is worth one hundred of these ; and that they will never take their pickle kindly , unless their throats be cut , as soon as they are caught ; so that it is a great error to take a shoar-made-herring , for a tryal of skill in curing ; but for those that are made at sea , they are made as good , and as much in esteem abroad as any of the hollanders herrings , and they have been frequently sold in the east-country for four pounds a barrel ; and i could wish we were no more to blame , for not taking them than curing them ; but admit we did not know how to cure them ; i hope 't is not impossible for the english to learn. secondly , the other notion is , that the hollanders will beat us off of our trade ; this is as erroneous as the rest , and of no force at all against the fishery , or it is much more force against the merchant , and the newcastle trade ; for this lies under our noses , and more in our conveniency than any body 's else . and to neglect our fishing upon this consideration , is to quit all navigation , and leave our selves to the mercy of the hollanders , or to be made a prey to any that will attack us . and then to fear we shall want vent , is to imagine that the people will leave off eating , and a great part of the tradeing world is yet unserv'd with fish , and it never could be made appear that our herrings lay upon our hands for want of a market . and since all these objections are sufficiently answer'd , there is nothing wanting , but assuming our antient right , and taking possession of the fishery . and notwithstanding it is so apparently made appear , that this national fishery will redound so much to the glory of the king , honour of our senatours assembled in parliament , and welfare of the kingdom in general . we will suppose for argument sake 't is all but wast-paper . but here is the question to be put to the king and kingdom in general , if the growing greatness of the french and hollanders , has so much increased within this thirty or forty years last past , and still continue in the increasing of sea-faring men , mariners , and their naval force ; what will become of england in ten or twenty years ; when in all probability , they may be so potent ( unless a speedy check is put to their carrier ) that we shall not be able to oppose them ? and 't is an universal maxim , that the forces of potentates at sea : sont des marques de grandeur d'estat , saith a french author ; whosoever commands the sea , commands the trade of the world : he that commands the trade , commands the wealth of the world , and consequently the world it self . again ; as he that is master of a field , is said to be master of every town , when it shall please him ; so he that is master of the sea , may in some sort , be said , to be master of every countrey , at least of such as are bordering on the sea ; for he is ▪ at liberty to begin , and end war where , when , and upon what terms he pleaseth , and extend his conquests even to the antipodes . and england being encompassed with the sea , as aforesaid , and abounding in commodious and excellent havens bayes and ports , it excels for safety and security ( which is no small praise ) all the neighbouring countries in europe , if not all in the world , and needs not fear any neighbouring nation , but only that which grows potent in shipping ; for they onely can deprive us of our main security ; and if an island can make us as the continent . and if this nation is once over power'd at sea , we must expect to be the most miserable people in the vniverse , having for so many generations last past , lorded it over the whole world by sea ; that the very name of the english struck a terror into all those that durst oppose them . when william the first , subdued the realm , conquerour of england that was an easy fall ; it proving only prejudicial to some particular families ; and he residing in the kingdom , took all the care imaginable to preserve this nation , as already has been said , by his planting of a new-forrest with oaks , to his perpetual glory . but if once the naval power of england be overcome by the french or hollanders ; ( according to all human probability ) it must prove a fatal overthrow , so far as they can reach with fire and sword , being spurr'd on by ambition , and avarice , revenge and interest ; and then we should find the english saying to be too true ; that the french and hollanders are like fire and water ; good servants but bad masters . and it is most certain , that there is no other way to maintain the glory and grandeur of this kingdom but by raising a national-fishery ; which rightly understood , is the primum mobile of the nation ; 't is the only palladium of this realm , without which , 't is impossible to preserve , or revive the former glory of our ancestors , and secure the sovereignty of the british seas , and enrich the kingdom by navigation . the sovereignty of the british-seas , asserted . england hath claimed a prerogative of the british seas time out of mind ; and amongst our former and ancient kings , king edgar was very potent , who possessing an absolute dominion of the seas , sailed round about it every year , and secured it with a constant guard , as it is recorded ; and what dominion king edgar had , as absolute lord of the sea , appears in these words ; i edgar king of england , and of all the islands , and of the ocean lying round about britain , and of all the nations that are included within the circuit thereof , supream lord and governour ; do render thanks to almighty god my king , who hath enlarged my empire , and exalted it above the royal estate of my progenitors , who altho they arrived to the monarchy of all england ; ever since athelstan , yet the divine goodness hath favoured me to subdue all the kings of the islands , in the ocean , with their most stout and mighty kings , even as far as norway , and the greatest part of ireland ; together with their most famous city of dublin . so far edgar . and after him , king conutus left a testimony of his sovereignty over the sea ; in this expression ; thou o sea art mine , &c. and from the testimony of the saxons , and the danes , we shall descend to the government of the normans , whereby many notable and clear proofs we shall find , as may be gathered out of that breviary of england , called dooms-day : rot. par. 48 hen. 3. 22. edw. 1. 2. rich. 2. the tribute called danegelt , was paid in the time of the english saxons , which amounted to four shillings upon every hide of land , for the defending the dominion by sea. roger hoverden asserteth it was paid until the reign of king stephen ; and in the parliament records of king richard the second , it is observable that a custom was imposed upon every thing that passed thro' the northern admiralty ; that is , from the , thames along the eastern-shoar of england , towards the north-east , for the maintaining a guard for the seas . and this was not imposed only upon the english , but also upon all the ships of foreigners , paying at the rate of six pence a tun that passed by ; such ships only excepted that brought merchandize out of flanders to london . rot. par. 2 rich. 2. part 2. act 38. seld. mare clausum , page 334. rot. fran. 5. hen. 4. rot. fran. 38. hen. 6. rot. par. 23 edw. and it appeareth by publick records , containing divers main points , touching which , the judges of the land were to be consulted for the good of the common wealth ; that the kings sea dominion ▪ which they called , the antient superiority of the sea , was a matter beyond all contradiction amongst all lawyers of that age , and asserted by the determinations and customs of the law of the land ; and by express words of the writs and forms of the actions themselves . and this truth was not only comfirmed by the laws , but by our medals : there hath been a piece of gold very often coyned by our kings , called a rose noble , which was stamped on the one side of it , a ship floating in the sea , and a king armed with a sword and a shield , sitting in the ship it self , as in a throne ; to set forth the representation of the english king by sea. the first author hereof , was edward the third ; when he guarded his own seas with a potent navy , consisting of eleven hundred ships , at which time as at others , he marched victoriously thro' france . but of all that has been said , there can hardly be alledged a more convincing argument to prove the truth of all that hitherto hath been spoken , than the acknowledgment of the sea dominion of the kings of england ; when the agreement was made by edward the first of england , and phillip the fair of france ; reyner grimhald was then admiral of the french navy , intercepted and spoyled on the english seas , the goods of many merchants that were sailing to flanders , as well english as others , and was not contented with the depredation of their goods , but he imprisoned their persons , and delivered them up to the officers of the king of france . and in a very insolent manner , justified his actions in writing , as done by authority of the king his master's commission . this being alledged to be done to the great damage and prejudice of the king of england ; the prelates , peers , and the rest of the nation , exhibited a bill against reyner grimbald , and managed by the procurators on the behalf of the prelates , peers , and of the cities and towns through out england ; and also of the whole kingdom of england in general ; and by and with the authority , as is supposed , of the estates assembled in parliament ; with those were joyned procurators of most nations bordering upon the sea , throughout europe , viz. the genoeses . the catalonians . the spainards . the almayns . the zealanders . the hollanders . the freezlanders . the danes . the norwegians . the hamburghers and all these instituted a complaint against reyner grimbald , who was admiral of the french navy , in the time of the war , between philip king of france , and guy earl of flanders ; and all these complainants in their bill , do joyntly affirm , that the king of england and his predecessors , have time out of mind , and without controversie , enjoyed the sovereignty and dominion of the english seas , and the isles belonging to the same , by right of the realm of england ; that is to say , by prescribing laws , statutes , and prohibition of arms and of ships , otherwise furnished , than with such necessaries and commodities as belong to merchants , &c. also , that they have had , and have the sovereign guard hereof , with all manner of cognizance and jurisdiction , doing right and justice , according to the said laws , ordinances , and prohibitions ; and in all other matters which may concern the exercise of sovereign dominion in the said places . this is the declarations of the nations aforemention'd , and they did declare he was lord of the sea , &c. this is cited out of the parliament records ; and they did declare an acknowledgment of the sea dominion of our kings , made by those foreign and neighbour nations , who were most concern'd in the business , to the glory of our kings of england . mr. hitchcock , in the reign of queen elizabeth , presented a book to the parliament , concerning the commodity of fishing ; that the hollanders , and zealanders , every year towards the latter end of summer , do send out four or five hundred vessels , called busses , to fish for herrings in our eastern seas ; but before they fish , they ask leave of starbourough ; these were the words : care was also taken in king james the first of englands reign ; that no foreigner should fish on the english or irish seas , without leave first obtained ; and every year at the least , this leave was renewed from commissioners , for that purpose , appointed at london . and the kings of france have desired leave of the kings of england , for a certain time to fish on our seas , only for fish for his houshould , and obliged themselves in articles , that none of the fish , that was taken in the british seas should be exposed to sale in any market . in the seventh year of the reign of king james the first , the sovereignty of the british seas was strenuously asserted by proclamation ; and all persons excluded from the use of the seas upon our coasts , without particular licence ; the grounds whereof , you have here set down in the proclamation it self . a proclamation . touching fishing . james by the grace of god , king of great-britain , france and ireland , defender of the faith , &c. to all and singular persons to whom it may appertain , greeting . although we do sufficiently know by our experience , in the office of regal dignity ( in which by the favour of almighty god we have been placed and exercised these many years ) as also by the observation , which we have made of other christian princes exemplary actions how far the absoluteness of sovereign power extendeth it self ; and that in regard thereof , we need not yield account to any person ( under god , ) for any action of ours , which is lawfully grounded upon that just prerogative ; yet such hath ever been and shall be our care and desire , to give satisfaction to our neighbour princes and freinds in any action which may have the least relation to their subjects and estates ; as we have thought good ( by way of premonition ) to declare to them , and to whomsoever it may appertain , as followeth . whereas we have been contented since our coming to the crown , to tolerate an indifferent and promiscuous kind of liberty to all our friends whatsoever , to fish within our streams , and upon any of our coasts of great britain , ireland , and other adjacent islands , so far forth , as the permission or use thereof might not redound to the impeachment of our prerogative royal , nor to the hurt and damage of our loving subjects ; whose preservation and flourishing estate we hold our self principally bound to advance before all worldly respects : so finding that our continuance therein hath not only given occasion of over-great encroachments upon our regalities , or rather questioning our right ; but hath been a means of daily wrongs to our own people that exercise the trade of fishing , as ( either by the multitude of strangers , which do pre-ocupy those places , or by the injuries that they receive commonly at their hands . ) our subjects are constrain'd to abandon their fishing , or at least , are become so discouraged in the same , as they hold it better for them to betake themselves to some other course of living ; whereby , not only divers of our coast towns are much decayed , but the number of mariners daily diminish , which is a matter of great consequence to our estates , considering how much the strength thereof consisteth in the power of shipping , and use of navigation ; we have thought it now both just and necessary ( in respect that we are now by gods favour linealy and lawfully possess'd as well of the islands of great britain and ireland , and the rest of the isles adjacent ) to bethink our selves of good lawful means to prevent those inconveniences , and many others depending upon the same . in consideration whereof , as we are desirous that the world may take notice , that we have no intention to deny our neighbours the allies those fruits and benefits of peace and friendship , which may justly be expected at our hands in honour and reason , or are afforded by other princes in the point of commerce , and exchange of those things which may not prove prejudicial to them : so , because some such convenient order may be taken in this matter , as may sufficiently provide for these important considerations , which do depend thereupon ; we have resolved first , to give notice to all the world , that our express pleasure is , that from the beginning of the month of august next coming , no person of what nation or quality soever , being not our natural born subjects ▪ be permitted to fish on any of our coasts and seas , of great britain , ireland ▪ and the rest of the isles adjacent , where most usually heretofore any fishing hath been , until they have orderly demanded and obtained licenses from us , or such of our commissioners as we have authorised in that behalf , viz. at london , for our realms of england and ireland ; and at edenburgh ▪ for our realm of scotland ; which licenses our intention is , shall be yearly demanded , for so many vessels and ships , and the tunnage thereof , as shall intend to fish for that whole year , or any part thereof , upon any of our coasts and seas , as aforesaid , upon the pain of such chastisement as shall be fit to be inflicted on such offenders . given at our palace at westminster , the 6th of may , in the 7th year of our reign of great britain , anno dom ' 1609. notwithstanding this proclamation , the netherlanders still proceeded in the way of their encroachment upon the seas , thro' the whole reign of king james , and were at length so bold as to contest with him , and quarrel his majesty out of his rights , pretending ( because of the long connivance of queen elizabeth ) that they had of their own a right , of immemorial possession . and in king charles the i's reign , a proclamation was published , for restraint of fishing upon his seas and coasts , without license , dated the 10th day of may , in the 12th year of his reign . this proclamation being set forth in the year 1636 , serv'd to speak the intent of those naval preparations , made in the year 1635 ; which were so numerous and well provided , that our netherland neighbours , were apprehensive of some great design in hand , for the interest of england by sea. as i might shew at large ( if it were requisite ) by certain papers of a publick character yet in being . but there is one which may serve instead of all ; and it is a very ingenious letter of secretary cokes , that was written to sir william boswell , the king 's resident , then at the hague ; the original whereof is still reserved among the publick papers : in which letter he sets forth , the grounds and reason of preparing that royal and gallant navy ; with the king's resolution to maintain the right derived from his royal progenitors , in the dominion of the british seas ; and therefore i here render a true copy of it , so far as concerns this business , as most pertinent to our purpose . sir , by your letters , and otherwise , i perceive many jealousies and discourses are raised upon the preparations of his majesty's fleet , which is now in such forwardness , that we doubt not but within this month , it will appear at sea. it is therefore expedient , both for your satisfaction and direction , to inform you particularly , what was the occasion , and what is his majesty's intention in this affair : first , we hold it a principle , not to be denied ( as it may be prov'd from undeniable record ) that the king of great britain , is a monarch at land and sea , to the full extent of his dominions ; and that it concerneth him , as much to maintain his sovereignty in thebritish seas , as within his three kingdoms ; because without * that , these cannot be kept safe ; nor he preserve his honour and due respect with other nations . but commanding the sea , he may cause his neighbours , and all countries , to stand upon their guard , whensoever he thinks fit . and this cannot be doubted , that whosoever will encroach upon him by sea , will do it also by land , when they see their time . to such presumption , mare liberum , gave the first warning-piece , which must be answer'd with a defence of mare clausum ; not so much by discourse , as by the lowder language of a powerful navy ; to be better understood , when over-strain'd patience seeth no hope of preserving her right by other means . the degrees by which his majesty's dominion at sea , hath of latter years been impeached , and then question'd , are as considerable as notorious . first , to cherish , and as it were , to nourish our unthankful neighbours , we gave them leave to gather wealth and strength upon our coasts , in our ports , by our trade , and by our people : then they were glad to invite our merchants residence , with what priviledges they would desire . then they offer'd us the sovereignty of their estates ; and then they su'd for license to fish upon our coasts , and obtained it under the great seal of scotland , which now they suppress . and when thus by leave , or by connivance , they had possess'd themselves of our fishings , not only in scotland , but in ireland and england ; and by our staple , had raised a great stock of trade , by these means they so increased their shipping and power at sea , that now they endure not to be kept at any distance : nay , they are grown to that confidence , to keep guards upon our seas , and then project an office and company of assurance , for the advancement of trade ; and withal prohibit us free commerce within our seas , and take our ships and goods , if we conform not to their placarts . what insolences and cruelties they have committed against us heretofore in ireland , in greenland , and in the indies , is too well known to all the world. in all which , tho' our sufferings , and their wrongs , may seem forgotten ; yet the great interest of his majesty's honour , is still the same , and will refesh their memories , as there shall be cause . for tho' charity must remit wrongs done to private men ; yet the reflection upon the publick may make it a greater charity to do justice on crying crimes . all this notwithstanding , you are to conceive , that the work of this fleet , is revenge , or execution of justice for these great offences past , but chiefly for the future , to stop the violent current of that presumption , whereby the men of war , and free-booters of all nations ( abusing the favour of his majesty's peaceable and most gracious government ) whereby he hath permitted all his friends and allies , to make use of his sea-ports , at a reasonable and free manner , according to his treaties ) have taken upon them the boldness , not only to come confidently at all times into all his ports and rivers , but to convey their merchant ships so high as his chief city , and then to cast anchor close upon his magazines ; and to contemn the commands of his officers , when they have required a further distance . but which is more intolarable , have assaulted and taken one another within his majesties * chamber , and within his rivers ; to the scorn and contempt of his dominon and power ; and this being of late years an ordinary practice , which we have endeavoured in vain to reform by the way of justice and treaties , the world , i think , will be satisfied , that we have reason to look about us . and no wise man will doubt , but it is high time to put our selves in this equipage upon the seas ; and not to suffer that stage of action to be taken from us , for want of our appearance . so you see the general ground upon which our counsel stands ; in particular , you may take notice , and publish as cause requires ; that his majesty by his fleet intendeth not a rupture with any prince or state , nor to infringe any point of his treaties , but resolveth to continue , and maintain that happy peace wherewith god hath blessed his kingdom , and to which all his actions and negotiations have hitherto tended , as by your own instructions , you may finally understand . but withal considering , that peace must be maintain'd by the arm of power , which only keeps down war by keeping up dominion ; his majesty thus provoked , finds it necessary for his own defence and safety , to re-assume and keep his antient and undoubted right , in the dominion of these seas , and to suffer no other prince or state to encroach upon him , thereby assuming to themselves or their admirals any sovereign command ; but to force them to perform due homage to his admirals and ships , and to pay them acknowledgments , as in former times they did . he will also set open ▪ and protect the free trade , both of his subjects , and allies , and give them such safe conducts and convoy , as they shall reasonably require . he will suffer no other fleets , nor men of war , to keep any guard upon these seas , or there to offer violence , to take prizes , or booties , or to give interruption to any lawful intercourse . in a word ; his majesty is resolved , as to do no wrong , so to do justice both to his subjects and friends , within the limits of his seas . and this is the real and royal design of his fleet , whereof you may give notice , as you find occasion , to our good neighbours in those parts , that no vmbrage may be taken of any hostile act , or purpose to their prejudice in any kind ; so wishing you all health and happiness , i rest your assured friend and servant . john coke . so what has been said is sufficient to prove the undisputable titles of the kings of england's sovereignty over the british seas ; and the necessity of maintaining and defending it : the conclvsion . to conclude , that by which hath been undeniably asserted , it doth evidently appear , that the kings of england ( by immemorable prescription , continual usage and possession ; and also by the acknowledgment of all the kings , princes , and states of christendom , and the laws of this kingdom , ) have always held the sovereign propriety of the british seas . — and his majesty by right of his sovereignty hath supream commands , and iurisdiction over the passage of his seas , and fishing therein beyond all contradiction . * and considering the nutural sight of these our seas , that interpose themselves between the great northern commerce , and that of the whole world ; and also , that of the east , west and southern climates ; and with all , the vast treasure that is got by fishing in them daily . it cannot therefore be doubted but his majesty , by reason of his great wisdom and virtue , and his admirable valour ; and the diligent care of his faithful and loyal subjects , may without injustice to any prince or state , be made the greatest monarch for wealth and command in the world ; and his people the most opulent flourishing of any in the universe . and the sovereignty of the seas being the most precious jewel of his imperial crown ; ( and next under god ) the principal means of our wealth , and safety ; all true english men , are bound by all possible means of honour and industry , to preserve it with the utmost hazard of their lives and fortunes . thus you see , what wonderful advantages may redound to the felicity and glory of this nation , if god gives us hearts and resolutions to vindicate those rights which are most impiously and injuriously invaded by our neighbours . finis . notes, typically marginal, from the original text notes for div a42117-e620 vid ▪ seld. mare clausum . 138. * and many dies . ‡ rich. 2. fitz herbert . tit. protection . 46. * rob. belknap , an eminent judg in his tim . affirmed , ● that the sea is subject to the king , as a part of this kingdom , or of the patrimony of the crown . ☞ object . ☞ ☞ * the king b the kingdom would promote trade ☜ c all intended for building men of war , as a guard to the kingdom . and if we had the mines of mexico and peru , in this kingdom , unless they were secured by force of arms , they would undoubtedly lie open to any that would invade us . ☞ ☜ ☞ ☞ ☞ observ . note , that we might make the same advantages of our fish abroad , did we encourage this national-fishery . ☞ note , if this national fishery were encouraged , there would undoubtedly acrue to the crown , above 400000l ▪ per annum . ☞ observ . ☞ hugo grotius lib. 1. lib. 2. notes for div a42117-e6510 guil. malmesb . lib. 2. cap. 8. am. 26 part . page 276. vide edw. coke , part 5. fol. 108. and in con ▪ littleton ▪ sect. 439. fol. 260. note , p. 38. remark . rot. par. 31. edw. 1. membran . 16. ☞ ☞ * * ☞ * the downs . white-hall , 16 april . 1635. our style . * and for these reasons , stand the fairest of any people in the world , to be lords of the seas , and give : laws to the whole world by our naval-force ▪ an abridgement of all sea-lavves gathered forth of all writings and monuments, which are to be found among any people or nation, upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers, within his majesties dominions of great brittain, ireland, and the adjacent isles thereof. by william welvvod, professor of the civill lawe. welwood, william, fl. 1578-1622. 1636 approx. 162 kb of xml-encoded text transcribed from 134 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2003-11 (eebo-tcp phase 1). a14929 stc 25238 estc s119612 99854819 99854819 20269 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a14929) transcribed from: (early english books online ; image set 20269) images scanned from microfilm: (early english books, 1475-1640 ; 1535:1) an abridgement of all sea-lavves gathered forth of all writings and monuments, which are to be found among any people or nation, upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers, within his majesties dominions of great brittain, ireland, and the adjacent isles thereof. by william welvvod, professor of the civill lawe. welwood, william, fl. 1578-1622. [16], 25 [i.e. 253], [3] p. printed by [thomas harper for] the assignes of ioane man and benjamin fisher, london : 1636. an expanded and revised version of: the sea-law of scotland (stc 25242). actual printer's name from stc. the first leaf and the last leaf are blank. p. 253 misnumbered 25. reproduction of the original in cambridge university library. some print show-through; some pages cropped and tightly bound. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -early works to 1800. 2003-08 tcp assigned for keying and markup 2003-08 aptara keyed and coded from proquest page images 2003-09 daniel haig sampled and proofread 2003-09 daniel haig text and markup reviewed and edited 2003-10 pfs batch review (qc) and xml conversion an abridgement of all sea-lavves . gathered forth of all writings and monuments , which are to be found among any people or nation , upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers , within his majesties dominions of great brittain , ireland , and the adjacent isles thereof . by william welvvod , professor of the civill law. london , printed by the assignes of ioane man and benjamin fisher , 1636. to the high and mighty prince , iames , king of great brittaine , france and ireland , &c. it pleased your m. some yeers past , most graciously to accept of this birth , in the great weakenesse and in fancie thereof . therefore is it , that now being strong , and by all warrants inarmed , it most thankefully returnes , offering service to your m. even for all the coasts of your highnesse dominions , upon hope to merit your former grace . your m. most humble subject , and daily orator , w. welwod . to the right honourable , ludovick , duke of lenox his grace , &c. henry , earle of north-hampton , &c. and charles , earle of notingham , &c. lords admiralls of england and ireland , of scotland and the iles , and of the cinque ports . having intended a painefull & new labour , upon a rare and necessary argument , as for al sea-farers , so also properly pertaining to your honours , my most noble lords ; i could not but of due salute your honours , as the keepers of sea-lawes , for a refreshing remembrance , and needfull consideration of that most honourable estate and high office , presently , and ( i hope ) happily allotted unto you : i meane , the admiraltie of his m. dominions ; a charge both ancient from many hundreth yeeres in this i le , and most honourable by the personages your predecessors , bearing the same : as being all , either sonnes , brothers , uncles , or cousins to princes , or ( at least ) for action most famous . with all the which , that your honours may the better ranke and match , surely , as the condition of these daies craves , so the best disposed wish , that as you be every other way noble , your nobility may be crownd with a carefull attention to the speciall parts of the admiraltie requiring the same , to a memoriall surpassing all ancesters : i meane the conservacy , jurisdiction and priviledges thereof . the jurisdiction , albeit it bee most faithfully and diligently exercised , and namely in england by sir daniel dunn , and doctor trevor , most learned , sincere , and worthy collegues , iudges in the high court there : yet the daily thwarting and curbing of the processe of the iudicature , urges a clearing or designing of the limits and marches , to a better distinguishing thereof from all other jurisdictions ordinary ; without which , due justice can neither be administred , concerning the sea customes ( of which no court else can take knowledge ) for strangers traffiquing here ( importing no small staine to the king his justice ) nor yet for his m. lieges traffiquers on sea , whose contracts and charter-parties ordinarily beare the clause of ruling by law of olero● ; a forraine law , as all the other lawes of the admirall court commonly are , whereof no other iudicature here can take cognissance . to end this point ; beside that which god in the heavens requires of the ministers of justice , please you to remember , that here below amongst men , nihil justitia popularius . consequently therefore , the priviledges due for the maintenance of the admiraltie and jurisdiction thereof , would be vindicat from all sort of encroching and usurping . but above all , the conservacie ( as the chiefe point of that office ) requires security and safety in common for all loyall subjects , traders on sea : specially , for fishers and others , happily disposed to adventure and exercise the trade of fishing , to the end , that not onely a peaceable , but also a full and plentifull fishing may bee enjoyed by the inhabitants of his m. kingdomes , even according to that which god so freely and bountifully offers into their very doors . for which cause , the barbarity of the ilanders would be repressed , and strangers stayed from scarring , scattring , and breaking the shoals of our fishes ; namely , upon our coasts of scotland . there could be no better employment for some ( at least ) of his m. shippes and companies , ne vel illi usqu● turbent , aut isti intercipiant , quod nos capere oportet . but , i breake from this purpose , remitting the same to the 27 title of this booke ; hoping for a comfortable out-bearing and maintaining of that necessary and great dignity of the admiralty by your ll. according to all the occasions of these quarrelsome times . and so i rest , by this present token , devote to serve your honours in my calling . william welwod . the contents . the prohem , containing the origin of the sea-law . page 1 1 the order of this treatise . 22 2 of the iudge ordinary in sea-faring causes , with his iurisdiction and priviledge● . 26 3 of the admirall clerke . 45 4 of the advocates , and other officers , assistants for the speedier proceeding . 49 5 of the manner of proceeding in seafaring causes . 52 6 of persons ordinary in ships . 64 7 of fraughting of ships . 71 8 of the master of the ship his power and duty ouer the ship . 83 9 of the master his duty to the merchant and passenger , and of his priviledges . 90 10 of the masters duty to the mariners . 99 11 of the duties and priviledges of mariners . 103 12 of the clerke of a ship . 113 13 of a pilot or steirsman . 116 14 of money bent to sea , or upon the sea. 119 15 of the outreaders or furnishers , the hyrers , and owners of ships ; and of actions for them , and against them . 124 16 of sundry partners of ships , and their discords . 130 17 of casting of goods , and contribution therefore . 136 18 of contribution for pirats . 142 19 of contribution for spoyled goods 144 20 of contribution for disburdening of ships for their easier entry to the port , and other chances . ●45 21 of the common manner of contribution , and execution thereof . 152 22 of priviledged ships . 156 23 of shipwracke . 161 24 of things found on the sea , or within the floud-marke . 168 25 of things taken upon sea. 175 26 of fishers , fishing , and traffiquers therewith . 187 27 of the community and propriety of seas . 200 28 of war-ships , and of the captaines and company thereof . 237 29 of ferryers and watermen . 243 30 of shipwrights . 248 the proheme containing the origine of the sea-law : with the occasion of this treatise . concerning the argument of sea-faring governement , so farre as by any monumēts can be observed , our beginning must be at the inhabitants of the iland called rhode , situate within the mediterranean sea , in the part thereof called the carpath sea , upon the coast of asia minor , over against caria . the indwellers whereof , amongst all other people we can reade of , were most famous for shipping and sayling ; and that not onely to the great increase of their power and wealth every way , as by which they did command and daunt all other people about their coasts and seas ; in such manner , that neither pirat , nor any sort of enemy , or disturber of their peace and traffique , durst then appeare a : but also by the communicating of their trade , and discipline on sea , they did make neighbour princes , and cities , willingly tributars unto them b . and further , as strabo writeth c to the crowning of their renowne , they surpassed all other nations in knowledge of equity in marine businesse ; which they manifested by making of sea-lawes . for , the very emperors of rome , tiberius caesar , hadrian , vespasian , traian , successively , did referre all seafaring debates and controversies , to the judgement of the rhodian law . d and so likewise exemplarilie , did their successor antoninus , by his rescript yet extant e : wherein , answering to one eudemon his plaint , i am ( saith he ) the lord of the world , but the law is the master of the sea ; let that thy plaint and controversie eudemon be decided by the law of the rhodians . so farre did the romans ( who alwaies excelled all other nations , in devising of humane lawes ) yeeld and give place to the rhodians in the sea lawes . and by their example , finding sea-faring and trafique on sea , redound to a great common wealth , as plainly pronounced f vlpian , one of the fathers of their lawes ; the romane emperours , and namely claudius , g brought in new formes of actions , and devised a kinde of new and sure commodities and gaine for trafiquers ; by taking upon them the hazard of shippe and goods : to which end also is erected by english lawes , the office of assurance . it is true , that the first making of sea lawes , is otherwise by some attributed to others , as by dionysius to the phenicians , because of merchant trade h . and plinius , for that same cause ascribes the art of sayling to the carthaginians . i and consequently , would seeme to attribute to these two nations also for their necessitie , the skill of sayling . to be briefe , by the space of a thousand yeeres , the sea , at least the mediterranean , was onely ruled by the rhodian law , but helped with some few additions by the romans , and that by way of interpretation : the rather , to occurre to the deceits and sophistrie of calumniators and wilfull vexers of their neighbours , as also for other needfull doubts k . at last , when all sorts of lawes by the eversion and renting of the romane empire , was as it were for a long time buried , necessity forced the rulers of rome , anno dom. 1075. to make new sea lawes and statutes : and so successively , every chiefe sea-faring towne upon the mediterranean coast , to adde other ordinances ; as they of marseilles did , anno dom. 1162. and they of genua , anno dom. 1186. and they of peloponnesus , called morea , anno dom. 1200. and the common-wealth of venice , anno dom. 1215. and the emperours of constantinople , paleolog . anno dom. 1262. and constantine , 1270. and iames king of aragon that same yeere ; and peter king of aragon , anno dom. 1340. and they of barcelona , anno dom. 1434. which lawes being all collected and amassed , serve the mediterraneans unto this day . but on the great ocean , which is our sea , the first lawes we knew to be made , were devised by them of the iland of oleron , situate on the sea coast of france , beside s. martin against the mouth of charante and the marraes , neere to the entry of garumna : which are therefore called la roold ' oleron ; as by which the controversies on the sea coast of france toward the ocean were ordinarily decided , in the towne of the said i le , called thereupon , lavile de droict , or oleron . as where the skilled skippers in that law did dwell , and had cognition of all such occurrent debates and questions . now these lawes of oleron , were afterward translated into dutch by them of wisby , for the sea use of the dutch coast . and of late , our kings of scotland made divers acts in parliament , concerning sea-faring l . as also the kings of england have done before m : for edward the third , by a solemne inquisition of eighteene most famous persons for skill in sea-faring , assembled at quinborow from divers parts , anno 1375. set downe certaine articles concerning the admiralty and sea-faring , into old french : as may be seene in an old parchment authenticke booke yet extant ; which articles one thomas roucghton of that same , turned afterward in latine , and intituled de officio admiralitatis angliae . likewise fredericke the second of denmarke , in his generall convention , at coppenhaven , anno 1561 : sets downe a compend of statutes , for ruling of his sea-faring subjects ; but for most part all one with la rooled ' oleron . also the french king henry the third , added his new constitutions to these of francois , and others his predecessors , which are chiefly for the authorising of his admiralty , iurisdiction , honour and profits therof ; preferring the admirall and his officers to all other iudges and iustices , except these called royals . notwithstanding all these many , divers , and late statutes and ordinances made and set forth these sixeteene hundreth yeares , by the nations , people , and princes above written , in the decision of causes , and judging of sea-faring controversies ; that fragment of the rhodian law , extant and latinized by simon shardius , intituled by him , leges navales rhodiorum & selectae leges rhodiorum , with the interpretations and commentations , devised thereupon by the old romane iurisconsults insert in the pandects ; together with the constitutions made by the romane emperours , contained in the cod. and novells at large : as it were by common consent of nations , obtaines the prerogative throughout all europe , as in great brittaine , germany , france , italy , and spaine . such is the force and authority of the civill roman law amongst all nations christian. in which countries , albeit there hath bin , and yet remaines a great number of professors and doctors of the roman civill law , who have written largely thereupon ; yet few or none hath taken in hand to write pertinently or expresly , upon the lawes concerning sea-faring , the traffique on sea , and by sea , with the duties requisite of every sea-faring person , of all sorts and degrees . it is true that iulius ferrettus in his observant devoir to the emperour charls the fift , prepared a discourse for the addressing of navies with convenient and expert governours , and all sort of necessaries for hostility on the sea , intituled de iure & re nautica , but farre off from our present argument , as may bee seene by the same of late published , anno 1579. and dedicated to philip , charles his sonne , by exuperantius ferrettus , sonne also to the said iulius . petrus pekkius also a fleming zelander , hath learnedly commented upon the titles of the civill law , touching the sea-lawes ; but more busied about the exposition of words then of the matter . likewise benvenutus straccha , in his large booke de mercatura , interlaceth a learned title , de nautis , navibus & navigationibus , but commeth not close to this our argument ; for he holds straightly within the compasse of the civill law , protesting also his pretermissions and remissions of many chiefe matters to certaine doctors , who also writes but obiter of the sea matters , and none speakes of the sea customes , which is our principall argument : to the end of which booke is annexed an halfe sheet of paper , bearing consilia roderici suarij de usu maris & navibus vehendis ; a turne of small contentment . 't is true that simon shardius , anno 1561. promised this same compend and collect of sea lawes forth of all lawes ( which presently by gods grace i intend ) but by death prevented , could not performe it . to conclude then , since no man , as i can understand , hath set his pen to this my argument and purpose , for the due information of every sort of sea-faring persons in every order , whether commanders , iudges , skippers , mariners , merchants , passengers , fishers , ferryers , watermen , &c. concerning their severall duties , priviledges and powers , and all manner of things pertaining or incident to sea and sea-farers ; i thought good , after the insight and deepe consideration of all the lawes and ordinances aforesaid , to mend a weake piece of labour , which i intended many yeares since , intituled the sea law of scotland ; and to frame the same in a very harmonicall collection of all sea-lawes , and upon the conscience of my profession of the civill law , having no employment or part in any admiralty , to publish the same for the use of the admiralties , and benefit of all benevolent sea-farers ; and that presently , because of the present use thereof so requiring the same , as i now cleerly perceive : that is to say ; because that wheras the most civill , wise , and politicke nations , have even most carefully distinguished the jurisdiction of the sea from the jurisdiction of the land in all respects : yet neverthelesse some men prease alwaies , upon what intent i wot not , to confound the same . and the multitude of these who doe acknowledge the foresaid distinction , as specially the mariners , through ignorance contemne all other law but the rule of oleron . in these respects ( i say ) i have with great paine and travell , concluded the publication of this work ; which if it please ( as i pray ) god to blesse with the owne effect , i have reward enough . tit. i. the order of this treatise . as the affaires of the sea concernes onely sea-faring and medlers therewith : even so all doubts , differences , and controversies , rising upon the same , and their cases must also concerne the same persons , which are eyther chiefly owners , out-traders or hyrers , masters , pilots , mariners , clerkes , merchants , passengers . of whom the owner is hee , to whom the ship or any part pertaines in property . the out-trader or hirer , hee to whom as hirer or partner for a voyage or more , or a longer time , during the hyring and lease of the shippe , the profits and commodities thereof redounds a . and the master is hee to whom the whole care and charge of the shippe is committed b . the rest are all knowne . now their persons whiles happens all to fall forth in one man ; as one to be master , owner , and out-trader ; and againe to be all divers and distinct : and therfore the actions to beare out accordingly . likewise the cognition of their debates pertaines not to every iudge indifferently , but only to the admirall of the sea : which thing this abridgement shall orderly and summarily declare ; beginning at the iudge ordinary to sea-fare causes , the members of the court , and manner of proceeding there : next , the persons ordinary in shippes , with the fraughting thereof , as belonging to the chiefe uses of shipping : thirdly , the power , duty , and priviledge of every one of the foresaid in ships : fourthly , the manifold causes of losses and dammage in sea-faring , with the redresse thereof : fiftly , the priviledged ships , shipwracke , shippes and things taken and found on the sea , or within the floud-marke thereof : and lastly , of fishing , fishers , ferryers and watermen , and shippe-wrights . tit. ii. of the iudge ordinary , in sea-faring causes , with his jurisdiction , and priviledges . as for the iudge of the sea , wee have first to consider , how at the beginning of the roman empire , there was a speciall difference betwixt the persons to whom the charge of shipping was given , and them to whom the commandement of fleets and navies was committed ; and betwixt the persons who exercised the jurisdiction in sea-faring debates , as followeth . for amongst the romans in the beginning , first the builders , forth●eakers , or furnishers , and preparers of ships and navies with all necessaries ( by a speciall ordinance called lex decia ) were stiled duum viri navales ; a as the governours of these fleets were called archigubernij , b and the iusticiaries of sea-faring debates , magisteriani : even so amongst the grecians , the commanders of their fleets were stiled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and after the empire seated at constantinople , magnus dux classis , and drungarius magnus , c as the chiefe carrier of the pinsell or flagge . his stile afterward was admiratus , from amiras , a word of the sarazens , signifying an overseer , or a captaine on sea or on land ; for mirar is to see , as the spaniard useth it . from this word amiras , commeth the word amirante to the italians for the leader of their fleets , as well as l'amiraglio : albeit they tearme their sea-faring iudges , li consoli del mare , and such like from the same word admirall , which most part of the nations of europe use in the same meaning ; as first and chiefly france , where childebert the first , one thousand yeeres sithence , instituted an admirall as captaine and commander of his armie upon sea , like as he did then ordaine a marshall for the governement of his gen d'armerie on land . onely the spaniard called this leader and commander of his fleets and navies , adelantado : as who should goe before the rest . briefly , the word admirall , how ever this day it be used or abused , for to signifie the chiefe shippe , which was navis praetoria to the romans , as the chiefe commander of the fleet ; yet that word great admirall , notes properly the man whom the romans called praefectum maris , and the grecians , thalassiarcham : to wit , the governour of the sea . and thus farre concerning names and styles for the commanders and gubernators of ships , fleets , and seas . but concerning the jurisdiction of the sea , and the exercises of justice amongst sea-faring men ; at first amongst the romans , it was allowed to every president on the coasts , and afterward other iudges were specially constitute at the sea sides , called magisteriani : d but their iudges were all countable to their higher iudge , styled praefectus praetorio sublimissimus , from whom was no appellatiō or advocatiō e sithence , in these latter daies , for the readier obedience to the great admirall of the sea , it is by common consent of nations , successively agreed , that in consideration of the admirals their soveraine commandement , their speciall preferment , and power upon the lives of men within the sea floud ; that therefore they should also have a soveraine jurisdiction onely proper to themselves , over all sea-faring men within their bounds , and in all sea-faring causes and debates , civill and criminall . so that no other iudge of any degree , at least in scotland , may meddle therewith , but onely by way of assistance ; and that by commission and in difficile causes , as was found in the action intended by antoin de la tour , against one christian marteis , 6 novem. anno 1542. f in which jurisdiction , the first power necessary , is to constitute a vice-admirall and captaines to supply his absence on sea ; as also deputies , for particular parts on the coasts , with the crowners to view the dead bodies found on sea , or found on the coasts thereof , and commissioners or iudges generall , for exercising justice in his high court on land , with clerkes , procurers , doome-sayers , marshals , and other officers , for the exercising of their said jurisdiction both in peace and warre : and therefore to sit and hold courts where they please ; to execute justice , to imprison and relaxe ; and to command the kings prisons and borroughs their prisons , to receive and keepe their warders and prisoners . g finally , their authority should be distinctly acknowledged in all things pertaining to sea-faring . it is true , that in scotland before the erection of our admirall after the example of other nations , the deanes of gild were ordinarily iudges in civill debates , betwixt mariner and merchant , as the water-baily betwixt mariner and mariner , like as the high iustice was iudge in their criminals . which actions all now falling forth betwixt the persons aforesaid , of due appertaines to the jurisdiction of the admirall ; and therefore his iudge depute or commissar , called iudge admirall , and none other , should sit , cognost , determine and minister iustice in the foresaid causes : as likewise upon all complaints , contracts , offences , pleas , exchanges , assecurations , debts , counts , charter-parteis , covenants , and all other writings concerning lading and unlading of shippes , fraughts , hyres , money lent upon casualties and hazard at sea , and all other businesses whatsoever amongst sea-farers , done on sea , this side sea , or beyond sea ; not forgetting the cognition of writs and appeales from other iudges , and the causes and actions of represals or letters of marque : yea , to take stipulations , cognossians , and insinuations , in the bookes of the admiraltie : and to doe all other things without which the jurisdiction of the admiraltie cannot stand nor beare out ; and therefore to arrest and put in execution , to inquire within and without liberties , by the oathes of xij . men upon all offences . h as first , touching the revealers of the king & countrey their secrets over sea , in time of warre . item , against pyrats , their assisters or abbetters , out-treaders and receptors . item , against fortifiers of the kings enemies , and ha●●ers of his friends . item , against the breakers of the admirals arrestments and attachments . item , against goods forbidden , and merchandise not customed , and yet shipped and transported . item , against the resisters of the admirall his officers , in executing his precepts . item , against the forestallers , regraters , and dearthers of corne , fish , drinke , fire-wood , victuals carried over sea . item , against pleaders before other iudges than before the iudge admirall , in causes pertaining to his iurisdiction ; as also against the iudges cognoscing therupon item , against them which give sea-brieves , testimonials , or such like , over sea , without power or licence from the admirall . item , against transporters and carriers of traitors , rebels , manifest transgressors , and fugitives from iustice , over sea . item , against hirers and fraughters of ships of other nations , when they may be served by their own nation : item , against such as cast in ballasting , sand , or what else , in harbours , or channels , that may defile or spoyle the same . item , against shippe and boat-wrights , extortioning the lieges or subjects . item , against taking away the boigh from the anchor , or cutters of cables , or other tewes . item , against false weights and measures by sea . item , against shedders of other mens bloud on sea , or any port or river below the first bridge next the sea : or them who are lamed or hurt through faulty and ill geare in ship . item , against customers or water-bailies , taking more custome or anchorage than wont . item , against such as absent themselves from wappinshewing or mustering ; which the admirall may ordaine twise a yeere in time of warre , and once in two yeares in time of peace , upon all dwellers at ports and harbors , or within one mile neere thereunto . i item , all sorts of transgressions committed by sea-men , ferry-men , water-men , as well in floud rivers and creekes from the first bridge , as on the seas ; fishers , pilots ; shipwrights , pressed men contemning the authority of the admirall : and after due cognition , to levie and apply to his owne use the penalties and amerciaments of all transgressors aforesaid , as due unto the admirall ; together with the goods of pirats , felons , capitall faulters , their receivers , assisters , attainted , convict , condemned , outlawed or horned . item , wayffe or stray goods , wreck of sea , cast goods . item , deo dando , that is to say , the thing , whether boat or ship , &c. that caused the death of a man , or whereout-of a man did perish . item , shares , lawfull prizes or goods of the enemy . siclike lagon , that which was found lyand at the sea ground , and flotson that is found swimming upon sea ; and ietson , which is cast forth of the sea to the shoare and coast , with anchorages , beaconages , meare swine , sturgeons & whales , &c. and all fish of extraordinary greatnesse , called regall fishes ; which all are allowed in great brittaine , france , and other noble kingdomes , to the admirals , by their soveraigne ; for the better maintenance of their estate , iurisdiction , and conservancie on seas , rivers , flouds , roads , ports , harbours , channels , sayling , fishing , and all trading there , as altogether and chiefly committed to the care , maintenance , and protection of the great admirall . tit. iii. of the admirall clerke . the clerke of the admirall court , beside that he should be very skilfull , faithfull , and give his solemne oath thereupon at his admission ; and beside the poynts of his office requisite and common to all clerkes of other courts , hee should have divers registers , as for congees , saueconducts , pasports , sea-briefes ; as without which no shippe should passe to the sea in time of warre , not yet to farre voyages in time of peace : a which no other iudges nor governours should give forth , but the admirall onely . b item , one other register for the reports of the skippers and captains , at their return to the admirall also . c item , one other register for the names of merchants , and passengers , and owners ; for the skipper is holden to give-up the said persons by name . d and because no man ought to take upon him to be a master or pilot without due tryall of his skill : even so ought his triall to be registred in the admirall his bookes . e but within the water of thames , this tryall and registration of pilots , pertaines to the trinitie-house . f lastly , all money lent to hazard upon the sea , called of old pecunia trajectitia , for certaine profit , called foenus nauticum , for the which the lender was wont to beare the perill , against the manners of these avaricious daies ; their lendings ( i say ) and billes of assurance , should be done before the admirall clerke . g to conclude , no other clerke or writer , may meddle or pen things concerning the sea-faring , without licence of the admirall . h tit. iv. of the advocates and other officers assistants for the better and speedier proceeding in the admirall court. for the more upright proceeding , and easier dispatch of causes and plaints in the admirall court , it is found needful that all procurers , before they be heard , sweare solemnly first , that they should doe nothing maliciously ; but as soone as they finde ▪ their action to be unrighteous in any part of the processe , they shall tell it to their client : and if the client will insist , then to shew it to the iudge . secondly , that they shall not reveale their clients secret to the adversary , nor yet collude with him to betray their client . and lastly , that they shall propone neither dilator nor peremptor against their conscience . a to conclude , the oath of fidelity is likewise to bee solemnly taken of the rest of the officers of court : for the due execution of their offices , namely , at their admissions . b tit. v. the manner of proceeding in sea-faring causes . the debates of sea-farers , and sea-faring actions , should be decided according to the received lawes and statutes of the sea : which fayling , then the customes and consuetudes of these are to be followed . a because all dispositions and ordinances commonly take their interpretation from consuetudes and uses . b and if neither law written , or unwritten custome , nor consuetude occurres or appeares , the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of sea-faring ; because it is old and common , that the judgement of skilled and well practised men , should be followed in their owne trade and calling . c but in the manner of proceeding , it is a perpetuall priviledge , quod velo le vato . d that is to say briefely and summarily , causes should be cognosced , and without the solemnitie of other ordinary courts & judgements , onely looking to god and the truth ; so that the iudge should doe , if it were possible , as god himselfe . e plaints then of sea-farers should be most summarily cognosced , but specially of shipwracke ; for it were a cruelty to vexe so miserable persons with the tedious ordinary proceedings of courts , in so much as they need not to put their petition in writing . f and because that sayling tends to a great common-wealth , therefore least sea-farers should bee wearied with pleas , and so either lose their right , or their trade , g summary processe should be common to them all . which sort of processe is so urged by the doctors of law , that they counsell iudges , who feare appellations or advocations , to prevent the same by a present execution ; h namely , in causes of spoyle or wrack : so that upon every interloquutor , they may proceed to execution , making restitution presently . providing alwaies , that caution bee first found by the spoyled , to satisfie the sentence of the iudge of the appellation , in case it shall happen to be made . i this is also a priviledge of the sea-faring iudicature , that albeit by the common rules of the law , where no litiscontestation is past , no witnesse should bee received , nisi ad aeternam rei memoriam , ac adversario ad id citato ; yet in shipwracke , as a case very pittifull , any of the shippe-broken men may come to the iudge of that part where the wrack happens , and by witnes brought with him , prove the wracke and spoile ; k to the end that if any owner should pursue his goods , for to recover them , hee might be justly repelled by an exception of an innocent losse : l which should be done within a yeer and a day ; namely , by such as were in service to the prince and country . m the like is to be observed also in causes of spoyle ; where by the lawes of england , it is sufficient for the spoyler to prove his goods by his marke , &c. mm in which doing , no citation is required ; and that against the common law : n yea , the death of the ship-broken may not onely bee proved by the rest living , but also by the persons , who were present at the preparation of their voyage , even their owne parents and children , if none of the ship-broken be on live . o and as this is a priviledge extraordinary for such chances ; even so ordinarily may merchants and mariners sayling together , beare witnesse each one to other of their society within ship , if they have neyther to lose nor gaine thereby ; and namely mariners , for or against the skipper when the voyage is ended , and when they are free from his commandement . p for by the consent of the doctors , when the truth cannot be otherwise tryed , then unable persons may be heard . item , to the end that this trade bee not hindred by calumniators , and wilfull vexers of their neighbours under colour of law : it is provided , that not onely the common caution , iudicio sisti , & iudicatum solvi , bee kept on the part of the defender ; but also that the pursuer shall finde caution , de expensis solvendis , if hee faile in proofe . q likewise , in case the party pursued be contumax , and will not compeire to defend himselfe , or his shippe , or things challenged ; namely , after three or foure citations directed from the high court of the admiraltie , called quatuor defaltae ( for that citation called vnum pro omnibu● , is not sufficient to convince one of contumacy ) specially in the claime or vindication of a shippe , any part thereof , or any other such like thing or goods ; then may the iudge ordaine his marshall or officer , by his sentence called primum decretum , to put the plaintiffe in possession thereof , at least to the worth of the suit : providing notwithstanding , that if the party compeir within a yeare and a day after , offering the expence made to the pursuer , and caution to obey the definitive , he shall yet be heard upon the propriety . otherwise , that time being fully expired , the iudge may proceed and adjudge the propriety of the ship to the plaintiffe . r neither is it needfull to execute summons or citations in such cases , elsewhere but where the ship or quarrelled goods in question lies , or at the part usuall of their haunting . s further , as this way it is provided for the snibbing and staying of calumniators in iudgement : even so it is ordained against maliciousnesse out of iudgement of such persons who onely to hinder and stay their neighbours , vexes them with needlesse arrestments ; that upon caution such a●restments be speedily losed , except it be either for fraught already deserved , or mariners wages , or such cases wherein by law the shippe is obliged ; or else for service to the prince : t as also if arrestment be used , eyther upon goods , or mariner ready to saile , the same may bee loosed , upon caution to make forth-comming so much goods as the mariner hath within ship-boord . u tit. vi. of persons ordinary in ships . touching persons ordinary for sayling in ships , they are of divers orders , and therefore diversly stiled : as first , hee who beares charge over all the shippe and kippage , is commonly called by us , and most part of nations , both now and of old , and specially by the romane lawes , navicularius , or magister navis : a that is , as wee speake , master of the ship ; by the dutches , skipper ; & by the grecians , nauarchus or nauclerus ; b by the italians , patrono . but if the ship be a warfaring ship , the principal person is commonly called captaine by us and other neere nations . the next to the master , is hee who directs the ship in the course of her voyage , called by the french-men , pilot ; by vs and the dutche , steirsman ; by the romans , gubernator ; c by the italians , nochiero , d pilotto , & nauarchus , as gerretus writes . the third person is commonly called the masters mate or companion , chiefly if the master be steirsman himselfe : this man is called by the grecians and romans proreta : e his charge is to command all before the mast . the fourth person is hee who attends upon the mending of the faulty parts in the ship , called by us and the dutches , timberman or shipwright ; by the old grecians and romans , naupegus or naupagus : f but by the late grecians , calaphates : for which cause the emperor michael was called calaphates , because his father had beene a shipwright in paphlagonia ; as witnesseth egnatius and volateranus , * and therefore the venetians and italians name their timberman calafatte . g the next person in order , is hee who beares the charge of the shippes boat , called by us boatsman ; by the italians , barchierie ; by the grecians and romanes , carabita : for carabus notes the boat of the ship . h the sixt person requisi●e in any shippe of great burthen , is a clerke ; by the italians , scrivano , i whose office is to write up and make accompt of all things received or delivered in the ship , together with all the ordinary and needfull expenses made upon ship & kippage : who for his more faithfull discharge , should at his entry be sworne before the ordinary sea-iudge ; as is ordinarily practised in ancona , and other parts of italy . k the seventh is the cook , a most necessary member as long as there will be bellies . the eighth is the ships boy , who keepes her continually in harbours ; called therefore by the grecians , nauphylakes ; by the romans , dietarius ; l and by the italians , guardiano . m all the foresaids are distinct in offices and names , and therefore accordingly should also be distinguished in hyres and fees , after the custome of the country . the rest of the persons of the kippage , are under the common stile of mariners , which the romans call nautas : but they name those of the lowest and base degree , as may bee the boyes and prentises in ship , mesonautae , n and nautebatae , as who should bee ready at command , to climbe upon the tewes , or to such common service in the ship . o tit. vii . the fraughting of ships . no shippe should be fraughted without a charter-partie written and subscribed , a containing both the master and merchant , and the name of the ship , that no doubt may arise ; b and likewise , that the master shall finde a sufficient steirsman , timberman , shipman , and mariners convenient , shippe-tycht , masts , sayles , tewes , strong anchors , and boat fit for the ship , with fire , water , and salt , on his own expences . c and this charter partie , among all the westerne merchants , and those of the great ocean , usually is made to per●orme all things requisite by the lawes of oleron . d and if there be no writing , but an earnest , then the merchant , if hee repent or rew , loseth his earnest : but the skipper , if he repent , loseth the double of the earnest or arles e if the ship be not ready at the day appointed in the charter-party to goe to sea , the merchant may not onely free himselfe of her , * except he hold his peace and discharge her not ( for then by his silence he appeares to consent of new ) but also shal or may obtaine all charges , scathes and interest : f except the master shew some excuse of a notorious necessitie , or of a chance that could not bee eschewed : and then hee loseth onely his fraught , because hee hath not deserved it . g but if the fault be in the merchant , h he shall pay the skipper and shippes dammage , or according to the rhodian law , shall entertain the kippage and company tenne dayes ; and if then he stay longer , shall pay the fraught of all accordingly : i and further , shall upset all hurt and damage hapning by fire , water , or otherwise , after the time appointed . k it is true , that the rhodians charge the merchant in this case onely with halfe fraught , & the skipper with the whole fraught if he faile : albeit that the romans inflict the pain of the whole fraught upon the merchant : m specially , if hee take forth his goods againe ; for then is the fraught thought to be deserved . n but if the ship in her voyage become unable without the masters fault , or that the master or ship bee arrested by some magistra●e in her way , the master may either mend his shippe , or fraught another : but in case the merchant agree not therunto , then the master shall at least obtaine his fraught , so farre as he hath deserved it . o for otherwise , except the merchant consent , or necessitie constrain the skipper , to put the goods in another ship worse than his owne , the master is holden for all losses and damage , except that both the ships perish that voyage , and that no fault nor fraud be found with the master . p also it is recounted for a fault , if the master put forth the ship to sea , either without a skilful pilot , or without sufficient furniture & necessaries , according to the clause ordinary ●f charter parties , or that the other ship in which the goods were last put in , be not sufficient , or that the master hazard forth to sea in an unlikely time . q yea , in former times it was forbidden expresly , as by the emperours gratian , theodosius , and valentinian , to hazard upon sea from november till aprill r as also by the kings of scotland , from s. iudes day till candlemas s and alwaies it is accounted by the lawes for a fault , to make forth of a port in time of a manifest storme . t item , if a skipper set forth his ship for a certain charge , and then takes in any more , he ought to lose his fraught justly . u and in such a case , when goods bee cast through storme , it shall not be made good by any contribution , but by the skipper his owne purse . x and if hee over-burden the ship above the birth marke , he shall pay a fine . y item , if a ship port at any other port then she was fraughted to , against the masters will , as by storm , or some force ; then the goods shall be transpor●ed to the port conditioned , on the skippers charges : but this thing also must be tried by 〈◊〉 oath of the skipper and two of his mariners : z or else the skipper may bee in further danger . where also it is to be observed , that for the in-going to sundry divers ports by the way , imports not a diversitie or a multiplication of voyages * but if any man compell the skipper to overburden ship or boat , he may be therfore accused criminally , and pay the damage happening thereby . a item , if any skipper set his ship to an unfree man , and not of substance , and other qualities prescribed by king iames the third , b hee and his mariners shall under-lie the paines contained therein . item , if a merchant put in more goods in ship than was conditioned , then may the skipper take what fraught he please . c it is imputed for a fault to the master , if he direct his course by waies either dangerous through pirats , enemies , or other evill aventures , and holds not forth his due rout , d and dammage happen thereby . it is likewise counted a fault , if the master carry the pensell or flagge of other nations than his owne , and thereby incurres scath and losse of any thing . e for , as packquets , pipes , hogsheads , and such like , should be marked by the proper marks of the merchants to whom they appertaine : f even so should ships be discerned one from another , by their owne pensell or flagge item , if coffers , pipes , pakquets , &c. be delivered close and sealed , and afterward shall be received open and loose , the master is to be charged therefore , untill a due tryall and consideration of that matter . g the master also must be answerable , for that harme which the rats for want of a cat doe in the ship to any merchandise . h tit. viii . of the master of the ship , his power , and duty thereunto belonging . the master of the ship is hee to whom the whole power and charge of the ship is committed : a which power is prescribed , partly by the owner or outreader , and partly by the common law of the sea : as , to set her forth for fraught ; to take in passengers ; to mend and furnish the ship . b and to that effect , if need be , in a strange countrey to borrow money with advise of the kippage or , company , c upon some of the tackle , or to sell some of the merchants goods ; provided , that the highest price that the rest of the goods is sold for at the market , be repayed to the merchant : which being done , the fraught of that goods so sold and repayed , shall be repayed by the master to the owner of the ship , as well as the fraught of the rest of the merchants goods , except the ship perish in the voyage ; in which case onely the price that the sold goods were bought for , shall be rendered : d and for no other cause , no not in the chance of shipwracke , may the master take on or conquest money , specially , by-selling of merchants goods . e and thus far cōcerning his power as for the masters duty , he ought first before he loose or make saile , to seeke and obtaine the consent of the most part of the kippage or company ; yea , if hee be not very skilfull , he should doe no other thing of importance without their advise : otherwise , hee shall undergoe what-ever dammage happens by his doings ; f and specially if he loose forth of any harbour without an expert pilot , g yea , or in the harbour the ship happen to fallover . h and as the skipper his rashnesse and unskilfulnesse is thus-wise corrected : even so his negligence and sloth is to be punished . as first , by suffering the overlap and cowbridge to be unticht , i or the pumpe to be faultie , or a sufficient decking to be lacking ; k and specially , from corn , victuall , and such like goods , which should be most carefully kept , and fenced from water and spoyling . l otherwise , the negligent skipper is holden to make good all scath or dammage comming thereby , beside that the fraught of such spoiled goods is lost ; except that m the ship or crear was open from the beginning , and fraughted without any overlap : n which two kindes of ships , are tearmed by the iurisconsult , emphractae & rephractae , nn further , this duty is required of the master , that according to the act made by king iames the third of scotland , he give up the names of all persons transported in his ship , before he make saile : n as likewise at his return , the just inventarie of the goods of any persons which shall happen to depart this life in that voyage ; o to the end , that not onely the lieges at home , nearest to the dead , may succeed to their right : but also concerning strangers so deceased , and their goods , that the same may be put in sure keeping , forth-comming for three yeeres space ; but by the custome of england , one yeare , untill the nearest of the dead-mans kinne come and claime the same . p of which goods in the meane time , the bedding with the pertinents thereof , may be of due taken by the master and his mate , to their uses ; as also such cloathing , and other thing then presently upon that persons body , may be delivered to the boatsman and servants of the ship , as who ought therefore to burie , or cure at least , the over-putting of the dead in the sea. q tit. ix . of the masters duty to the merchant and passenger ; and of his priviledges . the master ought to render againe whatever he receives within his ship , to him who delivered the same , as well victuall as clothing and merchandise , goods , or other thing : a where we take goods to be delivered , if either it be put in the ship , or in presence of the master or clerk as his deputie , layd to the ships side , b and both wayes , the perill to appertain to the master . c which thing also is extended to boatsmen , and to the ferryers : d and yet is it surest to deliver goods before witnesse , and that either to the master , clerke , or skipper his deputies thereto : e for the master is not holden for such things as are put in ship without his , and his companies knowledge ; f because where men are found ignorant , they are also esteemed not to consent . but if the merchant or passenger keepe his goods by himselfe , as money or such thing in his coffers , and then alledge the lacke therof , then is the skipper and his kippage onely to purge themselves by their oath : f but if afterward notwithstanding they be found guilty , the denyer shall pay the double , and also be punished for perjurie . g even so , the master is lyable for all damage sustained through evill hooks , cordels , blocks or lines ; namely , if the mariner foreshew the said things to be faulty : and alwaies the mariners shall help the skipper in common to pay the said damage . h item , if any scath or damage happen to the merchant or passengers goods , through unreasonable stowing or breaking up , the master shall not onely refound or make good the same , but also lose his fraught , and twenty pound in scotland to the king , i or his admirall as his successor now ; and for lacke of proofe in this case , the skipper and his kippage shal be put to their oath . k further , what ever shal hapē through fault , negligence or chance eschewable , or by the deed of passengers and others than himselfe or his kippage , the skipper is holden to answer and pay for all , to the uttermost penny : l for if such dammage happen by a mariner , the skipper shall refound the double , m but hee may repett it from the mariner . n but it is not so if the damage bee done by a mariner to another , except he be a merchant also , or by a merchant or passenger to one another , then shall not the double be sought of the master . o neither yet is the master holden for anything without the ship , or yet within the same , if he duely forewarn each man to keepe his owne goods , and they agree thereunto . p such is the force of due protestation , according to the opinions of the most famous doctors ; q which cōditions aforesaid , are most justly layd upon the master , because he ought to hire good men , and no evill person in his company : r for it is in his owne free will to chuse his company , and he should not be ignorant of the men he hath to doe with ; s otherwise , if the master were not so obliged to all such duties and diligence for the merchant & passenger , there should be great occasion of stealth & spoile . t lastly , if through the masters fault , confiscation , or other damage happe●s , as for non-payment of the custom , or false bils of the goods customable , or for transporting of unlawfull goods , the master shall refound the same with the interest . u but concerning the pursuits of these aforesaids , as the merchant may wel pursue for the spoyled goods onely : x even so may the master pursue the stollen goods ; as he who must onely , at least , chiefly , answer therefore . y and yet for all this , in case for want of these things , which the merchant at the fraughting promised to be done at the entry to the voyage , any of the aforesaid losses happens , and therewith the master and foure mariners sweare no fault to have been in them , the master shall goe free . z and yet must we not overpasse this observation , that if the master offer the just custom , anchorage , or whatever other duty pertaines to any customers , and he , because of their unrighteous refusall , makes saile , the weather and his necessity so requiring , then may he be justly defended afterward against that customer . a neither yet should a ship that hath once paid her anchorages , pay againe , if she be forc't through tempest backe to the same port. b tit. x. the masters duty to the mariner . seeing the master is the ordinary ruler over his owne kippage or company , he ought to keepe them in peace so long as they eate his bread . a and if any mariner hap to be hurt in doing service , or by his companion , the master shall cause him to be healed , as he who is onely answerable for the fact of all within ship-boord ; b and then by his authority , repeit or recover from the other mariner , the charges , with all that is lost to the hurt man therby : c except that he who is hurt or lamed , have provoked the other by evident invasion , assault , or stroaks . d and if a mariner become sick , the skipper shall cause him to be layd in a house , with all sustentation necessary and usuall in the ship , but shall not stay the ship untill he be healed ; and when he recovers health , shall give him his hire : or if he dye , shall give it to the wife or nearest friends . e but if a mariner be not hurt in the ships service , the skipper shall hire another in his place ; who if he draw more hyre , then that mariner shall refound the superplus . f and alwaies the master ought to lēd his mariners if they lack g item , if through the masters fault , the ships boat perish with any mariners in it , as through spoyld tews , &c. then shal the master pay one whole yeeres hyre to the heires of the drowned : h item , he ought to give his mariners , flesh upon sonday , tuesday , and thursday ; and upon other dayes , fish , or such like , with sufficient drinke : but no meate to them that sleepe not in the ship . i and yet the quality and quantity of mariners food and hyres , goeth diversly , according to the divers customes of countries , and the conditions made at the entry to their voyage . tit. xi . of the duties and priviledges of mariners . mariners owe all due obedience to the master , not onely in flying from him in his wrath so farre as they can , but also in suffering ; yet may they after one stroake defend themselves . in case of rebellion of mariners against their master , which is thought then to be done , when the master hath thrise lifted the towell from before any mariner , and yet he submits not himselfe , then may he not onely be commanded forth of the ship at the first land , but also if he make open strife and debate against the master , hee shall lose his halfe hire , with all the goods he hath within ship-boord . a but if in this strife a mariner useth any armour or weapons , then should the rest of the mariners binde him , prison him , and present him to justice ; so that if any of them refuse to lay to his hand , and to assist , he shall lose his hire , with all that he hath within shippe-boord . b yea in case any number of the mariners would conspire to force the skipper to passe to any other port , than to the which he was fraughted , then may they be accused criminally , and punished , as for a capitall crime . c and yet , if a rebellious mariner repent in time , and offer amends for a simple rebellion , and the skipper notwithstanding refuse ; he may follow the ship , and obtain his hire . d mariners ought each one to helpe and assist others on the sea : or else he that refuseth , loseth his hire ; and the oath of his fellowes shall be a proofe against him . e mariners in a strange port , should not leave the ship without the masters licence , or fastning her with foure ●ewes ; or else the losse lights upon them . they should also await upon the ship untill she be discharged , and ballasted new , f and the tackle taken downe . and if a mariner , in time of loosing and lading , labour not with the rest of the company , but goes idle and absents himselfe , he shall pay a fine to the rest , prorata , at the masters discretion . g at least , the halfe of the kippage or company , ought in strange country port or roade to stay aboord : and the rest who goe a-land , albeit with licence , should keepe sobriety , and abstaine from suspected places , or else should be punished in body and purse , like as bee who absents himselfe when the ship is ready to saile . h yea , if he give out himselfe for worthier than he is in his calling , he shall lose his hire , halfe to the admirall , and the other half to the master : i but this especially ought to be executed against an unworthy pilot. k the mariner also forfets his hire if the ship breake in any part , & he help not with al his diligence to save the goods . l if it chance any otherwise than well to the master , the mariners are then holden to bring backe the ship to the port from whence she was fraughted , without delay , m except it be otherwise provided . a mariner may carry as much meat forth of the ship as he may eate at a meale , but no drink . n a mariner may either keep his portage in his own hand , or put forth the same for fraught : and yet should not the ship stay upon the preparation for his portage . o so that in case the ship be fully laden before the goods for his portage be brought in , he shall have the just fraught of so much goods . p if a ship passe further than the mariner was hired , his hire should be accordingly augmented ; except he be hired , as the french man speakes , a mareages , mais non à deniers . q if a mariner runne away with his hire undeserved , he deserves the gallowes . r if a mariner be hired for a simple mariner , and afterward in the voyage findes hiring tobe a pilot or a master , he may passe with provision to render his former hire : evē so is it if he mary . s mariners are not onely holden to loose and deliver goods over-boord ; but also if no porters nor caryers be in those parts , to carry the same themselves , for such hire as other workmen should have had therfore . t if it happen a ship to be prized for debt or otherwise to be forfeited , yet should the mariners hire be paid ; and if she prosper , to receive their pay in the same money that the fraught is paid with . u lastly , a mariner should neither be arrested nor taken forth of a ship making to saile , for any debt ( but onely his hire , and as much other goods as he hath in the ship arrested therefore , according to the quantitie of the debt , and the master to be answerable for all : x because the ship is compared to a mans dwelling house ; y and by the civill law , a mans dwelling house is his most sure refuge ) z except for a sworne debt , or a penalty to the king through some crime . tit. xii . of the clerke of the ship . in ships of great bulk and burden , a clerke is most needfull : who being put in by men of chiefe power , and sworne solemnly before some iudge , as the use is in italie ( or at least before owners and mariners ) that he shall write nothing but the truth , nor leave ought unwritten ; being , i say , so constitute , neither merchant nor mariner may put in or take out any thing of the ship without his knowledge . so that whatsoever goods or other thing shall happen through storme or otherwise , to be cast , stollen , or spoyled , that hath not beene presented or shewne to the clerke , it shall no way be up●set by contribution , or any search made therefore . and if it come safe to land , the skipper may take what fraught he likes therefore . also the clerke may take of that which is delivered to him , and sell thereof for the ships need , but must satisfie the owner thereof : for he must be alwaies countable of his receits : a but howsoever he doe , he may neither take in , nor give forth goods by night , but in day light . b vide statuta ang. tit. xiii . of a pilot or steirsman . if a master hire a steirsman not only for to guide his ship in through shalds or other dangers at a time onely , but also for a whole voyage , and to be ready therefore against a certaine day , and he faile to keepe that day , he shall not onely pay master and merchants damage or stay , but also the fraught that is lost thereby : except sicknes , or some very lawfull excuse qualifie it . a a steirsman , after the time he hath brought the shippe in sure harbour , is no further bound or liable ; for then should the master see to her bed and her lying , and beare all the rest of the burden , charge , and danger : so that if before she come into the port or some safety , eyther she or goods perish or be spo led , the pilot makes good the same : yea , if his faul● or ignorance be so grosse , that the company sees any manifest and present wracke to all thereby , then may they leade him to the hatches and strike off his head . b yea , if without any seeing danger , certaine of the skilfull'st mariners deeme that he is not so skilfull as he set himselfe forth to be , then shall he both lose his hire , and double the same to the admirall and master , or else passe thrise under the ships keil . c tit. xiv . of money lent to sea , called nauticum foenus . great is the difference , or at least should be betwixt money lent amongst men , to use on land , and that money which is lent to sea ; for this money is called pecunia traiectitia , because that upon the hazard of the lender it is carried over sea. so that if the shippe perish , or that all b● spoiled , the money loses to the lender . a but on the contrary , money on land is delivered on the perill of the borrower : so that the profit of this , is the price of the onely simple loane ; therefore generally called usura : but the profit of the other loane is called usura maritima , or soenus nauticum , which is not the price of the loane , but of the hazard and danger which the lender takes upon him during the loane : b which is understood to be to a certaine day or voyage , or what-ever of time agreed upon . and therefore if the money miscarry , eyther before the voyage begun , or after the tearme appointed for the f●ll loane ; then the perill pertaines to the borrower thereof , and not to the lender : c i meane of perils proceeding from stormes , violence , spoyle or such like occasions , which cannot be eschued by any diligence of the borrower ; and therefore in case the borrower imploy the lent money upon lawfull goods , or that by his defrauding of the due customes , the same be confilcat , the lender is freed of such hazards . d it is also to be noted , that mony lent upon the sea , without hazard , and yet with security , should pay no profit , suppose it were unbooked in the clerks book with the profit ; contrary to that which is lent on land : e so that albeit money be lent within the ship during the voyage , to the need of the company ; and if before the day appointed for the rendring , shipwracke or spoyle happen , then should the losse come in contribution betweene them ; f because if that money had been lying by the lender , still unlent , it had bin in common danger of shipwrack of spoil with the rest . but if the time appointed were past with the hazards aforesaid , then shall the borrower repay the borrowed money , free from all contribution . g further , in case the borrower deteines any such lent mony as is aforesaid , beyond the terme appointed for the repaying , he shall at his returne not onely pay the profit agreed upon before the voyage , but also augment the same according to the greater time , and yet shal not pay the profit of that first condition , but onely after the common rate . h tit. xv. of the outreaders , or outriggers , furnishers , hyrers , and of the owners of ships , and of actions for and against them . it is not onely permitted to him who contracts with the master of a ship , or that hath any other action or claime against him as master of the ship , to pursue him ; but also the outreader , setter , or exercitor thereof , as him who placed the master ; and therefore ought to make good the masters deed and fact . a this outreader we take to be him to whom the commodity of the ship b redounds ; so that he may lay his action upon any of them ; ne in plures adversarios distrahatur qui cum uno tantum contraxit . c but the rest of the owners or outreaders shal relieve this man prorata ▪ of their portiōs ; except the handling of the ship be so severally divided amongst them : or that the master have not his power and commission of them all : d or that the master have obliged himselfe beyond his commission ; as if he have taken on money to mend the ship , when as she needs it not : or that he have no commission at all ; in which case the lender hath to blame his owne folly : for by the common rule of law , men should know well the persons and their conditions , with whom they have to bargaine . e and yet in case evident need be of mending , and money be lent thereto ; suppose the master should spend it otherwise , yet ought the outreader to satisfie the creditor . f but above all , that money which is lent for victuals to the ships company , should be repayed , as preferd before all other sort of debts . ff but a merchant contracting with a mariner that is not a master , shall have no action against the outreader , except for a fault done by the mariner , specially , if he hath beene hyred and put in by the outreader . againe , albeit by the common law of the sea the outreaders may not pursue persons obliged to the skipper , yet are they permitted to pursue upon the masters contract , as they had bin contracters principall ; g because in such dealings he sustaines the out●●aders person : and because of the great common-wealth that is procured by this kinde of traffique , h worthily such priviledges to the outreaders and exercers of shipping are granted . and yet is not the master alwaies bound to satisfie all counts to the outreaders : specially , in case it happen some passengers to be non solvendo , the master is nor holden to pay for them , because it becomes not the master , in the acceptation of passengers , to search out so narrowly their meanes and ability . i and againe , the outreader is not holden alwayes to answer for the masters sloath , but for his owne selfe . k tit. xvi . of sundry partners of ships , and their discords . moreover , concerning the owners of the ship , in case they cannot agree amongst themselves to remaine in partnership ; seeing by the law they cannot be constrained thereunto : a yea , not albeit a paction had bin made never to sunder ; b then is there many considerations required in their sundring . and first , if their common ship or cray be put in building ; or that she be but presently bought : in these cases it is thought convenient , that she shall be imployed one voyage first , upon the common outread and hazard , before any of these partners be heard to sunder & discharge their part . and after that , if they cannot agree , he who desires to be free , should offer to the rest , and set his part on such a price , as hee will eyther hold or sell , which if he will not doe , and yet refuses to outread with the rest , then may the rest rigge forth the ship at their owne charges , and also upon the hazard of the wilfull refuser , so farre as his part extends , without any count to him of any deale or part of profit at her returne : c but they must bee bound to him to bring her home safe , or the value of his part . and justly ; because that , as shippes were inven●ed in common , for the use of all men ; even of them that dwell in the mountaines , as on the coasts of the sea : d so were they ordained and builded for sayling , and not to lye idle and unoccupied . e but if the persons , who have most part of the ship , refuse to abide in partnership with him who hath a small part , that neither hee can sell his part at that price , without great losse , nor yet is able for povertie to attaine to their parts , then are they all bound to put the ship to an appraisement . f otherwise , the scoffe which casselius , a romane lawyer , used against two wilful partners of a ship , may also be used against such : that is to say , while they asked him by what way they might divide and part their ship , casselius answerd ; if ye divide her , then neither of you shall have her . g and if for lacke and want of buyers in that place , the poore partner can neither eschew the oppression of the richer , nor yet the rich satisfie the poor man , perchance also wilfull ; then may the iudge ordinary deale and decree in this case , as he may in omnibus alijs bonae fidei actionibus : that is to say , consider all the circumstances of the persons , their motions , the matter of their debate , with all the merits thereof , and make up a full consideration of all together , that every man may obtain and receive his own due right . h tit. xvii . of casting of goods in a voyage , and the like ; and of contribution to be made therefore . concerning contribution or scott and lot , as we speake , it is ordinary : and first , it is practised upon shippes so stormestead that for reliefe of lives and goods , casting of goods must be made : in that case the master shall consult with the mariners : who if they consent not , & yet the storm and danger continue , then may the master cast some goods notwithstanding : a but if the merchāt be present , let him begin to cast , b next the mariners : but if the mariner keep back any part that should be cast , to his own use , he shal render the double . c but when afterward the master shall come to land , he must with the most part of his company sweare that he did cast goods for no other cause but for the safety of shippe , goods , and lives d secondly , when goods are cast , they shall be upset and compensed by a contribution of ship and such goods as are safe thereby : e and not onely of goods paying fraught and burdensome , but of cloathing , money , jewels , and such like , f which are not weighty . for , it is most righteous , that the losse be common to all things which are safe thereby . g except things borne upon a mans body , victuals and such like , put in ship to be spended , and therfore should not scott and lott , with other goods : in so much , that when they become scant and wanting , each man is bound to communicate the same one to other . h but here it may be asked , whether yet should all kinde of cast goods , be up-set and made good by contribution , as for example , the goods transported above the overlap , and goods forbidden to be transported i sure , if such goods happen to be the cause of any scathe and danger , the master who received the same within his ship , shall beare the losse and also be criminally pursued therefore . k but if goods unadvisedly , without consent of the owner thereof , be cast out , on the sudden ; then may he himselfe upon his conscience esteeme his owne goods to the just worth , because the company hath that way by their rash dealing , lost the priviledge they had to estimate that goods . l in like manner the ship geare and apparell wracked by storme , imports no more contribution , then if a workman breake or spoyle his work-tooles , or instruments in his ordinary work , m except in the avoyding of a danger , as the helving the maste over-boord , n or the slipping of a tow-anchor or boate upon just fea●● , or at the desire of the mercha●ts . o but that should be alwayes proved by the oaths of the ship-men : for concerning all facts within house or ship , credit must be given to the domesticks and company familiar . p also if goods be put in without the master and clerks knowledge ; if they be cast , they shall have no contribution . q tit. 18. of contribution for pirates . if ship or goods be redeemed from a pirate , contribution shall be made therefore , by all ; because the redemption is made for the safety of all . but if the pirate be once master of all , and yet take but some speciall goods , whether from ship or merchant , and not as a contentation for the sparing of the rest , it should appeare in this case , that seeing the remnant is not safe hereby , but freely spared , that no contribution should be made for the taken goods . for oftentimes pirats take but things at their pleasure , and not of minde to spoyle . a yet now adayes because this chance of taking at pleasure , concernes ( in common judgement ) the rest of the goods as subject to that same pleasure of the pirat ; therefore should it be also in common upset by all to whom that chance is common . tit. xix . of contribution for spoyled and spilt goods . if through the losing of any cast goods , or upon any needfull occasion , the remaining goods be spoyled either with wet , or otherwayes ; a contribution shall be made , proportionable for so much as they are made worse . a tit. xx. of contribution for lightning and disburdening of ships for their easier entry to the port , and for other chances . if it be needfull to lighten a ship of her burden , for her easier entry to port or channell , the two parts of the losse fall upon the goods , and the third part on the ship ; except that the shippe surpasse in worth the loading , or that the charge of goods bee not the cause of her inability to enter , but some bad quality proceeding of the ship it selfe : a or that otherwayes it be provided in the charter-partie , that the goods shall be fully delivered at the port covenanted and appointed ; for then condition makes law : b in which case it is to be also observed , that if by occasion of lightning , the goods which are put in the boat or lighter , perish , the ship and remaining goods in ship shall upset the same . but on the contrary , if the ship and remaining goods perish after the lighter is once safe , no contribution shall be set upon the goods in the lighter : because the rule is constant , that onely then should goods be liable to contributions , when ship and goods come safe to port. c item , contribution should be for the pilots fee , that is taken in to guide her into an unknowne port ; d as also to raise the ship off ground when the fault is not in the master . e even so if two ships rush and crosse one over another , and the company sweare their innocencie , as that it lay not in their power to stay the same , contribution must be made for one equall upset of both their losses . f but not so if one of them perish ; because of that mishap , there can be no due proportion of the losse : for if it were otherwise , a malitious skipper , might of purpose set an old weake ship against a strong ship , in hope of some upset and recompence . and yet for redresse of the lost shippe , an action may be to the owner , against the negligent master , or the mariner who losed her , or cut her cable : g which action is called legis aquiliae , for dammage and scathe done . and therefore if such a chance befall in the day light , by a ship under saile against a ship riding at anchor , then the master of that sailing ship , shall make good the dammage or scathe of the other , to the extremity : and the like shall be done , if in the night the riding ship hold fire and light forth , or make any crying to forewarn the other . it also pertaines to this argument , h if some sort of goods , as salt , or corne , be laid on heap by divers partners , into a shippe without distinction , and that the master deliver to any of them their due measure , and before the rest receive their measures , the remaining salt or corne , washes or looses , he that had the good luck to be first served , enjoyes it fully without any contribution to the rest of the partners : ( i ) because when this goods was put into the ship , it was delivered to the master , tanquam in creditum ; and so he is become owner , as of lent money : which men are not holden to render in the selfe same pieces , but in value or such like coyne ; k except l there be some other condition past before : which in all affaires maketh law . neither can this be imputed for any fault to the master , because of necessity he behooveth to make delivery to one , first , before another . m tit. xxi . of the common manner of contribution , and execution thereof . in setting of contribution or rates , things must be estimate in manner following . first , the goods cast , spoiled , or reft ; to the price they cost , if their chances did happen before midde voyage : but if after the midde voyage , then to the price , the rest of the same goods attaine to at the market ; because there is here a consideration , rather of losse and scathe than of any gaine . a and because domage and losse should be drawne as it were in streite , and gaine and vantage spredde forth and extend , according to harmenopolus sentence ; spoyled and lost goods should bee set to the common worth , and not after mens affections : b except onely in goods unadvisedly cast : wherein for the correction of the rashnesse of the casters ( as who thereby appeare to have amitted their owne priuiledge ) the estimation of the goods is permitted to the conscience of the merchant or owner therof . ( c vide supratit . 17. secondly , concerning the persons , whose losses are under contribution , he should first deale with the master , to retaine all the same goods on the bottome of the ship , in his keeping , untill the rate be set and executed : d or else may omit all other persons , and pursue the skipper ex conducto : which also ceases , if the cast goods be found againe . e lastly , concerning the master of the ship his priviledge , it is not onely upon the detinew , and keeping of the goods and geere brought within his ship , which are thought as by a privie band to be obliged and given him in pledge for the fraught , by common consent of lawyers , but also for the due and timely satisfaction of such contributions ; because the imposed taxation , as likewise the fraught , is thought to sticke firmely to the said goods : and therefore the master may hold his hand thereon , untill satisfaction be made , f albeit that commonly the with-holding of other mens good be not allowed . g tit. xxii . of priviledged ships . ships or boats serving the country , or the prince , have great prerogatives . for first they goe free from all imposts , customs , and arrestments , a not onely in forth-going , but also in their returne , according to fredericke the emperour his constitution . b yet if a skipper serving the prince or countrey , wilfully falles on coastes and by-courses where he should not , to their hurt and hinderance , he merits death : c and the commanders or officers in chiefe parts , who wittingly suffer such skippers to lye and slugger , incurre a forfeiture of all their goods . d and if any man shal force the skipper of these or any other ships to take in more than his just charge , not onely should he upset all hurt and losse , but also be publikely punished . e and as these are the conditions of ships serving the prince ; so is it to be knowne that all sorts of ships are subject to this service , upon command : f otherwise in case they refuse , their ships shall be confiscat , except they report a testimony from the admirall of very lawfull excuse g yea , further is to be noted , that masters of ships and ferriers once so professed , are bound to serve as well subjects in common , as the prince ; h except they have left the trade , or be under a safe conduct , or have taken in moe , then they can well carry a ship-board . i and this is a common priviledge to all sort of loaded and burdened ships , to have the neerest place to the shore , for their discharge and unloading ; and therefore the ships lightened , to give them place . k lastly , even the persons who build , purchase , or dresse shippes expresly for a common-wealth to their . country , are accounted amongst the priviledged : l yea the frequenters of sayling are also priviledged in all courts . m tit. xxiii . concerning shipwracke . strangers incurring shipwracke in scotland , should have the same favour of us that we use to receive of them in the like case ; a so that no confiscation should be used against them , except they use to doe so to us , or that they be very pirats , or enemies to christianity : b otherwise , who steals any such miserable goods , shall pay foure-fold to the owner , if he be pursued within a yeere and a day ; c and as much to the prince or his admirall : yea , the onely stealing of a naile , or the worth thereof , maketh the thiefe guilty of all , to the rendring of all the remaining goods . d yea , by the emperour antonius his ordinance , this thiefe or robber of such goods should be battoned , and banisht for three yeares , if he be of any honest ranke ; but if he be base of condition , should be sent scourged to the gallies or metall mines . e and if any man should be so cruelly wicked , as to hinder the ship-broken men from helpe in danger , hee shall be recounted for a murtherer . f and therefore may no man hinder ships from forthlaying of tews & anchors upon land : * as was decided betwixt couper and seagy , anno 1498. mense iulij , g in like manner , if any man should be so accursed as to hold forth a lanterne in the night , of intention to draw on ships to a danger , in place of a good port or harbour or safe roade , that wicked person should be punished to the death . h yea , though no harme happen , yet may the admirall punish him at his pleasure : i and therefore even fishers are forbidden to fish with light in the night , lest that sailers thereby be deceined with the false shew of an harbour . ii but for the better eschuing of these cruell evils , hadrian the emperour ordained , that all men having possessions on the coasts , should attend carefully upon such chances ; otherwise , to be answerable for al things missing by stealth or robbery . k item , if no man in due time claime such a wracke , it fell of old to the prince his customers , according to that of hermogenes and fortunatianus , l naufragia ad publicanos pertinento ; but now-adayes to the admirall , by the princes graunt . but concerning the action for shipwracke , it should be intended within a yeere and a day , m and sped by the iudge within two yeere . n where it is to be marked , that if the shippe onely perish and the goods are safe , in that case the goods shall pay the fift or the tenth penny ; according to the easie or difficult winning and saving of the said goods ; o for gold , silk , silver , & such like things of easie transportation , should pay lesse than goods of greater weight and difficult transporting , as being in greater hazard : p except the skipper carry-in his ship to a port or part where hee should not , nor the merchant would not ; for then is the merchant free of all the skippers losse , q and no way should upset the spoyled or broken ship . r but in cases of wracke , the lawes of england are also to be seene : as , westm. 1. 3. e. 1. vid. praerog . regis 12. tit. xxiv . of things found upon the sea , or within the floud-marke . ships , goods , or geare , or whatsoever other things found within the sea or floud thereof , are of three sorts : as , either found on the streame floting , and then are called floatson : or found on the sea bottom , and drawne up from the same by doukers and other meanes ; and then are called lagon : or found on land , but within the sea-floud , as cast forth there by storme and the water ; and then are called ierson . concerning floatson and ie●son , whether things be cast up by shipwrack , or else left as lost through casting in stormes , the finders thereof , as some lawyers thinke , a should doe therewith , as with other goods found upō land : that is , to proclaime the same to be forth-comming to the just owner ; because the loser or ●ynner of such goods remaineth still owner and proprietar thereof : b and if no man claime , the finder to keepe it to himselfe if he be poore . c but according to the old rhodian law , whether the finder be rich or poore , he may claime or rather retaine the fift part , for the safe keeping d if a douker finde drowned goods upon eight cubits deepe , hee gaines the third part ; and if on fifteene cubits , then he obtaines the halfe ; but upon one cubite , onely the tenth part . e yet if the finder be rich , and hath found goods by chance , hee should rather give it to the church or poore , as some say . f but now-adayes this goeth farre otherwise ; first , because persons endued with the superiority or signiory of any part of the sea-coast , do claime all or a part of these things , whether cast forth of ships , or otherwise comming upon their land , g which otherwise before was allowed to the finder : h even so , when shippes or boats were found on the sea , or at the coast thereof , without any living creature therin , and no man claiming the same for the space of a yeere and a day , then was the halfe allowed to the finder , and the remanent to the prince , as a derelict : i but since the erection and constitution of admiralls , this kinde of found goods are diversly par●ed ; for in france , the king , draweth a third , the admirall a third , and the finder a third . k and of old , in england , although such things were divided twixt the admirall and the finder , l yet now they are left to the arbitrement of both admirals in england and scotland , to consider the finder or taker with a condigne portion , for his travels , charges , and hazard in all circumstances ; m even with the halfe at least , according to that which tryphonius sets downe , concerning things found on land . n yet , if the finder conceale such goods , whether anchors , timber , jewels , dead-men with money or jewels about them , &c. he not onely loseth his just part , but may be also fined at the will of the admirall . o and thus farre concerning things found by the labour and travels of men . if whales , great grosse fishes , ships , or boats , without any living in them , by force of winde and waves onely , be driven to any coast or land , then all and whole appertaines to the admirall : and so generally , all casualties whatsoever . p tit. xxv . of things taken upon sea. now followeth to treat of goods taken upon sea ; which are of three sorts : for either they are taken from pirats , and sea-thiefes ; or from professed enemies in lawfull warfare ; or from such as not professing open warre , allowes taking reft to be exercised against us . which kinde of taking , is covered with the title of letters of marque , called ius represaliarum . and first , touching that which is taken from pirats , sith the goods which they have wrongfully taken from others , whether they be found in their owne , or in their successors possession , are esteemed to bee a just prey to any taker , so that account be made thereof to the admirall : in case the taker finde the goods of his country man or friend with the pirat , hee should make the same forth-comming to the just owner claiming the same ; his cost , charges and hazard , being alwaies considered and allowed ; a so that if any man buy or redeeme his neighbours ship from a pirat or enemy , hee must receive the price thereof from the owner . b but if no man claime the goods taken from a pirat , then should the same be delivered to the admirall , who ought to consider the taker with his due part thereof . if a ship or goods be taken by a professed enemy , who hath not brought it in praesidia vel locum tutum , for the making of a prescription ; or a right , and afterward the same is taken back , and recovered by any friend , and the just owner claime the same , it ought to be restored to the owner ; for that by the law , huiusmodi res non tam capta quàm recepta intelligitur . c but when such goods become a just and lawfull prize to the taker , then should the admirall have a tenth part : for so of old , the tenth part of lawfull spoile , was offered to god , in a manner ; as we may learne by that which abraham returning from victory over five kings , offered to melchisedeck : d and the remnant of the spoile should be proportionally divided amongst the takers , according to the law of god , set downe by moses , e and practised by king david ; f and yet not onely amongst severall persons , according to every man his proved travell and hazard . g so that the ship that sets no saile , fights not , nor hazards not with the rest , should have no part with the rest , thereof . h provided alwaies , that first and formost , the prisoners , captives , and taken goods of preyes , be in due time presented to the captaine , to be disposed by the admirall : so that if any man breake bulk , meddle , or dispose of any of those goods before , he may be punished , and the receiver or buyer prisoned , untill caution bee found , that these goods shall be forth-comming to the admirall , and just owner , according to a decision past betwixt the king of scotland and maubray , anno 1487. 17. iunij . i if two forraine nations be at warre , and the one take a shippe from the other , and bring her into a port or road within the bounds of a neutrall nation , alike friend to both , then may the admirall of that neutrall nation ordaine that ship so taken and brought within the said bounds , to be restored to her owner ; and the persons captives , to their former liberty , even as if she had beene brought backe to her owne port and countrey againe . k besides that , generally in all cases , the action and cause of liberty , as priviledged , should be favourably considered : l and it is the honourable practice of princes , to make their countreyes an asylum , or sanctuary , to all distressed strangers that bee not pirats . lastly , concerning letters of merque , as we speake , or droict de merque , as frenchmen tearme it , sive ius represaliarum , and goods and things taken under that title upon sea ; surely , as farre as we may , we should prease to keepe gods law set downe by moses , m practised by king amasia , n and confirmed by the prophets : o that the father should not be punished for the sonne , nor the sonne for the father , but a difference to be alwaies put betwixt the guilty and the innocent . which thing moved emperours to make constitutions for the repressing of represalies in certaine respects . p notwithstanding , if our patience be so oppressed with the increase of robberies , spoyles , and violence upon sea , by men falsely professing friends , in such sort that upon no supplication , intercession , nor other travels , the princes of these wrongfull nations ( who onely can and should represse and redresse ) will doe justice , or neglect to doe their office ; then because such a dealing imports a iust cause of lawfull hostility and warfare , i see not but that such a calamity may and ought to be repressed , at least by these represalies and letters of merque ; q specially , sith that cause , in effect , resembles a warre denounced without solemnities of clarigation . and therefore , both according to the lawes of england , letters of merque are allowable ; and according to the old custome of scotland ; and the tenor of the act of parliament made by iames the first of scotland , r concerning shipwracke , to be followed for a rule to such cursed cases , that is to say , that other nations should have the like favour of us , that they shew to us . now being agreed that letters of merque are lawfull , as they are by statutes , customes and reason , specially upon a matter of great importance , and after a due warning , intimation , and one requisition ; so that it be done by the prince , and solemnly : s then what goods happen to be taken by that meanes , should bee brought and presented as aforesaid before the admirall ; t that a just inventary may be taken thereof , for divers good respects . tit. xxvi . of fishers , fishing , and traffiquers therewith . albeit hunting , hawking , and fishing , be of one kinde , as subject to a like law and liberty , a because what wilde beast , fowle , or fish be once taken by any man , commonly it becommeth his owne proper by the lawes of nations ; yet is there a difference twixt these three : for , albeit hunting and hawking be almost every where lawfull , yet fishing is forbidden in other mens ponds , stanks and lakes , b as comparable with the●t . yea , now a-daies , in rivers , and in parts of the seas neerest to the possessions of men having grant and infeftment from the king , may fishing be forbidden , but no private man , without the grant of the prince , upon any pretence , or allegation of long consuetude and prescription , may acquire the propriety of any such part of the sea , as to prohibite others to fish there also ; c for such prescriptions onely pertaine to princes . to returne to the quality of fishing ; sith it is not onely allowable to all sorts of persons , d but also commendable , and alwaies to be preferred to all other trades and traffiques upon sea , not onely for necessaries , but also for the great good and profit redounding thereby ; all ciuill and vertuous princes have diversly forthshowne their care , for the entertaining and advancing thereof : as , by ordinances to build shippes and boats to that purpose ; e and by their wise appointing of certaine onely times for the fishing , as namely , of salmon , under paines not onely of fynes , but also of forfeitures , and of death , according to the manner of the offence , and contempt of their decrees and statutes . f which princes also ( for the increase of fishes ) have , as it were with common consent , forbidden the making , setting , and using of crowes , yarrs , dammes , fosses , tramelets , parkings , dyking and herrywaters , in any waters g where the sea ebbes and flowes , under paine of confiscation of all the goods of the transgressors in scotland . h yea , albeit that any man were of old infefted with keeping of crwiffes , weares , and kiddles , &c. yet must he keepe the saturdaies slop : that is , to lift the same from saturday at after-noone till monday ; and also to make each heck or mesh of his crwiffe three inches wide , i except for taking of smelts , loches , and such like that will neuer be bigger : as also , for to set the same upon the waters , that the mid-streame may have the iust space of sixe foot wide , under the paine of five pound . m and thus farre concerning the maintenance and increase of fishes , by our scottish lawes and custome . it followeth , to set downe concerning the fishers their safety and priviledges . wherin it is provided , first , that all shippes sayling into the parts where herring are taken , at least during the taking thereof , shall let downe ●aile after day light past , let their anchor fall , and keepe watch with lanterne and light , untill day light appeare again , lest otherwise the poor fishers should be over-run , or their nets broken : their paine in denmarke , is death to the transgressors : n and the fishers are likewise forbidden to use light in their fishing by night , lest they deceive saylers with the false shew of a port . nn likewise , lest any of the fishers harme or hurt one another , it is diversly provided , as also cōcerning the right measure of their nets in length & in bredth ; o as may be seen by the statutes of sundry nations vid statuta angliae . and specially therfore it is agreed of long time sithence , by the sea-farers on the forth of scotland ; p first , that no ground-draffe or drag-net , be set before march , nor upon deeper water then fourteene fathome . item , that none shall lye to their neighbours when he shall be asked concerning the length and depth of his tewe , when he is in driving : neither yet wittingly and wilfully to suffer his tewes and nets to flit , and runne over one another , under the paine of ten pound for every transgression of the premised articles . item , above all , that from the sun-set on sonday , no man lay nor hale nets or great lines , or exercise any labour , under the foresaid paine . item , for the further incouraging of fishers in the west and north isles of scotland , there is a statute that no other customes be sought of the fishers in the said i●es , but only the kings customes ; under the paines due to manifest oppressors against them who exact the same . q lastly , concerning fishers and traffiquers with fishes , it is ordained that not onely all fish slaine and taken neere to the coast of scotland , be brought and presented to the market places , where the takers or slayers thereof dwell : r but also all fishes taken in the north and west isles or firths , to be brought directly to the townes where the fishers dwell ( that the need of the countrey may be first served ) s and presented to the market places : from which none may carry them away to packe and peil , but onely betwixt the houres of eleven and two in the afternoone , under the paine of confiscation . in which markets , it is lawfull to the provost & bail●ffes to set downe prices , and to compell the packer and peiler to sell againe for the need of the lieges . t which being done , they may transport the remainder where they please . u and in case they contemne , then their fishes to be eschete , two parts to the king , and the third to the magistrate ▪ x likewise , concerning the barrelling of fishes , it is ordained that the measures prescribed of old shall be kept : videlicet , each barrell of herring , or of white fish , to be of twelve galons ; y and the barrell of salmon of fourteene galons , according to the measure of hamburg , z under the paines of escheting there of from the pa●ker , and of five pound to be lifted from the couper . a and therefore hoop irons to be made in each towne , for the tryall and gaging thereof b vid. statuta angliae . tit. of fishing ; in the abridgements . tit. xxvii . of the community and propriety of the seas . having of late seene and perused a very learned , but a subtle treatise ( incerto authore ) intituled mare liberum , containing in effect a plaine proclamation of a liberty common for all of all nations , to fish indifferently on all kinde of seas , and consequently , a turning of undoubted proprieties to a community ; as the fift chapter thereof at large discovers ( wherein the unknowne authour protesteth , that he may for his warrant use the authority and words of such old writers as have beene esteemed most mighty in the understanding and judging upon the naturall condition of things here below ) and the discourse , being covered with the maintenance of a liberty to saile to the indians ; i thought alwaies expedient by occasion of this argument of fishing contained in my former title , by gods grace , to occurre thereunto ; as manifestly direct , at least ( in my weake sight ) tending to the prejudice of my most worthy prince and his subjects ; and that not onely by arguments derived from the first verity of the nature of things , but also from his owne proofs , warrants , and their authors . and yet before i goe any further , i cannot passe the authour his ridiculous pretence , in both epistle and beginning of his discourse ; as for a liberty onely to saile on seas : a thing farre off from all controversie , at least upon the ocean ; specially , since passage upon land through all regions christian , is this day so indifferently permitted to all of all nations , even to turkes , iewes , pagans , not being professed enemies ; and therfore much lesse to be restrained on sea in all respects . so that i cannot but perswade both my selfe , and other loyall subjects , that the said pretence is but a very pretence ; and so much the more to be suspected as a drift against our undoubted right and propriety of fishing on this side the seas . now remembring the first ground , whereby the authour would make mare i●herum , to be a position fortified by the opinions and sayings of some old poets , orators , philosophers , and ( wrested ) iurisconsults , that land and sea , by the first condition of nature , hath beene and should be common to all , and proper to none : against this i minde to use no other reason , but a simple and orderly reciting of the words of the holy spirit , concerning that first condition naturall of land and sea from the very beginning ; at which time , god having made and so carefully toward man disposed the foure elements , two to swimme above his head , and two to lye under his feet : that is to say , the earth and water , both wonderfully for that effect ordered to the up-making of one and a perfect globe , for their more mutuall service to mans use : according to this , immediately after the creation , god saith to man , a subdue the earth , and rule over the fish : which could not be , but by a subduing of the waters also . and againe , after the floud , god saith , replenish the earth : b and for the better performance hereof , god in his justice against the building of babylon , scattred man-kinde over all the face of the earth ; c therefore is it that moses saith , d these are the iles of the nations divided in their lands . so that hereby is evident that things here done , are not so naturally too common ; sith god the author of nature , is also as well author of the division , as of the cōposition : and yet howsoeuer , in his justice as is said , yet in his mercy also and indulgent care , for the welfare and peace of mankinde . for those are sentences both vulgar and sure , set downe by the romane iurisconsults , e communio parit discordiam . quod communiter possidetur , vitio naturali negligitur . habet communio rerum gerendarum difficultatem . f afterward , the earth , by the infinite multiplication of mankinde , being largely replenished , and therefore of necessity thus divided ▪ and things upon the earth not sufficient for the necessaries and desires of man in every region , followed of force the use of trading vpon the seas ; not onely for the ruling of the fish therein , according to the commandement given by the creator at the beginning , but also for transporting of things necessary for the use of man. for the which , and other causes above mentioned , the waters became divisible , and requiring a partition in like manner with the earth ; according to that of baldus : videmus , de iure gentium , in mare esse regna distincta , sicut in terra arida . g and thus farre have we learned , concerning the community and propriety of land and sea , by him who is the great creator and authour of all ; and therefore of greater authority and understanding then all the grecian and romane writers , poets , orators , philosophers , and iurisconsults , who-so-ever famous : whom the author of mare liberum protests he may use and leane ●o without offence . now , sith the weaknesse of this his first and principal ground doth this way appeare ; let any man judge upon the truth of that which cicero ( his man ) sets down , g sunt privata natur a nulla ; and likewise of all other his authors their opinions , for the fortification of an originall community of things . it followeth to examine the chiefe warrants of mare liberum ; and to consider how farre they may beare forth to a common liberty for fishing , on all seas indifferently . the author cites vlpian , a renowned iurisconsult indeed , and martian their sentences ; alleaging h that vlpian should say , i ante aedes meas aut praetorium ut piscari aliquem prohibeam , usurpatum quidem est , sed nullo iure , adeo ut contempta ea usurpatione , iniuriarum agere potest . sz . prohibitus . that is to say , if i should forbid any man to fish before my house , he may mis-know such an usurpation , and intend action of injury against me , for a wrongfull staying him from fishing there . but as i read , k vlpian his words are thus ; sunt qui putant iniuriarum me agere posse : that is , there are men who thinke , i may intend action , &c. it is true also , that martian saith , nemo ad littus piscandi causa accedere prohibetur . l and yet neither of these two iurisconsults , pronounceth absolutely in these cases , but upon another higher warrant : and therefore vlpian addes , saepissime rescriptum est n●c piscari , &c. prohibere posse . m that is , it is by writ most often answered , &c. which martian expounds most clearely , when he saith , nemo igitur ad littus maris piscandi causa accedere prohibetur ; and subjoynes his warrant , idque divus pius piscatoribus formianis rescripsit : n that is , no man is forbidden to come to the sea side and fish ; as the emperour divus pius did write to the fishers of formian . so that you see the emperours to have been warrants to these lawyers , and their written opinions , concerning the voyage of the sea . now , to passe the propriety which hereby we see these emperours did claime on the seas , i aske first , to whom did the emperours write such resolutions ? was it not to the professed subjects of their owne empire ? and what ? even the usage of the seas , and coasts of their empire , to be indifferently common to every one of their own subjects : and how ? iure gentium ; that is , according to the law kept by all other nations , to every one of their own nation in like cases . moreover , albeit these and other romane lawyers pronounce so , concerning the community of the sea-shoare , and coast , that private men may build houses within the floud-marke , and appropriate them to themselves , according to that which neratius writes , quod in littore quis aedificat , eius fit : o that is , what a man builds on shoare , it becommeth his owne ; yet upon this condition , tamen decretum praetoris adhibendum est ut id facere liceat , saith pomponius : p that is , providing the praetor his decree be interponed thereunto ; or that the prince give grant , as vlpian writes ; q vel ut princeps concedat . as for the remnant of these sorts of warrants alledged for mare liberum , sith they sing all one song for the common use to the people , and propriety to the prince , if men will but onely marke them ; i need not stay further upon them . so that every man may see both the use of the word commune , and the meaning of iure gentium among these lawiers , whereupon this mare liberum appeares so to be founded , that it cannot be shaken . for , commune , there is nothing else but publieum , q●asi populicum ; signifying a thing common for the usage of any of one sort of people , and not for all of all nations : according to that of modestinus , roma communis patria est . r neither yet doth that word , iure gentium , meane any law set downe by common consent of all nations ; but onely notes the example of the law , or custome of other nations : as if they would say , the liberty of fishing on our seas , and of other doing there and at shoare , should be common to every one of the romane empire , like as the same is common to all of all other nations , on their seas , and their shoares . likewise , that of placentinus ; quod mare sit in nullius bonis , nisi solius dei : that is , god is onely lord of the sea ; and so say we with king david , that the land also is the lords . s but that of faber , t mare esse in primaevo iure quo omnia erant communia , i need no otherwise to refute now , than i have done above already . and these are the authors and warrants whereupon mare liberum inferres his conclusion ; demonstratum igit ur nec populo , nec privato ius aliquod in mare competere posse , quum occupationem , nec natura , nec publici usus ratio permittat . u which , how it followeth upon the premisses , let men judge ; sith neither these his authors make for him , neither yet the reason inserted in the conclusion beares out ; which is , quum occupationem nec natura , nec publici usus ratio permittat : that is , neither nature , nor the common need , suffers the sea to be acquired in property to any occupation . for answer , first concerning the nature of the sea , as supposed impossibly occupable or acquirable ; is this so thought because the sea is not so solid , as is the land , that men may trade thereon , as upon land ? or that it is continually flowing to a●d fro ? surely , that lacke of solidity for man his trading thereon by foot , shall not hinder the solid possession of it , farre lesse the occupation and acquiring , if we will give to the sea , that which the iurisconsults indulgently grant to the land , which also cannot be denied . paulus the iurisconsult saith , x qui fundum possidere velit , non utique omnes glebas eius circumambulet , sed sufficit quamlibet partem eius introire , dum mente & cogitatione hac sit ut totum possidere velit usque ad terminum : that is , it is not needfull for him who would possesse himselfe in any part of the land , to goe about and tread over the same ; but it is sufficient to enter-in upon any thereof , with a mind to possesse all the rest thereof , even to the due marches . and what can stay this to be done on sea , as well as on land ? and thus farre concerning the solidity . as for the flowing condition of the sea , howsoever it be liquid , fluid , and unstable , in the particles thereof , yet in the whole body , it is not so : because it keepes the prescribed bounds strictly enough , concerning the chiefe place and limits thereof . vvhich discourse , gives us occasion of force to answere to a scoffe cast in by the author of mare liberum , concerning the possibility also of marches and limits , for the division of the seas : y mundum dividunt ( saith the fore●aid authour of mare liberum ) non ullis limitibus , aut natura , aut manupositis , ●ed imaginaria quadam linea : quod si recipitur , & geometrae terras , & astronomi coelum nobis eripient : that is , they divide the world , not by any marches , put either by nature , or by the hand of man , but by an imaginary or fantastick line : which kinde of doing being embraced , the geometers may steale away the earth , and the astronomers the heavens from us . it is true , that there are not in every part of the sea iles sensible ( as gernsey is to england in the narrow seas ) or sands ( as the washes at the west seas of england ) nor rockes , or other eminent and visible markes above water , for the designation of the bounds ( or laying-out the limits ) of the divisible parts thereof : but god , who is both the distributer and first author of the diuision and distinction of both land and sea , hath given an understanding heart to man for the same effect , as well as for all other necessary actions wherein he hath to employ himselfe : so that to a very wonder , god hath diversly informed men by the helpes of the compasse , counting of courses , sounding , and other waies , to finde forth , and to designe finitum in infinito ; so farre as is expedient for the certaine reach & bounds of seas , properly pertaining to any prince or people . which bounds bartolus z hardily extends and allowes for princes and people at the sea side , an hundreth miles of sea forth from their coasts , * at least ; and justly , if they exercise a protection & conservacy so far : and this reach is called by the doctors , districtus maris , & territorium . a it is true , baldus b esteemeth potestatem , iurisdictionem & districtum , to be all one . to conclude then , since papinian writes in finalibus quaestionibus vetera monumenta sequenda esse ; c what more evident monuments for our king his right in the narrow seas , then these isles of gernsie ? &c. and for the eastern seas , direct from scotland , what is more antiently notorious than that covenant twixt scottish men and hollanders , concerning the length of their approaching toward scotland by way of fishing ? and thus farre through occasion of answering to that alleadged impossibility , of acquiring the sea by occupation , because ( as would appeare ) of the unsolidity therof , for any foot treading . it rests to touch the other cause naturall , for that other impossibility , which may be the continuall fluxe and instability of the sea ; in such sort , that it would appeare not aye to be one and the selfe same body , but daily changeable . for answer , i must remember that which the iurisconsult sets downe so prettily : d , suppose ( sayes he ) a certaine colledge of iudges , or a legion of souldiers , or the particular parts of a ship , or of a mans body , should so continually and often be changed and altred , that none of that first colledge or legion could be found alive , nor yet any part of the shippe or body could be so certainly demonstrate , that it might be affirmed for the very same that it was at the first ; yet if that colledge or ●egion be in number full , and the ship or man whole and able in all the frame , they shall be accounted and esteemed not to be new , but to be the very same which they were at the beginning : even so , however the sea many waies and hourly changes , in the small parts thereof , by the ordinary rush on land , mixture with other waters , swelling in it selfe , exhalation and backe receipts thereof by raine ; yet since the great body of the sea most constantly keepes the set place prescribed by the creator , i see not in this respect neither , wherefore the nature of the sea should not yeeld to occupation and conquest . and thus farre concerning mare liberum his last and great conclusion , against all appropriation thereof by people or princes . i call it his last great conclusion , because of other two passing before , whereof the first is this ; mare igitur proprium alicuius fieri non potest , quia natur a iubet esse commune : e and for what reason ? even because cicero , virgil , and plautus have said so . to whom i could also assent concerning the great , huge , and maine body of the sea . his next conclusion is this ; est igitur mare in numero eorum quae in commercio non ●unt , hoc est , quae proprij iuris fieri non possunt : f that is , the sea to be of that order of things , which cannot bee appropriate to any man. his warrants for his conclusion also are the romane lawyers , whom i said to be wrested by mare liberum ; and therefore must shew the same , contrary to his purpose indeed . martianus , g as the authour of mare liberum largely grants , h saith , that if any private man have himselfe alone , by any lawfull space of time sufficient for a prescription , kept and exercised fishing in any ●reeke or nooke of sea , which they call diverticulum ; hee may forbid all others to fish therin : which papinianus i also confirmeth . the which , as i accept , so i would further demand of him . by what reason should a private man , who hath no other care nor respect but to himselfe alone , be thus priviledged and preferred to a prince ? who not for himselfe ; but for his people also in common , yea and for the safety of all traders passing his coasts , with great charges and care protects and conserveth the seas neerest unto him : shall not this prince be acknowledged , at least with the good which that sea , conserved by him , offers so directly to him ? and i pray you say , what lesse authority had leo than the rest of the romane emperours , to grant to every one in particular , having possessions at the sea side , as much of the ●ea as was neerest against their lands , k with the fishings thereof ? what then , shall not princes be equalled , in these cases , with subjects ? or rather , have not all princes a like right & power within their own precinct and bounds , as these roman princes had ? but now to draw neerer to the chiefe point of our purpose , and so to the end thereof : as i accepted mare liberum his former large graunt , so now also doe i more heartily embrace the next , which is this ; when after these his conclusions , he had said in tanto mari siquis piscatu arceret , insanae cupiditatis notam non effugeret : l he subjoynes according to that of cicero , m quando sine detrimento suo quis potest alteri communicare in ijs quae sunt occupanti utilia & danti non molesta , quid ni faceret : and subjoynes afterward , n et si quicquam eorum prohibere posset , puta piscaturam , qua dici quodammodo potest pisces exhauriri : that is to say , if the uses of the seas may bee in any respect forbidden and stayed , it should be chiefly for the fishing , as by which the fishes may be said to bee exhaust and wasted ; which , daily experience these twenty ye●res past and more , hath declared to be over true : for wheras aforetime the white fishes daily abounded even into all the shoares on the easterne coast of scotland ; now forsooth by the neere and daily approaching of the busse fishers the sholes of fishes are broken , and so farre scattered away from our shores and coasts , that no fish now can be found worthy of any paines and travels ; to the impover●shing of all the sort of our home-fishers , and to the great damage of all the nation . whereby , i see at last , the author of mare liberum not so addict to serve any mans particular desires , as to answer ( forsooth ) to his profession of the lawes , that is , to allow the proper right for every man and nation , and to hurt none ; according to the three generall precepts of all lawes , set down by caius , o and after him by ●ribonianus : p honestè vivere ; alterum non laedere ; & ius suum cuique tribuere : whereof the second tryes and rules the rest ; according to the vulgar saying out of pomponius , q neminem debere cum alterius damno locupletari : and that of tryphonius , r ex aliena iactura lucrum haurire non oportet . and therefore i would meet him with his deserved courtesie ; even to proclaime mare liberum also : i meane that part of the maine sea or great ocean , which is farre removed from the just and due bounds above mentioned , properly pertaining to the neerest lands of every nation . atque ita esto mare vastum liberrimum . tit. xxviii . of war-fare shippes , and of the captaines and companies thereof . and since wee have written above of priviledged shippes a amongst which the warfare-ships of princes are first and chiefe ) and somewhat of the conservacy of the seas , in the last title ; i cannot here passe the warfare-shippes unmentioned , albeit not in such large manner and measure as their imployment now-a-dayes requires . as for the matter fit for their building , and things necessary for their forth-setting and preparation to sea , i must refer the same to iulius ferretus , and to vegetius , who have written largely thereupon . some touch i have here subjoyned , in the last title of this booke , concerning the materials : as likewise somewhat is premitted concerning their priviledges , in that title of priviledged shippes . therefore would i here set downe ( but very briefly ) some thing concerning the captaines , commanders , & companies of the prince his warfare-ships , the graces & vertues required in them , with their duties , power and preferment . captaines of princes warfare-shippes should be men , first , fearing god , because they must continually walke in the midst of the wondrous workes of god. next , they should be stout , hardy , and couragious . thirdly , vigilant , diligent , and carefull ; and therefore very temperate on sea : b specially , because their imployment , as it is full of hazard and danger , even so are their occasions and opportunities sudden and momentanie . therefore their commandement and power over their company , not onely surpasseth the power of masters and commanders of private shippes , but also that of the captaines on land ; and therefore their honour and estimation every way higher also , because of their greater charge , care , and hazard . their duty toward their company , is first , that they chuse such as bee free from hainous and scandalous offences . c next , that they suffer none of their company to bee idle , but to punish as well the sluggard as the rebellious : d yea , even those who are irreverent towards them ; e and againe , should with all loving care see to the due food of their company , heare their mutuall plaints , hold them in peace by all obedience , visit , refresh , and with all helpes comfort the hurt and diseased . f as for the captaines their other duties to the prince and admirall , with their owne priviledges , they are all gathered out of old customes , and at large set downe in that booke called l' admirall de france . tit. xxix . of watermen and ferriers . ferryers and watermen are bound to serve all true lieges for their due fare ; a so that they may be compelled thereunto : b and most , justly , because it was in their owne hand and power from the beginning to give and apply themselves to that calling and trade , or not . and if therefore they faile , it shall be , according to the law of scotland , a point of dittay or inditement against them in the first iustice-court ; and if they transgresse unto the third time , they may be suspended from their trade , c except they can alleadge a just cause ; as , of feud or hostility . item , it is ordained , for the easier boating and landing of men and beasts , that ferriers make , and have ready , fit and convenient bridges , or else to lose their boats. d lastly , ferriers and watermen are no lesse bound , than skippers and masters of shippes , to render againe what-ever they receive to bee carried within their boats. e but concerning their ordinary fares and hires , it is neither needfull nor expedient in this place to recite the divers statutes made thereupon ; because that first they are at great length set downe in the statutes of england and scotland : next , because their fraughts have beene , according to the rate of times , changed and altered even to the triple , as specially in scotland f so that now also , according to the condition of this time , their portage , fraughts or fare , may be of new considered by his majestie , or admiralls , according to the quality of the boats , and the space of passage and time , either shorter , longer , or hazardfuller , during their service ; but with a due proviso , for the repressing of their rude and uncivill manners . for truely , if the roman iurisconsults might of old by any reason call mariners , in generall , pessimum genus hominum , g ( which in these latter dayes for the most part is amended , partly through christianity and civill conversation , & partly ; by good lawes , praise be to god ) then may wee now use that same still , at least against the most part of watermen and ferriers ; as requiring to be reformed , or at least by correction repressed . * tit. xxx . of shipwrights . to conclude this treatise , there remaineth a speciall sort of persons to be considered and respected , as the forgers and framers of the instrumentall causes of all sea-faring ; to wit , shippe-wrights , and builders of ships or boats , called by the romans , imitating the grecians , naupegi : and by the italians , following the latter grecians , calafatti , as is above described ; a and therefore subject to the jurisdiction of the admiralty b as accountable to the admirall and his iudges ) as accessories of sea causes , for their skill , diligence , and dutifull discharge in every respect , by a frame not onely likely & comely , but a worke also strong , ticht , and durable : or else they must undergoe the pains of the law , called lex aquilia ; that is to say , all costs and scath happening by their unskilfulnesse , negligence , or what-ever other fault or amisse . c and therefore , first touching the materials , they should not onely furnish the same good and sufficient , but also , if the furniture pertain not to them , they must refuse to take from the furnishers bad and vnmeet geare and stuffe for the worke . d as for example , aller , beech trees , and such like brickle and naughty timber for salt-water , or for the seas . neither should they put greene timber in worke ; but ought to fore-see if they can , that their wood be cut downe either at the wane of the moone , and in the deepe of winter , or at such time as experience declares wood to be most solide and durable . for timber cut at the contrary times , is commonly full of moysture ; and therefore being afterward dryed , becomes clung , and open to receive water . the like care and skill is required in the iron , and all other necessaries , to the end that the workes may prove strong , durable , right , and comely . this being done , it resteth to consider their hires and fees : which because they ordinarily depend on the conditions agreed upon with the party , which also commonly is cavelled withall before a full performance of their worke , upon surmises and quarrels ; therefore to occurre to all such doubts and discords , the contracts of such bargaines should be ( after the example of other seafaring dealings ) made before the admiralls deputy ▪ or iudge , and registred in their bookes . d last of all , as shippe-wrights were of old , e so are they also of late , forbidden , f under paine of treason , to communicate their skill and art to enemies and barbarous people . g likewise , they are forbidden ( as are also all other societies of handy-crafts-men and trades-men ) to conspire among themselves to enhance their wages , or hire , or to receive excessive wages . h finis . notes, typically marginal, from the original text notes for div a14929-e650 a gellius , lib. 7. cap. 3. b strab. geogr. lib. 12. cap. 14. c ibid. d vide il. rhodior . in prin . e l. deprecatio ad l. rhod. e● c. rhodiae leges . distinct . 2. f l. 1. sect . licet . de exerc . act . g suet● . ca. 218. h de situ orbis . i lib. 7. natur . histor . vide ●zechiam . c. 27. k dotimus in lib. suo legoli . l vide act . par . lia . scot. m vide statut . ang. a l. 1. de , exercit . act . b l. 1. ad l. rhod. a livius lib. ● . b l. seius saturninus ad s. c. trebell . c vide fragmenta ascripta polybio . d vide alberic . ad novell . 17. & 24. e l. à proconsulibus . c. de appell . f tòm. 1. c. ●35 regist . scot. g l' admirall de france . h vide diplomata admiralior . in utroque regno . vide latè de off . admir . ang i l' admirall de france . a l' admirall de france . b eodem . c eodem . d secundum act . parliam . iac. ● . cap. 27. e l' admirall de france . f looke the charter of the trinity house on thames . g l' admirall de france . h kintor . art . 45 a il consolato del mare . b eodem . a perladeprecatio ad l. rhod. bald. in l observan . in sect . antiquam de off . proc●ns . b innoc●nt . in e. vlim de ●erb . sig. c per l. 1. de vent inspic . d l. de submersis c. de nauf . lib. 11. e vide rotam genuae , & dd. f ●artol . lu●ius & iohannes ad d. l : de submersis . g secundum l. illum de pet. hered . h dd. i● c. proposu 〈◊〉 . de sor . comp ● . i l' admirall de france . k si quis . 10. c. de naufrag . l l. fin. ad l. rhod. m l. quoties . de naufrag . mm vide statut . ang. n l. de unoqu●que . dere iudica . & l. quoties . c de naufrag . lib. 11. o de l. quoties . p il conselato artic . 221. & 222. q consent of ●ll sea lawes . r de offic . admi . ang. in fin . cum ibi citatis . s ibid. t il conselato 4● u denmarke . a l. 1. & passim . ad l. rhod . & l. 1. parag ▪ ●●naur , caup . b vide l. semper de iur . immun ita . & l. 3. c. de navicular . vide vegetium de re militar . c vide lege● navales rhodior . d il consolato ▪ e vide dd . il. navales , & plautum in ruden●● . f vide dd . il selec . rhod. * lib. 23 ▪ g vide il consola . h vide dd il. selec . i vide il consol . k ferretus de re & iure navali . l l. 1. parag 2 , naut . caup . m il consolato . n vide budaeum ad l. 1. naut . caup . o vide l. debet . parag . haec actio . naut . caup . a il naval . rhod . select . art . 20. b vide bartol . in l que● rerum . parag . si navem . de leg 1. argumento l. labeo de . supel . ligat . &c. c cap 17. & 130. art . iaco● . 3. vide de il. rhod. d d. art . 20. e art. 19. il. naval . rhod. * per legem item parag . si in lege l. ca. f oleron . g per l. si , ex conducto , & l. si item fundus , & l. haec distinctio & d. l. si in . lege . loca . h d , l. ex conducto . i 〈…〉 navalium . k art. 29. cod . m d l. si in lege , & l. ult . ad l. rhod . & d. l. ex conducto . n l. ult . loca● . o oleron , & l. ult . adc . rhod. p d. l ult . q d. l. item . r l. 3. de nauf c. theodos. & l 3. de nauf c. iallin . lib. 11. s v●de act . par . t l. u●ique parag . fin . & l qui petitorio . parag . fin . de vend . l. item queritor . sect . si navicularius . c. ●oca● & l. u●t . de naufrag . u la ro●l● oleron . x art . 2● l●g . naval . rhod . y denmarke . z oleron . * dd. in l. qu● romae parag . callimachus . de verb oblig . a l. unica c. ne quid on●r pub . lib. 1● . b c. 17 &c. 〈…〉 act . r. iac. ● . c il consolato del ma●e . d l. pe● . parag . si navis . loc . & l. si pecuniam . de cond . indeb . & l. qui fiscalis c. de navicul . lib. 11. & l. quum proponas de naut . ●oen . e per. l. quum proponas . ad l. rhod . f per l. ● . c. d● nav . b. non excus & l. minim● . de espisc . aud●en ▪ g bat● . in l. in actionib . in fin . de in lit . iurand , & in l. unic . furt . advers . naut . h per l. item quae parag si ●ull● . loc . a l. 1. de exercit . act . b d. l. 1 c oleron . d eod. e eod. f eod. g l. item magister locat . h oleron . i denmarke . k leges naval . rhod. art . 11. l eod. art . 38. m art. 44. eod . n vide. l. 1. parag . quadam de exercit . nn d. l. 1 parag . quaedam . n c 27 actor . per lac 3 & l' admiral de france . o l' admirall . p il consolat del mar . at . delmar . q eod. a t. t. nau● , caup . b l. 1. in fin . eodem . c l. 3. eod . d d. l. 1. parag . ● e art. 12 ll . navalium . f l. 1. depositi . f eod. art . 13. g art. 14. eod . h oleron . i eod. &c. 17. &c. 130. act . iacob . 3. k oleron . l d. l. 1. in fin . & l si vendita de perie . rei . vend . & l. 5. & 6. naut . caup . m d. l 6. & l. 7. eod . n d. l. 7. o vide d. l. 7 & l. unic . furt . ad naut . caup . p l. fin . naut . caup . & per l. itaque de ed. edict . q bartol . & iason in l. non solum parag . mortem . de nou oper . nunc . r instit. de ob . qu● ex delict . parag fin . s l. quicu● alio . de rog . iur . t l. 1. in fin . naut . caup . u seund . fin . l. ult . ad l. rhod. & l. quum proponas c. de naut . s●●nor . x accursius in l. 5. naut . caup . per l. mela ad l. aq . y per. l itaque de furtis . z la reol d' oleron . a per l. quantae : de pu● . b per l. fin . parag . si propter necessi●atem eod . a oleron . b per. l. 1. de exerc . act . & l. fin . naut . caup . c art. 5. ll . naual . d art. 6. eod . e per. l. ulr . ad l. rhod. f oleron . g eod. h art 46. il . naval . i ll consolato . a oleron , & il consolato . b il consolato . cap. 160. c denmarke . d oleron . e eodem . f denmark . oleron . g denmark . h denmark . i eodem . k eodem . l oleron . m eodem . n eodem . o eodem . p il consolato . q oleron . r denmark , & oleron . s eodem . t il consolato del ma●e . u eodem . x oleron . denmarke . kinror . y bald. in l. certi iuris . loc . z l. nemo . de reg . iur . & l. plerunque . de in ius voc . a il consolato . b l' admirall de france . a oleron , & arg bult . ad l. rhod . b oleron & il consolat . c denmark . a l. r. de foen . naut . b l. periculi . eod . c vide passim ad . ll . de foen . naut . & ad . ll . naval . rhod. d vide l. 3. c. de foen . naut . e art. 15. & 16 leg. naval . f art. 17. eod . g d. art . 17. h art. 18. eod . a parag. exercitor . iust . de ob . ex quasi delic . t. t. naut . coup . b eod . ibid. c d. l. 1. 2. & 3. eod . d l. 4 in prin . eod . e d. l. 1. & l. qui cum ali● de reg . iur . f l. ult ▪ de exer . act . ff per l. interdum . cum seq . qui p●tior in pig . g passim . d. l. 1. h d. l. 1. parag . 10. i l. 2. sect . 6. 〈◊〉 l. rhod. k oleron . a l. fin . c. prosocio . & pass . inst . & d. eod . b l. in hoc parag . si conveniat . pro soc . c denmark . cum ll . hic seq . d l. arboribus parag . naves de usufr. e glossa in l. si navis . & iuris . in l. utique para . culp● de r●iundic . & l. arborib . parag navi● . de usufruct . f consolato . g maerobius lib. 2. c. 6. h secundum citata , & secundum . l. bona fides . deposit . a oleron . b il consolato . c art 3● . il maval . select . d oleron . e l. 1. & 2. ad l. rhod . f d. l. 2. & oleron g eod . h d. l. 2. i l. 17. &c. 130 actor . iacob . 3. k arg. l vnie . c. ne quid oner . public . l per. l. si fide . iussor . d. qui satisd . cog . m d. l. 2 & l. navis eod . n l. amissae . eod . & oleron . o d. l. 1. & il consol . del . mar . p per. l. conse●su . c. de repud : & l. qu●ties . c. de naufrag . &c. veniens . extr . de testib . &c. 2. de pr●bat . q il consolato del mar . a vide lat● . l. 2. ad l. rhod . a vide l. navis 4. ad . l. rhod . a oleron . b l. 1. verse quod convenit . depos . c d. l. navis . & l. amissae ad l. rhod . d oleron . e eod. f eod . & l. quemadmodum . parag . si navis ad . l. aquil. g d. l. quemadmodum . parag . si navis ad . l. aquil h art. 3. 6. 11 ▪ naval . rhod . k iust. in pr. qu●b . mod . re contrab . ob . ●e . l. 2. si cert . peti . l quod convenit de verb. ob . m vidd . l. in menave . a l. 2. in fin . ad l. rhod . & il consolato . b d. l. navis & l. pretia . ubi bartol . ut ad . l. 7. c. de prog . milit●r . lib. 12. c per. l. si ●ideiussor . qu● . satisd . cog . d l. 2 ad l. rhod . e d. l. 2. in fin . f l. 1. de dol . mal . excep . & l. si non sortem . de cond . in de . g l. 1. parag , rediguntur . d. quod vi ●ut clam . a l. 1. de navicul . c. lib. 11. b auth. 〈◊〉 filiu● pre patre . c l. 5. de navicular . c. lib. 11. d l. ult . eod . e art. 49. il. selectar . naval . f vide tit. de navib . non excusand . c. g de offic . admir . ang. h albericus ad tit . naut . caup . & in l. unic . furt . adver ▪ naut . caup . i bart. & bald. in d. l. unic . k wis●i● c. 10. l qui navium de privileg . creditorum . m c. innocentius . de for . comp . a 138. actor . iacob . 1. b l. 1. c. de naufrag . & auth . naufragia , c. de furt . c l. 1. in pr. de incend . ruin . l. in eum cum auth . seq . de furt . d l. 3. in fin . de incend ru . nauf . e l. pedius 4. eod . f arg. l. sacc●larij de extraord . crim . * gaius l. 5. de rer . divis . g tom. 1. regis● . scot. h per d. arg . l saccula . ●i . i per l. 10. de incend . ruin . nauf . ii l. ne piscatores eod . k l. ne quid eod . & auth . naufragia . c. de furt . l m. cod. theodo . m l. si quis . c. de naufrag . lib 11. n vide l. de submersis . eod . o art. 37. leg . naval . rhod. p art. 40. eod . q art. 39. eod . r art 37. eod . a faber & alij inst . de rer . divis . sect . pen. b per l. pomponius . parag . fin . de acquir . rer . dom . c faber . d. parag . pen. d art. 45. & 46 il. nava● . rhod. e dd . art . f auth. omnes peregrini communio de successionib . g oleron . h eod , i vide statu . regis alex. scot k l' admirall de france . l vide de off . adm. ang● . m per diplomata . n l. si is qui. 63. in fin . de acq . rer . dom . o l' admiral de france . & d. depl . p per dd . diplo . & de off . adm. a per l. pomponius de acq . rei dom . b per l. mulier . de cap. & post . c per d. l. pomponius , & per l. in bello . parag . si quis seruum in pr●ae capt . & post . d gen. 14. e deu. 20. f 1 reg. 30 , g c. dicat aliquis parag . 23. q. 5. &c. ius milita . re dist . 1. h l' admirall de france . i tom. 1. c. 24. ●●gist . scot. k per. l. postliminium . parag . postliminio . de . cap. & postlim . l per l. libertas . de reg . iur . m deut. 14. 16. n 2 reg 14. 6. & 2 chr. 25. 4. o ier. 29. 3. ezech. 18. 20. p vide an●hent . imo . c. ne filiu● pro patre . q vide bartol . latè de represal . r ● . 131. actor . s per gloss . in c episcopus . 18. dist . & dd. in c. si contra . &c. 1. de milite vasallo qui contumax . t per l. si quis in servitute . de furt . & l. ait praetor . parag . si debitorem . quae infraud . cred . a l. 1. in fin . de acq . rer . ●om . & parag ferae insti . de rer . divis . b l. iniuriorum 13. parag . fin . in fin . de iniur . iacob . 3. act 60. & iacob . 5. p. 4. cap. 12. c l. prascrip de usucap . d c. 1. & 2. de cler . venat . &c. 1. in cleric . & mon. e vide late . act . parl . scot. f vide statuta , & constit . & act . regū franc. angl. & scotiae . g vide statut . angl. & scot. & l' admir . de france . h iac. 6. parl . 6. cap. 89. i iac. 1. p. 1. c 11. iac. 6. p. 7. c. 11. m iac 3. p. 10. cap. 73 n denmarke . nn vlpian in l. ne pifcatores de incend . ●ui . naufr . o vide l' admirall de franc. p vide forman his register . q mar. p. 6. c. 5● r iacob . 5. p. 9. c. 98. s iac. 6 p. 4. c. ●0 . t iac. 5. p. 7. c. 98 u iac. 6. p 4. c. 60 x iac. 6. p. 6. c. 86 y iac. 5. p. 4. c. 57 iac. 6 p. 4. c. 147. z iac. 3. p. 10. c. ●76 . a iac. 3 p. 10 c. 76. b iac. 3. p. 14. c. 100. a genes . 1. 28. b eod . c. 9. v. 1. c eod c. 11. v 8. d eod . c. 10 v. 5. e vlp. l qui neque . de reb eor . quisub ●utel . f l. pa●er . parag . duluss●●iè de leg . 2. g ad legem 1 ▪ de rer . divis . g 1. officior . h pagina 25. i l. iniuriarum . parag . ult . & parag . si quis de in iur . k d. p●rag . si quis . l l. 4. de . rer . divis . m d. parag . si quis in fin . n d. l ● . de rer ▪ divis . o l. quod in littore . de aeq . rer . dom . p l. quamvis . de acq . rer dom . q l. prohibere . parag quod et si . quod vi aut elam . r l. roma . ad municipal . s psalme . t ad parag . littorum inst . de rer . divis . u pag. 28. x in l. possideri . de acquir . poss . psal. 104. 9. y pag. 38. z insect . nullius in tractat . de insula . * per l notionem de verb. sig. a gloss in c. ubi periculum . parag . porro . de electionib . lib. 6. b m l. si testamentum . de inst . & subst . c l. in ▪ finalibus . com . divid . d in l propon●ba●ur . de iud . e pag. 21. f pag. 25. g l. si quisquam divers & temp . praescrip . h pag. 24. i l. praescriptio de usu cap. k novell . const . 102. 103. & 104. l pag. 30. m off. 1. n pag. 35. o in l. iustitia . de rer . divis . p parag iuris praecepta . de iust . & iur . q l. nem● de reg . iur . & l. 14. de cond . indeb . & l. iu●e . de iure dot . r l. rescriptum de distract . pig . a tit. 22. b ferretus . c per. l. 4. de re militar . d per l. 6. eod . e per. l. 13. eod . f per l. 12. eod : a per l. 1. parag . si furt . advers . naut . b l. 1. & l. cum navarchorum . c. de navicul . lib 10 & l. litica de public . c iac. 3. parl . 13. c. 95. d iac. parl . 31. c. 20. e l. 1. parag . naut . caupou . f vide act . iac. 3 arl 3. c. 20. & arl . 7. c. 61. & ●ariae . parl . 5. ● . 21. g vide tit . naut . ● . up . & . tit . furt . ●●vers . * secund. l. 3. naut . caup . a tit. 6. b per diplom . admiralior . utriusque regni . c per t. t. ad l. aquil. d per l. 2. de naut 〈◊〉 . & per vegetium de re militar d vide sup . of the admirall clerke . e l. fin : c. de poen . f vide de off . adm. ang. g vide c. de m●n●p . & ibi . dd. h vide de off . adm. his majesties propriety and dominion on the brittish seas asserted together with a true account of the neatherlanders insupportable insolencies and injuries they have committed, and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies, and other places : to which is added an exact mapp, containing the isles of great brittain and ireland, with the several coastings, and the adjacent parts of our neighbours / by an experienced hand. codrington, robert, 1601-1665. 1665 approx. 223 kb of xml-encoded text transcribed from 100 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2008-09 (eebo-tcp phase 1). a33387 wing c4602 estc r3773 11953350 ocm 11953350 51477 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a33387) transcribed from: (early english books online ; image set 51477) images scanned from microfilm: (early english books, 1641-1700 ; 59:6) his majesties propriety and dominion on the brittish seas asserted together with a true account of the neatherlanders insupportable insolencies and injuries they have committed, and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies, and other places : to which is added an exact mapp, containing the isles of great brittain and ireland, with the several coastings, and the adjacent parts of our neighbours / by an experienced hand. codrington, robert, 1601-1665. clavell, robert, d. 1711. [16], 176 p. : 1 folded map printed by t. mabb for andrew kembe ... and edward thomas ... and robert clavel ..., london : 1665. "the epistle dedicatory" signed: robert codrington. also attributed to robert clavell. cf. bm; dnb. reproduction of original in british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -great britain. freedom of the seas. great britain -foreign relations -netherlands. netherlands -foreign relations -great britain. 2006-07 tcp assigned for keying and markup 2006-08 aptara keyed and coded from proquest page images 2007-06 robyn anspach sampled and proofread 2007-06 robyn anspach text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion his majesties propriety , and dominion on the brittish seas asserted : together with a true account of the neatherlanders insupportable insolencies , and injuries , they have committed ; and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies , and other places . to which is added , an exact mapp , containing the isles of great brittain , and ireland , with the several coastings , and the adjacent parts of our neighbours : by an experienced hand . london , printed by t. mabb , for andrew kembe near s t. margarets-hill in southwark , and edward thomas , at the adam and eve in little brittain ; and robert clavet , at the staggs-head in ivy-lane , 1665. to the most illustrious , and heroical , george duke of aubemarle , earle of torrington , baron monck of potheridge , beauchamp , and teys , captain general of his majesties land-forces , garrisons , forts , and castlos within any of his majesties dominions ; master of the horse ; knight of the most noble order of the garter ; and one of his majesties most honourable privy council . may it please your highness : these papers concerning his majesties right and propriety to his dominion on the brittish seas , do here most humbly addresse themselves to your highness most illustrious hand , and submit themselves as much to the affability of your candour , as they implore the greatnesse of your protection , to which they are encouraged both by reason and religion ; for your highness being the great instrument which all along attended the divine providence , in restoring his majesty to his own , both by sea and land , and in establishing religion as well as loyalty ; the same reason doth perswade me , that these assertions may be acceptable to you , and that your highness will vouch-safe your patronage to that subject which you so happily and heroically have effected ; and for which all ages shall renown your memory . may it please your highness : the profits which the dutch have made by their fishing on the english seas , are as vast as their ingratitude is abominable , which with an elaborate malice they have expressed by their manifold out-rages committed in the east and west-indies , where ( that no villany may be unpractised ) to improve their interests , they have added hypocrisie to their avarice , and to their ambition , murder . the innocent blood which they have spilt , doth cry aloud for vengeance ; nor can the guilt of it fall asleep , but will be lodged in the memories of righteous men , and kept awake by the industry of faithfull historians ; and by this ruder pen of him who is , ( may it please your highness , ) your most humble , and most devoted servant , robert codrington . the preface to the reader . the combinations and endeavours of the states general of the united provinces against his majesty , and this nation have been so insupportably insolent , that the parliament not long since , upon the cry of the whole nation , did sollicite him to take some extraordinary way to give redress unto his subjects for the many and daily injuries they sustained from them by their depredations at sea , for the horrid and barbarous cruelties inflicted on them in the east and west-indies , which being as odious in their nature , as they are remarkable in their number , have been the onely cause that these pains are taken to give a general satisfaction to the world , by exhibiting this brief , but most true account of his majesties undoubted right , and sole propriety in the english , scottish , and the irish seas : a truth as antient , as it is eminent , and not only held forth and attested by the laws of our land , and the records of the tower , and the high courts of parliament , but heretofore confessed also by divers of their own nation , as in this book you shall find it faithfully represented to you ; but it hath been the late practise of the hollanders ( without examining the lawfulness of the act ) to put their oares into every boat , where gain and profit doth appear . it was this , that tempted them to invade the islands of moluccos , lantore , and polleroon , which in the name of the crown of england the english for some years had possessed , neither did they entertain the least jealousie of opposition from the hollanders , who they knew heretofore had been oblidged to them for many antient good offices in a time , when their greatest safety did depend upon them , and who lately were conjoyned with them in a strict alliance and confederacy for partnership in the east-indie-trade , in the year 1619. neither did they fear the natives , whom they found to express a greater inclination of good will unto them then to the hollanders , for the english aimed at nothing more , then a lawful and competent profit by commerce and traffick with the natives , and the dutch ; and though in some places the english had erected some forts , and setled some strength , yet it was not by any force or violence , nor against the good will of the people of the country , but with their own good liking , and consent , for the better security of their trade , and upon the voluntary submission of the natives to the obedience and soveraignty of the crown of england , in which submission the antient laws and liberties of the said natives , and all their own immunities were comprehended , and reserved : in this establishment the english did conceive themselves to be secure enough ; when behold the dutch ( who would be no better neighbours to us in the indies then in europe ) began to quarrel with us , and to hinder us in our trade to free places , the which the better to obtain , they oftentimes seized upon our ships , and goods , and finding this violence not to answer their expectation , they at the last contrived to make themselves the absolute masters of the vast profits of those places ; in the pursuit whereof , they have razed and demolished the english forts , and laying violent hands on the english themselves , who made not the least resistance ; they have tyed them to stakes with ropes about their necks ; they have seized upon their goods , they have imprisoned their persons , they have whipped them at the post in the open market place , and having washed their torn and wounded bodies with vinegar and salt , they have again doubled their scourges to multiply their torments ; they have dragged them from thence to places almost inaccessible , by reason of their steepness and roughness , and having thrown them down the rocks , if any sence of life remained , they have added new oppression to their weary and bruised limbs , by the heavy weights of iron ; to these deliberate torments the cruelties of other nations are but courtesies , and death it self a mercy ; and as if they were the absolute lords in the indies they have assumed a power to themselves in the deciding of the controversies between the english and the indians for matters passed quite out of their jurisdiction , and when law and right have pleaded against them , they have executed their decrees by violence . these be they who have laid a claim to his maiesties interests on his own brittish seas , and rather then allow them proper unto him , they have declared them common unto all : at the first they begged leave for their fishing on the english seas , which being granted them by the accustomed indulgence of our princes , they have so presumed upon their lenity , that at the last they have made a law in their own country , that the english shal sell no white herrings , nor other fish there upon penalty of confiscation ; they are fishing on the english seas from june unto november , and seem there to dwel amongst the fish for 26 weeks together , in which time the havock which they make in destroying the spawn and fry of fish that comes into their netts , and otherwise is as remarkable as what they carry away with them . the reverend and learned mathematitian , doctor dee , almost one hundred years since , speaking of the incredible spoyle of fry and spawn , which is yearly made on the river of thames , and other rivers belonging to this island , doth conclude , that there are yearly spoyled on those rivers , 2000 cart-loads of fresh fish , which would have so proved to be market-able , if they had not been destroyed in their nonage ; i shall give you his assertion in his own words ; it is probable , saith he , that in all england by the manifold disorder used about the destroying of fry and spawn , there is yearly spoyled or hindred the brood of 2000 cart-loads of fresh fish of middle marketable-skantlin . the value of which 2000 cart-loads , do amount to 90000 bushels of fresh fish , six quarters going to a cart-load , which one with another being rated at five shillings a bushel , doth amount in currant english money , to the sum of20500l . which quantity of fish also would maintain for one day , one thousand thousand , and eight hundred thousand men ; or nine hundred thousand men two dayes ; or three hundred thousand men six dayes , or a hundred thousand , eighteen dayes , or fifty thousand men thirty six dayes , or five and twenty thousand men six and twenty dayes . if by our own neglect , so great a destruction of fish is made in our own rivers , what may we conceive the disorders to be which are made on the english seas , by those whose business it is , to think all is fish that comes to net , and whose trade to plunder ; the time of our patience hath been long , their promises of redress numerous , and the daily injuries we have received insupportable : to give you in this place a more large account of them , were to anticipate your understanding ; i shall therefore for your further satisfaction , refer you to the particulars in the book it self : farewell . map of england, ireland, scotland, and western europe. an exact ▪ map ▪ containing the isles of great brittaine and ireland , with the severall coastings that surround the same : as also the adjacent parts of all the other neighbouring nations : drawne according to the best and latest discoveries , sold by a. kembe , e. thomas , and r. clavell by an experienced hand lower half of map on page 9. the propriety and dominion of the king of great brittain on his seas ; asserted against all opposers , and confirmed from all ages , to this present time. for the better understanding of the following discourse , we shall in the first place lay down these two propositions : first , that the sea by the law of nature and nations is not common to all men , but is capable of private dominion , as well as the land. the second , is , that the king ofgreat brittain is lord of the sea flowing about , as an inseparable and perpetual appendant of the brit●●sh empire . before we shall insist on these propositions , we shall in the first place , remove some objections that may be made against them : some are drawn from the freedome of commerce or traffique , which by many are affirmed to be so naturall , that they can no where be abolished by any law or custome , and that by the law of nations it is unjust to deny merchants the benefit of commerce and navigation . other objections are drawn from the nature of the sea it self , for it is commonly alleaged that the sea is altered , and shifted every moment , and the state thereof , through a continued succession of new waters , alwayes uncertain , and remains so little the same in all things , ( the channel onely excepted ) that it is impossible it should ever be retained in the possession of any one particular . as to the first , it is easie to be proved by the ancient interpreters of the mosaical law , that the sea is altogether as capable of private dominion , as the land ; the words of god in the book of numbers are express ; and let your borders be the great sea ; that is , say the rabbins , the main ocean , and its isles ; and it is plainly to be proved , that a private dominion of the sea no otherwise then of land arose from humane distribution : we read , that pompey the great , being master of a huge navy , had a commission given him from the senate , as absolute lord of the sea ; the like had mark anthony some few years after him ; and many of the roman historians have called the sea , their sea ; because it was wholly subdued to the roman power . we might here alleage many examples how long the lidians , the phygians , the rhodians , the phaenicians , and many other eastern nations , one after another have been lords of the sea : thy borders are in the midst or heart of the sea saith the prophet ezekiel of the tyrians : quintus curtius affirmeth , that the city of tyre builded by agenor , made not onely the neighbouring sea , but what seas soever her ships sayled into , to be of her dominion : there was an ancient custome used in the east , that when great kings had a design to bring any nation under their power , they commanded water , and earth , the pledges of empire and dominion to be delivered unto them , conceiving that the command of the sea , as well as the land was signified by such a token . the like may be affirmed of the west , for both polybeius , and appian affirme that the carthaginians enjoyed the command of the sea without all controversy , as received from their ancestors ; and if we take a view of these late times , as to the rights and customes of other nations , which at this present are in high reputation , we shall finde that the common-wealth of venice have enjoyed the dominion of the adriatick sea for many ages : the tuscans to this day have an absolute dominion in the tyrhene sea , and those of genoa in the lygustick ; the like we may alledge of the danes , the swedes , and the people of norway ; and to conclude , that the dominion of the sea is admitted amongst those things that are lawfull , and received into the customes of nations , is so far from contradiction , that nothing at all can be found to controule it in the custonies of our latter times , unlesse it be by some , who being borderers upon the sea-dominions of others , do strive to violate the rights of their neighbours , under the pretense of civil community . now as to the objection concerning the freedome of commerce and passage pretended to be common to all ; it is most evident from the customes of all times , that commerce , and free passage hath ever been so limited by princes in their territories , that it is either permitted , or prohibited according to the various concernments of the publick good. princes are concerned to be wary and carefull , that they admit no such strangers or commerce where the common-wealth may receive any damage thereby : and aristotle plainly and expresly saith , that provision ought to be made by lawes , with whom subjects may , or may not converse : moreover it is commonly provided in leagues , that it shall not be lawfull for either party to sayle into each others ports , coasts , or harbours with such a number of ships , as may give a just occasion of fear or jealousie that force is intended ; except leave be first had of that party under whose jurisdiction those places are , or unless they be driven thither by tempest , or other necessity , to avoid a greater force , or the danger of shipwrack : and to conclude , bodine affirmeth , that it is lawfull to prohibite any forreigner from entring the borders , and also to force him out , if he hath entred the borders , not only if a war be on foot , but also in time of peace , that the priviledges , safety , and welfare of the inhabitants may not be corrupted by conversation with strangers . as to that objection concerning the uncertainty of the sea , which ( it is alledged ) doth render it unfit for private dominion , because it is ever in motion , and in no wise remains the same : suppose we grant that it be so flowing , as is usualy said of the most northernly seas ; yet certainly the channels , and places through which the waters flow remain ever the same , although the waters themselves do shift , and change continually . in the germane empire , ( according to the civil law ) rivers are all of them of publick use , yet for all that , they are reckoned in the emperours private patrimony , and amongst the royalties belonging to his exchequer ; so that the emperour , or others by his grant , have a yearly revenue out of the fisheries in them ; neither is there any thing more common then an asserting of the private dominion of rivers , in the lawes of france , spain , poland , and venice , and , in a word , of all nations whose customes are known ; seeing therefore that a dominion and propriety of rivers hath been every where acknowledged , why should it not in the like manner be acknowledged , that there may be owners of any sea whatsoever ? since the always running and flowing nature of water can no more hinder a dominion in the one , then in the other , for the rivers themselves are but little seas ; as the sea it self , to its fluide constitution , is but a river , the one differing only in bignes from the other ; and so it hath been taken by the antients ; in the very history of the creation , all the gatherings together of the waters are called seas : many lakes have been called seas ; tiberias by st. luke is called a lake , but by the other evangelists a sea. asphaltites is by pliny , solinus , and others , termed a lake , but by moses in the fourteenth of genesis , the salt sea , and by most of the late writers , the dead sea. they indeed , who make use of such frivolous subtilties , as these to oppose the dominion of the sea deserve to be turned over to the phylosophers , heraclitus and epicharmus , who taught that every thing is so altered , changed , and renewed , that nothing in this world continues the same , as it was in the instant immediately going before . our bodies ( saith seneca ) are hurried like rivers ; whatsoever thou seest , runneth with time ; not one of all those things that are visible continueth ; i even whilest i speak of these changes am changed my self : but let such men as dream that the fluide inconstant nature of the sea disproves the private dominion of it , entertain the same opinion if they please with these men , and then they must of necessity grant also , that themselves are not owners or possessors , of houses , lands , or money , or any other thing whatsoever . as to that argument , that the water is open to all , and therefore by law , it must lye open at all times to all men , it is a very trifling argument . before the first distribution of things , there was no land which did not lye open unto all before it came under particular possession : in many places payment is made for the use of water ; as amongst the hollanders , they have in delph-land a custome , called , jus grutae , which hath ever been under the care of those officers , called in dutch , pluymgraven , whereby the beer-brewers are obliged to pay them the hundreth part for the use of the water . some men may here object that saying of antonius , i am sovereign of the world , but the law is sovereign of the sea. the true and genuine sense of those words is this , i am lord of the world , because i govern the world by my own law ; but the rhodian law , is the law of the sea , because by this law justice is administred on the sea ; therefore let this case of eudaemon concerning navigation be determined by the rhodian law , so far as none of our lawes doth oppose the same . there is no man unlesse he will renounce his own reason , who will affirme , that any denial is made of the dominion of the sea in that answer , or that the least tittle can be found in it against the dominion thereof . having thus in general given you an account , that almost amongst all nations , there hath been allowed a private dominion of the sea ; we shall now come more particularly to our selves , and acquaint you , that the antient brittains did enjoy and possesse the sea as lords thereof , before they were subjected to the roman power : it is upon good ground concluded , that the most antient history , whereunto any credit ought to be given about the affaires of brittain , is not elder then the time of cajus julius caesar , the ages before him being too obscured with fables ; but at his coming we finde many clear passages of the brittains dominion of the sea flowing about them , especially the south and east part thereof , as a perpetual appendant of the sovereignty of the island ; for at that time , they not onely used the sea as their own , for navigation , and fishing , but also permitted none , besides merchants to sayle into the island without their leave ; nor any man at all to view , or sound their sea-coasts , or their harbours : and though at caesars first arrival , they were terrified with the sight of his long ships beaked with brass or iron ; and they fled to the shore , and from it to the in-lands , being not sufficiently provided for such a sea-fight as was then at hand , and which they never had been acquainted with , yet most certain it is , that they had vessels of their own in which they used to coast about the neighbouring seas : and though mention is made by writers , that commonly they were framed with twiggs ( as the fashion then was in the more antient nations ) and covered with oxe-hides ; yet with good ground we may conceive , that they were wont to build , and set forth ships of war ; of a far more commodious , and solid substance , for the guarding of the seas , and the isles : we read in caesar's commentaries , that they were strong at sea , and it is not to be doubted , but that besides their twiggs and leathern vessels , they had a considerable navy which was able at pleasure to encounter the ships of their neighbours that were best armed : but the southernly parts of great brittain being invaded by the emperour claudius , and the isle of wight surrendred to them ; the brittish sea , following the fate of the island , was annexed with it to the roman empire . from the dominion of the brittish sea , as being continually united to the island , or an inseparable concomitant thereof , many remarquable passages have proceeded amongst those who have left unto posterity the atchievements of the romans , when they were masters of this island : but when the roman empire was declining , and they had scarce forces enough to guard the city it self , the brittains about the year of our lord , four hundred and fourscore , did cast off the roman government , and setled a common-wealth after their own liking : in the mean time the saxons inhabiting the shoar over against them , had a great and greedy mind unto it , who being a people extreamly given to piracy , the romans were accustomed to appoint an officer to drive them away , called , the count of the saxon shore throughout brittain . these saxons being sent for by the brittains to assist them against the scots and picts , did get at length the whole power into their own hand . these saxons being arch pirats , did not only know , but were familiarly acquainted with the dangers of the sea. the same may be said of the danes and normans , for these names being promiscuously used , do often signifie the same nation , as is sufficiently attested , by regino , dudo , the monk of malmesbury , and others : and these people had so great and so admirable a knowledge of the sea , and sea affairs , that by an exquisite observation of the tides , and ebbings of the sea , they were accustomed to reckon their months and years , yea , and to frame computations of years thereby . in antient records , diverse particulars are to be seen , which most plainly show , that both the saxons and danes had a dominion over the sea , whilest they reigned in brittain . in the reign of the english saxons , we read in asserius bishop of sherburn , that hengist being invited into england by the perswasions of vortigern , there came presently afterwards to recruit him octa and ebissa , who putting pitates aboard his ships , he charged them to guard the passages of the sea. you are to understand that the word pirate was not then taken ( as now commonly it is ) for robbers or rovers , but for such who being the most skilfull in sea-affairs , were judged to be the fittest men to encounter with their enemies ; the word , sayes my authour , doth seem to be deriv'd from the greek , for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or pira , in the greek tongue signifieth craft , or art , and from this art in maritine discipline they are now called pirates which infest the seas . but amongst these kings none was more potent then king edgar , who possessing an absolute dominion of the seas , sayled round about it every year , and secured it with a constant guard. it is recorded that these ships being very stout ones , were in number one thousand two hundred ; other writers affirm that they were foure thousand ; the abbot of jorvaux , john bramton by name , doth number them to be four thousand , and eight hundred sayle : and what dominion king edgar had , as absolute lord of the sea , appears in these words ; i edgar king of england , and of all the kings of the islands , and of the ocean lying round about brittain , and of all the nations that are included within the circuit thereof supream lord and governour , do render my thanks to almighty god my king , who hath enlarged my empire , and exalted it above the royal estate of my progenitors , who although they arrived to the monarchy of all england ever since athelstan ; yet the divine goodness hath favoured me to subdue all the kingdomes of the island in the ocean with their most stout and mighty kings , even as far as norway , and the greatest part of ireland , together with their most famous city of dublin . after him king canutus left a testimony whereby he most expresly asserteth the sea to be a part of his dominion : for placing himself by the sea side in the time of a high tide upon southampton shoare , he is reported to have made tryal of the obedience of the sea in this manner ; thou , o sea art under my dominion , as the land also which i sit upon is mine ; and there was never any that disobeyed my command without punishment ; therefore i command thee not to ascend upon my land , nor do thou presume to wet the feet or garments of thy sovereign : but although the event did not answer his expectation , yet most plain it is , that here he openly professed himself to be sovereign of the seas , as well as of the land. from the testimonies of the saxons and danes , we shall descend to the government of the normans ; where by many notable and cleer proofs we shall finde ; that 1. the custody , government , or admiralty of the english sea did belong unto the king , together with the dominion of the adjacent islands . 2. that the leave of passage through this sea , was granted unto forreigners upon request . 3. that the liberty of fishing , was upon courtesie allowed to forreigners and neighbours , and protection given to the fisher-men . 4. that laws , and limits were prescribed to forreigners ; who being in hostility the one with the other , but both in amity with the english , made prize of each other on the sea. 5. the records whereby this dominion is expressely asserted as a most undoubted right , and that not onely by the kings , but by the parliaments of england . as for the first , there is nothing more cleer , than that the kings of england , have been accustomed to constitute governours , or commanders , who had a charge to guard the english seas , and these were called custodes navium , or custodes maritimi . these were the officers that were called butsecarli , as may be gathered out of that breviary of england , called doomes day : in this number was thomas de moleton , who is stiled captain and guardian of the sea ; and hugh de cerquen ; afterwards the title of guardians , was changed into that of admiral , as is alleaged by thomas walsingham , in the days of edward the first . we finde that in the days of edward the third ; the principal end of calling that parliament , was concerning the preservation of peace , both by land and sea ; giving us to understand , that the land and sea together made one entire body of the kingdome of england . in the time of richard the second , hugh calverley was made admiral of the sea , saith the same author , and the universal custody of the sea was committed by our kings , to the high admirals of england . and that the dominion of the seas , is properly in the power and jurisdiction of the king , may appear by those tributes and customes that were imposed and payed for the guard and protection of them ; the tribute called the danegeld , was paid in the time of the english saxons , which amounted to four shillings upon every hide of land , for the defending of the dominion by sea. roger houerden affirmeth , that this was paid until the time of king stephen . afterwards subsidies have been demanded of the people in parliament , upon the same account ; and in the parliament-records of king richard the second , it is observable ; that a custome was imposed upon every ship that passed through the northern admiralty , that is , from the thames along the eastern shoare of england towards the north-east , for the maintenance of a guard for the seas . neither was this imposed onely upon the english , but also upon the ships of forreigners , payment was made at the rate of six pence a tun upon every vessell that passed by , such ships only excepted , that brought merchandize out of flanders into london . if a vessel were imployed to fish for herrings , it payed the rate of six pence a week upon every tun ; if for other kind of fish , so much was to be payed every three weeks , as they who brought coles to london from new-castle , paid it every three moneths ; but if a vessel were bound north-wards , to prussia , scone , or norway , or any of the neighbouring countries , it payed a particular custome according to the weight and proportion of the freight ; and if any were unwilling , it was lawful to compel them to pay . in this place we shall give you the copy of the usual form of a commission , whereby the high admiral of england is invested with authority for the guard of the sea ; it runneth in these words , vve give and grant to n. the office of our great admiral of england , ireland , wales , and of the dominions and islands belonging to the same , also of our town of calais , and our marches thereof , normandy , acquitayn , and gascoign ; and we have made , appointed , and ordained : and by these presents we make appoint , and ordain , ●im the said n. our admiral of england , ireland , and wales , and our dominions and isles of the same , our town of calais , and our marches thereof , normandy , gascoign , and aquitayn , as also general governour over all our fleets and seas of our said kingdomes of england , and ireland , and our dominions and islands belonging to the same ; and know ye further , that we of our especial grace , and upon certain knowledge , do give and grant to the said n our great admiral of england , and governour general over our fleets and seas aforesaid ; all manner of iurisdictions , authorities , liberties , offices , fees , profits duties , emoluments , wracks of the sea , cast goods , regards , advantages , commodities , preheminences , priviledges whatsoever , to the said officer our great admiral of england and ireland , and of the other places and dominions aforesaid , in any manner whatsoever belonging or appertaining . thus we see we have a continual possession or dominion of the kings of england by sea , pointed out in very expresse words for very many years ; we may add to this , that it can be proved by words plain enough in the form of the commissions , for the command of high admiral of england ; that the sea for whose defence he was appointed by the king of england , who is lord and sovereign of it , was ever bounded towards the south by the shores of aquitain , normandy , and picardy ; for although those countries sometimes in the possession of the english are now lost , and for many years under the jurisdiction of the french , yet the whole sea flowing betwixt our brittish isles , and the provinces over against them , are by a peculiar dominion and right of the king of england on those seas , subject unto them whom he puts in command over the english fleet and coasts , that there remaineth neither place nor use for any other commanders of that kinde : and as for the islands of gernesey , jersey , and the rest ; mr. selden affirmeth , that before a court of delegats in france , in expresse terms it hath been acknowledged , that the king of england hath ever been lord , not onely of this sea , but also of the islands placed therein , par raison du royalmed ' angleterre , upon the account of the realm of england , or as they were kings of england ; and in the treaty held at charters , when edward the third renounced his claim to normandy , and some other counties of france that bordered upon the sea ; it was added , that no controversie should remain touching the islands , but that he should hold all islands whatsoever which he possessed at that time , whither they lay before those countries y t he held there , or others ; for reason required this , that he should maintain his dominion by sea ; and both gernesey and jersey , as well as the isles of wight and man , in several treaties held betwixt the kings of england and other princes , are acknowledged not onely to lye neer unto the kingdome of england , but to belong unto it . but to give a greater light to this truth , we may from several records produce many testimonies ; that the kings of england have given leave unto to forreigners upon request to passe through their seas , he gave permission to ferrando vrtis de sarachione a spaniard , to sail freely from the port of london through his kingdomes , dominions , and jurisdiction , to the town of rochel . there are innumerable letters of safe conducts in the records , especially of henry the fifth , and sixth , whereby safe port and passage was usually granted ; and it is worthy of observation , that these kinde of letters was usually superscribed , and directed by those kings to their governours of the sea-admirals , vice-admirals , and sea-captains , . and to clear all at once , the kings of england have such an absolute dominion in the english seas , that they have called the sea it self their admiralty . and this we finde in a commission of king edward the third ; the title whereof is , de navibus arrestandis & capiendis , for the arresting and seizing of ships : the form of it runs in these words ; the king to his beloved thomas de wenlock his serjeant at armes , and lievtenant , to our beloved and trusty reginald de cobham , admiral of our fleet of ships from the mouth of the river of thames , towards the western parts greeting : be it known unto you , that we have appointed you with all the speed that may be used by you , and such as shall be deputed by you ; to arrest and seize all ships , flie-boats , barks , and burges of ten tun burthen and upwards , which may happen to be found in my foresaid admiralty ( that is , in the sea , reaching from the thames mouth , towards the south and west ) and to bring them speedily , well , and sufficiently armed to sandwich , &c. all officers also in the said admiralty , are commanded to yeild obedience and assistance upon the same condition ; thus , that the sea it self was contained under the name of the admiralty , is most clearly manifest , by what already we have shown you . and as a freedome of passage , so also ▪ we do finde , that a liberty of fishing hath been obtained by petition from the kings of england , we have already made mention , that king richard the second , imposed a tribute upon all persons whatsoever that used fishing on his seas . we read also , that henry the sixth , gave leave to the french , and other forreigners , sometimes for a year , sometimes but for six moneths , to go and fish throughout his seas , provided that the fishing-boats and busses , were not above thirty tuns ; and if any forreigners , whither french , dutch or others , should disturb or molest any of the kings subjects as they were fishing , they were to loose the benefit of their licence . but in the eastern sea which washeth the coasts of york-shire , and the neighbouring counties ; it hath been an antient custome for the hollanders and zelanders to obtain leave , by petitioning to the governour of scarborough castle . it is worth the while , saith the reverend mr. cambden , to observe what an extraordinary gain the hollanders and the zelanders do make by fishing on the english seas , having first obtained leave from the castle of scarborough ; for the english have ever granted them leave to fish , reserving always the honour , and the priviledge to themselves , but through a negligence resigning the profit unto strangers ; for it is almost incredible ( saith he ) to believe what a vast sum of money the hollanders do make by this fishing upon our coast ; mr. hitchock also , in the time of queen elizabeth , presented a book to the parliament written in the english tongue concerning the commodity of fishing ; in which he specifies , that the hollanders and zealanders every year towards the latter end of summer , do send forth four or five hundred vessels called busses , to fish for herrings in our eastern seas ; but before they fish , they ask leave of scarborough , they are his very words . care was also taken by k. james , that no foreigner should fish on the english or irish seas without leave first obtained , and every year at the least , this leave was renewed from the commissioners for that purpose appointed at london . but the reason why we do not so often meet with these forms of licences is , because by the leagues made with the neighboring princes , a licence , or freedom of that kinde was so often allowed by both parties , that as long as the league was in force , the sea served as it were a common feild , as well for the forreigner y was in amity , as for the king of england himself , who was the lord and owner of it . but a remarkable example of fishing in this nature we finde in the days of king henry the fourth . an agreement was made betwixt the kings of england and france , that the subjects of both kingdomes might freely fish throughout that part of the sea , which is bounded on this side by the ports of scarborough and southampton , and on the other side by the coast of flanders , and the mouth of the river of sein ; the time was also limited betwixt autumn , and the beginning of january . and that the french might securely enjoy the benefit of this agreement , the king of england sent letters unto all his sea captains and commanders . by this we may plainly see , that these limits wholy excluded the french from that part of the sea which lies towards the west , and south-west , as also that which lieth north-east of them as being so limited by our henry at his own pleasure , as lord and soveraign of the whole . there is amongst the records of edward the first an inscription , pro hominibus hollandiae , &c. for the men of holland , zealand , and friesland , to have leave to fish neer jernemuth , now called yarmouth ; the kings letter for their protection , runneth in these words . the king to his beloved and trusty , john de buteturte warden of his port of jernemuth greeting ; for as much as we have been certified , that many men out of the parts of holland , zealand , and freisland who are in amity with us , intend now to come , and fish in our seas neer unto jernemuth , we command you that publick proclamation be made once or twice every week , that no person whatsoever imployed abroad in our service , presume to cause any injury , trouble , dammage , hinderance , or grievance to be done unto them , but rather when they stand in need , that you give them advice , and assistance in such manner , that they may fish and pursue their own advantage , without any let or impediment . in testimony whereof , we have caused these our letters to be made pattents , and to continue in force until after the feast of st. martins next ensuing . here you see , that the king granteth a protection to fish , and he limits it within the space of two moneths . he alone also protected the fishermen upon the german coast , nor might the fishermen use any other kind of vessels then what were prescribed by our kings . upon which accounts all kind of fishing was sometimes prohibited , and sometimes admitted ; this restriction being added , hat they should fish onely in such vessels as were under the burden of thirty tun ; and this appears by the letters of king edward the third concerning the laws of fishing , which were directed unto the governours of several ports , and towns on the eastern shoar , the words are these ; for as much as we have given licence to the fishermen of the neighbouring ports , and to others who shall be willing to come unto them for the benefit of fishing ; that they may fish and make their own advantage with ships and boats under the burden of thirty tuns , any prohibition or commands of ours whatsoever to the contrary notwithstanding , we command you to permitt the fishermen of the said towns , and others who shall be willing to come to the said places for the benefit of fishing , to fish , and make their own advantage with ships and boats under-thirty tun , without any let or impediment , any prohibitions or commands of ours made to the contrary in any wise notwithstanding . this is evident also in the records of king edward the fourth , for he invested three persons with naval power , whose office it was to protect and guard the fishermen upon the coasts of norfolk and suffolk ; and the charges of the guard were to be defrayed by the fishermen of the said seas at the pleasure of the king of england , although they have letters of publick security and protection from foreign princes ; neither were any persons admitted to a partnership in this kind of guard , except those who were appointed by the king of england ; least by this means , perhaps it might derogate from the english right , which is a manifest sign and evidence of their dominion , and possession of the place ; and this may yet more clearly appear by the laws and limits usually set by our kings to such foreigners as were at enmity with each other , but in amity with the english : and to this effect , is the proclamation of king james ; who having made peace with all nations , did give equal protection to the spaniards , and the united neatherlands , at that time exercising acts of great hostility one against another ; our pleasure ( saith he ) and commandment is to all our officers and subjects by sea and land that they shall prohibite as much as in them lieth , all hovering of men of war of either spaniard or hollander neer to the entry of any of our coasts or havens ; and that they shall rescue and succour all merchants , and others that shall fall within the danger of any such as shall await our coasts : and it is further to be observed , that as our kings have very often commanded that all manner of persons should cease from hostility throughout all the spaces extended into their territories by sea ; so they indulged the like privilege for ever throughout the more neighbouring coasts of the french shore , that all manner of persons , though enemies to one another , should securely sayle to , and fro , as it were ▪ under the wings of an arbitrator , or moderatour of the sea , and also freely should use the sea , according to such spaces , and limits , as they were pleased at first to appoint , which without doubt is a clear evidence of dominion . in this next place , i shall cite some of the publick records which are kept in the tower of london , in which the dominion of the sea is expresly asserted , as belonging to the kings of england ; we read , that edward the third in his commissions given to geoffery de say , governour or commander of the western and southern seas , and to john de norwich of the northern , expresseth himself in these following words : we calling to mind , that our progenitors ▪ the kings of england , having before these times been lords of the english sea on every side , yea and defendors thereof against the invasions of enemies , do strictly require and charge you by the duty and allegiance wherein you stand bound , that you set forth to sea with the ships of the ports , and the other ships that are ready , and that you arrest the other ships under our command , and that with all diligence you make search after the gallies and ships of war that are abroad against us , and that stoatly and manfully you set upon them if they shall presume to bend their course towards any part of our dominions , or the coasts of scotland , &c. then followeth a power to press seamen , and other matters of that kind . we read also in the reign of the said king , in the preferring of a certain bill in parliament ( which is the voice of the estates of the realm ) that he was usually accounted king or sovereign of the seas by all nations ; the words in french are to this sence in english ; the nation of the english were ever in the ages past renowned for sea-affairs in all countries near the seas , and they bad also so numerous a navy , that the people of all countries esteemed , and called the k. of engl. the k. or sovereign of the sea. another testimony to the same effect we read in the parliamentary records of henry the fifth , where the tenour of the bill runs after this manner : the commons do pray , that seeing our sovereign lord the king , and his illustrious progenitors have ever been lords of the sea , and now seeing through gods grace it is so come to pass , that our lord the king is lord of the shores on both sides of the sea , such a tribute may be imposed upon all strangers passing through the said sea , for the benefit and advantage of our said lord the king , as may seem agreeable to reason , for the safegard of the said sea. the answer subscribed to the said bill , was , soit avise par le roy , which is , let the king himself be advised of it . for the king at that time resided in france , being lord of that country , as well by conquest , as inheritance ; and humphrey duke of glocester was then president of the parliament , and leivtenant of england , by whom as the kings deputy that answer was given to the said bill ; but when the king was present in person , le roy s' advisera , the king will advise , was the answer from the antient , down to our present times , in such bills as were to be passed into acts ; many other testimonies in this nature may be produced , which for brevities sake are purposely omitted . neither hath the high court of parliament onely given this attestation to our kings , as supream and sovereign of the seas : but to confirme it , we shall produce the testimonies of robert belknap , an eminent judge in the time of richard the second , who affirmeth , that the sea is subject to the king , as a part of his kingdom , or of the patrimony of the crown ; and it appeareth by publick records , containing diverse main points , touching which the judges of the land were to be consulted for the good of the common-wealth , that the kings sea-dominion , which they called , the antient superiority of the sea , was a matter out of question amongst all lawyers of that age , and asserted by the determinations and customes of the law of the land , and by the express words of the writs and forms of the actions themselves . neither is this truth confirmed only by our laws , but by our medals . there hath been a piece of gold very often coyned by our kings , called a rose-noble , which was stamped on the one side of it with a ship , floting in the sea , and a king armed with a sword and shield , sitting in the ship it self , as in a throne , to set forth a representation of the english k. by sea : the first authour hereof was edward the third , when he guarded his own seas with a numerous navy , consisting of eleven hundred ships , at which time , as at others he marched victoriously through france : but what need we labour to produce so many testimonies at home from our records in the tower and other places , from our high courts of parliament , from our laws , from our coyns , & from our histories , to prove this truth ; since it is acknowledged even by forreigners themselves whom it most concerneth , by their usual striking of sayles , according to the antient custom by every ship of any forreign nation whatsoever , if they sayle near the kings navy , or any ship belonging to it at sea , which is done not onely in honour to the english king , but also in acknowledgement of his sovereignty , and dominion at seas . the antiquity of this custome , and that it hath been in use for above these four hundred years may appear by this following testimony : at hastings , a town scituate upon the shore of sussex , it was decreed by k. john , in the second year of his reign , with the assent of his peers , that if the governour , or commander of the kings navy in his naval expeditions shall meet with any ships whatsoever by sea , either laden or empty , that shall refuse to strike their sayles at the command of the kings governour or admiral , or his lievtenant , but make resistance against any who be long unto his fleet , that then they are to be reputed enemies , and if they be taken , their ships and goods to be consiscated , as the goods of enemies ; and that , although the masters or owners of the ships shall alledge afterwards , that the same ships and goods do belong to the friends and allies of our lord the king , yet the persons who shall be found in these ships , are to be punished with imprisonment at discretion , for their rebeltion . it was accounted treason ( saith master selden ) if any ship what soever had not acknowledged the dominion of the king of england in his own sea by striking sayle , and they were not to be protected upon the account of amity , who should in any wise presume to do the contrary ; penalties were also appointed by the kings of england in the same manner , as if mention were made concerning a crime committed in some territory of his land. but above all , that as yet hath been said , there can hardly be alledged a more convincing argument , to prove the truth of all that hath hitherto been spoken , then the acknowledgement of the sea-dominion of the king of england by very many of our neighbouring nations . at what time the agreement was made by edward the first of england , and philip the fair of france , reyner grimbald , governour of the french navy , intercepted and spoyled , on the english seas , the goods of many merchants that were going to flanders , as well english , as others , and not contented with the depredation of their goods , he imprisoned also their persons , and delivered them up to the officers of the king of france , and in a very insolent manner justified his actions in writing , as done by authority of the king his masters commission . this being alledged to be done to the great damage and prejudice of the king of england , the prelats , peers , and the rest of the nation , a bill against reyner grimbald , was exhibited , and managed by procurators on the behalf of the prelates , peers , and of the cities and towns throughout england , and lastly , of the whole english nation , by an authority ( as i believe ) of the estates assembled in parliament ; with these were joyned the procurators of most nations bordering upon the sea throughout europe , ( viz. ) the genoeses , the catalonians , the spaniards , the almayns , the zealanders , the hollanders , the freislanders , the danes , the noruegians , the hamburghers , &c. all these instituted a complaint against reyner grimbald who was governour of the french navy , in the time of the. war of philip king of france , and guy earle of flanders ; and all these complainants in their bill do joyntly affirm , that the king of englandand his predecessors have time out of minde and without controversie , enjoyed the soveraignty and dominion of theenglish seas , and the isles belonging to the same by right of their realm of england , that is to say , by prescribing laws , statutes and prohibitions of armes , and of ships otherwise furnished , then with such necessaries , and commodities as belong to merchants , and by demanding security , and affording protection in all places where need should require , and ordering all other things necessary for the conservation of peace , right , and equity between all sorts of people passing through that sea , as well strangers as others in subjection to the crown ofengland ; also that they have had , and have the soveraign guard thereof with all manner of cognisance , and jurisdiction in doing right and justice , according to the said laws , ordinances and prohibitions , and in all other matters which may concern the exercise of soveraign dominion in the said places . this is the declaration of the nations above named , manifestly acknowledging the sovereignty and dominion of our kings over the seas , and thereupon demanding protection for themselves ; but more particularly we do finde an acknowledgment of the sea-dominions of the kings of england , made by the flemmings themselves in the parliament of england , in the reign of edward the second ; the records of the parliament speak it thus . in the fourteenth year of the reign ofedward the second , there appeared certain ambassadours of the earl of flanders , to treat about the reformation of some injuries they received ; and as soon as the said ambassadours had been admitted by our lord the king to treat of the said injuries , amongst other particulars they required , that the said lord the king would at his own suit , by vertue of his royal authority , cause enquiry to be made , and do justice about a depredation by the subjects of england upon the english seas , taking wines and other sort of merchandizes belonging to certain merchants of flanders , towards the parts of crauden within the territory and jurisdiction of the king of england ; alledging that the said wines and other merchandizes taken from the flemmings were brought within the realm , and jurisdiction of the king , and that it belonged to the king to see justice done , in regard thathe is lord of the sea , and the aforesaid depredation was made upon the said sea within his territory , and jurisdiction , &c. this we have cited out of the parliament records which may declare an acknowledgement of the sea-dominion of our kings , made by those foreign and neighbour-nations who were most concerned in the business . having given you thus ( besides the attestation of our own writers ) the acknowledgment of foreign nations , that the king of england hath the dominion of the seas ; we shall now come to give you an account of those northern seas , which came unto the subjection of the kings of england , at what time king james of blessed memory by reducing the two nations into one great brittanie united the crown of scotland to the crown of england . odericus in his ecclesiastical history informs us , that the orcades was subject heretofore to the king of norway , and that the people of the orcades do speak the gothish language to this day ; these isles are numerous , and onely twenty eight of them are at this day inhabited . above one hundred miles beyond the orcades towards norway , are the shetland isles in number eighteen , which are at this day inhabited , and in subjection to the king of scotland ; concerning which , there hath been a great quarrel in former ages between the scots and danes , but the dane kept the possession . all these islands , did christiern king of denmark peaceably surrender , together with his daughter in marriage , to james king of scots , until that either he himself or his posterity paid to the scottish king or his successors the sum of fifty thousand rhenish florens , which were never discharged to this day ; but afterwards when the queen had been delivered of her eldest son , the danish king being willing to congratulate his daughters good delivery , did for ever surrender his right in the islands of the orcades , shetland , & the rest unto the scottish king. this was in the days of james the third of scotland in the year , 1468. a claim was afterwards laid to iseland , by q. elizabeth , and her successor k. james the sixth of scotland , and first of england , hath a dominion in the sea which lieth farr more northerly then iseland which is that of greenland ; for that sea having never been entred by occupation , nor used in the art and exercise of fishery , was first of all rendered very gainful through a peculiar fishing for whales by those english merchants of the muscovie company , who first sailed that way . the use of a sea never entred by occupation , and such a kinde of profit being first discovered , doth according to the manner of the claim give a dominion to the discoverer , who claims it in the right of another , as here in the name of the sovereign of england ; upon which ground it was , that king james in his letters of credence given to his ambassadour in holland , sir henry wotton did very justly say that the fishing in the north seas was his onely , and his by right . in the seventh year of the reign of king iames , this right was more strenuously asserted by proclamation , and all persons excluded from the use of the seas upon our coasts , without particular license ; the grounds whereof you have here set down in the proclamation it self . a proclamation , touching fishing . james by the grace of god king of great brittain , france , and ireland , defender of the faith , &c. to all and singular persons so whom it may appertein , greeting . although we do sufficiently know by our experience in the office of regal dignity ( in which , by the favor of almighty god , we have been placed and exercised these many years ) as also by the observation which we have made of other christian princes exemplarie actions , how farr the absolutenesse of sovereign power extendeth it self , and that in regard thereof , we need not yield account to any person under god , for any action of ours , which is lawfully grounded upon that iust prerogative : yet such hath ever béen , and shall be our care and desire to give satisfaction to our neighbour-princes , and friends in any action which may have the least relation to their subjects and estates , as we have thought good ( by way of friendly premonition ) to declare unto them , and to whomsoever it may appertain as followeth . whereas we have been contented since our coming to the crown , to tolerate an indifferent and promiscuous kinde of liberty to all our friends whatsoever , to fish within our streams , and upon any of our coasts of great brittain , ireland , and other adjacent islands , so farr forth as the permission or use thereof might not re●ound to the impeachment of our prerogative royal , nor to the hurt and damage of our loving subjects , whose prefer●ation and flourishing estate we hold our self principally bound to advance before all worldly respects : so finding that our continuance therein , hath not onely given occasion of over-great encroachments upon our regalities , or rather questiening of our right , but hath béen a means of daily wrongs to our own people that exercise the trade of fishing , as ( either by the multitude of strangers which do pre-occupie those places , or by the injuries which they receive most commonly at their hands ) our subiects are constrained to abandon their fishing , or at least are become so discouraged in the same , as they hold it better for them , to betake themselves to some other course of living ; whereby not onely divers of our coast-towns are much decayed , but the number of mariners daily diminished , which is a matter of great consequence to our estate , considering how much the strength thereof consisteth in the power of shipping and use of navigation ; we have thought it now both just and necessary ( in respect that wée are now by god's favor lineally and lawfully possessed , as well of the islands of great brittain , as of ireland , and the rest of the isles adjacent ) to bethink our selves of good lawful means to prevent those inconveniences and many others depending upon the same . in consideration whereof , as we are destrous that the world may take notice , that we have no intention to denie our neighbours and allies , those fruits and benefits of peace and friendship , which may be justly expected at our hands in honour and reason , or are afforded by other princes mutually in the point of commerce , and exchange of those things which may not prove prejudicial to them : so because some such convenient order may be taken in this matter , as may sufficiently provide for these important considerations which do depend thereupon ; we have resolved first to give notice to all the world that our express pleasure is , that from the beginning of the moneth of august next coming , no person of what nation or quality soever , being not our natural born subject , be permitted to fish upon any of our coasts & seas of great brittain , ireland , and the rest of the isles adjacent , where most usually heretofore any fishing hath béen , until they have orderly demanded and obtained licenses from us , or such our commissioners , as we have authorised in that behalf , viz. at london for our realms of england and ireland , and at edenborough for our realm or scotland ; which licenses our intention is , shall be yearly demanded , for so many vessels and ships , and the 〈◊〉 thereof , as shall intend to fish for that whole year , or any part thereof , upon any of our coasts , and seas as aforesaid , upon pain of such chastisement , as shall be 〈◊〉 to be inflicted upon such wilful offendors . given at our palace of westminster the 6. day of may in the 7 th . year of our reign of great brittain ▪ anno dom. 1609. notwithstanding this proclamation , the netherlanders proceeded still in their way of encroachment upon our seas and coasts , through the whole reign of king james , and were at length so bold as to contest with him , and endeavour to quarrel his majesty out of his rights , pretending , because of the long connivence of himself and queen elizabeth , that they had a right of their own by immemorial possession ; which some commissioners of theirs that were sent over hither , had the confidence to plead in terminis , to the king and his council . and though the king , out of his tenderness to them insisted still upon his own right , by his council to those commissioners , and by his ambassadour to their superiors , yet they made no other use of his indulgence , than to tire out his whole reign , and abuse his patience by their artificial delays , pretences , shifts , dilatorie addresses , and evasive answers . and all that the king gained by the tedious disputes , overtures , and dispatches to and again , was in conclusion onely a verbal acknowledgment of those rights ; which at the same time that they acknowledged , they usually designed to invade with much more insolence than before . but you have the main of what passed in those days in this particular , with their insolent demeanour , lively described in these following collections , taken out of several dispatches that passed betwixt secretarie naunton , and sir dudly carlton lord ambassadour from the king , to the states of the united provinces . in a letter of secretarie naunton's to the said ambassadour , dated at whitehall the 21. of december 1618. i finde these passages . i must now let your lordship know , that the states commissioners and deputies both , having attended his majesty at new-market , and there presented their letters of credence , returned to london on saturday was a seven-night , and upon tuesday had audience in the council-chamber ; where being required to communicate the points of their commission , they delivered their meditated answer at length , the lords upon perusal of it , appointed my lord bining and me to attend his majesty for directions , what reply to return to this answer of theirs ; which i represented to their lordships yesterday to this effect : that his majesty found it strange , that they having been so often required by your lordship his majesties ambassadour , as from himself , in their publique assembly , to send over commissioners fully authorized to treat and conclude , not onely of all differences grown between the subjects of both states , touching the trade to the east-indies , and the whale-fishing , and to regulate and settle a joynt and an even traffick in those quarters , but withal to take order for a more indifferent course of determining other questions , growing between our merchants and them about their draperies and the tare ; and more especially to determine his majesties right for the sole fishing upon all the coasts of his three kingdoms , into which they had of late times incroached farther then of right they could ; and lastly , for the reglement and reducing of their coyns to such a proportion and correspondence with those of his majesties and other states , that their subjects might make no advantage to transport our monies by inhansing their valuation there : all which they confessed your lordship had instanced them for in his majesties name ; that after all this attent on his majesties part , and so long deliberation on theirs , they were come at last with a proposition to speak only to the two first points , and instructed thereunto with bare letters of credance only , which his majesty takes for an imperious fashion of proceeding in them , as if they were come hither to treat of what themselves pleased , and to give law to his majesty in his own kingdom , and to propose and admit of nothing but what should tend meerly to their own ends . to the second ; whereas they would decline all debate of the fishings upon his majesties coasts , first by allegations of their late great losses and an esmeute of their people , who are all interessed in that question , and would be like to break out into some combustion to the hazard of their state which hath lately scaped naufrage , and is not yet altogether calmed ; what is this put to raise an advantage to themselves out of their disadvantage ? but afterwards they professe their lothnesse to call it in doubt or question , claiming an immemorial possession seconded by the law of nations ; to which his majesty will have them told , that the kings of spain have sought leave to fish there by treaty from this crown ; and that the king of france ( a nearer neighbour to our coast then they ) to this day requests leave for a few vessels to fish for provision of his own houshold ; and that it appears so much the more strange to his majesty , that they being a state of so late date , should be the first that would presume to question his majesties antient right , so many hundred yeers inviolably possessed by his progenitors , and acknowledged by all other antient states and princes . that themselves in theit publick letters of the last of iune , sent by your lordship , seemed then to confirm their immemorial possession ( as they term it ) with divers treaties , as are of the year , 1550. and another between his majesties predecessors and charles the fifth , as prince of those provinces , and not by the law of nations . to which their last plea , his majesty would have them told , that he being an islander-prince , is not ignorant of the laws and rights of his own kingdoms , nor doth expect to be taught the laws of nations by them , nor their grotius , whose ill thriving might rather teach others to disavow his positions ; and his honesty called in question by themselves , might render his learning as much suspected to them , as his person . this his majesty takes for an high point of his soveraignty , and will not have it slighted over in any fashion whatsoever . thus i have particulated unto you the manner of our proceeding with them ; let them advise to seek leave from his majesty , and to acknowledge him , his right , as other princes have done , and do ; or it may well come to passe , that they that will needs bear all the world before them , by their mare liberum , may soon come to have neither terram & solum , nor rempublicam liberam . and in a letter of the said lord ambassadour carlton to secretary naunton , of the 30. of december , 1618. from the hague , we finde this return , touching the business of fishery . whether the final resolution here will be according to his majesties desire , in that point concerning the fishing upon the coasts of his three kingdomes , i cannot say ; and by somewhat which fell from the prince of orange , by way of discourse when he took leave of me on monday , last , at his departure ; i suspect it will not , in regard the magistrates of these towns of holland , being newly placed , and yet scarce fast in their seats , who do authorize the deputies which come hither to the assembly of the states in all things they are to treat and resolve , will not adventure for fear of the people , to determine of a business , on which the livelihood of fifty thousand of the inhabitants of this one single province doth depend . i told the prince , that howsoever his majesty , both in honour of his crown and person , and interest of his kingdoms , neither could nor would any longer desist , from having his right acknowledged by this state , as well as by all other princes and common-wealths , especially finding the same openly oppugned both by their statesmen , and men of war , as the writings of grotius , and the taking of john brown the last year may testifie ; yet this acknowledgment of a right and a due was no exclusion of grace and favour ; and that the people of this country paying that small tribute upon every one of their busses , ( which is not so much as disputed by any other nation whatsoever ) such was his majesties well-wishing to this state , that i presumed of his permission to suffer them to continue their course of fishing ; which they might use thereby with more freedom , and less apprehension of molestation and let then before , and likewise spare the cost of some of their men of war , which they yearly send out to maintain that by force , which they may have of courtesie . the prince answered , that for himself at his return from utrecht , he would do his best endeavour to procure his majesty contentment , but he doubted the hollanders would apprehend the same effect in their payment for fishing , as they found in the passage of the sound , where at first an easie matter was demanded by the king of denmark , but now more exacted then they can possibly bear : and touching their men of war , he said , they must still be at the same charge with them , because of the pirates . withal , he cast out a question to me , whether this freedom of fishing might not be redeemed with a summ of money ? to which i answered , it was a matter of royalty more then of utility , though princes were not to neglect their profit . and in another letter of the said lord ambassadour from the hague to secretary naunton , of the 14. of january , 1618. he gives him to understand , that having been expostulated with , but in friendly manner , by certain of the states about his late proposition , as unseasonable and sharp , they said , they acknowledge their commissioners went beyond their limits in their terms of immemorial possession and immuable droict de gens ; for which they had no order . then , saith he , i desire them to consider , what a wrong it is to challenge that upon right , which these provinces have hitherto enjoyed , either by connivence or courtesie , and yet never without claim on his majesties side , &c. in another letter of secretary naunton's to the lord ambassadour carlton , of the 21. of january , 1618. we read thus : as i had dictated thus far , i received direction from his majesty to signifie to the states-commissioners here ; that albeit their earnest entreaty and his gracious consideration of the present trouble of their church and state , had moved his majesty to consent to delay the treaty of the great fishing ▪ till the time craved by the commissioners ; yet understanding by newand fresh complaints of his martiners and fishers upon the coasts of scotland , that within these four or five last years , the low-country-fishers have taken so great advantage of his majesties tolleration , that they have grown nearer and nearer , upon his majesties coasts year by year , then they did in preceeding times , without leaving any bounds for the country . people and natives to fish upon their prince's coasts , and oppressed some of his subjects of intent to continue their pretended possession ; and driven . some of their great vessels through their nets to deter others by fear of the like violence from fishing near them , &c. his majesty cannot forbear to tell them that he is so well perswaded of the equity of the states , and of the honourable respect they bear unto him , and to his subjects for his sake , that they will never allow so unjust and intolerable oppressions ; for restraint whereof , and to prevent the inconveniences which must ensue , upon the continuance of the same . his majesty hath by me desired them to write to their superiours to cause proclamation to be made , prohibiting any of their subjects to fish within fourteen miles of his majesties coasts this year , or in any time hereafter , untill order be taken by commissioners to be authorised on both sides , for a final setling of the main business . his majesty hath likewise directed me to command you from him , to make the like declaration and instance to the states there , and to certifie his majesty of their answer , with what convenient speed you may . thus sarr secretary naunton to the ambassadour . now what effect the ambassadour's negotiation with the states had , appears by a letter of his from the hague , of the 6. of february , 1618. to kings james himself , where , among other passages he hath this . i finde likewise in the manner of proceeding , that treating by way of proposition here , nothing can be exspected but their wonted dilatory and evasive answers ; their manner being to resey such propositions , from the states general to the states of holland . the states of holland take advice of a 〈◊〉 council residing at delph , which they call the council of the fishery . from them such an answer commonly comes , as may be expected from such an oracle . the way therefore ( under correction ) to effect your majestiesintent , is to begin with the filhers themselves , by publishing , against the time of their going out , your resolution , at what distance you will permit them to fish , whereby they will be forced to have recoursero their council of fishery ; that council to the states of holland ; and those of holland to the states-general , who then in place of being sought unto , will for contentment of their subjects , seek unto your majesty . a proclamation by king charles the first , for restraint of fishing upon his seas and coasts without lisence . where as our father of blessed memory kings james , did in the seventh year of his reign of great , brittain , set forth a proclamation touching fishing whereby for the many important reasons therein expressed , all persons , of what nation of quality soever ( being not his natural born 〈◊〉 〈◊〉 ) were restrained from fishing upon 〈◊〉 the coasts and seas of great brittain , ireland , and the rest of the istes adjacent , where most usually heretofore fishing had been , until they had orderly demanded , and obtained licenses from our said father , 〈◊〉 commissioners in that behalf , upon pain of such ●●●●…sement as should be fit to be inflicted upon such wilful offendors : since which time , albeit neither our said father , nor our self have made any considerable execution of the said proclamation , but have with much patience expected a voluntary conformity of our neighbours and allies , to so just and reasonable prohibitions and directions as are contained in the same . and now finding by experience , that all the inconveniences which occasioned that proclamation , are rather increased then abated : we being very sensible of the premises , and well knowing how farr we are obliged in honour to maintain the rights of our crown , especially of so great consequence , have thought it necessary , by the advice of our privy council to renew the aforesaid restraint of fishing upon our aforesaid coasts & seas , without license first obtained from us , and by these presents to make publick declaration , that our resolution is ( at times convenient ) to keep such a competent strength of shiping upon our , seas , as may ( by god's blessing ) be sufficient , both to hinder such further encroachments upon our regalties , and as●●●t and pro●●●● those our god friends and allies who shall henceforth , by virtue of our licenses ( to be first obtained ) endeavour to take the benefit of fishing upon our coasts and seas , in the places accustomed . given at our palace of westminster the 10 day of may , in the twelfth year of our reign of england , scotland , france and ireland . this proclamation being set forth in the year , 1636. served to speak the intent of those naval preparations made before in the year , 1635. which were so numerous and well-provided , that our netherland neighbours being touched with the apprehension of some great design in hand for the interest of england by sea , and of the guilt that lay upon their own consciences , for their bold encroachments , soon betrayed their jealousies and fears , and in them a sense of their offences , before ever the proclamation was made publick : as i might shew at large ( if it were requisite ) by certain papers of a publick character yet in being . but there is one , instar omnium , which may serve in stead of all ; and it is an acute letter of secretary coke's that was written to sir william boswel , the kings resident then at the hague , the original whereof is still reserved among the publick papers : in which letter , he sets forth the grounds and reasons of preparing that gallant navy , with the kings resolution to maintain the right derived from his ancestors , in the dominion of the seas ; and therefore i here render a true copy of it , so farr as concerns this business , as most pertinent to our purpose . ( sir , ) by your letters and otherwise , i perceive many jealousies and discourses are raised upon the preparations of his majesties fleet , which is now in such forwardness , that we doubt not but within this month it will appear at sea. it is therefore expedient both for your satisfaction and direction , to inform you particularly what was the occasion , and what is his majesties intention in this work . first , we hold it a principle not to be denied , that the king of great brittain , is a monarch at land and sea to the full extent of his dominions , and that it concerneth him as much to maintain his soveraignty in all the british seas , as within his three kingdoms because without that , these cannot be kept safe ; nor he preserve his honour and due respect with other nations . but commanding the seas , he may cause his neighbours and all countries to stand upon their guard whensoever he thinks fit . and this cannot be doubted that whosoever will encroach upon him by sea , will do it by land also when they see their time . to such presumption mare liberum gave the first warning-piece , which must be answered with a defence of mare clausum : not so much by discourses , as by the louder language of a powerful navy , to be better understood , when overstrained patience seeth no hope of preserving her right by other means . the degrees by which his majesties dominion at sea hath of latter years been first impeached and then questioned , are as considerable as notorious . first , to cherish , and as it were to nourish up our unthankful neighbors , we gave them leave to gather wealth and strength upon our coasts , in our ports , by our trade , and by our people . then they were glad to invite our merchants residence , with what priviledges they would desire . then they offered to us even the soveraignty of their estates , and then they sued for license to fish upon the coasts , and obtained it under the great seal of scotland , which now they suppresse . and when thus by leave or by connivence , they had possessed themselves of our fishings , not onely in scotland , but in ireland and england , and by our staple had raised a great stock of trade ; by these means they so encreased their shiping and power at sea , that now they endure not to be kept at any distance : nay , they are grown to that confidence to keep guards upon our seas ; and then to project an office and company of assurance for the advancement of trade ; and withal , prohibit us free commerce even within our seas , and take our ships and goods , if we conform not to their placarts . what insolencies and cruelties they have committed against us heretofore , in ireland , in greenland , and in the indies , is too well known to all the world . in all which , though our sufferings and their wrong may seem forgotten , yet the great interest of his majesties honour , is still the same , and will refresh their memories as there shall be cause . for , though charity must remit wrongs done to private men , yet the reflection upon the publick may make it a greater charity to do justice on crying crimes . all this notwithstanding , you are not to conceive that the work of this fleet , is either revenge or execution of justice for these great offences past , but chiefly for the future to stop the violent current of that presumption whereby the men of war and free-booters of all nations ( abusing the favour of his majesties peaceable and gracious government , whereby he hath permitted all his friends and allies , to make use of his seas and ports in a reasonable and free manner , and according to his treaties ) have taken upon them the boldness , not only to come confidently at all times into all his ports and rivers , but to convey their merchants ships as high as his chief city , and then to cast anchor close upon his magazins , and to contemn the commands of his officers , when they required a farther distance : stance : but which is more intolerable , have assaulted and taken one another within his majesties chamber , and within his rivers , to the scorn and contempt of his dominion and power ; and this being of late years an ordinary practice which we have endeavoured in vain to reform by the ways of justice and treaties , the world i think will now be satisfied , that we have reason to look about us . and no wise man will doubt that it is high time to put our selves in this equipage upon the seas , and not to suffer that stage of action to be taken from us for want of our appearance . so you see the general ground upon which our counsels stands . in particular , you may take notice , and publish as cause requires , that his majesty by this fleet intendeth not a rupture with any prince or state , nor to infringe any point of his treaties ; but resolveth to continue and maintain that happy peace wherewith god hath blessed his kingdom , and to which , all his actions and negotiations have ohitherto tended , as by your own instructions you may fully understand . but withal considering , that peace must be maintained by the arme of power , which onely keeps down war by keeping up dominion ; his majesty thus provoked , finds it necessary even for his own defence and safety , to re-assume and keep his antient and undoubted right in the dominion of these seas , and to suffer no other prince or state to encroach upon him , thereby assuming to themselves or their admirals , any soveraign command : but to force them to perform due homage to his admirals and ships , and to pay them acknowledgements , as in former times they did . he will also set open and protect the free trade both of his subjects and alies : and give them such safe conduct and convoy , as they shall reasonably require . he will suffer no other fleets or men of war to keep any guard upon these seas , or there to offer violence or take prizes or booties , or to give interruption to any lawfull intercourse . in a word , his majesty is resolved , as to do no wrong , so to do justice both to his subjects and friends , within the limits of his seas . and this is the real and royal design of this fleet , whereof you may give part as you finde occasion to our good neighbours in those parts , that no umbrage may be taken of any hostile act or purpose to their prejudice in any kinde . so wishing you all health and happiness , i rest your assured friend and servant , john cook . white-hall , 16. april , 1635. our style . the inestimable riches and commodities of the brittish seas the coasts of great brittain do yield such a continual sea-harvest of gain , and benefit to all those that with diligence do labour in the same , that no time or season in the year passeth away without some apparent means of profitable imployment , especially , to such as apply themselves to fishing , which from the beginning of the year unto the latter end , continueth upon some pat or other of our coasts , and therein such infinite sholes and multitudes of fishes are offered to the takers as may justly move admiration , not onely to strangers , but to those that daily be imployed among them . the summer-fishing for herring , beginneth about midsummer , and lasteth some part of august . the winter-fishing for herring , lasteth from september to the middle of november , both which extend in place from boughones in scotland , to the thames mouth . the fishing for cod at alamby , whirlington , and white haven , near the coast of lancashire , from easter untill whitsontide . the fishing for hake at aberdenie , abveswhich , and other places between wales and ireland , from whitsontide to saint james-tide . the fishing of cod and ling , about padstow , within the land , and of severn from christmas to mid-lent . the fishing for cod on the west-part of ireland frequented by those of biscay , galicia , and portugal , from the beginnig of april untill the end of june . the fishing for cod and ling on the north , and north-east of ireland , from christmas until michaelmas . the fishing for pilchers on the west coast of england from saint james-tide until michaelmas . the fishing for cod , and ling upon the north-east of england , from easter untill midsummer . the fishing of great staple-ling , and many other sorts of fish lying about the island of scotland , and in the several parts of the brittish seas all the year long . in september , not many years since , upon the coast of devonshire , near minigal , five hundred tun of fish were taken in one day . and about the same time three thousand pounds worth of fish in one day were taken at saint ives in cornwall by small boats , and other poor provisions . our five-men-boats , and cobles adventuring in a calm to launch out amongst the holland busses , not far from robinhood's bay returned to whitbie full fraught with herrings , and reported that they saw some of those busses take ten , twenty , twenty four lasts , at a draught , of herrings , and returned into their own country with forty , fifty , and an hundred lasts of herrings in one buss . our fleet of colliers not many years since , returning from newcastle , laden with coals , about the well , near flanborough-head , and scarborough , met with such multitudes of cod , ling and herring , that one amongst the rest , with certain ship-hooks , and other like instruments , drew up as much cod , and ling in a little space of time , as were sold well near for as much as her whole lading of cole . and many hundred of ships might have been there laden in two dayes and two nights . out of which wonderfull affluence , and abundance of fish swarming in our seas , that we may the better perceive the infinite gain which forreign nations make , i will especially insist upon the fishing of the hollanders in our coasts , and thereby shew how by this means principally they have increased . 1. in shipping . 2. in mariners . 3. in trade . 4. in towns and fortifications . 5. in power extern or abroad . 6. in publick revenue . 7. in private wealth . 8. in all manner of provisions ; and store of things necessarie . 1. encrease of shipping . besides seven hundred strand-boats , four hundred evars , and four hundred sullits , drivers and tod-boats , wherewith the hollanders fish upon their own coasts , every one of those imploying another ship to fetch salt , and carry their fish into other countries , being in all , three thousand sayle , maintaining and setting on work at least four thousand persons , fishers , tradesmen , women and children ; they have one hundred doyer boats , of one hundred and fifty tuns apiece , or there abouts ; seven hundred pinks , and well-boats from sixty to one hundred tuns apiece , which altogether fish upon the coasts of england and scotland for cod , and ling onely . and each of these employ another vessel for providing of salt , and transporting of their fish , making in all one thousand six hundred ships , which maintain and employ persons of all sorts , four thousand at least . for the herring-season , they have one thousand six hundred busses at the least , all of them fishing onely upon our coasts from boughonness in scotland to the mouth of thames . and every one of these maketh work for three other ships that attend her ; the one to bring in salt from forreign parts , another to carry the said salt , and cask to the busses , and to bring back their herrings , and the third , to transport the said fish into forreign countries . so that the total number of ships and busses plying the herring . fare , is , six thousand four hundred ; whereby every busse , one with another , imployeth forty men , mariners and fishers within her own hold , and the rest ten men a piece , which amounteth to one hundred twelve thousand fishers and mariners . all which maintain double , if not treble so many tradesmen , women , and children a land . moreover , they have four hundred other vessels at least , that take herring at yarmouth , and there sell them for ready money : so that the hollanders ( besides three hundred ships before-mentioned fishing upon their own shores ) have at least four thousand eight hundred ships only maintained by the seas of great brittain , by which means principally holland being not so big as one of our shires of england , containing not above twenty miles in length , and three in breadth , have encreased the number of their shipping , to at least ten thousand sayle , being more then are in england , france ▪ , spain , portugal , italy , denmark , poland , sweden , and russia . and to this number they add every day , although their country it self affords them neither materials , or victual , nor merchandise to be accounted of towards their setting forth . besides these of holland , lubeck hath seven hundred great ships , hamborough six hundred , embden fourteen hundred , whereunto add the ships of bremer , biscay , portugal , spain , and france , which for the most part fish in our seas , and it will appear that ten thousand sayle of forreign vessels and above , are employed and maintained by fishing upon our coasts . so that in holland there are built a thousand sayle at the least to supply ship-wracks , and augment their store , which as the prince , and common nursery , is the chiefest means onely to encrease their number . 2. encrease of mariners . the number of ships fishing on our coasts , as being aforesaid eight thousand four hundred . if we allow but twenty persons to every ship one with another , the total of mariners and fishers , amounteth to one hundred sixty eight thousand , out of which number they daily furnish their longer voyages to all parts of the world ; for by this means they are not onely enabled to brook the seas , and to know the use of the tackles and compass , but are likewise instructed in the principles of navigation , and pilotage ; insomuch as from hence their greatest navigators have had their education and breeding . 3. encrease of trade . by reason of those multitude of ships and marriners , they have extended their trade to all parts of the world , exporting for the most part in all their voiages our herring , and other fish for the maintenance of the same . in exchange whereof they return the several commodities of other countries . from the southern parts , as france , spain , and portugal , for our herrings they return oyles , wines , prunes , honie , wools , &c. with store of coin in specie . from the straits , velvets , sattins , and all sorts of silks , alums , currans , oyles , and all grocerie-ware , with much monie . from the east-countries for our herrings , and other french and italian commodities before returned , they bring home corn , wax , flax , hemp , pitch , tar , sope-ashes , iron , copper , steel , clap-board , wainscot , timber , deal-board , dollers , and hungarie-gilders . from germanie , for herrings , and other salt fish , iron , steel , glass , mil-stones , renish-wines , button-plate for armour , with other munition ; silks , velvets , rashes , fustians , baratees , and such like frankford-commodities , with store of rix-dollers . from brabant they return for the most part ready mony with some tapestries , and hull-shop . yea , some of our herring are carried as farr as braseil . and that which is more strange and greatly to our shame , they have four hundred ships with fish , which our men of yarmouth , within ken almost at land do vent our herrings amongst us here in england , and make us pray for the fish taken upon our own coast ready mony , wherewith they store their own country . 4. encrease of towns and forts . by this their large extent of trade , they are become as it were citizens of the whole world , whereby they have so enlarged their towns , that most of them within these four hundred years are full as great again as they were before ; amsterdam , leyden , and middleburgh having been lately twice enlarged and their steets and buildings so fair , and orderly set forth , that for beauty and strength , they may compare with any other in the world , upon which they bestow infinite sums of monies , all originally flowing from the bounty of the sea , from whence , by their labour and industry , they derive the beginning of all that wealth and greatness , and particularly for the havens of the aforesaid towns whereof some of them cost forty , fifty , or an hundred thousand pound . their fortifications also both for number , and strength , upon which they have bestowed infinite summs of money , may compare with any other whatsoever . 5. encrease of power abroad . such being then the number of the ships and marriners , and so great their trade , occasioned principally by their fishing ; they have not onely strengthened , and fortified themselves at home to repel all foreign invasions , as lately in the war between them and spain ; but have likewise stretched their power into the east and west-indies , in many places whereof , they are lords of the sea-coasts , and have likewise fortified upon the main , where the kings and people are at their devotion . and more then this , all neighbour-princes , in their differences , by reason of this their power at sea , are glad to have them of their party . so that , next to the english , they are now become the most redoubted nation at sea of any other whatsoever . 6. encrease of publick revenue . moreover how mighty the publick revenue , and customes of that state are encreased by their fishing , may appear in that above thirty years since , over and above the customes of other merchandize , excises , licenses , waftage , and lastage , there was paid to the state , for custome of herring , and other salt-fish , above three hundred thousand pound in one year , besides the tenth fish , and cask paid for waftage , which cometh at the least to as much more among the hollanders onely , whereto the tenth of other nations being added , it amounteth to a far greater sum . we are likewise to know , that great part of their fish is sold in other countries for ready monies , for which they commonly export of the finest gold , and silver , and coming home recoin it of a baser allay , under their own stamp , which is not a small means to augment their publick treasure . 7. encrease of private wealth . as touching their private wealth , if we consider the abundant store of herrings , and other fish by them taken , and the usual prises that they are s●ld for , as also the multitude of tradesmen & artizans , that by reason of this their fishing are daily set on work , we must needs conclude , that the gain thereof made by private men , must of necessity be exceeding great , as by observing the particulars following will plainly appear . during the wars between the king of spain , and the hollanders before the last truce , d●nkirk by taking , spoiling , and burning the busses of holland , and setting great ransom upon their fisher-men , enforced them to compound for great sums , that they might fish quietly for one year ; whereupon the next year after the fisher-men agreed amongst themselves to pay a doller upon every last of herrings , towards the maintenance of certain ships of war to waft and secure them in their fishing , by reason whereof there was a record kept of the several lasts of herrings taken that year , and it appeared thereby , that in one half year there were taken thirty thousand lasts of herrings which at twenty pound per last , amounteth to three millions six hundred thousand , and at sixteen , twenty , thirty pound the last , they are ordinarily sold , then transported into other countries , it cometh at least to five millions , whereunto if we add the herrings taken by other nations , together with the cod , ling , hake , and the fish taken by the hollanders , and other our neighbours upon the brittish coasts all the year long , the totall will evidently arise to be above ten millions . the great trade of fishing imploying so many men and ships at sea , must likewise necessarily maintain as great a number of trades-men , and artizends on land , as spinners , and hemp-winders to cables , cordage , yarn-twine for nets and lines , weavers to make saile cloaths , cecive packers , tollers , dressers , and cowchers to sort and make the herring lawful merchandise . tanners to tan their sails and nets ; coopers to make cask , block , and bowl-makers for ships , keel-men , and labourers for carrying and removing their fish , sawyers for planks , carpenters , shipwrights , smiths , carmen , boat-men , brewers , bakers , and a number of others , whereof many are maimed persons , and unfit to be otherwise imployed . besides the maintenance of all their several wives , and children , and families . and further every man and maid-servant , or orphant , having any poor stock , may venture the same in their fishing-voiages , which affords them ordinarily great encrease , and is duly paid according to the proportion of their gain . 8. encrease of provisions . and to conclude , it is manifest that holland only affording in it self some few hops , madders , butter and cheese aboundeth notwithstanding ( by reason of this art of fishing ) in plentiful manner with all kinde of provisions as well for life , as in corn , beef , muttons , hides , and cloaths ; as for luxury , in wines , silks and spices ; and for defence , as in pitch , tar , cordage , timber . all which they have not onely in comperent proportion for their use , but are likewise able from their several magazines to supply their neighbour-countries . the premises considered , it maketh much to the ignominy and shame of our english nation , that god and nature offering us so great a treasure even at our own doors , we do notwithstanding neglect the benefit thereof , and , by paying money to strangers for the fish of our own seas , impoverish our selves to make them rich. insomuch that for want of industry and care in this particular , two hundred twenty five fisher-towns are decayed and reduced to extream poverty , whereas on the contrary by diligent endevouring to make use of so great a blessing , we might in short time repair these decayed towns of the kingdom , and add both honour , strength , and riches to our king and country , which how easily it may be done , will appear by some few observations following . by erecting two hundred and fifty busses of reasonable strength and bigness , there will be employment made for a thousand ships , and for at least ten thousand fisher-men and mariners at sea , and consequently for as many tradesmen and labourers at land. the herrings taken by the busses will afford his majesty two hundred thousand pound yearly custom outward , and for commodities returned inward , thirty thousand pound and above . we have timber sufficient , and at reasonable rates , growing in our own kingdom for the building of busses , every shire affordeth hardy and able men fit for such employment , who now live poorly and idle at home . we have victuals in great plenty sold at easie rates without payment of excises , or impost . our shores and harbours are near the places where the fish do haunt . for drink , or nets , salting and packing our fish ; and for succour in stress of weather , we may bring our fish to land , salt and pack it , and from some part of his majesties dominions be at our markets in france , spain , or italy , before the hollanders can arrive in holland . we have means to transport our fishing into some northern councountries , where the hollanders seldome or never come . and though we had as many busses as the hollanders , yet is there vent for all , or more , for in the east and northern countries , and in many other places , herrings are every days meat , winter and summer , as well to draw on drink , as to satisfie hunger , and in most places the greatest part of the year they be scarce to be had ; for presently after michaelmas the sound and rivers are frozen up , so as no herrings can be transported into twenty several kingdoms , and free states until july , which is for thirty weeks space together ; so that when lent comes , there are few to be bought for money . lastly , since by care and industry we gained from the flemmings , doubtless so by the means we may as easily grow expert in the art of fishing , and in time make it a staple-commodity of our own . but this we shall the better and sooner do , if we consider and endeavour to reform certain wants and abuses which hitherto have hindred us from effecting that good and great work , whereof these that follow are none of the least . 1. general liberty of eating flesh contrary to old custom , and the statute-laws provided for observing fish-day , from whence our scarcity and dearth of fish proceedeth ; for where flesh is ordinarily spent , fish will not be bought , and want of sale decayeth all trade , gain being the nurse of industry . 2. want of order and discretion in our fishing , every man being left to himself and permitted to fish as best liketh him : whereas amongst the hollanders two of the best experienced fisher-men are appointed to guide the rest of the fleet , all others being bound to follow them , and to cast their lines according to their direction . 3. the hollanders and other nations set forth with their busses in june , to finde the shole of fish , and having found it , dwell amongst it till november , whereas we stay till the herring come home to our rode-steads ▪ and somtimes suffer them to pass by ere we look out , our herring-fishing conteining onely seven weeks at the most , and their 's twenty . 4. the hollanders busses are great and strong , and able to brook foul weather , whereas our cobles , crayers , and boats being small , and thin sided , are easily swallowed by a rough sea , not daring to adventure far in fair weather , by reason of their weaknesse for fear of storms . 5. the hollanders are industrious , and no sooner are discharged of their lading , but presently put forth for more , and seek for markets abroad as well as at home ; whereas our english after they have been once at sea , do commonly never return again untill all the money taken for their fish be spent , and they in debt seeking onely to serve the next market . 6. the hollanders have certain merchants , who , during the herring-season do onely come to the places where the busses arrive , and joyning together in several companies , do presently agree for the lading of thirty or forty busses at once , and so being discharged , they may speedily return to their former shipping ; whereas our fisher-men are uncertain of their chap-men , and forced to spend much time in putting off their fish by parcels . these and other effects would carefully be taken into consideration , and certain orders made to make our fishing prosperous , and succesful , especially considering the fearful mischiefs , the neglects hereof hath brought to the king and kingdom in general , and to many good towns and corporations in particular , as by authority even of parliament it self in the statute of 33. hen. the eight , is plainly testified , which i have summarily here set down , to avoid the prolixity of the original . because the english fisher-men dwelling on the sea-coasts did leave off their trade of fishing in our seas , and went the half-seas over , and thereupon they did buy fish of pickards , flemmings , normans , and zelanders , by reason whereof many incommodities did grow to the realm , viz. the decay of the wealth and prosperity as well of the cinque-ports , and members of the same , as of other coast-towns by the sea-side , which were builded , and inhabited by great multitudes of people , by reason of using and exercising , the craft and feat of fishing . secondly , the decay of a great number of boats and ships . and thirdly , the decay of many good marriners , both able in body by their diligence , labour , and continual exercise of fishing , and expert by reason thereof in the knowledge of the sea-coasts , as well within this realm as in other parts beyond the seas . it was therefore enacted , that no manner of persons english , denizens , or strangers at that time , or any time after dwelling in england , should buy any fish of any strangers in the said ports of flanders , zealand , picardie , france , or upon the sea between shoare and shoare , &c. this act by many continuances was continued from parliament to parliament , until the first of queen marie , and from thence to the end of the next parliament , and then expired . for conclusion , seeing , by that which hath formerly been declared , it evidently appeareth , that the kings of england , by immemorable prescription , continual usage , and possession , the acknowledgment of all our neighbour-states , and the municipal laws of the kingdom , have ever held the sovereign lordship of the seas of england , and that unto his majesty , by reason of his sovereignty , the supream command and jurisdiction over the passage , and fishing in the same rightfully apperteineth ; considering also the natural scite of those our seas that interpose themselves between the great northern commerce of that of the whole world , and that of the east , west , and southern climates , and withal the infinite commodities that by fishing in the same is daily made ; it cannot be doubted , but his majesty , by means of his own excellent wisdom and virtue , and by the industry of his faithful subjects and people , may easily , without injustice to any prince or person whatsoever , be made the greatest monarch for command and wealth , and his people the most opulent and flourishing nation of any other in the world . and this the rather , for that his majesty is now absolute commander of the brittish isle , and hath also enlarged his dominions over a great part of the western indies ; by means of which extent of empire , ( crossing in a manner the whole ocean ) the trade and persons of all nations ( removing from one part of the world to the other ) must of necessity first , or last , come within compass of his power and jurisdiction . and therefore the sovereignty of our seas , being the most precious jewel of his majestie 's crown ; and ( next under god ) the principal means of our wealth and safety , all true english hearts and hands are bound by all possible means and diligence to preserve and maintain the same , even with the uttermost hazzard of their lives , their goods and fortunes . thus you see what wonderous advantages may redound to the felicity , and glory of this nation , if god give hearts and resolutions to vindicate those rights which are now most impiously and injuriously invaded . there is also another dominion of the sea belonging to the king of great brittain , and that of a very large extent upon the shore of america , as on the virginian sea , and the islands of the barbadoes and saint christophers and many other places ; but how farr our english colonies transported into america , have possessed themselves of the sea there , is not exactly as yet discovered . a further assertion that the sea is under the laws of propriety , declared in a full convention betwixt ferdinando emperour of germany , and the republick of venice in the year , 1563. at this convention the complaints on both sides were opened ; and it being required in the name of his emperial majesty , that it may be lawful for his subjects and others , to traffick freely in the adriatick sea ; it was answered by the advocate of the common-wealth of venice , that navigation indeed ought to be free , yet those things at which his imperial majesty found himself agrieved were no ways repugnant to this freedom , for as much as in countries which are most free ; those who have the dominion thereof receive custome , and do give bounds , and prescribe order , by which way all merchandize shall pass , and therefore none should finde themselves agrieved if the venetians for their own respects , did use to do so in the adriatick seas which is under their dominion , there being nothing more known then that the common-wealth of venice were lords of the adriatick sea , and do exercise that dominion which from time out of minde it had always done , as well in receiving of customes as in assigning of places for the exaction of it ; and that according to former capitulations , the subjects of the venetians were to have no less liberty in the lands of the austrians , then the austrian subjects in the sea of venice ; and if his imperial majesty within his own state upon the land , will not permit that the subjects of the common-wealth of venice shall go which way they list , but doth constrain them to go by such places onely where customs is to be paid , he cannot with justice demand that his subjects may passe by or through the sea of the republick which way they please , but must content himself that they passe that way onely , which shall best stand with the advantage of those who have the dominion over it ; and if his majesty cause custome to be paid upon his land , why may not the venetians likewise do it upon their sea ? he demanded of them if by the capitulation they would have it that the emperour should be restrained or hindred from the taking of custome ? and if not , why would they have the venetians tyed thereunto by a capitulation , which speaks of both potentates equally with the same words ; he proceeded in a confirmation of the truth that the republick had the dominion of the sea , and although the proposition was true , that the sea is common and free , yet it is no otherwise to be understood there in the same sence when usually we say , that the high-way are common & free ; by which is meant , that they cannot be usurped by any private person for his sole proper service , but remain to the use of every one ; not therefore , that they are so free , as that they should not be under the protection and government of some prince , and that every one might do therein licenciously whatsoever pleaseth him , either by right , or by wrong , for as much as such licenciousness , or anarchy both of god , & nature , as well by sea , as by land ; that the true liberty of the sea excludes it not from the protection and superiority of such as maintain it in liberty , nor from the subjection to the laws of such as have command over it ; but rather necessarily it includes it ; that the sea no less then the land is subject to be divided amongst men , & appropriated to cities and potentates which long since was ordained by god from the beginning of man kind , as a thing most natural ; and this was well understood by aristotle , when he said , that unto maritine cities the sea is the territory , because from thence they take their sustenance , and defence ; a thing which cannot possibly be , unless that part of it be appropriated in the like manner as the land is , which is divided betwixt cities and governments not by equal parts , nor according to their greatness , but as they have been , or are able to rule , govern , or defend them . bern , he said , was not the greatest city of switzerland , and yet it hath as large a teritory , as all the rest of the twelve cantons together ; the city of norimburg is very great , and yet the dominions and teritories of it do hardly exceed the wals . the city of venice it self for many years was known to be without any possession at all upon the firm land. upon the sea likewise , certain other cities of great force and valour have possessed a large quantity of it , and other cities of less force have contented themselves with the next waters ; neither are there wanting examples of such who notwithstanding they do border upon the sea , yet having fertile lands adjacent to them , have satisfied themselves with their land possessions without ever attempting to gain any sea dominion . others there are , who being awod by their more mighty neighbours , have been constrained to for bear any such attempt , for which two causes , a city notwithstanding it be maritine , and bordereth upon the sea , may happen to remain without any possession of the sea. he added , that god did institute principalities for the maintenance of justice , to the benefit of mankind , which was necessary to be executed , as well by sea as by land ; and st. paul said , that for this cause there were due unto princes , customes and contributions , that it should be a great absurdity , to praise the well governing , regulating , and defence of the land , and to condemn that of the sea ; and that if the sea in some parts thereof , for the ampleness and extream distance of it from the land is not possibly to be governed , and protected , it doth proceed from a disability , and defect in mankind , as in the same consideration there are desarts or wildernesses so great upon the land , as it is altogether impossible to protect them , witness the many sandy parts of affrica , and the immense vastities of the world but lately discovered ; and as it is a gift of god that a land by the laws , and publisht power be ruled , protected , and governed , so the same happeneth to the sea ; he said , that those were deceived by a gross equivocation , who affirmed that the land by reason of its stability and firmness may be governed , but not the sea , for being an unconstant element , it passeth , and hath a motion proper to it as well as the aire ; and if by the sea , and the aire , all and every part of those fluent elements be intended , it is a most certain thing that they cannot be governed , because whilst a man secureth himself with any one part of them , the other fliteth out of his power ; and this also hapeneth unto rivers , which cannot be restrained in their fluent motions ; but when mention is made to rule over a sea or river , it is not understood of the element but of the scite where they are placed ; the water of the adriatick sea doth continually run out of it , neither can it at all be kept in , and yet it is the same sea , as well as the thames , the rhine or the po are the same rivers now , as they were one thousand years agoe , and this is that which is subject to the protection of princes . he askt the germans , if their pretence were that tho sea should be left without protection , protection , so that any one might do therein whatsoever he listed , by robing , spoiling and making it unnavigable ; this he said , would be so absurd in reason , that he durst answer for them that they had no such pretence ; he therefore concluded , that therefore his majesty of germany by a necessary consequence must acknowledge , that it ought to be kept governed , and protected by those unto whom it did appertain by divine disposition , which if it were so , as indeed it is , he desired to understand if in their judgment it seemed to them a just thing , that such should do it with the expence of their own pains , and treasure , or rather that should contribute towards it who equally did enjoy the benefit ; and as to this , he said , he durst answer for them , the doctrine of saint paul being clear in this particular , that all such who are under government and protection , are thereby bound to pay customes and contribution ; much he said , might be alleaged in matter of law to confirm this truth ; and thereupon he concluded , that if the common-wealth of venice were that prince to whom it did appertain to govern and protect the adriatick sea , it of necessity must follow , that whosoever traffick , and saileth on their sea ought to be subject to their laws , in the same manner as such are who travail through a country upon land. from hence he did proceed to show that this dominion over the sea from time out of minde did belong to the common-wealth of venice ; and to prove this , he caused to be read out of an abstract which he had taken the opinion of thirty famous lawyers who from the year one thousand three hundred until the present time , did speak of the dominion which the common-wealth of venice had over the sea , as of a thing most known , and of which even in their times , the mind of man knew not the contrary , some of them affirming that the common-wealth of venice had no lesse dominion over the sea , then over the city of venice ; others maintaining that the adriatick sea is the territory and the demeans of the said city ; and to render this more evident , they do make mention of the lawful power which the venetians have to establish laws over navigation , and to impose customes upon such as traffique on those seas ; and he added , that he never read any lawyer which held forth to the contrary , moreover he told the advocate of the emperour , that if he would not believe those authors who testified that the sea belonged to the venetians , whereof they had possession from time out of minde , before the age wherein those authors lived , yet ●he could not deny to receive them for the testimonies of such things , which they saw , and knew in their times , and to hold them as witnesses far above all exception , being all of them famous men , though dead so many years agoe , and whose impartial pens could no ways be interested in the present differences . and because more then two hundred and fifty years were passed from the time that the authors whom he alleaged as witnesses hereof , did write to the time of those whose names he last of all did mention in that behalf ; he urged that by their attestation it was sufficiently proved , that for a long time more then so many years the common-wealth hath commanded the sea , and therefore he could not deny the assured and certain possession of it to the present . then addressing himself to the judges , he desired them to consider , that notwithstanding some of the above mentioned authors do speak in general words , and name at large the sea of the venetians , neither taking care to declare the quality or the quantity thereof , yet others more expresly do give it the title of the adriatick sea , which evidently doth demonstrate not onely the scite , but also the quantity of the sea possessed , and hereupon he explained himself , that those who speak more precisely ought to cleer the passages of those who write more generally , according to the common precept which is , that with cleer places the more obscure are to be illustrated ; he mentioned also the divers manner of speaking of the same lawyers , some deriving the dominion of the republick over the seas from custome , some from prescriptions , others from an induced subjection , and others from a privilege , which did arise all from this reason ; because , as they were most assuredly informed of the possession and jurisdiction of the said sea , which they both heard and saw to belong to the common-wealth time out of mind ; so they writing on the same subject not at the instance or the command of any one , but of their own proper motions , and by way of institution only , every one of them judged it most convenient to express the title of that jurisdiction , some with one term , and some with another , without coming to use the sole , true proper term , as they would have done if they had been put to write for the interest of any one , in which cases the lawyers are alwayes conformable , receiving from the person interested the like instructions . after the declination of the constantinopolitan empire , the adriatick sea was found to be for many years abandoned in such manner , as it remained unregard , and without the protection and government of any prince , and under the jurisdiction of none , untill it came into the power of the venetians , who to receive their lively-hood thereby , were constrained to maintain it in freedom , and thereupon taking it into their protection , they obtained the government , and the dominion over it : in like manner , as by the law of nature , and of nations , the land , the sea , and other things which are not under the dominion of any other , come justly into the hands of those who first do get the possession of them ; by which reason , the first empires were founded , as well upon the sea , as on the land , and daily there are new ones in the same manner formed , when any of them , either through age , or vice becoming weak wanteth force , and sinketh of it self , the which custody and government of the sea acquired the common-wealth of venice , hath daily advanced by the keeping of powerful fleets , with the expence of much treasure , and the effusion of as much blood , both of their citizens , and subjects , continuing without interruption in the sight of all the world their dominion and custody of the said sea , and overcoming and removing all impediments , as either by pirates , or by potentates , have at divers times been raised against them . after the testimony of the lawyers , he added , that of the historians , who do relate , that the common-wealth of venice for more then three hundred years past , did receive custom of such as sail'd that sea , and kept arm'd vessels in a readiness to compell all such ships so sayling to go to venice , testifying moreover , that even unto their present time the same custom was observed : but he dwelled not much upon their attestations , saying , that although they were good testimonies of preceding occurrences ; yet when we undertake to prove either the interests of princes , or of private persons , he ought to help himself by authentick writings , and to use the historians with great discretion , some of them being moved by love , others with hatred , and others with hopes of preferment , which constrains them oftentimes to use flatteries , or hyperboles , upon which cannot be laid any sure foundation : he therefore did produce an act of the general council held at lions in the year , one thousand two hundred seventy four , where the abbot of nervesa being delegated by the pope did sentence , that the venetians should not be molested in the defence , and protection of the adriatick sea , against the saracens and pirats , neither should they be disturbed by any from exacting their rights and customs , which they had of victuals , merchandize , or any other portable commodities . he added also that there remain the registers of licenses granted to pass their said sea , with armed vessels , or ships of war , and to the persons and goods belonging to their use , at the request of divers princes who had their possessions on the shore of the adriatick sea : but for the greater confirmation of all that had been said , he remembred the yearly ceremony used at venice , where the duke in the presence of the ambassadours of other princes , and more particularly of the emperours of germany doth constantly use to espouse the sea by casting a ring of gold into it with these words , desponsamus to mare in signum veri & perpetui dominii : we do marry thee o sea , in sign of our true and perpetual dominion over it ; which ceremony , as many writers do affirm , had its beginning when pope alexander the third was in venice , notwithstand they do add withall , that it was instituted in sign of the dominion which the republick had formerly gotten by the right of war. at the conclusion he produced the letters of many princes and potentates who joyntly acknowledged the truth of what he spoke , two of them were from the emperour frederick to giovanni mocernigo duke of venice , where having acquainted him of a certain quantity of corn , that was to pass through the adriatick sea , he desireth that he may be permitted to have a free passage , which will be to him a great pleasure , and he shall acknowledge it with many thanks . another letter was from beatrice queen of hungary to the duke above mentioned , where having informed him that she had divers things to pass through the adriatick sea , which could not be without his permission she desired that for courtesies and friendships-sake it might be granted her , which she should take for a great favour , and correspond with him on the like occasion . another letter was from matthias king of hungary to the duke of venice , where relating how the common-wealth of venice was accustomed every year to give license for the transportation of a certain quantity of corn , he prayed that the same grace might be shewed unto him , and that he would acknowledge it for a favour , and correspond accordingly . thus as in a glass , you may see the dominion of his majesty in his brittish seas clearly represented , asserted , and fully proved by that propriety of title and soverainty of power which the duke of venice exerciseth on the adriatick sea , which by the manner of prescription , the consent of histories , and even by the confession of their adversaries themselves is almost the same with his majesties of great brittain ; but his majesty hath one title more above all theirs , which is , the title of successive inheritance , confirmed as well by the law of nature , as of nations , and is so much the more considerable , in regard of the infinite advantages of the profits of it , as the brittish ocean in its latitude and circumference exceedeth the small boundaries of the gulph of venice . but in this great disputation ( where were present the most remarkable wits of italy and germany , and where the imperialists themselves and amongst them , one of the most eminent , stephen , baron of gourz attested openly , that the common-wealth of venice was patron of the adriatitk sea , and might impose what customs they thought fitting , and that all other the commissaries thought so in their consciences : ) there is enough , as may be thought in reason to convince all opponents , that may pretend to differ in judgement from us ; yet so it is , that the indulgence of the kings of england to their neighbouring nations , especially to the hollanders , by giving them too much liberty hath incouraged them to assume a liberty to themselves , and what at the first was but a license , they improve into a custom , and make that custom their authority ; insomuch , that some of the most busiest of them have openly declared against the kings propriety on the brittish seas : amongst these is one hugo grotius , a gentleman of great ingenuity , but in this particular so inclined to obey the importunities , and serve the interests of his country-men , that he disobliged himself of the truth , and moreover ( to speak the truth ) of his conscience it self , for it you look into his silvae , upon the first inauguration of king iames of ever blessed memory , he is pleased to express himself in these words , tria sceptra profundi in magnum cojere ducem , which is , that the rights of the english , scottish , and irish seas are united under one scepter , neither is he satisfied with this bare profession , but he goes on , sume animas a rege tuo , quis det iura mari , which is in english , take courage from the king , who giveth law unto the seas : in the same book , in the contemplation of so great a power , he concludeth , finis hic est , qui fine caret , that is , this is an end beyond an end , a bound that knoweth no bound , a bound , which even the winds and the waves must submit unto . but with what ingratitude have the dutch answered the many royal favours , which the kings of england have almost perpetually conferred on them : if there be no monster greater then ingratitude , what monsters are these men , who of late are so far from acknowledging their thankfulness , that like vipers , they would feed upon , and consume those bowells which did afford them life and spirit ? we may observe , that in their lowest condition , which is most sutable to the name of their abode , called the low countries , they petitioned to the majesty of the q●een of england , whose royal heart and hand being alwayes open to those that were distressed , especially those that were her neighbours , upon the account of religion , she sent them threescore thousand pound , upon the account of sir thomas gresham in the year , one thousand five hundred seventy and two ; and presently afterwards , there followed colonel morgan , colonel gilbert , colonel chester to assist them in their wars , who were the commanders of so many regiments of men ; and after them the war increasing , there were sent over colonel north , colonel cotton , colonel candish , and colonel norris , and some other persons of an eminent name , who for the honour of the english nation made there excellent demonstrations of their valour , and redeemed the dutch from the power of those who otherwise would have brought them to a better understanding of their duties : great supplyes of monies were sent over to maintain so great a charge : at the last , the prince of orange being slain presently after the death of the duke alanson ( brother to henry the third of france , ) who ( if the successe had answered the expectation ) was wisely enough made duke of brabant ; the queen of england sent over unto them robert duke of leicester with great provision both of men and money , accompanied with diverse of the nobility and gentlemen of good account ; and although the said earle , not long afterwards , returned into england and the affairs of the hollanders were doubtful untill the fatal battel at nieuport , yet queen elizabeth of ever blessed memory , out of her unspeakable goodness to the distressed , and to those that suffered for religion , did as long as she lived constantly assist the hollanders both with men and monies ; she gave them hope in despair , she gave them strength being weak , and and with the charity of her princely hand did support them being fallen ; and although the hollanders do ungratefully alledge , that it was a benefit great enough for the english to assist them in reason of state , because by so doing they kept out a war from their own country . it is most certain , that at that time the english had need to fear no warr , at all , but onely for their cause , and for taking their parts ; for it was for their cause that the english in the year , one thousand five hundred , and seventy one , had seized upon the sum of six hundred thousand ducats , on the west coast of england , being the money designed from spain to the duke of alva for the advancement of the spanish interests in the neatherlands : and although the hollanders do further alledge in their own excuse , that they were so grateful , as that they offered unto the queen of england the soveraignty of the neatherlands , which she would not accept , and therefore it was not their fault that she obtained it not ; it is in reason truly answered , that the queen of england , well knowing that she was in danger to draw a perpetual warr upon her self , and her successours , by the accepting of such a gift to which she had no right , did wisely refuse their liberality ; and yet for all that , she continued still to aid them without that chargeable obligation . the hollanders do further alledge , that the queen of england had the cautionary town of brill , flushing , and the other places delivered into her hands : it is true she had so , and thereby enjoyed only the benefit of being at more expence , both of men and money ; and let the reader take notice , that most certain it is , that the hollander had no sooner made a truce with the king of spain , and the arch-duke albertus , but he began presently to set the english at nought , and to take the bridle out of their hands ; whereupon immediately insued their forbiding of the bringing of english cloaths died , and dressed into holland , and the adjoyning provinces without ever making the king of england or his ambassadour leiger at the hague privy thereunto . and to make amends for this their saucy and insolent affront , in a more high and peremptory way they demeaned themselves to king iames himself ; for whereas the duke of lennox , as admiral of scotland , had by order from the majesty of king iames in the year , one thousand six hundred and sixteen , sent one master brown to demand of the hollanders then fishing upon the coasts of scotland a certain antient duty called , size herring , they began to contest with him about it , and after a long disputation they payed it , as in former times it had been accustomed , but not without some affronting terms ; that it was the last time it should be payed . and it is most observable , that the same gentleman coming the year following with the same authority and commandment with one only ship of his majesties to demand the duty aforesaid ; and with order , if he were denyed , to take witness of the refusal in writing , and so peaceably depart : he came aboard one of their ships , and no sooner demanded the aforesaid duty , but by the master of the ship , he was denyed it , who as plainly , as peremptority told him , that he was commanded by the states of holland not to pay it unto the king of england any more , of which he took witness according to his order from his majesty . this taking of witness did so startle the dutch , that before master brown had got off to his own ship , the master of another ship of holland came presently aboard that ship in which he was , who demanding of master brown , his name , he replyed that his name was brown ; why then , quoth he , if you be the man , i have order to arrest you , and to carry you into holland ; whereof master brown gave notice to the master of the kings ship , requiring him to advertise his majesty of this insolency ; and master brown was in this manner arrested , and carried away prisoner into holland , where for a while he was detained . i do read , that much about the same time one master archibald ranthin a scotch gentleman , and residing at stockholme in sweden , where he sollicited for the payment of some sums of monies due to the english merchants , there was at the same time in the same city one vandyke , who lying there as an agent for the states of holland , said unto some principal persons of the swedes , that they need not be so hasty in paying any monies to the subjects of the king of england , or to give them any high respect , because the said kings promises were not to be believed , nor his threatnings to be feared ; for which vile and insolent speeches bring afterwards challenged by master archibald ranthin , he had no better excuse , then to say , he was drunk when he did speak those words ( for deny them he could not ; ) and by this means his excuse of playing the beast ; did excuse him for playing the man. now from these insolent affronts by words , let us proceed , and come to what they have done by deeds , where in the first place , we may observe their rude demeanour to our english nation in the northern seas on the coasts of greenland , and those parts , about the fishing for whales , and the commodity of train oyle , where violently they have offered unpardonable abuses by giving of blows , and chasing the english-men away , and by procuring much loss and prejudice unto them ; their pride of heart was so high , that it would not give their reason leave to apprehend that fishing at sea is free for every man where it is not upon the coast of any country , unto which the dominion of the sea belongeth by antient prerogative . and yet all this is but inconsiderable in regard of their usage of our nation in the east-indies , where in open hostility they have as fiercely set upon them , as if they had been most mortal enemies , having in several encounters slain many of our men , and sunk sundry of our ships ; and when they had taken our men prisoners , they would use them in the sight of the indians , in such a contemptible and disdainfull manner , as if at their own home , and in the country of the butter-boxes ; the english in respect of them were but a sordid and a slavish nation , and the hollanders were either their superiours , and might use them at their own pleasure , or the english were so spiritless , or so unpowerfull , that they durst not be revenged , but quietly must put up all the affronts and injuries which they received at their hands . and as for the commodious trade which the english have had in muscovy for above these fourscore years , and some other countries that lye upon the east and north , which the hollanders , have now gotten quite out of their hands , to the great grief and prejudice of many merchants in this city : what shall we say , seeing not long since they have been acting the same again with our english merchants in turkey : and it is a practise so usual with them to spoyle the trade of other nations , that when they cannot find any occasion to do it , they will show a nature so wretchedly barbarous , that they will not stick to spoyle one another ; so great is their covetous and most insatiable desire of gain : and yet all this proceedeth out of an ignoble and a sordid spirit , for let them arrive to what wealth they will , they can never be the masters of a noble , and a generous disposition . had it not been for their neighbouring nation of the english , they had never arrived to the liberty of a free state , yet so ungratefull have they been , that they have endeavoured to forget all the obligations of humanity , and have digged into the very bowels of those who did preserve them . many examples of this may be instanced ; i shall look a little back again on the cruelty of their proceedings in the east indies , before their studied malice at amboyna , and afterwards of their horrid massacre at amboyna it self . as their avarice was unsatisfied , so their quarrels with the english were many ; covetousness and ambition not long enduring a co-partner . queen elizabeth being translated into a better world , and the hollanders ( to be the more ready to set the english at nought , ) having by the assistance of sir ralph winwood got the cautionary towns into their own possession , they presently began to appear in their true colours , by adding cruelty to hypocrisie , and avarice to insolence ; the english that were trafficking in the east indies being sensible thereof , and finding no redress , preferred their just complaints to the majesty of king iames , on which ensued the first treaty in the year , one thousand six hundred and thirteen , in the city of london , and after that , another treaty in the year , one thousand six hundred and fifteen , at the hague in holland , which taking up much time to little effect ; there was a third treaty which was held in london in the year , one thousand six hundred and nineteen , touching the differences between the english and dutch in the east indies , in which a full and solemn composition was made , and a fair order set as to the management of the affairs for the time to come ; but so restless were the spirits of the hollanders to make themselves the entire masters of the profits of the indies , that having driven from thence the spaniards and portugals , they at the last determined with themselves by subtility as well as strength , to force from thence the english also ; in pursuance whereof , some four years before the most barbarous proceedings at amboyna , they endeavoured to dispossess the english of the islands of banda , polleroone , and some others , famous for the rich spices of nutmeggs , cloves and mace ; and understanding by one of their spies , that captain courtupe was gone from his house and factory in polleroon to one of the adjacent clove-islands , called lantore , they did shoot him as he was in his boat upon his return , and being demanded the cause of so unexpected a murther , they sent word to the english that they should take no more care for him , for he was dead , and he should be buried ; although this was a great discouragement to the english that were there in their occupation of merchandize , yet some were afterwards so venturous , as to endeavour a settlement at lantore , amongst whom was master woofe a factor there , and the authour from whom we have received this discourse , and one who being taken not long afterwards by the dutch , indured almost as much misery , as a created nature can be capable of , which the ensuing narration will make manifest : he writeth of the dutch , that as often as he thinketh of their unparralleld and barbarous cruelty , he cannot but admire , and praise that great god who so much strengthened and inabled him to undergoe those heavy tortures and pressures which were loaden on him by those bloody patrons of cruelty . the dutch had no sooner notice that the english had raised a factory in the island of lantore , but sayling from iaccatra , now by them called bata via , they importuned the natives to surrender the island into their hands and custody ; sometimes they thought to have prevailed upon them with perswasions , and fair words fayling ; they would make use of foul , and threaten them with sword and fire ; and although they were not ignorant that a treaty had been held in london , and a full composition for the ending of all controversies , yet they informed the natives , that although they had given the island to the king of england , they need not to fear to disclaim what they had done by making them to become masters of it , for they said they could , nay , and they would interpose between all dangers and them , and assured them that they had strength enough to defend them against all the nations in the world ; they only desired of them a seizin of security to enjoy the profit of their fruits on those terms which the english had conditioned with them . the natives of the island being hereat in a great perplexity , and doubting amongst themselves what might be the event , if they refused a proffer , which carried an obligation of so much safety with it , did address themselves unto the english , and desired of them to be informed , how they might secure themselves from that deceitfull and cruell generation of men , whose perswasions were as plausible , as their threatnings terrible ; and understanding by the english , that they expected a considerable recruit both of men and ships to come suddainly unto them , they were resolved to be couragious , and not to yield to their treacherous perswasions : in this apprehension , the dutch not long afterwards desired of them after some flattering asseverations to give them , a seizin of security ; at which the natives pretending ignorance , told them , that they knew not the signification of the world , and seemed to be extraordinarily curious to understand the interpretation of it ; at which the dutch with as much mirth as confidence , having whispered amongst themselves , did after some deliberation tell them , that they must bring a great brass bason filled with earth , and plant in the middle of it the branch of a nutmeg-tree laden with fruit , and cause it to be presented to them by the chiefest men of their islands ; and this they told them was the sence and interpretation of the word . the natives having received this answer , did suddainly acquaint the english with it , to whom they were more inclined then to the dutch , as all the rest of those nations are ; and having advised with one another , they told the dutch in plain terms , that their demands were impossibilities , for should they recede from what already they had done , both god and man might justly brand them with infidelity , for to their apprehensions , they seemed to un-interest the english of what was their proper title , which by no means they could be induced to consent unto ; at which the hollanders being much incensed , told them , that since no perswasions would allure them to a knowledge of their own happiness , they must expect to find the reward of their obstinacy , for rather then be frustrated of their intentions , they were resolved to make a benefire of the island , they did advise them , not to trust to the english strength which could stand in no competition with theirs , for they owned them but as a handfull in comparison with themselves . this dispute being frustrated , and the dutch finding the natives of the island to be intractable to their demands , they prepared a great vessel which they had with battery guns , with a resolution forthwith to assault the town ; this great ship was called the float ▪ and besides her , they had in a readiness other less ships that lay against that part of the town , where the english factory was ; having for two dayes planted their batteries , and played against that place where by the flaggs and pendants of the red cross , they found the english factory to be , and finding the event not to answer the expectation , on the first of march , ( five dayes after their first assault ) they found the means to land their men , and enter the town ; they had placed in their front a considerable number of the nation of japan being all armed with guns like unto cullivers with barrels of brass , who making way for the hollanders , did such execution , that the out-cry in the streets was terrible , men , women , and children being cut in pieces , and the town a shamble of dead persons . the english being but few in number were taken prisoners , and saluted with the titles of base rogues and villains , they were bound unto posts by hands and neck , they were bruised , beaten and buffered , they were afterwards ty'd back to back , and so the stronger was inforced to carry the weaker to one of the dutch ships , called the holland , where they were laden with irons , and tormented with variety of tortures ; insomuch , that the author of this discourse , who was a factor at lantore , and one of those who did partake in these grievous torments , hath these express words ; for my own part , i seriously protest , that if it pleased god , the great determiner of all things , to command me to yield my body to be tortured , i had rather by far choose the turkish then the dutch tormentors , for their cruelties i am confident are far transcending the turkish extremities , and i know their viperous inclinations to the english will not be consumated untill their compleated iury shall surfeit it self into an unparalleld revenge . many dayes were they thus tormented , and some of them being most sadly troubled with the flux , these unmercifull people would not let them out of their bolts , but compelled them to use the same dish to receive their excrements , in which all of them constantly did eat their meat ; these things were unsavoury indeed , but these inhumane creatures would not be sensible of their calamities ; at the last it pleased god , that some english ships sayling that way , and being informed what the dutch had acted at lantore , one of the captains , captain fitz herbert by name , sent to the dutch to demand the prisoners , who being conveyed to his ship , he wondered at their unsightly complexion , and the lameness of their bodies , the one being eaten in with irons , and the other quite decayed for want of eating ; by his means their release being obtained , they had liberty to depart to the island of polleroon . and here they continued not long , but the dutch who would have no factories in the east-indies but their own , did again seize upon them , and having plundred them to their very shirts , they imprisoned them in a castle which was in that island , where they continued enduring many extremities until the noise of their sufferings , and durance being again divulged , they were again relieved by some english ships that passed that way ; and the reason why they used so much cruelty to the english , being demanded , no other thing being to be laid unto their charge , but onely their buying of cloves upon the islands ; the dutch at their discharge told the prisoners , that in regard they were the first english-men that ever they took buying of cloves upon that island , they were willing to spare their lives , but if for the time to come , they should ever take an english-man in the same nature , they would not be so favourable as to hang him , but they would whip him to death ; and speaking in contempt of the english , they have been heard to speak words to this effect . alas ! what is england if compared to our high and mighty states of the neatherlands , we know that we have ships enough to block up all the english , and if any difference should arise , the proof should manifest the truth , for they would show us what the dutch men were , if ever they could find opportunity to put their designs in agitation ; the authour of this discourse to show the candour of his spirit , in the representation of so sad a subject ; i protest , saith he , and shall be ready at any time to justifie it with my life , that i have not expressed any thing but what is really correspondent to the truth , and i am very much astured , that there be those now living , who can testifie with me the many tragioal designs , that have not onely been acted on us , but upon many others . neither was this their arrogancy , and cruelty expressed to the english alone , but the inhabitants of china have had the sad experience of it , it being the common practise of the dutch to seize upon their vessels as they came down to trassique in those rivers , and and having plundered their ships , to drown the men. in the year , one thousand six hundred and seventeen , the inhabitants of the banda islands , made a present to captain ball , at that time president of bantam , and besought him that he would so far be pleased to compassionate their sorrowfull conditions , as to accept of their present , and receive their islands into his jurisdiction , by defending them from the tyrannies of the intruding and unmerciful hollanders , whose practise it was , daily to exact upon them , and to murther them at their pleasures , and to abuse their wives whiles themselves were inforced to look on , and not dare in the least to resist them ; moreover their drunkenness was such , and so habitual to them , that it was almost a wonder to see them sober ; they told him , if he were pleased to accept of what they proffered , he should very much oblige them , and no wayes prejudice himself nor the english nation . to which captain ball replyed , that he much lamented their misfortune , but in regard that they had made a surrender of their island already to the dutch , it was not consonant to reason , that he should take away that by force from the dutch , which they had obtained by favour , he therefore desired them to cease their importunity ; to which the bandaneses replyed , that if that were all the obstacle , it might easily be removed , for they generally protested , they never gave the least consent to the hollanders to possess their islands , but that they wilfully and violently entred upon them without their consent , and though that oftentimes they had desired , yet the dutch had never received any assurance of submission from them , the unworthiness of their actions having deterred the bandaneses from condescending to their perswasions . hereupon captain ball became willing to receive them into his protection to the great comfort of the afflicted indians . captain ball continued president not long after , for captain iourdan arrived with sir thomas dailes fleet , in the year , 1618. at what time captain ball was commanded home ; howsoever the cruelties against the poor bandeneses in many of their islands still continued , and grew to such a height , that they hardly could be parallel'd , and for no other cause , but that their affections were so generally , and so servently expressed towards the english . mention hath already been made of the taking of the chief town in the island of lantore , and how barbarously the dutch dealt with the english factory there ; it is worthy your observation , that the greatest part of the inhabitants flying for their safety into the highest hills of that island , were courted by the dutch to submit , and surrender themselves , and that they should be received into favour and protection ; hereupon they came down in great numbers , and four hundred of the chiefest of them being picked out amongst the rest , they were transported into an adjacent island , where having washed themselves , accordingly as they had been advised , they were all invited to a great dinner , and intreated with many welcomes ; they told them , they were heartily sorry that they should so much distrust them as to fly to the english , there being none that desired their safety and welfare more then themselves , and that they would be friend them against all opposers ; they desired that all differences whatsoever may be absolutely composed ; and all former injuries forgotten ; to which purpose , to give them a manifestation of their respects , they had transported them thither , and provided what for the present could be had for their refreshment . the poor inhabitants being much surprized at this unusual manner of respect , having fed heartily , and expressed their thankfulness , prepared for their departure , but the dutch leading them to a window , told them , that they must walk to yonder green , and take their farewell of them there , for there their executioners stood in a readiness to dispatch them ; whereat the poor bandeneses being much amazed , cryed out , o apetow ! which is in english , o what is this ! immediately they were hurried away to the place of execution , and by the iapan slaves , the cruel instruments of the hollanders , they were cut asunder in the middle alive , and their divided quarters were sent some of them to lantore , some of them to polleroon , and other islands belonging unto banda . in the same year , they put to death the chiefest of the inhabitants of polleroon , amongst whom was the chief priest of that island , in whose side the dutch having cut a hole , they commanded that gun-powder should be put into it , which at that instant being set on fire , by a new way of torment they deprived him of his life . it is very observable , that although these inhabitants of polleroon were under the english protection , yet their numbers being inconsiderable to the strength of the dutch , the english durst not contradict them ; so that these poor people were not only murdered before their faces ; but the english perceiving how tyrahnical withall the dutch were , and how incroaching upon them , and what were their cruelties which they practised at amboyna , of which more in its due place ; in the year , one thousand six hundred and twenty two , they abandoned the banda islands which the dutch have ever since possessed , and do still wrongfully and unjustly enjoy , not permitting the enlish to have any commerce with them . and in this place i shall not forget to give you the memorable account of the innumerable shoales of mackerell which was the chiefest thing that supported those islands , they came always in their season in great multitudes , and if at any time they appeared not so numerous , they were sure to have arrived within the limits of two or three dayes , and in far greater abundance then usually before ; but after that the english had left those islands , they did forsake them also , as places polluted with blood , and avarice , or as if they would come to no coasts , but where humanity and probity , or at least where the english had their residence . much about the same time , captain iourdan sayling from bantham with two ships , the one called the sampson , the other the hound , to the great islands of burnew , he discovered three or four dutch ships standing in for the same port , and being confident that they intended no good to him , he gave order to prepare for the encounter , fully resolving to fight it out to the last man , rather then to yield himself to the unmerciful hands of his insulting and approaching enemies ; the dutch summoned the english to deliver the ships upon fair quarter , but captain iourdan a well complexioned man , who had a great heart in a little body , absolutely refused to yield upon any condition whatsoever . the dutch pretending to be unwilling to shed blood , called out to the english , and told them , that they knew very well that little captain iourdan was there , and desired them to perswade him to parley with them ; captain iourdan being informed of it , refused to have any conference with them ; whereupon they desired that he would but show himself upon the quarter deck , that by a fair complyance they might stop the effusion of blood , which otherwise must come to pass ; whereupon captain iourdan ( thinking that to speak with them could not much prejudice him ) did show himself on the quarter deck , & after the exchange of some few words ; told them , that he knew the justice of his cause , and the injustice of theirs , and was resolved to fight it out : the hollander alledging that their strength was far greater then his , and it was rather desparateness then true valour to fight upon such a disadvantage ; it prevailed nothing at all with captain iourdan , who told them , he questioned not his own strength , but was resolved to fight it out , and to leave the success unto god. the dutch finding him intractable to their demands , did hold him still in discourse , until a musquet bullet from one of their ships laid him dead upon the deck , as he was in parley with them : at that very instant of time , whether by treachery , or by accident it is uncertain , a part of our other english ship called the hound , was blown up , and many of our men mortally hurt ; the amazement was so great , that the english were inforced to yield to the mercy of their enemies , who having taken them , did cause them to be laden with bolts , and did not allow them so much favour as to the heathen , for they were permitted to walk up and down with a chain of iron , which is far more easie then to lye in bolts of iron . thus may we observe , what injury and wrong we have all along sustained by the dutch , who have got many of those islands where now they have seated themselves by cruelty and blood-shed , and by murthering the english and their friends ; these indeed are sad relations , and though dismall in themselves , they are but the prologues to the tragedy at amboyna . amboyna is an island lying near unto seran , fruitful of cloves , for the buying and gathering whereof the english company had for their parts planted five factories , the chiefest whereof was at the town of amboyna ; but the hollanders who had already dispossessed them of their residence at polleroon , and at lantore , had a labouring desire to heave them out also at amboyna , and at bonda , several complaints and discontents did every day arise , which were transferred to iaccatra in the island of iava major to the council of defence of both nations there residing , who also not agreeing in points of difference did send them over into europe to be decided by both companies here , or if they could not agree amongst themselves , they should then be determined by the kings majesty , and the lords the states general according to the article of the treaty in the year one thousand six hundred and nineteen , which although it was then articled and agreed upon by both nations , yet the ambition and avarice of the dutch , would not admit of so deliberute a course , but with rash hands would of themselves cut their way to their own ends , and use neither delay nor conscience where gain or profit did appear . the english factories at amboyna began to be rich , and were a great eye-fore unto them who could not indure that any should traffick there but themselves ; on the eleventh therefore of february , in the year , one thousand six hundred and twenty two , a laponen who served the dutch as a souldier was apprehended upon suspition of treason , and put to the torture , the pretense was for asking the sentinel , what was the strength of the castle ? the extremity of the torture was such , that it prompted him to confess whatsoever he perceived they would have him to say , which was , that himself , and sundry others of his country-men there had contrived the taking of the castle ; upon this confession ( which made a great noyse amongst the dutch , and administred them a subject upon which to act , even according to their own desires ) divers other iaponers were examined and tortured ; this examination continued four dayes , during which time , diverse english men that belonged to the factory , had every day their ingress into the castle and egress from it , they heard of the torturing of the japoners , and of the crime laid to their charge , never dreaming of the bait that was prepared for themselves : at the same time there was prisoner in the castle one abel price , an english man , for threatning in a drunken humour to set a dutch mans house on fire : the dutch being glad they had such an instrument to work on in their custody , they showed him some of the japoners whom most grievously they had tortured , and told him , they had confessed that the english had combined with them for the taking of the castle ; whereupon having put him also to the torture , they enforced him to confess whatsoever they desired of him ; immediately upon this , captain towerson and the rest of the english that were in amboyna , were sent for to the governour of the castle : they in obedience to the command , did all of them repair unto him , one man excepted , that was left to keep the factory ; the governour told captain towerson , that he and many other of the english nation were accused of a conspiracy to surprize the castle , and were to remain under custody untill a further tryal ; instantly they attached the person that was left at home in the factory , and the merchandize of the english company was taken into the dutch custody by inventory ; all their chests , boxes , books , writings , and whatsoever was of any value in the english house were seized on , captain towerson was committed to his chamber , having a guard of dutch souldiers ; emanuel thomson , one of the chiefest of the factors , was kept prisoner in the castle , seven others , viz. john beaumont , edward collins , william webber , ephraim ramsey , timothy johnson , john fardo , and william brown were sent aboard the ships of the hollanders then in harbour , some to one ship , some to another , and all made fast in irons : the rest of the english that were in the other factories in the same island were apprehended ; samuel colson , john clark , george sharrock were found in the factory at hitto , and edward collins , william webber , and john sadler in the factory at larica , who were all brought prisoners to amboyna . john powel , john weatheral , and thomas ladbrook were apprehended at cambello , and john beaumont , william griggs , and ephraim ramsey at loho , and brought in irons to amboyna on the 20th . day of february . in the mean time the governour and the fiscal intend to lose no opportunity , in the prosecution of the fine plot that was contrived ; john beaumont , and timothy johnson are sent for from aboard the unicorn ; being come into the castle , beaumont was left with a guard in the hall , and johnson was taken into the place of torture , where by and by to the great grief and astonishment of his heart and understanding , beaumont heard him to make a lamentable out-cry , and then to be silent for a little while , and not long afterwards to be as loud in his hideous complaints , if not louder then before ; after this torture abel price the chyrurgion , who was first of all wracked , was brought in to accuse him ; but johnsons heart being as stout as it was innocent , and not confessing any thing , he was remanded to the torture again , where beaumont heard him to roar , and cease from roaring , and then to roar out again , enough to soften the hardest stones into compassion ; having been a whole hour in this purgatory of fire and water , they brought him forth wet all over , and burned in severall places of his body , and so laid aside in a by-place in the hall , with a souldier to watch him that he should speak to no man. after him emanuel tompson was examined in a room adjoyning to that where johnson had been tortured , where being an hour and a half in his examination , and his torment , he was carried another way , and passed not through the hall , where beaumont attended , and every hour expected the dreadfull summons ; at the last , beaumont was called in , and with deep protestations denying what was propounded to him , he was made fast to the rack , and the cloath being tyed about his neck , and two men with jarrs of water in their hands being ready to pour it on his head , the governour commanded that he should be taken down again saying , that he would forbear him a day or two longer , because he was an old man. the next day being sunday , robert brown was called in , and being on the rack , and the torment of water given him , he confessed all as the fiscal asked . after him was edward collins called in , whose hand and feet being fastned to the rack , he prayed to be respited , saying , he would confess all ; but being let down , with great oaths and execrations he protested his innocency as before , yet told them , that because he knew that by torture , they would : make him to confess any thing , though never so contrary to the truth , they should do him a great favour to tell him what they would have him to confess , and he would acknowledge it to avoid the torture ; at which the fiscal being angry , he was hoysted up again , and the torment of water being given him , he was not able to endure it , but prayed to be let down again to his confession ▪ after which having deliberated a little with himself , he confessed he had a hand in the plot for the surprisal of the castle , and being demanded of the fiscal , whether captain towerson were not an associate in the conspiracy ; he answered , no ; whereupon the fiscal told him , that he lied , for said he , did not he call all of you of the english factories unto him , and tell you , that the daily affronts and abuses of the dutch had put a plot into his head , and that he wanted nothing but your consent and secrecy ▪ a dutch merchant standing by said ; and did not you all swear upon the bible to be secret to him ? collins with great protestations replyed , that he knew nothing at all of it : being then delivered again into the hands of the executioner , the sense of the late torture so prevailed upon him , that he confessed all to be true which they had spoken . being thus respited , he was demanded , whether the president of the english at iaccatra , or master welden agent for the english at banda were not privy to the business ; to which he again answered , no ; afterwards the fiscal propounded other interrogatories unto him , and perceiving that collins knew not what answer to make , he helped him to confess those things which he thought most conducing to his purpose . next to him was samuel colson brought in , who for fear of the pain when he saw edward collins come forth , chose rather to deny nothing that was propounded to him then undergo the torments of fire and water in the attestation of his innocence : but iohn clark was of another resolution , he was no sooner brought in by the souldiers and officers , but by and by he was heard to make a hideous and a lamentable complaint , which continued for the space of two hours , during which time as they abated or increased his torments , he diminished or doubled his cryes at the sense and horrour of his sufferings . the two elements of fire and water , although merciles of themselves , by making their fury more deliberate , were here instructed to be more unmercifull , whiles accurate cruelty did torment even invention it self to torment the innocent ; the rack ordained for the confession of great and grievous offences is oftentimes but an unfaithfull discoverer of them ; for whiles men are put to those torments , which flesh and blood are not able to endure , they confess those crimes which their flesh and blood were no wayes accessary to . two hours was this poor man under the torment of fire and water , yet confessed not any thing , at which his tormentors being amazed , they did cut off his hair , thinking belike , that the strength of his resolution lay in his hair , when indeed it lay in the justice of his cause , and the innocence of his conscience . afterwards they hoysed him up again , and with lighted candles they did burn him in the bottom of his feet , untill the moisture that dropped from them did put out the candles , yet even then they applyed fresh lights unto him ; they burnt him also in the elbows , and in the palms of his hands , and so horridly under his arm-pits , that his inwards might evidently be seen ▪ at the last , when they perceived that he could make no handsome confession , they led him along with questions of particular circumstances which they had framed of themselves ; and being wearied and overcome with torments , he at last , according to their own wishes , made answer to whatsoever they demanded of him . being then released from his martyrdom , they sent him out by four negroes , who carried him between them to a dungeon , where he lay five dayes without any chyrurgian to dress his wounds , untill his flesh being putrified great maggots creeped and dropped from him in a most loathsom , and noysome manner . in the like manner , the rest were all examined , but none of them were so heavily tortured , for some of them to avoid the torment , made suddain confessions , others at the first or second drenching with the water , answered to all the interrogatories of the fiscal . captain towerson himself being reserved amongst the last , untill the torments of those that were examined before him might rack out something from them that might evidence against him , was brought into the court , where these younkers of holland , like another council of rehoboam sate in judgement upon him , he deeply did protest his innocence , to encounter which they produced the persons and confessions of samuel colson , william griggs , and john fardo , samuel colson being told , that unless he would make good his former confession against captain towerson , he should be commanded again to the torture of fire and water , did coldly and faintly re-affirm what before he said , and so was dismissed ; the other two being brought face to face before captain towerson , he charged them , as they would answer it at the dreadful day of judgement to speak nothing but the truth , at which both of them trembled down upon their knees , and besought him for god's sake to forgive them , they openly acknowledged that that whatsoever they formerly had confessed was most false , and spoken only to avoid the torment ; upon these words the fiscal , and the rest of this high court of justice did command them again to the torture , which they would not endure , but affirmed their former confession to be true . i do find this torment was so terrible to flesh and blood , that it even startled the courage of captain towerson himself , who either to avoid the horrour of the torment , or the infamy of it , confessed some words which the factor of cambello in the isle of seran , master john weatherall should speak , who being sent for , and examined on the day following , the captain was brought forth to justifie what before he had confessed , who desiring mr. wedtheral to speak the truth , and nothing but the truth as god should put it into his heart ; mr. weatheral was in a great amazement , and being ordered to undergo the torture of water , and told , that if water would not make him to confess , fire should ; he prayed them to tell him what he should say , or to write down what they themselves pleased , and he would subscribe unto it ; but being told that he needed no tutor , and that they would make him to confess of himself , having hoysted him up four several times , and perceived that he knew not what to say , they did read unto him the confession of the other men that had been examined , and asked him from point to point , and he observing very well which way the world did go , and that his life must become a sacrifice to the rage and rapine of the dutch , did still answer yea unto all . on the 26 of february old stile , the prisoners were all brought into the great hall of the castle to be prepared for death , by their ministers , being solemnly condemned the day before , some few of them found mercy , and had their lives saved ; captain towerson , was kept apart from the rest , and so was mr. emanuel tomson , but some of them by writing found the opportunity to leave a testimony of their innocence behind , amongst whom was captain towerson , who in the end of a bill or obligation wrote these words ; firmed by the firm of me gabriel towerson now appointed to die , guiltless of any thing that can justly be laid unto my charge , god forgive them their guilt and receive me into his mercy . amen . william griggs , also did leave a paper to be sent to mr. welden agent at banda , which came afterwards into his hands ; the tenour of it was in these words : we whose names are here specified , john beaumont , william griggs , abel price , robert brown , prisoners in the rotterdam , being apprehended for conspiracy for blowing up the castle of amboyna , being adjudged to death , were through torment constrained to speak that which we never meaned or imagined , the which we take upon our deaths and salvation , for they tortured us with that extreame torture of fire and water , that flesh and blood could no wayes endure it ; and this we take upon our deaths , that they have put us to death being guiltless of our accusation : so therefore we desire that those who imployed us may understand these wrongs , and that you your selves would have a care to look to your selves , for their intent was to have brought you in also ; they asked concerning you , and if we had been tortured on that particular , we must have confessed you also . and so farewell . master welden having perused this letter , and observed the bloody and inveterate malice of the dutch against the english , did not long afterwards leave the island of banda to the dutch , and the english factories in the mollu●co islands did follow his example . samuel colson , also in a psalter which he had , did leave this attestation of his innocence . the japoners were taken and brought to examination , and being most tyrannously tortured were asked if the english had any hand in their plot , which torture made them say yea ; immediately mr. tomson , mr. johnson , master collins , and john clark were examined , and burned under the arms , arm-pits , the hands , and soals of the feet , with another most miserable torment , of water , some of them being almost tortured to death , were forced to confess that which they never knew , by reason of the great torment , which flesh and blood is not able to endure . then were the rest of the english men called , ( amongst whom i was one , ) being wished to confess , or else i must go to torment ; they withall caused master johnson , who was before tormented , to witness against me , or otherwise he should be tormented again , which rather than he would endure , he said , he would confess whatsoever they would have him : and for my part , i also must confess that which i never knew , or else i must go to torment , which rather than i would suffer , i confessed that , which ( as i shall be saved before almighty god ) is not true , being forced to it for fear of torment . at the last they did make us to bear witness against captain towerson , and by the same violence for fear of most cruel torments , they made captain towerson to confess the like , for which we all must dye . as i hope to have pardon for my sins , i know no more than the child unborn of this business , for which we all must suffer . written with my own hand the first of march , stilo novo . samuel colson . other attestations there are to the same effect , which for brevities sake i omit , i shall only insert , that all things being prepared for execution , the condemned were brought forth out of the hall , and passed along by the chamber where the acquitted and pardoned were , who stood in the door to give and take the farewell of their country-men that were then going to the execution ; making a little stay for this purpose , they intreated and charged those that were saved to bear witness to their friends in england of their innocence , and that they died not like traytors , but as so many innocents meerly murthered by the hollanders , whom they prayed to god to forgive their blood-thirstiness , and to have mercy on their own souls . it is observable , that being brought into the yard , their sentence was there read unto them from a gallery , and from thence they were carried to the place of execution , together with nine japons and one portugal , whom their specious malice to give a better pretense unto their cruelty , had contrived to be of the same confederacy : they did not go the ordinary and short way , but round about through the town , and were guarded with five companies of souldiers , dutch and amboyners , and the natives of the island flocked together to behold this triumph of the dutch over the innocent and condemned english . and it is not to be forgotten , that , on the day before , the english desired of the dutch ministers , that they might all receive the sacrament , as a seal of the forgiveness of their sins ; which by no means would be granted them ; whereupon master colson said unto them , you declare unto us the danger of dissimulation in this case ; but tell us , if we suffer guiltless , being true believers in christ jesus , what shall our reward be ? the minister answered , by how much the more innocent you are , by so much the glorious shall be your resurrection ; upon that word mr. colson imbraced him , and gave him his purse and such money as was in it , saying , sir , god bless you , tell ●he governour i freely forgive him , and intereat you to exhort him to repent of his bloody tragedy wrought upon us poor innocent souls , and proceeding in his discourse , he spake with a loud voice in these words , according to my innocence in this treason , so o lord pardon all the rest of my sins , and if i be guilty thereof more or less , let me never be partaker of thy heavenly joyes ; at which words every one or the rest cryed out , amen for me , amen for me , good lord. this being said , each of them knowing whom they had accused , addressed themselves one unto another , begging forgiveness for their false accusations , being wrested from them either by the pain , or by the fear of torture ; whereupon they all of them freely did forgive one another , for none of them had been so falsely accused , but he himself had as falsely accused another . in particular george sharrock knecled down to john clark and craved forgiveness at his hands , who freely did forgive him , saying , how shall i look to be forgiven of god , if i should not forgive you , having my self so falsely accused captain towerson and others . this master ●olson had contrived a prayer in writing which he did read to his fellows the night before their suffering , and now also at the place of execution , where having devoutly pronounced the fame , he let the paper fall from his hand , which the governour caused to be brought unto him , and he kept it . the names of those that suffered were , cap. gabriel towerson , samuel colson , emanuel tomson , timothy iohnson , iohn weatheral , iohn clark , william griggs , iohn fardo , abel price , robert brown. they had prepared a cloath of black velvet for captain towerson's body to fall upon , after his head had been severed from it , which being stained , and defaced with his blood , they sent to the english company and put it on their account . they sent the mourning cloath to the english , but the scarlet of their blood-guiltiness they retained to themselves . having thus given you an account of the barbarous cruelty of the dutch in the east-indies , it is now high time to look to their proceedings in the west-indies , where we shall find their cruelty as unparallel'd as their avarice . the perfidiousness and ingratitude of the hollanders to the english may be traced all along ever since the shook of their obedience to the king of spain even unto this present time . but we will pass from their hypocrisic and cruelty practised abroad , and look on their actions at home ; how , almost but the very other day , did they labour to impose upon his. majesty , and sir george downing , his envoy extraordinary , by delivering papers to many publick ministers of state at the hague , as if his majesty and his envoy had been prepossessed with them , when they had not the least notice of any such thing ? how have they seemed to be most desirous of peace , when at the same time they have omitted no dayes , even those appropriated for holy duties to drive on their preparations for war ? how have they stood in defence of their violent and unjust proceedings , and instead of redressing their injuries , they have increased them ? about three years since , they concluded a treaty with the english , and having ingaged , that better order should for the future be observed , they have since heaped new injuries to the utter over-throw of all the trade of his majesties subjects in the east and west-indies ; witness our ships , the hope-well , the leopard , and some others in the east-indies ; and the charles , the james , the mary , the sampson , the hopefull aduenture , the speed-well on the coast of africa ; and after all these acts of the highest injustice , and their utmost endeavours for driving on a war , they would make the world believe that his majesty is the first undertaker of it , who from his own mouth to their ambassadour in england , and by his injunctions to sir george downing his minister at the hague hath given so many , and such remarkable demonstrations to the contrary : what can they say to the memorial of the complaints which sir george downing exhibited to the states general , importing that in the space of a very few years almost twenty english ships with their whole lading , to a very great value , have been seized upon in a horrible manner , and the men in them most barbarously , and most inhumanely treated , being put into stinking and nasty dungeons , and holes at castel . del . mina , where they did lye bedded and bathed in their own excrements , having nothing but bread and water given them , and not enough of that neither to sustain nature , [ their bodies being under the fury of exquisite and horrid torments ; ] and when any of them died , the living and the dead were left together , and such as out-lived that cruelty , were exposed in the woods to famine , or to the mercy of wild beasts in those desolate countries , or to be carried into captivity by the natives by which means several hundreds of his majesties good subjects have perished and been destroyed ; and unto this hour , notwithstanding all sollicitations and endeavous of his majesties envoy , not one penny of satisfaction can be had , either for the loss of the ships , or the persons concerned in any of them , but to the contrary they have ever since hindred , and shot at the english ships that have anchored by them , and have took by force all the boats of those natives who have endeavoured to come aboard them , and have seized also upon the english boats that would go on shore , and deprive them of all manner of provision , nor suffer so much as fresh water to be brought unto them ; and to give a further proof of their confidence and ambition , they have published a declaration , wherein they assume and challenge to themselves a right to that whole coast , to the exclusion of all other nations ; although , by order from his majesty , sir george downing , both in publick conferences with the deputies of the lords general , as also with those of holland in particular , hath at large remonstrated his majesties right , and interest in some part therein , having by his subjects bought the ground of the king of that country for a valuable consideration , and built a factory thereon ; and yet for all this , some of the dutch-west-india company by fraud and ireachery have got into the place , and no hopes of the restitution of it , but they are resolved to keep by violence what they have gained by deceit . moreover , what can they say for themselves concerning their stirring up the king of fantin by rewards and sums of money , and supplying him with all manner of arms and ammunition for the surprizing of his majesties castle at cormantin in the west-indies ; so that an absolute necessity is imposed upon his majesty , and his subjects , either of losing all that have been actually taken from them , and abandoning for ever that trade it self , or of betaking themselves to some other wayes for their relief ; and what hope is there of their restoring back any place which they have once taken . the island of polleroon hath been upon surrendring back to the english , ever since the year , 1622. at which , by a solemn and particular treaty it was promised to be done ; and again , by another treaty in the year , 1654. and by an order of the states general , and the east company of that nation in the year , 1661. and again by another treaty in the year following ; and yet to this day , there is not the least mention of any thing restored ; and should any man then think it strange , that his majesty after so long an experience of the perversness and deceitfulness of that nation should suffer his subjects to repossess themselves of those places , which by the hand of violence and oppression they have forced from them . now as for the business of the new-neatherlands , as they are pleased to call it , it hath been abundantly else-where prov'd , that the said land is part of the possession of his majesties subjects of new england , which their charter plainly and precisely expresseth : and those few dutch that have lived there heretofore , have lived there meerly upon the connivence and sufferance of the english , which hath been permitted to them so to do , so long as they demeaned themselves peaceably and quietly ; but the dutch not contenting themselves therewith , have incroached more and more upon the english , imposing their laws and customs , and endeavouring to raise contributions and excises on them , and in those places where the dutch had never been , whereupon they have been necessitated several times to send souldiers for the repulsing of them : since the conclusion for the late treaty the dutch have made new incursions upon the english , and given them many new provocations , and have ordained a tryal of causes amongst themselves , and a proceeding by course of arms , without any appealing into europe at all . and can any prince then think it strange , especially the king of france , if his majesty of england suffer his subjects to rescue themselves from such continual vexations , seeing the king of france himself hath been pleased this year , to order his subjects to re-possess themselves by force of arms of a certain place called cayen , which the french alledge hath been wrongfully kept from them by the west-india company of the neatherlanders . as for the business of captain holmes at capo verde in guiney , a complaint was no sooner made to his majesty , this last year , in the moneth of june ; but his majesty immediately returned answer , that he had given no order nor direction there into captain holmes , and that upon his return , he would examine the business , and see that right should be done according to the nature of the offence : in order whereunto , when captain holmes was returned , his majesty sent him to the tower , and being afterwards allowed the liberty of some few dayes to follow his particular business , he was again commanded back , where being strictly and throughly examined touching the management of the whole matter complained of , he so fully , and so clearly upon every point did acquit himself , that his ma●esty was graciously pleased to grant him his inlargement , and to restore him again to his princely favour . we might in the next place alledge de ruyters leaving the english fleet , when with united councils and forces , they were to act against their common enemies , the pyrats and barharians in the midland-seas . we may alledge their instructions this last year given to van campen , at what time his majesty entertained not any open war against them ; which instructions was in down-right terms , to attach and fall upon his majesties subjects in the west-indies , and to carve out their own satisfaction and reparation . * and if this be not affront enough to provoke his majesty to maintain the justice of his cause by the force of armes , we leave to the world , and to his enemies themselves to judge , and surely that sword is to be feared ▪ which striketh with the hand of justice . finis . the loyal martyrology . or brief catalogues and characters of the ●ost of eminent persons who suffered for their conscience 〈…〉 of rebellion , either by death , imprisonment , banishment , or sequestration ; together with those who were slain in the king's service . as also , dregs of treachery : with the catalogue and characters of those regicides , &c. and are to be sold by edward thomas at the adam and eve in little brittain , 1665. notes, typically marginal, from the original text notes for div a33387-e480 vide , doctor dee , his brittish monarchy , pa. 44. notes for div a33387-e1060 lyren . ad ●umer . 34. dion . lib ▪ 36. chron. canon . p. 128. florus , lib. 2. cap. 6. aristo . polit . lib. 7. cap. 6. strabo . geograp . lib. 1. seneca ep. 39. luke 5. 1. forcus in cap. juris . cap. 9. seld. mar● clausum 158. de bello gallico . lib. 9. zosimus hist . lib. 6. bede , de natura rerum . cap. 28. m ● . in bibleothecâ cottonianâ . hunting . lib. 5. guil. malmesb . lib. 2. cap. 8. rot. pat. 48. hen. 3. 22. edw. 1. 2. rich. 2. annal. 1. part , page 276. rot. parl. 2 rich. 2. part 2. act 38. seld. mare clausum page 334. rot. fran. 5 hen. 4. rot. fran. 38 hen. 6. rot. patent 23. edvar . rot. scotia 10. edvar . rot. parli . 46. edv. 3. rot. parli . 8. hen. 5. rich. 2. fitz herbert tit. protection , 46. edw. cook part 5. fol. 108. & in com. ad littleton , sect. 439. fol. ●60 . m ● . commentar de rebus admiral , fol. 28. rot. parl. 31 edw. 1. membran . 16. ibidem ut supra . tilius in recucil . destraictes , fol. 4. rot. parl. 14. edvar . 2. membran 26. cambd. in insul . britan . p. 849. cambden annal. elizab. the hollanders insolence . their imperious fashion of treating . how farr navigation is to be free . the sea in his majesties dominions no more common nor free , then is the high-way by land. the dominion of the seas appropriated to such and such places ever since the begining of mankind . the propriety of the seas , according to the laws of god. the sea not to be without protection . the sea to be protected by those to whom it doth appertain by divine disposition . the power of the soveraign of the seas , to impose customes in his own jurisdiction . how the sea comes into the dominion of princes vide the venetians title unto the sole domin●o● of the adriatick sea. hugo grotius , sylv. lib. 2. vide the observations concerning the affairs of holland . the hollanders objections answered . the impudent affront of the hollanders to the late kings of england . vide observations concerning the affairs of holland . their spoyling of our trade in muscovy , and other countries of the east . vide , master woofes discourse on the tyranny of the dutch upon the english pa. 10. ibid pa. 12 , and 13. ibidem pa. 18. ibidem pa. 20. ibidem p● . 42. the english abandoned the banda islands , and the reason of it . vide , the dutch tyranny , pag. 64. * vide , the discourse of sir george downing . synēgoros thalassios, a vievv of the admiral jurisdiction wherein the most material points concerning that jurisdiction are fairly and submissively discussed : as also divers of the laws, customes, rights, and priviledges of the high admiralty of england by ancient records, and other arguments of law asserted : whereunto is added by way of appendix an extract of the ancient laws of oleron / by john godolphin ... godolphin, john, 1617-1678. 1661 approx. 449 kb of xml-encoded text transcribed from 138 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2008-09 (eebo-tcp phase 1). a42930 wing g952 estc r12555 13133432 ocm 13133432 97872 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a42930) transcribed from: (early english books online ; image set 97872) images scanned from microfilm: (early english books, 1641-1700 ; 419:1) synēgoros thalassios, a vievv of the admiral jurisdiction wherein the most material points concerning that jurisdiction are fairly and submissively discussed : as also divers of the laws, customes, rights, and priviledges of the high admiralty of england by ancient records, and other arguments of law asserted : whereunto is added by way of appendix an extract of the ancient laws of oleron / by john godolphin ... godolphin, john, 1617-1678. [53], 207, [16] p. printed by w. godbid for edmund paxton ... and john sherley ..., london : 1661. title transliterated from greek. "an extract by way of appendix of the ancient laws of oleron" has special t.p. reproduction of original in british library. "a series or catalogue ... of such as have been dignified with the office of lord high admiral in this kingdome, since king john's time to the reign of king charles the first of blessed memory": p. 197-207. marginal notes. includes index. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng admiralty -england. maritime law -england -early works to 1800. maritime law -france -early works to 1800. admirals -england -directories. oléron, ile d' (france) 2007-08 tcp assigned for keying and markup 2007-08 apex covantage keyed and coded from proquest page images 2007-09 emma (leeson) huber sampled and proofread 2007-09 emma (leeson) huber text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion συνηγορος θαλασσιος . a vievv of the admiral jurisdiction . wherein the most material points concerning that jurisdiction are fairly and submissively discussed . as also divers of the laws , customes , rights , and priviledges of the high admiralty of england by ancient records , and other arguments of law asserted . whereunto is added by way of appendix an extract of the ancient laws of oleron . by john godolphin , ll. d. — littusque rogamus innocuum . — virg. aen. 7. london , printed by w. godbid for edmund paxton over against the castle tavern neer doctors commons , and john sherley at the pellican in little brittain . 1661. to the reader . he that negotiates about maritime affairs , is under protection without letters of safe conduct , as being within the sanctuary of jus gentium ; and the right timing of a modest address oft times proves more successful then a confident argument out of season ; there seems some probability , as if this treatise obtrudes not upon the world , or thy patience , like a tract borne out of due time ; nor as if it came like a physitian to his patients funeral ; or as suetonius relates touching the deputies of troy , sent to condole with tiberius seven or eight moneths after the death of his sons ; if this treatise be out of season , others as well as my self are happily deceived ; in which case it will suffice to say with philip de comines , that it is very hard for a man to be wise , that hath not been deceived . for the method , it is as regular as the arguments would afford ; though not so exact as might have been , if the same metal had been cast into another mould ; yet not so rude and out of shape , as to suspect from the disproportion of the body that the soul is ill lodged , or like some long-breath'd confused discourses , of late much in fashion , whereof it may be truly said as was once of the romans two ambassadours sent to one of their provinces , whereof one wounded in the head , the other lame in his feet , mittit populus romanus legationem , quae nec caput nec pedes habet ; and which for their prolixity and immethodicality may justly expect the same answer that those of lacedemon gave the samnites , that they had forgotten the beginning , understood not the middle , and disliked the conclusion . the subject-matter of this treatise is not so much de jure as de jurisdictione admiralitatis angliae , not so much touching the law of the admiralty or sea-laws , as now received and practised in the navigable parts of the world , as in reference to the jurisdiction of that law within this kingdome of great brittain ; so that it will on all hands be eafily agreed , that the argument of jurisdictions is quaestio admodum subtilis ; and no wonder , if you consider , that that which is de competentia judicis & jurisdictionis , is totius juris velut obex & repagulum ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and zeal for the publick facilitates the highest difficulties . to leave the laws sub incognito , or jurisdictions sub incerto , are both of national ill consequence , subjecting the people either to transgression through ignorance , or to unnecessary expences by multiplicity of law-suits . lux , lex , & veritas , are almost synonimous ; if either of these suffer , though but a partial eclipse , how great is the darkness thereof ; if a jurisdiction , without which the law is but as a dead letter , be uncertain , how great is that uncertainty ? but the liquid and clear stating and ascertaining of jurisdictions to their proper and respective boundaries , beyond which one may not pass to the invading of another , is one of the primary constitutions of jus gentium . this short view of the admiral jurisdiction was in its origination designed only to prevent a vacuum inter alia negotia , and not to hazard the censure of a superfluum inter aliorum otia . and although a great part of this fabrick , be laid on a foundation of civil law , yet in regard it is an indispensable duty which every man owes his native countrey , to keep , as much as may be , sub incognito , from strangers and forraigners abroad , what possibly may not be absolutely perfect ( for there is no perfection under the sun ) quoad modum procedendi at home , sumus enim surdi omnes in linguis quas non intelligimus ; and in regard this treatise must recite the very letter of certain clauses of several acts of parliament , transactions of state , and book-cases of common law ; and in regard the satisfaction of merchants and mariners was the main motive and design of emitting this to the opinions of men ; for these reasons it could neither properly nor profitably speak the ideum of that law , which is no less adequate to the admiralty , then currant over all the christian world . the just rights and customes of the jurisdiction of the admiralty of england , are here with submission asserted , and consequently therein many of the priviledges of merchants and mariners ; and not only of those who have a birth-right to england's laws of the admiralty , but also of all such , who negotiating with us , have a right thereto by the jus gentium , and national treaties . the merchant is bonum publicum , and such is that nations interest whose merchants do flourish , that to gratifie them with all possible immunities and due encouragement is now become the common policy of all such kingdomes and states , as reap more treasure from their ports then pastures . it was most true what seneca once said of them , mercator urbibus prodest , medicus aegrotis ; without whom a communalty or civil society of men can scarce plentifully or honourably subsist . it was a saying with baldus , that famous civilian , that the world could not live without merchants . whence it may be rationally inferred , that that nation is nigh drowning , whose merchants are under water ; their function being to import necessaries , and to export superfluities ; if therefore such marine controversies as arise between merchant and merchant , or between merchant and mariner , should be removed from the cognizance of the admiralty ( whereof there is now no fear ) ad aliud examen , it might prove no fallible index , but that our trade and commerce in too sad a measure might also in some short time after be exported ad aliam regionem . here therefore is the merchant and the mariner insisting not for any thing more then what is according to the known laws of the land , and the ancient established sea-laws of england , with the customes thereof , so far as they contradict not the laws and statutes of this realm , it will not be denyed , but that jurisdictio originaliter radicata est in principe , & ab eo descendunt iudices sicut rivuli à fonte suo . the decision of the rights of jurisdictions resides not in any persons of a private capacity , but in that power that creates and constitutes jurisdictions ; that is , the prince or chief magistrate , as the supream source or fountain of all humane laws and judicatories . reader , it seems something difficult to determine whether the sophistication of truths , or the fucus of errors hath of late years been the more epidemical cheat in print , it being sufficiently notorious how that adulterous generation went a whoring after the press , and what a noisome spawn of illegitimate brats were then generated of the froth of the brain , not less numerous then spurious , that neither their male-content parents , nor religion , law , reason , nor charity are able to maintain . and although this treatise be of a more generous extraction , yet it is very far from complementing it self with the least vain hopes of exemption from those censures which are common to all men . it is worth an asterisk to observe how infeazable it hath been in all ages for the most innocent to escape this correction ; aristotle that prince of peripateciks , was accused of being too obstruce and obscure , and in many things labours under galen's reprehension ; the dialogues of divine plato are taxed for being too confused and immethodical ; virgil by some is counted but a shallow and weak witted poet , and by others charged as if he were wholly beholding to homer for his works ; and homer himself is derided by horace , as if he were too drowfie a poet ; demosthenes could not please marcus tullius in all things ; trogus pompeius doth accuse titus livius his orations of fiction and falsities ; seneca was nick-named , and called lime without sand ; pliny is compared to a turbulent river that tastes of many things , but digests few . but to come home to the worthies of the civilians profession ; for even the most orthodox oracles of the civil law have not escaped such undue reprehensions ; as some have affirmed that accursius had no depth of judgement ; others reprove bartol for the length of his distinctions , as if somewhat too monstrous by having too many members ; on the other side albericus is blamed for too much brevity ; baldus for inconstancy and instability of judgement ; alexander for the perplexity of his method ; and both the raphaels for their too much subtilty , in some things for their neglect of and carelesness in the more polite literature , in other things for their non-citing and mis-alledging the doctours ; and in a word , those very ancient and most famous lawyers , that by the profoundness of their judgement and splendour of their eloquence have so illustrated the dark and obscure places of the civil law , as that they nave left the world just cause of admiration , no hopes of imitation , even these have not escaped the like mis-reprehensions ; for in the life of iustinian , perinus ( out of suidas ) hath a large invective against tribonian , that architect of the pandects ; besides , who more eloquent then ulpian ? who more pithy then paulus ? who more learned then callistratus ? who more acute then papinianus ? who more distinct , and withal succinct then scaevola ? who more free and fluid then caius ? who more profound then africanus ? who more delightful and satisfactory then pomponius ? who more clear and transparent then celsus ? who more candid and ingenious then triphonius ? yet all these in their respective and incomparable works have met with the said undue reprehensions . if this therefore shall chance to meet with some waspish humours , we must consider the climate ; nor is it more then wants a president , or less then needs a charitable construction ; which is the worst revenge can possibly be executed by such as chuse rather to suffer then offend . j. c. the introduction , or , preface to the ensuing treatise . the systeme of jurisdictions is , as the law it self , above the notions of any private conception ; he is something more then of a singular invention , that thinks he can arraign the verdict of all ages , nihil dici queat quod non priue dictum fuit ; and he is more then of an audacious spirit , that dares invade the laws prerogative , nihil proferri debet , quod non prius constitutum fuit . hence it is , that he that writes of that subject without book , that is , that vents his own notions , or sails by the weather-cock of his own brain , not only consiscates the ill-stowed cargo of his intellect , but also renders himself no less arrogant and presumptuous in the tacite apprehensions of the prudent , then shallow and ridiculous to the most rural capacities . it is therefore nothing dishonourable for treatises of this nature to merit the application of that liberty which chrysippus took , of whom it is said , that he borrowed so freely from authours , that if his name were but expunged or obliterated out of the title page , there would nothing remain that could properly be called his own ; it is neither heretical nor disingenious to accommodate old truths to new designs , so it be done aptly and honestly & sine animo furandi : for there is that credit by way of debt due to the authours , that it is no less then theft to conceal them , whereas one half of the debt is paid , if you duly quote them ; yea , they become your debtours , if by the ingenuity of your husbandry you raise their credit according to the improved value ; but he that conceals the patrons of his assertions , is ashamed of his own craft , robs the dead , and ch●ats the living . he that writes politicks without prefixing his principles , comes short of his duty ; but he that writes law without quoting his authority , presumes beyond his line ; he that blushes to be ingenious , is ashamed of his own modesty ; plato borrowed many things from pythagoras ; aristotle from plato , and theophrastus from aristotle ; this treatise hath borrowed nothing but what it intends to pay , here 's the acknowledgement of the debt , full satisfaction with interest may be expected elsewhere , sufficient caution being given in the subsequent elenchus of the creditours . as reason is the soul of the law , so jurisdictions may be styled the faculties of that soul , being reduced to act or exercise as they are accommodated to this or that object ; consequently therefore to confound jurisdictions , is to obliquitate the rule of all humane actions , specially if any thing less then bonum publ●cum , under a vizor be the authour of that confusion . mine and thine divide the world betwixt them ; in private transactions they are unhappy monosyllables , but in publick affairs they may be of most dangerous consequence ; insomuch that seneca said , the world would be quiet were it not for those two ambitious pronouns . a this meum & tuum is here understood collective , for jurisdictio being of publick right is not competible with any private interest exclusive to common good , b that being beside the design of jus gentium , whereby jurisdictions were originally constituted . c the flux and reflux of jurisdictions are from and to the prince as rivers from and to the ocean , wherein transactions of the greatest weight and burden are navigable ; and therefore to obstruct the current of justice in this or that channel , may force open the sluces of the law to a cataclysme of injustice , and dissolve the ligaments of the best jointed body politick in the whole world ; and yet if the streams of one jurisdiction , running too rapid , over-flow its banks to the inundation of another , it 's most just and safe , seasonably to reduce them to their proper channels . were it true what bald. says , d jurisdictiones penes principes residere quasi scabellum , the clashing of jurisdictions might be an offence only to the footstool of majesty ; but if jurisdictio ejus ossibus inhaeret , as tapia and others assert , e then it may be of an higher nature . where divers persons are concredited with juridical trust or authority , there the jurisdiction is either separate , or concurrent , or in common . a separate jurisdiction may appertain to a certain number of persons privative or exclusive to all others , whereby they are externally qualified to take cognizance either of other persons , f or of other causes , g or of other quantities , h or of other places , i then what other judges are juridically qualified for . a concurrent jurisdiction is that which appertaineth to many cumulative , as when the same cases are equally subjected to the cognizance of many judges : yet so that each of them , whether one or more , by himself or themselves , may in solidum hear and determine the case , and he or they only may take cognizance thereof to whom address by the complainant is first made , and before whom the suit is first commenced , for in such cases prevention takes place ; and in all competent jurisdictions wherever the action is first commenced , there judgement ought to be given in the case . l thus the emperial chamber by an ordinance there made hath concurrent jurisdiction with the emperour himself , m save in matters relating to the fee or inheritance of the emperial crown . a jurisdiction in common appertaineth to many , and that cumulative , as to all of them , so to all of them together , and complexive ; insomuch that one of them may not proceed without the other , the law obliging all of them to be present together in judgement . n but whatever jurisdictions there are in a nation , of how many kinds , degrees , orders , or subordinations soever , this is a sure rule and without exception , jurisdictiones non sunt confundendae ; o the bonum publicum is more rationally stated , and more concerned in rhe equal administration of justice , then to admit the least confusion in that which is the only expedient to prevent confusion ; for justice ( whose office it is not only to doe that which is equal , but also to remove that which is unequal ) is never illustrable through any mediums that hath the least tincture of injustice ; and although for its material object , it ever hath some one external action or other , as suppose equality between payment and debt , yet for its formal object it ever hath honesty and conformity unto , at least an adequate consistency with natural reason , comprised in that external act. of all jurisdictions , that of the admiralty or sea-affairs hath been the least beholding to the auxiliaries of the press in defence of its ancient rights and priviledges against such as would without offence impair the same ; the reason probably may be either from the paucity of such , as are more specially therein concerned , in respect of that numerous host or retinue , that in fealty to the other jurisdictions are most prompt notaries on all occasions ; o● rather in that it is of that excellent use in all maritime dominions , that the friends thereof are well assured , its worth would be better valued , if the want thereof were more smartly felt . the ensuing treatise is to assert the rights thereof in part , the design of whose highest ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the rights and priviledges of so ancient and necessary a jurisdiction , then to convince any by arguments less perswasive then that interest whereon some me●s prejudice may be founded . though merchants and mariners qua tales be not such able lawyers as to know how their maritime cases should be determined according to the exact rule of law , yet they are such able supports to any nation or kingdome , that they are not to be left sub incerto , where or in what tribunal to find that rule under such a quality of juridical competency , as not to run hazards by land as well as by sea ; yet this under the notion of a maritime cause , when possibly it is of another element , may not be strain'd in favour of one jurisdiction in derogation of another ; nor under the notion of merchants , when posibly they are at best but quasi mercatores ; for not every one that buyes and sells , is thence presently to be denominated a merchant , but he only who in the way of trade and negotiation deals in moveables for gain or profit , upon design of disposing thereof in the way of commerce either by importation , exportation , or otherwise , in the way of emption , vendition , barter , permutation or exchange . p so that he is not properly said to be a merchant , who once and no more doth buy commodities that he may sell the same , for it is not one act that doth denominate a merchant , q but a certain assidutiy or frequent negotiation in the mystery of merchandizing , unless he be matriculated or entred as such in the society or corporation of merchants . he also may be said to be a merchant , who by common fame and in the opinion of men is commonly reputed a merchant . r they that buy wares or merchandizes to reduce them by their own art or industry into other forms then formerly they were of , are reputed rather artificers then merchants ; s unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby , in which case they may be said to be rather merchants then craftsmen or artificers . and such as buy wares for present money , that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought , are reputed rather usurers then merchants . t but bankers , money-changers , and such as deal by way of exchange are reputed under the notion of merchants . u for whereas it is formerly said that a merchant deals only in moveables , understand that money is comprised under that notion . w so also are ships . the isle of rhodes anciently was the only mart of trade and commerce in the whole world ; antiquity describes that isle and the city thereof as the only metropolis of merchants ; who , though they have a latitude as wide as the ocean in point of trade and negotiation , yet they may not in time of war transport prohibited goods or commodities to an enemy , though designed for the redemption of captives . x yet such is the reputation of merchants , that credit is generally given , without the least distrust , unto their count-books , unless some legal exception may be raised against the same , or other just cause of suspicion . y and whereas each merchant hath his peculiar mark wherewith his goods are usually marked , by way of discrimination from the goods of other men , the law in favour of so laudable a custome doth presume the goods to be his , whose mark is thereon affixed ; not that such marks , abstracted from other concurrent evidence , do of themselves amount to a full proof ; only they induce such a presumption , as doth ( without stronger evidence or presumption on the other side more energetical ) carry the possession for him whose marks they are ; nor is it therefore less hazardous then unlawful for one merchant to make use of anothers mark , save when in time of war they strain a point to drive a colourable trade , which , with other the like stratagems , the law will interpret no other then solertia or dolus bonus rather then trade shall be totally obstructed , or the merchants quite discouraged ; and where the goods controverted happen to have the marks of both the parties litigant , in that case his is the best condition who hath the possession , till by the other party better cards can be shewed for the property ; a for a presumption grounded only upon the marks must ever give place to a proof of the title or property grounded upon an emption , permutation , or the like . b nor may the plaintiff pendente lite , make use of that mark touching which the dispute or controversie is , till there be a decision in the case . c the interest of the merchant mainly depending on the mariners , it concerns him to know wherein their duty consists ; a right understanding whereof is not with more facility attainable then by a due perpension of those things which the law it self ascribes as faults to mariners ; such in part as these ; viz. the mariner may not set sail when under an embargo or other restraint of princes ; nor in tempestuous weather ; nor after the time limited by contract ; he may not during his voyage in reference to ship or lading , doe ought mis-becoming an honest , able , skilful , and prudent mariner ; he may not stay in port or harbour without cause when a fair wind invites his departure ; he may not deviate in his course without just cause , or steer a dangerous or unusual way when he may have a more secure passage , yet to avoid illegal impositions , he may somewhat change his course and be excusable ; d he may not unlade his merchants goods into another vessel worse then his own ; he may not lade any goods into a leaky or insufficient vessel ; he may not over-charge or over-lade his ship , nor stowe goods above her birth-mark ; he may not sail without able and sufficient mariners , both for quality and number ; he may not voluntarily sail by places infested with pirats , enemies , or other places notoriously known to be unsafe : he may not transport persons of an obscure and unknown condition , without letters of safe conduct , or other suspected persons , to the rendring ship or lading liable or subject to a seizure or surreption ; he may not lade any prohibited or unlawful goods , whereby the whole cargo may be in danger of confiscation ; he may not use any unlawful colours , ensigns , or flags , whereby his ship or lading may incur a seizure ; * he may not , being haled at sea , behave himself otherwise then becomes a prudent master ; he may not carry counterfeit cocquets or other fictitious and colourable ship-papers to involve the goods of the innocent with the nocent ; he may not with his vessel engage among the rocks , being thereto not necessitated by the violence of wind and weather , nor by night deceived or deluded by false lights ; he may not refuse payment of the just and ordinary duties , port-charges , customes , and imposts , to the hazarding of any part of his lading ; he may not sail with insufficient rigging , or tackle , or with other or fewer cables and anchors then is requisite , respect being had to the burthen of the vessel ; he may not sail with other ship-provisions then what is good and wholesome , and sufficient for the voyage ; he may not neglect the well moaring of his vessel in port ; he may not sail without one cat or more in his vessel ; he may not suffer the lading to take wet , to be stoln or embeziled ; he may not permit debates or contests among his mariners , to the prejudice of the merchants goods ; he may not let open the hatches of the ship , to endanger the lading ; he may not prejudice any part of the lading by any indiscreet or unskilful stowing of the goods , respect being had to quantity , nature , and quality thereof ; he may not take up more money upon bomeree or the gross adventure then his interest is in ship or lading ; he may not contrary to order touch at ports , not necessitated thereunto by contrary winds or otherwise . many other are the faults and miscarriages incident to mariners ; these only by way of hint to merchants , who are the greatest sufferers hereby , having herein very seldome equivalent reparation , the offendors for the most part not sufficiently solvant . but here note , that he that will charge a mariner with a fault in reference to his duty , must not think that a general charge is sufficient in law , but he ought to assign and specifie the very fault wherewith he is so charged . e in like manner he that will infer such or such a sad disaster to have happened or been occasioned by reason of some fault in the mariners , must not only prove the fault it self , but must also prove that that fault did dispose to such a sad event , or that such a misfortune could not have happened without such a fault precedent ; f wherein the mariners though legally qualified as good and competent witnesses for acts done a ship-board , g yet to exculpate and excuse themselves , they are not witnesses without exception , save in certain cases wherein the law allows them a toleration by way of juramental purgation ; and in case of loss or damage to the lading or any part thereof by reason of such disaster occasioned by or in consequence of such fault of the mariners , the merchant hath his election in law , whether he will sue the master or the owners of the vessel , h only he can recover but of one of them ; and having once determined his election , he ought to stick to that ; in which case if the master happen to be judicially condemned by reason of any default in his mariners , he may detain their wages till payment be made , and satisfaction given for such damage as he suffered by their neglect ; for they ought by the law to refund it out of their wages . i ships and other vessels of that kind were originally invented for use and profit , not for pleasure and delight ; to plow the seas , not to lie by the walls ; therefore upon any probable design the major part of part-owners may , even against the consent , though not without the privity and knowledge of the minor part , set a vessel to sea , under such provisions , limitations , and cautions , as by the law is in that behalf provided ; yea , the same thing may be also effected by the one party only , in case of equality in partnership . k but in the choice of a master , where there are several part-owners of the same vessel , not always he that is chosen by the major part , but he that is best qualified for that employment , is according to law most eligible and to be preferred . l if a ship be ript up or taken abroad into pieces , with design of converting the materials thereof to some other use , and it be afterwards upon other advice or change of mind re-built with the same materials , this is now another and not the same ship , m specially if the keel be ript up or changed , and the whole ship be at once all taken asunder and re-built ; it is otherwise if it be ript up in parts or taken asunder in parts , and so repair'd in parts ; in which case it remains still the same ship , and not another , albeit it be so often repaired , that in tract of time there remain not one chip of the original fabrick . and although a man repair his ship with plank or other materials belonging to another , yet the ship shall not be his to whom the materials belong , but remains his who repaired it . n it is otherwise if one takes another man's planks or materials prepared for the use of shipping , and therewith build a vessel ; for in that case the owner of the materials shall be owner also of the ship , for the property of the whole vessel follows the keel thereof . o but if one prepare tables and other implements , as for the use of a dwelling house , or the like , with oke or deal belonging to another man , and afterwards with those implements build a ship or other vessel , in this case the ship is his who built the same . p if a ship be bought , together with all her tackle , apparel and furniture , and other instruments thereto belonging , in this case and by these words the ships boat is not conveyed . q and therefore if by reason of any offence the ship happen to be forfeited or confiscate , the said ships boat is not confiscate . r if one doth sell that ship or vessel , wherewith he hath exercised the detestable acts of piracy , whether the parties that suffered loss by such depredations , have any remedy in law against such ship now bought bona fide , or against the buyer thereof now bonae fidei possessor , is a question much controverted ; some are of opinion that he hath no remedy in law , because the ship is a senseless thing , and not capable of offending . s as also , because the buyer thereof ( supposing him not conscious of any such depredations , nor privy to , abettor or partaker thereof ) ought not to suffer being innocent ; t others are of another opinion , for that it is lawful for every man to seize the goods of pirats , u especially for that there lies a tacite obligation on the goods of all offendors for satisfaction ; w whence some infer that the merchants who are so despoyled of their goods , have a legal recourse for satisfaction on the pirats goods wheresoever or in whose hands soever they find them . but the more received opinion is , that whereas it is held lawful for every man to apprehend the goods of pirats and be blameless , it is meant and intended only so long or whilest they are the goods of such pirates ; x unless you can also affect the possessors of such goods with a participation of the same crime . and if any do bona fide , either buy or redeem a ship or other goods from such pirats , he may upon restitution thereof to the true proprietor recover of him the price of such emption or the redemption-money . y if a ship or other vessel by stress of weather or through fear of enemies or pirats , be forced or chased into a port , no duties or customes or other duties in that case ought to be exacted or paid . z in fraighting of ships , respect is had either to the ship it self , or else to a certain part thereof ; as also either by the moneth , or the voyage , or by the tun ; for it is one thing to fraight a ship , another thing to take certain tunnage to fraight ; so also one thing to be the cape-merchant , another to be an under-fraighter ; and the law of fraight ordinarily is regulated by the contract , and varies according to the diversities of agreement , for convention makes law. if fraight be contracted for the lading of certain slaves , cattle , or the like , and some of them happen to dye before the vessel arrives to her port of discharge , the whole fraight is due , that is , as well for the dead as the living . a it is otherwise if the fraight were contracted for the transporting them , in which case fraight is due for no more then are alive at the ships arrival to her port of discharge , and no fraight due for the dead . b if it be not known or liquid , whether the contract were for the lading or transporting them , the fraight is due for the lading , and consequently as well for the dead as living . c if fraight be contracted for transportation of a woman , and she happen during the voyage to be delivered of a child on shipboard , no fraight is to be paid for the said infant . d if such misfortune happen to a ship in her voyage that she cannot proceed therein , the fraight contracted for doth cease in some cases , only for so far and so much of the said voyage as the said ship made before such misfortune , fraight shall be paid . e if the ship by reason of the fraighters fault , as for lading prohibited commodities , or the like , be detained or impeded , he shal pay the fraight contracted and agreed ; f the lading of a ship in construction of law is tacitly obliged for the fraight ; yea , the payment of fraight is preferr'd before any other debts to which the goods so laden are liable , albeit such debts in time were precedent to the said fraight . g if a set time be fixed and agreed between the merchant and the master , wherein to begin and finish a voyage , it may not be altered by the supra-cargo without special commission ad hoc ; nor may the master sail after the time covenanted , without refunding the damage out of his owne purse , in case any happen at sea after the said time . h a promise being made by a master of a ship to to sail venice from the port of london in two moneths , the promise is performed if he begin to sail the said voyage within the two moneths , though he arrive not at venice within the said time . i and the sailing from one port to another , thence to a third , fourth , &c. and so home to the port whence she first set sayle , o● some other port of her last discharge , is all but one and the same voyage , k so as it be in conformity to the charter party . as there is no art more necessary , so none more dangerous and uncertain , then that of navigation ; insomuch that bias the philosopher ( one of the seaven grecian sophies ) had a conceit that navigators and mariners , when under sayle , might not properly be reputed either among the living or the dead ; and plutarch in the life of cato , relates it as one of cato's three penitentials at his death , if ever he conveyed any thing by water when he might have done it by land ; hence it is that the law is so favourable in cases of wreck , and in nothing more consults the reparation of any , then such as by that deplorable casualty are reduced to misery . now no man by the law may be prohibited or denyed the liberty of sayling either upon the seas or any publick rivers . l that is , no man may be denyed that freedome , or prohibited by any private persons , or other who have not jura regalia in that territory , for some princes and states have in all ages exercised that prerogative in this point which no lesser powers can pretend unto ; witness the city of peru , in her concessions , and interdictions or prohibitions , touching a liberty or restraint of sayling on the lake of peru ; as also the like by the venetians as to the adriatick gulfe ; m not here omitting to make an honourable mention of that undoubted soveraignty which the kings of great brittain in all ages have had in the seas thereof . n another duty of merchants and mariners is contribution , which is not onely in the case of goods cast over-board for the lightning of the vessel , but also in case of redemption of ship or lading , or any part thereof from enemies or pirates , o insomuch that if a master redeem the ship and lading out of the hands of pirates by promising them payment of a certain sum of money , for performance whereof himself remaines as a pledge or captive in the custody of the pirates ; in this case he is to be ransomed or redeemed at the costs and charges of the said ship and lading , ratably and proportionably as each mans interest therein doth amount thereunto . p and if there be cash or mony in the ship ; it is not in this case exempt from paying its share of the contribution proportionably to ship and lading , because the master knowing the said money to be a ship-board , was probably the more willing to redeem the ship , though at a dearer rate . in a storm , when the ship is in danger of perishing , it is not lawful for the master at his own discretion , without advice first had with the merchants or their factors or supracargoes , to cast goods over-board for the lightning the vessel , or to cut down the mast , or the like ; but in case they consent not , and the master see cause for it , he may even against their consents do the same , by the advice of the major part of his mariners , who at the end of their voyage are to make oath , that they did the same out of necessity , and only for preservation of ship and lading , and by advice of the mariners : and the master in such case is to take as much care as in him lies , that such goods only be ejected and cast over-board as are of the heavyest weight , and least value ; q for which contribution is to be made , wherein the ejected goods are to be valued as other of the same species are sold for ; and jewels , though of no burthen to the vessel , yet in such case are liable to pay their share of contribution according to their value ; and in such cases the custome of the place is to be observed ; for by the custome of some places the oaths of the master and a third part of the mariners are required , by the custome of other places the masters oath with two or three of his mariners doth suffice . but if only the ship it self , or any of her tackle happen by stress of weather to be damnified , there is no contribution for the same , though the lading be all preserved . r contribution is to be made and regulated in this manner ; first , the goods which are lost or were ejected for conservation of the rest , are to be valued and appraised ; then the goods saved are likewise to be estimated , that so the values of each being known , a proportionable valuation may be contributed by the goods saved , towards satisfaction for the goods ejected , lost , or thrown over-board ; wherein regard is to be had not to what might be got by the goods lost , but what the damage is by the loss thereof ; which are to be estimated not so much by what they might possibly be sold for , as by what they cost or were bought for . though in truth the more received practise and custome is , that the goods saved and lost are both estimated as the saved goods happen to be sold for , the fraight and other necessary charges being first deducted ; and the estimation or computation is to be made by such skilful merchants and mariners as adhere in their judgements and affections to neither party , farther then becomes indifferent arbitrators ; which may be managed with most equality and least suspicion or exception , if the appraisment be made upon oath . and if any in the ship hath money , plate , jewels , or the like , in any trunk , chest , pack , fardel , or other thing now to be thrown over-board , he ought to discover it and shew it to the master of the ship before the ejection , or otherwise in casting up the contribution , these things will come no farther into consideration , then what the bare extrinsick value appeared to be . the goods preserved are by law as liable to pay contribution as fraight , and are tacitely obliged for the one as for the other , and the master may retain them as a pledge in law as well for the satisfaction of the one as of the other ; if such ejected goods or the merchandize be afterwards recovered out of the sea , the contribution for them ceases , saving for so much as they are thereby deteriorated . s but if by reason of the masters over-lading the vessel , or by his indiscreet stowing the goods or the like , such ejection or casting goods over-board happen , in that case no contribution to be made by the merchants ; but satisfaction by the ship , the master , or owners thereof . t if to avoyd the danger of a storm , the master cut down the masts and sayls , and they falling into the sea are lost ; this dammage is to be made good by ship and lading pro rata ; not so in case the same had happened by the violence of the wind or storm , or other casualties . also no contribution in case one ship strike against another , whereby dammage happens ; but full satisfaction in case of a fault or miscarriage in either , or an equal division of the dammage in ca●e it happen by a meer casualty . lastly , if a lighter , or skiff , or the ships boat into which part of the cargo is unladen for the the lightning of the ship , perish , and the ship be preserved , in that case contribution is to be made ; otherwise it is , in case the ship perish , and the lighter , skiff , or ships boat be preserved ; for no contribution but where the ship arrives in safety . v within the cognisance of the jurisdiction of the admiralty , and wherein merchants and mariners are principally concerned , are also all causes of reprizals , known to us by the words reprisaliae , or letters of marque , which in the law have also other appellations , as pignoratio , clarigatio , and androlepsia ; for it is supposed that those reprizals now commonly used , were first introduced in imitation of that androlepsia among the greeks , with whom it was a certain right in case of murder , to apprehend and seize any three persons whether citizens or other of any such place or city , into which the murtherer had fled for shelter , making it his place of residence ; and such persons to keep in safe custody , until upon demand the said murderer were delivered up to justice ; this was androlepsia with the greeks , which ( as some suppose ) gave an hint to other nations for these reprizals , which are now of practice more common then commendable . the word clarigatio is more acceptable to express reprizals , then either androlepsia or pignoratio ; fot pignoratio is a word too generall , and androlepsia too special , as being only by the authority of such as required the revenge of murder , and upon no other accompt then that . the word [ reprizals ] is from the french , reprendre & reprise , that is , to retake , or to take again one thing for anorher ; albeit this may not be by any private authority , but only by the authority of that prince whose subject the injured person is , and only in case justice be denyed or illegally delayed by that prince whose subject the offender is : for before any concession of letters of reprizal or marque , there ought to precede the oath of the party injured , or other sufficient proof touching the pretended injurie , the certain lo●s and damage thereby sustained , the due prosecution for obtaining satisfaction in a legal way , the denyal or protelation of justice , the complaint thereof to his own prince , requision of justice by him made to the supreme magistrate where justice in the ordinary course was denyed , persistency still in the denyal of justice ; all which precedent , letrers of reprizal ( under such cautions , restrictions , and limitations as are consonant to law , and as the special case may require ) may issue by the jus gentium ; for such law-casuists as question whether reprizals are lawful , are in that point rather divines then lawyers ; grotius , who was both , resolves it in the affirmative ; w wherein nations as well as persons , the jus civile as well as the jus gentium agree the legality thereof ; whether you understand general and universal reprizals , which is quasi bellum privatum , or special and particular reprizals , which is quasi duellum publicum . the precedent requisites being duely observed , reprizals may issue by the authority of the prince , in whom alone resides the power as of making war and peace , so also of granting letters of marque ; and this notwithstanding any lawes to the contrary that seem to inhibite the same ; x but with respect to the national treaties and coventions , which in this point may at times vary and alter the case in conformitie to such national contracts . a due administration of justice is not the least sense wherein princes are stiled gods ; to deny or delay justice is injustice ; justice is every mans right who hath not forfeited what he might claim by the jus gentium ; therefore the prince , within whose territories justice is denyed or delayed , is accomptable to that other prince whose subjects suffer thereby ; and by the law subjects may be punished for their prince's omissions in what the law of nations requires . y and that prince who unlawfully detained the rights of a subject under another prince , or suffers it within his territories to be detained , and in the ordinary course of law denies restitution , he may at length be compelled to restitution , vi & manu militari . z he that in the way of reprizals apprehends at sea another mans goods , ought not to keep them in his own private custody , and to convert them by his own authority to his own private use , but ought to bring them to some publick place in order to a judication according to law ; yet they are to remain with the captors till by them they are thus brought and submitted to publick justice ; by the authoritie whereof commission may issue for landing or unlading the said goods , for inspection , for inventorying , and for sale , either of such part thereof as upon such inspection shall appear to be bona peritura , or of the whole in case the court shall see cause , which is to order payment out of the proceed thereof to the party to whose use the letters of marque issued for and towards satisfaction of his debt and damages , after deduction of all dues , duties , necessary costs and charges relating to the seizure , either judicially or extra-judicially ; and the said debt and damages ( with all costs and charges ) being fully satisfied , the remainder or overplus ( if any , which seldome happens in such cases ) is to be restored to their owners from whom they were taken , and the said letters of marque thenceforward to cease . such letters of marque issue not without good and sufficient caution first given in court for the due observance thereof according to law , the transgression whereof creates a forfeiture of such judicial recognizance or stipulation ; and the captor for the better management of a judicial proof , in order to a right decision according to the merits of the case , is to produce part of the seized mariners to be sworn and examined according to law , as also to exhibite all the ship-papers and evidences found a shipboard ; and till judication he may not break bulk of his own private authority , nor suffer any imbezilement of the lading , nor sell , barter , or otherwise alter the property thereof , without special commission from the court for so doing . in the law there are certain persons and things exempt from being lyable or subject to reprizals ; they whose persons are exempt , have also their goods free. reprizals granted against any kingdome or state , are understood as against such only who inhabit therein , and not against such who though originally of that countrey against which the reprizals are , yet inhabit elsewhere , possibly in the same kingdome whence the letters of marque issued ; for he is not in this point reputed of that kingdome , state , province , or city wherein he doth not inhabite , albeit he were born therein ; it is not the place of a mans nativity but his domicill , not of his origination but of his habitation , that subjects him to reprizals ; the law doth not consider so much where he was borne , as where he lives ; not so much where he came into the world , as where he improves the world ; provided he hath there decenniated or inhabited ten years , or less , in case he hath born office there , or paid scott and lott , or removed his family thither , or his estate , or the greater part thereof , or is naturalized a denizon of that countrey . reprizals may not be exercised on pilgrims , or such as travel for religion sake , nor on students , scholars or their books , or other necessaries ; nor on ambassadors or their retinue ; nor on women or children . likewise goods found with a merchant of another place then that against which reprizals are granted , albeit the factor of such goods were of that place , are not subject to such reprizals ; nor ought the presumption of the place ( though strong enough for condemnation where proof of an innocent property failes ) prevail against fuller evidence . ecclesiastical persons are also by the canon law expresly exempt from reprizals ; so likewise such persons , as by storm or stress of weather are driven into port , have an exemption from the law of reprizals according to the jus commune , what the edict of any particular state in that case may doe , is not here determined ; but a ship or goods belonging to the subjects of another prince , against whom reprizals are granted , coming into a port , of that state , issuing such letters of reprizal , not by storm or stresse of weather , but to avoid confiscation for some delict committed at home in their own countrey , may be subject to reprizals in port. this right of reprizals ( which as some would have it , answers to the saxon withernam ) is not only admissable in cases of denyal , or protelation of justice , as when judgement may not be had within the time prescribed by law , but also when judgement is given plainly against the law , and no remedy to be had against such wrong judgement , either in the ordinary course per viam provocationis a appellationis ad j●dicem superiorem , nor in the extraordinary per viam supplicationis ad principem ; understand thus when the matter in controversie is tam quod merita quam quod modum procedendi , not doubtful , for in doubtful matters the presumption is ever for the judge or court ; but a wrong judgement in matters not doubtful must be redress'd one way or other , specially if such be given to the prejudice of foraigners , over whom the authority of a judge , though in his own jurisdiction , is not so exactly the same , as over his own subjects ; and although it be a rule in law , res judicata pro veritate habetur , yet it is as true , that judex male judicans pro injuria tenetur ; nor doth a judgement or a definitive diminish the merits , though it may alter the case ; therefore paulus the lawyer held , that a debtor , that is a debtor indeed , though judicially absolved , yet by nature remains a debtor still ; and therefore when this happens to be a foraigners case , he may ( if all other legal expedients fail ) for redress have recourse to the jus gentium , which holds conformity with the law of nature . subjects indeed may not by force oppose the execution even of an illegal judgment , nor forcibly prosecute their denyed rights , and that by reason of the energie of that power and authority which is over them , the subjects obedience being in the emphasis of the magistrates authority : but yet foraigners can fly to the jus gentium to right themselves by way of compulsion , which they could not effect by any legal prosecution , so long as their right is reparable by judgment according to law , but infeazible by reason of the denegation or protelation of justice , contrary to the regular proceedings of law. it seems at least summum jus if not plus justo , that the goods of his innocent subjects that denyed justice , should be taken and seized for that ●njustice , wherof they appear no more guilty then the original complainants : the truth is , this is not introduced by the jus naturae , but yet being commonly received by custome and national practise , is now become qualified for an allowance or tolleration by the jus gentium ; whether this were sufficient for nestor to plunder the elidenses for taking away his fathers horses , or for others on the like peccadilloes in this age , to centuple their losses on their innocent neighbours for their princes omissions under colour of letters of marque , is easier to question then proper to determine ; but whether christian blood should be ingaged in the quarrel which originully was but of private interest , would soon be decided where no military man hath the chair . by the law of nations all the subjects of the dominion doing wrong , whether natives or strangers making their aboad there , are within the reach of reprizals ; whereby 't is evident , that strangers not permanent there , nor under any of the aforesaid qualifications , are excepted ; for reprizals being in their nature quasi onus publicum , are introduced for the satisfaction of publick debts , to which strangers , that are meerly such , are no way obliged ; indeed to the laws of the land , where their present being is , they are subject , but yet are not subjects . and whereas it is formerly said , that ambassadors are exempt from reprizals , as also their retinue and goods , understand it not of such as are commissionated to any prince or state in enmity or actual hostility against that prince who issues such letters of marque . lastly , by the law of nations in matters of reprizals , whatever is taken , immediately upon the capture accrues ipso facto to the captor in point of propetty , so far as the original debt or damage with all incident costs and charges doth amount unto , and the surplus to be restored ; which equity in this case the venetians long since used to the ships they took on this accompt from the genuises ; but by the civil law , monitions or citations after a seizure ought to issue , and the parties concerned are not to carve for themselves , but submit the whole matter to a judicial examination , in order to their satisfaction , which ought to ballance the damnum emergens , but not to exceed by way of supplement in reference to the lucrum cessans ; for the law of reprizals though otherwise rigid enough , yet restitutio in integrum is its ultimate design ; and as no man ought to be enriched by anothers losse , so no man ought to gain by his own losse , when it may not be repaired otherwise then by remedies extraordinary , if not unlawful . having glanced at some general heads of the law of the admiralty quasi in transitu by way of introduction ( the least whereof in its due latitude requiring more volumes then are pages in this ) and therein the custom paid , with other ordinary port-charges usual in such cases , it may now be free to sayl from the law to the jurisdiction of the admiralty , being the port of discharge in the design of this adventure ; the wind seems fair , the seas well purged of rovers , and nereus reinvested with his trident ; the ensurance therefore need run but low , the danger is not great now that we have peace with all our selves ; yea , the loss is but small though the ship miscarry , so the cargo be preserved , for that 's of value , indeed a jewell , without which the whole world would soon be bankerupt ; so that if it escape the private arrest of some fained or fictitious action , there is no fear of a general embarg . elenchus authorum ; or , the names of the authours quoted in this treatise . aeschilus . accursius . afflictus . africanus . albericus . alexander . alonzo de chavez . andreas masius . angelus . annot. in sac. bib. edit . 1651. aristotle . athenaeus . aurelius . aul. gellius . baldus . bartolus . bernar. gerardus . boerius . boroughs . brownlow . bullenger . caius . caiciapulus . cagnolus . calvinus . calistratus . carbo . cassanaeus . castrensis . casus . caesars comment . coelus rhod. caepolla . celsus . cicero . comines . consul del mar. corp. jur. civil . corp. jur. can. codinus . coke . corvinus . cowell . crook . curopalates . curtius . cynus . cothereou . pet. coth . demosthenes . diodor. sic. dion . afric . doct. & stud. domin . niger . donellus . durandus . faber . fascic . de sup . adm. in arce londinensi . fazellus . ferrandus . fitzherbert . fleta . florus . forster . fragm . hist . aquit . fragm . ascript . polib . fulgosius . galen . gellius . gerardus . godwyn . goldsborough . gothofred . granat . decis . greg. gemist . grotius . herodotus . hevedin . rog. heved . hieron . de chavez . hobard . homer . horace . huntindon . jason . isernia . junius . justinian . larrea . leonard . leon. marsisc . leunclavius . libanius . littleton . livius . lucius florus . lupus de magistr . mainus . maranta . marsicius . malmesburiensis . math. paris . masius . ms. admtis . voc . liber niger . monstrelatus . morisotus . moursius . noy . omphalius . oleron sea-laws . ortelius . oswaldus . owen . panormitan . papinianus . paris . math. paris . paris de puteo . paulus . paul. emil. peregrinus . perinus . petr. cothereou . plato . plinie . plutarch . polybius . pompeius trog . pomponeus . pruckman . fred. pruck . ptolimaeus . purchas . purpureus . ramus . ranulphus castrensis . raphael . rhodiae leges . ridley . rodorig . zamerano . rupertas , aliàs robertus le monachus . sabellicus . salycet . scardius . scaevola . selden . seneca . siffridus . sigebertus . sigonius . speculator . spelm. consul . spelm. glossar . spiegelius . strabo . suetonius . suidas . tacitus . tapia . terms of law. theophanes . thucidides . tibullus . triphoneus . tullus . turpinus . tuschus . valer. max. valer. forster . victor . virgill . vlpian . vopischus . zamerano . zasius . zonarus . the contents of this treatise . viz. chap. i. admiral ; the etymon or true original of the word ; with the various appellations thereof . chap. ii. the original of navigation , and the sea-laws ; with the antiquity of the office of high admiral in the transmarine or forraign parts of the world . chap. iii. the antiquity of the maritime authority , together with the office and jurisdiction of the admiralty within this kingdome of great brittain . 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 . chap. v. of laws and jurisdictions in general ; with the several kinds and degrees thereof . chap. vi. of prohibitions ; their several kinds , causes and effects in the law. chap. vii . of fictions ; what a fiction in law is ; how farre and in what cases fictions may be used according to the rules of law. chap. viii . that the cognizance of all causes and actions arising of contracts made , and other things done upon the sea , is inherent in the jurisdiction of the admiralty . chap. ix . of contracts and bargains made , and other things done beyond the seas . and whether the cognizance thereof doth belong to the admiralty . chap. x. of judicial recognizances and stipulations for appearance , and performance of the acts , orders , judgments , and decrees of the court of admiralty ; as also whether the said high court of admiralty of england be a court of record . chap. xi . of charter-parties made on the land , and other things done beneath the first bridge next to the sea ; vel infra fluxum & refluxum maris ; and how far these may be said to be cognizable in the admiralty . 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. chap. xiii . of the agreement touching the admiralty in anno 1575. as also of the resolutions hill. 8. car. 1. upon the cases of admiral jurisdiction . a view of the admiral jurisdiction . chap. i. admiral : the etymon or true original of the word ; with the various appellations thereof . the glossographists and others have digg'd very deep to come at the root of this word ; some are of opinion that the word admiralius is derived from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsus , or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsugo , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsigo , or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi salmacidus & salsus , à salsugine elementi cui imperat : a from the saltness of that element where properly his authority and jurisdiction doth reside ; b vel quod in salso mari suum exercet imperium . but this not seasoned with sufficient reason , is held but as an unsavoury derivation , from the great improbability that any in imposing of names should quit the thing it self , wherein the denominated is most inherent , and flie only to the more remote qualities thereof ; as if you should say that the admiral in rebus maritin●s were rather salinarius then marinarius , as is truly observed by the learned sir henry spelman . c so that if you offer this derivation , though cum grano vel mica salis , it will not pass . therefore others are of opinion that it is derived from the french [ ameral ] signifying an high officer or magistrate in sea-affairs ; but this is as if you should say , ( to keep to the metaphor of a liquid element ) that ice dissolved is the mother of water , rather then water frozen the mother of ice ; no doubt but [ ameral ] in french now signifies such an high officer or magistrate ; but where was that french word [ ameral ] when the office of admiral , by other appellations almost homophonous to that , was in being , but not in france ? that office by other names appellative not much dissonant to this of admiral was anciently known in the world , when no such thing in france ; for the romans themselves anciently had not these admirales ( for so then called ) till constantine , in whose time isti admirales magistratus creati sunt ; d that is , among the romans ; for they were known to other parts of the world long before constantine the great , anno 330. so that it may be truly said that this high officer or magistrate in sea-affairs is in the french now rendred by the word [ ameral ; ] but not that the word admiral is thence derived . therefore others conceive it is derived from the saxon aen mere eal , that is , over all the sea. this passes for a currant derivation and exposition of the word admiral with us ; possibly because it sounds both so prettily and pithily ; for we are now as apt as our neighbours t'other side the water to be alamoded as well with fine words as other vanities . yet this being a derivation of our own generation , it may not be much controverted , specially for that others as well as those of our own nation , have acknowledged the word admiral to be derived from the saxons , with whom the word [ hadmiral ] doth signifie praefectum maris . others there are who will have it derived from neither of these , but from the sarazens , [ admirantes ] for that in the infancy of that empire there were quatuor admirantes , hoc est , militum praefecti , qui terra marique pugnarent . e but some think that this opinion hath no farther truth then in appearance only ; for that the sarazens had no farther use of that office then in the holy wars . therefore those ancients that derive the word much higher then the time of the holy wars , will have it dr●wn rather from the greek then arabick ; so that they seem to come nighest of any to the truth , that derive the pedegree of this word admiral both from the greek and arabick . for that amir in the arabick signifies princeps , praefectus ; and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek marinus , both which amount to admiralius , or rather to amiralius , quasi princeps vel praefectus marinus . and this carries the greater probability with it , for that , as the said sir henry spelman observes , such bilingue compounds were much in request at the court of the eastern empire ; and it seems yet the more probable , for that in homer we find the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pro rectore maris , or governour of the sea ; yea , and for neptune himselfe . wherefore amir , otherwise emir , also amira , amirae , amiras , and amiradis , do signifie regem , principem , eparchum , and praefectum ; also with the turks and sarazens , it sometimes signifies their great emperours , and sometimes their proto-symbol or president of the senate . and so the arabick [ amira ] or the hebrew [ amar ] that is , dixit , edixit : illud praecepit , imperavit ; from whence [ mamurem ] that is , praeceptum , edictum ; and [ amirom ] that is , dux , capitaneus , imperator , praefectus . and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the compound ; from whence [ alamiro ] ( with the article al ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the chief captain . and from hence the spanish [ almirante ] or according to their ideom , el amirante , and thence by turning l into d the word admirans by some hath been used for admiral ; whence others also , though very corruptly , yet by reason of their being so consonant , have given it other such like names , as admirabilis and admirandus ; which words , if compared with the former , will , in the sense of such as have so express'd themselves , be found to be rather syncatagorematical in their signification , then homophonous in their accent or pronunciation : and therefore the said archiologist conceives that the word [ amiratus ] ( which in malmsb. is so often used for admiral ) is not thence derived , but rather from [ amiradis ] the genitive singular of the foresaid amiras , by an exchange of d for t , as was usual ; and adds , that the word [ admiraldus ] is very legible in the antiquities of turpin and rupert or robert the monk f quasi al amiradus , that is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and by an apocope of the letter d admiral ' g which others will have to be express'd by the word admirarius . h this high officer or chief magistrate in marine affairs with us is styled the lord high admiral of england ; with the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; with the latines , amira , amiras , amireus , ammiratus , admirallus , admiralis , admirans , admirandus , admirabilis , admiravisi , almiramisi , admiralius , amiralius . in the eastern empire , amerii , admirantes ; also drungarius , drungarius magnus , drungarius classis , drungarius navigiorum , drungarius mari praefectus . with the athenians and others , thalassiarchus , archithalassus , magistratus rei nauticae jurisdictionem habens . with the romans there were duum viri navales , afterwards praefectus maris , praefectus classis , magnus dux classis , archigubernius . with the spaniard almirante , el amirante , adelantado . with the french , l' ameral , praefectus maris & litoris , custos limitis maritimi , comes litoris . besides these there are several other appellations of this one and self-same high officer , consonant unto the ideom of such nations and countries respectively , where this great office hath been constituted . this word admirallius , how it should signifie bellicosus or victoriosus , as mat. paris hints , i seems not easily to be resolved without a far strained notion ; for , without doubt , of all the presupposed etymons of that word , that which junius gives , seems to be the most legitimate , that from the arabick [ amira ] princeps , and the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 marinus ; it being generally agreed that this word is a compound of an exotick extraction from two distinct languages or tongues ; and therefore although gretserus k be pleas'd to be displeas'd with this derivation thereof , yet it is supposed that others without the least hazard of naufragating their art of glossographie , may securely cast anchor and safely acquiesce therein . chap. ii. the original of navigation , and the sea-laws ; with the antiquity of the office of admiral in the transmarine or foraign parts of the world. the world was no sooner created , but man had dominion over the fish of the sea jure divino , which could not well be without naval architecture , and some skill in the art of navigation ; and it is now no less then nigh 3952 years since noah , that totius orbis thalassiarchus , or high admiral of the whole world in that general cataclysme , with his ship , or vessel called the ark of gopher , laden with a cargo of the whole vniverse , after a nigh six moneths voiage safely arrived at ararat , his port of discharge in armenia ; which though re-peopled by his progeny , yet thence to believe and affirm , a that by naval acquisitions his son sem proprietated all asia , his son japhet all europe , and his son c ham all africa , is more then a meer historical faith hath sufficient warrant for , though less then navigation hath antiquity to possibilitate . whether jupiter king of crete , now the isle of candie , did purge the seas of pirats , and his son minos by sea-fights beat the athenians into tributaries , is also a question more ancient then certain , or easie to be resolved ; b yet that theseus son of aegeus , king of athens , vanquished taurus then high admiral to minos , is asserted by good authority , c and drowned him in the sea , hinc fabula minotauri . d but the master or steersman of theseus his ship , not remembring to advance or display the white eagle as the ensign of victory at his approach on his arrival to crete , his father aegeus betwixt fear and fury cast himself headlong into the sea , which gives it the name of the aegean sea in the archipelago to this day . in those days lived daedalus , who to avoid the tyranny of minos fled , from crete into sicily , but the wings wherewith he is feigned to have fled , the more modest mythologists expound to be only the sails of his ship . e some are of opinion that former ages were ignorant of this art of navigation , for that they ingraved non ultra upon hercules pillars : the nations about pontus supposing no sea in the world like their own , and doubting whether there were any other sea then that only ; whence pontus became a word used for the sea in general ; though prometheus according to aeschilus the attick poet doth challenge all the glory of this art of navigation to himself ; whom , among others who boasted themselves as authours of this art , the rhodians envying , presumed to give laws , and to prescribe the rules of naval discipline , in order to the better government of maritime affairs , f which were now occasionally introduced into the world by this art of navigation ; which laws are found dispersed among the several titles of the civil law by command from the emperour justinian . this island of rhodes in the mediterranean or carpathian sea , was by reason of the multitude of their shipping and great commerce , g no less famous for their sea-laws , then for their monstrous colossus ; the one was no less the wonder of reason in the infancy of trade , then the other of art , though that the greatest of the seven in all the world ; this appears by that memorable and known passage of the emperour antoninus pius , who in answer unto eudemon's complaint concerning the seizure of his ship-broken goods by the customers of the cyclides in the archipelago , referres him for justice to the rhodean laws , professing that although he were lord of the world , yet the law was of the sea. h to which rhodian law several other emperours , as tiberias , hadrian , vespatian , trajan , lucius septimius , severus and others do referre all maritime controversies ; i yea , for many hundred of years the mediterranean and most parts of the christian ocean , where any trassick or commerce was , subscribed to the law of rhodes in the decision of all matters of admiral cognizance . but some there are who by no means will admit that the rhodians should thus monopolize the glory of advancing the common interest of mankind , as if the law of the sea was born into the world only by their obstetricy ; and therefore will have the origination of the sea-laws attributed to the phaenicians ; who as they are by some accounted the authors of arithmetick and astronomie , so also of navigation ; whence is that , prima ratem ventis credre docta tyrus . they were the first that took the observation of the north-starre in supplement of that navall mystery . these phaenicians , who came with cadmus into greece , as they civilized , the graecians by their sciences and other literature , l so they exceedingly debauch'd them by their luxurie , and insatiable avarice , which together with their wares and merchandise they first imported into greece . m these were they that transported io ( whence the ionean sea is so called ) out of greece into aegypt ; and were the first that descryed the two poles . n this phoenicia is the sea-coast of syria , o the greeks call this sea-coast phoenicia , but the hebrews call it chanaan , and the inhabitants chananites . p dionysius also is of opinion that the phoenicians were the first mariners , merchants , and astronomers , q and tyrus the maritine metropolis thereof ; whose trade and commerce was so great and remarkable in that aera from adam , and consequently her pride and luxurie , that less then two whole chapters of the sacred record will not suffice to describe the vastness of the one , and the judgments of the other . this city tyrus is there styled a merchant ; all whose ships were made of firre , their masts of cedar , their oares of bashan oke , the hatches of ivory , the wast clothes , vanes , flaggs , and pendants of purple and scarlet , the common mariners were the zidoneans and inhabitants of arvad , their calkers were the ancients of geball , and their steers-men or pilots where the wise men of tyrus . to these may be added the inhabitants of caria in asia minor , for it is upon good records of history that these also were anciently reputed lords of the sea ; as also the inhabitants of corinth ; likewise the people of aegina , one of the isles of the cyclades and of aegypt ; all these respectively have challenged to themselves this honourable invention of the art of navigation . r but the first that invented ships on the red sea & sailed thereon , is said to be king erythrus , whence the red sea took its name of erythreum mare . s there are others who ascribe this art of navigation to the carthaginians ; t this seems to have more then fumum probationis in it ; for that these poeni or carthaginians originally were phoeni or phoenicians , u it is most undeniable that their naval discoveries attempted by hanno , w by hamilco , and other carthaginians are no less famous upon historical record , x then their three great though unfortunate bella punica maritima , when hannibal himself was lord high admiral , which began in the 158 olympiad , and concluded with the sad catastrophe of that famous city of carthage , then 700 years old , in the last year of the 158 olympiad , y whereby rome by her conquests lost the glory of a competitor for the worlds empire . now when the roman empire ( which is so commonly mistaken for the beast with ten horns , mentioned in the prophet daniel , with teeth of iron , and nails of brass ; which in truth is meant of the syrian monarchy under the seleucidae , so called from seleucus nicanor ) was shattered and dilacerated , whereby a very dark and dismal eclipse ensued generally on all laws , necessity then , which hath no law , occasioned new laws , and bad manners at sea begat good laws on land , yet not so much a creation of new laws that never were before , as a reviver or resurrection of the former out of the cinders of that fallen empire , together with such additionals as time , experience , and negotiations had administred occasion for , especially to such parts of the world as by their neighbourhood to the sea were most conversant in naval expeditions and maritime affairs . hence it is , that in supplement of the forementioned sea-laws all the chief towns of commerce and traffick on the mediterranean contributed special sea-constitutions and ordinances of their own for the better regulation of all maritime occurrencies ; such were the sea-laws published by divers emperours of rome , also by the inhabitants of pisa , by the genuises , by those of messene in peliponesus , of marselleis , venice , constantinople , arragon , by the massilites , barcelonians and others . z as also the laws , of oleron , nigh 500 years now received by most of the christian world , specially the mediterranean , as the legal standard of all naval discipline , and for decision of all maritime controversies ; for the rhodian laws being grown somewhat superannuated and obsolete , these laws of oleron succeeded the other , and were published in that isle , then belonging to the dutchy of aquitane , by king richard the first , at his return from the holy land in the fifth year of his reign , the said isle at that time being under the dominion of the kings of england . as to the original of the soveraign command at sea in the infancy of time ( though very uncertain ) yet divers nations , among which chiefly the assyrians , macedonians , persians , egyptians , romans & carthaginians have ascribed it to themselves ; but the greeks confidently assert , that minos king of crete had the first soveraign empire over the sea , and thence would fain have it over our faith also , as if saturn king of crete , seeing his son neptune to have invented the art of navigation , gave him the command of his navies at sea , which he managed with such success , that after-ages sacrificed to him as to a god of the sea ; so that minos being descended of saturn by his son jupiter , having afterwards obtained the superintendency and guard of the seas , left it to his successours . notwithstanding which , the syrians , egyptians , cyprians , rhodians , but specially the phoenicians have in all former ages had the honour of being reputed the most valiant and expert artists at sea in maritime affairs , and that from the excellent conduct and government of their navies beyond all other nations and countries whatsoever . but the corinthians are supposed to be the first that ever formed or modelled navies at sea in a classical way . a the athenians had two chief magistrates for the maritime affairs ; the one was to provide such a number of ships for this or that design , each captain having in charge to see to the equipping of his own vessel . these captains they called trierarchy . the other had power of setting them to sea , and of ordering them home again at his pleasure , whom they called magistratus rei nauticae iurisdictionem habens , qui trierarchis jura reddebat , and ordered the several squadrons to such or such stations and places of rendezvous , and discharged them as he thought fit . this was that thalassiarchus , or admiral of the athenians , b who sometimes had more admiral 's then one at once , as niceas and demosthenes ; at other times but one only , as alcibiades , pericles , simon and others . likewise under alexander the great and his successours , kings of syria and egypt , there were divers admirals , whereof some were grecians ; others of other countries , such were nearchus , onesicratu● , beton , diognot and others ; as also patroclus , under nicanor and seleucus of the syrian monarchy ; but most memorable is that commission which was by ptolomeus philadelphus given to decearchus , as if he had been to take an exact measure of the circumfercnce of the whole world by a line of navigation . among the phoenicians , the tyrians and zidonians were the most eminent in all maritime affairs , as was formerly hinted . these not only transported from place to place varieties of merchandizes till then unknown to other parts of the world , but also made divers new discoveries , and planted colonies therein , as at vtick , hippone , and lepte in africa ; at thebes in greece and egypt ; and at gades and carthage , that carthage which is in spain ; but of all africk , the other carthage , once lord of the levant , the chiefest for sea-affairs ; whose admiral hanno by order of the senate discovered the utmost coasts of africk , even to one degree of the aequinoctial ; and their other admiral hamilco discovered all that part of europe , which till then lay as sub-incognito to the carthaginians . in the eastern empire he that was high admiral was styled drungarius , as drungarius navigiorum constantinopoli ; drungarius classis ; drungarius mari praefectus ; drungarius magnus . c although some are of opinion that this was a general word with them , or a word which signified generals as well by land as by sea , qui drungis , hoc est , globis militum imperabant . d this magnus drungarius classis was a subordinate officer or naval magistrate under their great duke , e and was also styled ameralius , which with them was likewise a common appellation for terrene princes ; thus the tyrant of babylon was called amiralius ; f thus huntindon speaks of twelve amiralios paganorum , that were slain at the siege of antioch . thus matth. paris in will. 2. speaks of 29 reges & amiralios at once appointed for the warres by corbaranus . thus robert the monk g makes mention of the son of cassianus king of antioch , and twelve admiraldi of the king of babylon slain in battel , whom with an army he had sent to aid the said king of antioch . thus the agents or ambassadours of the the king of babylon styled the said king himself admiraldum . h dominus noster admiraldus babyloniae , mandat vobis francorum principibus salutem . thus nabuchodonosor king of babylon was styled admiralius . i thus we also find a chieftain of a bow-militia styled arcubalistariorum admiralius . k so that anciently this word ameralius or admiralius did signifie as well the commander in chief of the armies by land as of the navies by sea , and sometimes the office or dignity of kings and princes or other soveraigns of supreme authority ; but this you are to limit only to the turks and asiaticks . again , in the eastern empire there were no less then four admirals or amiraei ( there properly so called ) at once , for that mahomet or rather muhammad appointed four praetors in the kingdome of the sarazens which were called ameraei . l and that muhamed a little before his death constituted four ameraeos , qui debellarent omnes ex genere arabum christianos . m these four ameraei were also called quatuor admirantes . and of these four admirals with the sarazens , the one had the sea-command of egypt and africa ; two others thereof divided the spanish coasts betwixt them ; and the fourth had palestine and the coasts of syria . but many are of opinion that before charlemaigne the sarazens had but one admiral , viz. addala : after him aron ; and after him mabarmad : which charlemaigne having war with his brother haldala , and being more then half conquered by him , condescended that the sarazens should have two admirals for one . and turpin , who was secretary to the said emperour charlemaigne , acquaints us with an admiral of babylon , vvho came to the succour and relief of the sarazens of spain against the french ; as also of another admiral , viz. galaffre , a very potent favorite with the said emperour . n under the roman state , when pompey banded with caesar for the soveraignty , there were several admirals , well nigh as many as the nations were which aided either party with shipping , as the egyptians , asiaticks , rhodians , syrians , achaians , and others , over whom m. bibulus was lord high admiral . but when the government was reduced to an establishment , the admiralty was setled also ; which not long after was again divided into two parts , for there was one admiralty at misene and the adjacent po●●s for the south ; another at ravenne towards the east ; which two for distinctions sake they called the high and low seas ; each whereof was under the command of his proper admiral , whom they called praefectus classis , as the captains of their ships were known by the style of navarchi . it is also evident that in the roman empire there was anciently a company or society of owners and masters of ships , as also of merchant-adventurers at sea in the isle and city of rhodes , which above all other places in the world had once the prerogative in deciding all maritime controversies ; insomuch that the emperour antoninus , who though imperious enough in styling himself totius mundi dominus , yet in all nautical controversies subscribed to the rhodian law , acknowledging that though himself was lord of the world , yet the other was of the sea. o there were also very ancient laws made and published by those of rhodes , who were most exp●rt at sea , as well touching navigation , as merchant-affairs , where the use thereof was of no less consequence unto , then of antiquity in that mediterranean isle p the assertions upon historical record touching the excellency of their sea-laws , their incomparable skill in navigation , and the trophies of their naval victories are almost incredible . q but this so famous isle being at length reduced from the glory of a splendid to the eclipse of a decaied merchant , by reason of the many irruptions and incursions made thereon by several nations , specially by the turks , a little before the reign of charles the great , ( when about the same time the turks also possessed themselves of several other isles in the mediterranean ) the gallantry of the rhodian navies soon after vanished ; which at length ( as some german authours would have it ) was thence translated to the oriental ocean or baltick sea ; for that wisby in gotland anciently prescribed the sea-laws to merchants and mariners ; whereunto ( as afterwards to lubeck ) the neighbouring cities did usually appeal in all affairs of maritime cognizance . the word admiralius from the eastern empire was first transported into italy and sicilia , thence into france , and from thence into england . the first high admiral in france ( as supposed ) was one rutlandus , so called by aeginardus in the life of charles the great ; others called him rolandus ; he was constituted high admiral of france about the time of king pipin or charles martel . r yet others are of opinion that the office of ameral , that is , admiral , was known to the french first in the daies of lewis the seventh , from whose time till philip the fourth there was only one admiral ; after that , there were two admirals in france at the same time . s and afterwards more then two at one and the same time , each dividing his jurisdiction according to the coasts of their several provinces respectively . t this high officer l' ameral in point of dignity is next to the high constable of france . anciently there were three admirals in france : one in aquitane , another in brittany , and the other was generalis in francia ; which three are now reduced to one , who doth exercise his jurisdiction at the marble table in palatio parisiensi . and whereas it is by some supposed that rutlandus alias rolandus ( as aforesaid ) in king pipins daies was the first admiral of france , yet the more probable opinion is , that either enguarrantus dom. de causy in king philip the third's time ; or americus vicount of narbone in king johns time , was the first that ever had the honour of that high office in the kingdome of france . 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 * to that command , by the name or style of ductores , justiciarii , & constabularii totius navigii . a 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 styled admirallus maris regis . and that soon after the said office became tripartite , viz. anno 22 ed. 1. when the said william 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. 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. b 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 , c 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 mare libertines ( and that for their own interest ) ever scrupled . sir hen : spelman gives us an account of a very ancient record d 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 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 computari f 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 . g 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. h 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. i 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 , k or regulate such navies as were the wonder of that age ? l 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 , m or maintain in naval discipline these four hundred sail of ships appointed by him to guard and scour the brittish seas ? n 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 . 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 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 ; 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 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 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 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 cuique 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 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 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 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 . 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 . a 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 , b 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 . c 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 . d the emperour is not proprietarius , but chief governour of the empire ; e and that only by election , not by succession as the other . f now as the seas belong to princes in respect of jurisdiction and protection ; g 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 . h 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 , 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 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 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 ship-furniture , 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 . 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 . chap. v. of laws and jurisdictions in general ; with the several kinds and degrees thereof . it is recorded in the historical part of the law by that famous lawyer of millayne , jason maynus , ( who flourished about the year of our lord 1500 , and taught at padua , where he dyed anno 1519. a upon this subject of jurisdictions , that raphael fulgosius , that jaspis virtutum , utroque jure stupor , as his epitaph in s. anthonies church at padua ( where he also dyed above one hundred years before the other ) styles him , b when he was a young student in the laws , was wont to say that of other matters and points of law he could attain to some understanding by his private study and chamber-disquisitions , but in this point of jurisdictions he could understand nothing at all but what he heard in the schools voce magistra . c of such difficulty is the subject matter of this treatise , and yet with what confidence do some illiterate persons , ( like boyes at foot-ball ) toss and play with jurisdictions , even almost to the tripping up the heels of magistracy it self . jurisdictions are things of much tenderness as well as profoundness , and must be gently touch'd as well as deeply weigh'd ; if persons in juridical authority be styled mortal gods , then jurisdictions are in some sense things sacred , and may not be approached unto but with civil reverence ; nor is the acquisition of the profound knowledge of the law touching jurisdictions a pomeridian work for sollicitous students , much less obvious to rural capacities . a right understanding what law is , gives the clearest prospect to a discovery what jurisdictions are ; the civilians do succinctly and fully define law , lex est sanctio sancta , jubens honesta , prohibens contraria . law is a decree not to be violated , commanding things honest , forbidding the contrary . plato in his definition of law , says it is a reasonable rule , leading and directing men to their due end for a publick good , ordaining penalties for them that transgress , and reward for them that obey . and cicero defines it to be the highest and chief reason graffed in nature , commanding those things which are to be done , and forbidding the contrary . and of all laws , those of the empire , next to the jus divinum , seem to challenge the precedency in all forraign kingdomes and states ; though in this as not in their proper sphere they display not their beams with that lustre , for want of that encouragement and employment they deserve ; it is every mans duty to have the best and highest thoughts of the laws of his own country , yet to oppose them to the ancient emperial laws , either as to the theory thereof , with their numerous host of most learned interpreters , or as to the practick , in the pleadings of the highest courts of the greatest part of the christian world , in the many judgements and decisions of the several rotes of italy at rome , at naples , at florence , at genoa , at bononia , at mantua , at perusium , and the rest ; in the judgements of the imperial chamber at spire , which is the last result of the german nation ; in the decisions of granado and other places of spain , and other kingdomes ; as in the arrests of the several courts of parliament in france , as paris , aix , burdeaux , grenoble , and the rest ; to oppose any municipal laws ( save our own ) to the ancient emperial laws in the latitude aforesaid , recitasse est refutasse , the very recital thereof is confutation enough , saving the honour due to the laws of our native country . it will not be denyed but that the great legislator of heaven and earth is the fountain of all laws , that is , law properly so called , had its origination from god himself . this is an undoubted position not only in christian religion , but such as the doctors of the gentiles and heathens themselves will easily admit ; for even among them such as assumed the legislative authority , and took upon them to prescribe laws , would at the enactment thereof invocate their false gods , and endevour to father them on one or other of their heathenish deities , as minos who gave laws to the cretians , on jupiter : numa , who gave laws to the romans , on aegeria nympha : zoroaster , who to the bractians and persians , on horomasis : trismegister , who to the egyptians , on mercurius : charondas , who to the thurians , on saturn : lycurgus , who to the lacedemonians , on apollo : draco and solon , who to the athenians , on minerna : mahomet , who to the arabians , on the angel gabriel . thus all agree in this , that law hath the image and superscription of some supernaturall powers , and is more ancient then adams fall , as is evident by necessary though sad consequences ; for without law there had been no transgression . in immediate subordination to the divine and natural law written in the tables of the heart , came the jus gentium , or the law of nations , when men first began to have mutual commerce with each other , for thereby was introduced a kind of necessity for all nations to observe some certain rules as law , without which no society of men in way of reciprocal negotiations could subsist ; which law doth indeed flow from the law of nature ; insomuch that cicero was of opinion , that in all matters and affairs of the world whatever was the consent and concurrent approbation or allowance of all nations , that was to be understood the law of nature ; next unto which is the jus humanum & civile , being a distinct law both from the law of nature and also from the jus gentium , and seems to be then born into the world , when men first of many individuals began to compact themselves into one society , and when they first began to incorporate themselves into bodies politick , which in the worlds infancy seems to be when cain built the city enoch ; for civil laws seem to have their origination then when cities began first to be built , magistrates to be constituted , and ordinations of government to be committed to writing ; for indeed civil law properly so called , is no other then that which every city constituted and enacted for it self , and for its own peculiar government ; which law also hath its foundation laid in the law of nature , from whence as from a fountain are derived divers lesser channels and rivulets according to the great variety of places , persons , times and transactions ; and the civil law of the roman empire in common acceptation and mode of speech is now for the antiquity , excellency , universality , and authority thereof called the civil law by way of eminency , the name and appellation of the civil law being now properly appropriated to the emperial law and constitutions , as that law which was the law currant in all the dominions of the roman empire , and is at this day in most parts of the whole christian world . beside these laws peculiar to a due administration of justice in matters meerly secular , there was also at the worlds infancy a kind of sacerdotal law or law of the priesthood , when men congregated first began to adore the ●reat god in the way of a publick wor●hip ; for in the first constitution of common-weals and cities , it was necessary to establish certain laws peculiar to the priesthood ; for it cannot be imagined , but that when men first began to offer their first-fruits and to sacrifice to god , there was then some law in being for the worship of the deity ; nor ought it to be doubted but that in those days there was a true church of beleevers , as also true sacrifices , and ( as some hold ) true sacraments ; and therefore not to be conceived but that there was also some ecclesiastical law then in force , which afterward became much more clear under moses law. and by way of additament to this , in tract of time was the canon law established in every christian common-wealth , which received not ( as some suppose ) it 's original at that time when the general and universall councils began to be first held , as under constantine , but in the days of the apostles themselves , who gave divers rules and made many canons touching divine w●rship , and in order to the salvation of souls . and thus laws being introduced into the world , it could not be but there must be jurisdictions also , without which the law is but a dead letter . for the clearer understanding whereof , know that the word [ jurisdictio ] without the letter [ c ] etymologizeth it self . d for it is not so called from [ juris ] and [ dictio ] as some would have it , but from [ juris and [ ditio ] . and so jurisdictio is quasi juris potestas . e but this pleaseth not calvin , who in this matter following ferrand ▪ f would derive it from [ juris & dictio ] and doth charge accursius with an errour in judgement for holding it to be derived from [ juris & ditio ] though he confesses that bartol himself and many others do follow accursius therein ; whose opinion seems to have the best congruity with reason in the energy of law , though ferrand's opinion seems to out-weigh , if the comprized matter should be ballanced only by the letters of the word ; but indeed of the two accursius hath by farre the more numerous retinue . so that jurisdictio taken in the large sense , as the genus generalissimum or plenissima jurisdictio , is nothing else but potestas g de jure publico introducta h cum necessitate juris dicendi i & aequitatis statuendae . k the word [ jurisdictio ] taken in this large sense , doth properly signifie that office or function which the lawful magistrate doth hold and exercise by the ordinary right of his just power and authority . l of jurisdictions taken in this large sense , there are three species or kinds in the law ; there is imperium merum , imperium mixtum , & jurisdictio simplex . and it is called imperium , because it proceeds from the authority of the judge , and not from any right inherent or residing in the party . the first of these , viz. imperium merum , is that jurisdiction , which respecting only the publick utility is exercised officio judicis nobili , and by way of accusation . m this hath the power of the sword contra homines facinorosos , and all capital offenders . n and is so called from its purity , simplicity and immixture with either of the other kinds of jurisdictions . o of this imperium merum bartoll makes six several degrees p which jason contracts into four , but zasius into three . of these six degrees of imperium merum , the first is merum imperium maximum ; and this resides only in the prince , or in the supreme authority . q in this bartol doth lodge the legislative faculty or power of enacting laws ; also the calling a general council , or the summoning a parliament ; also the power of confiscation of delinquents goods . in a word , under this merum imperium maximum are contained all things competible to princes or the supreme magistrate . r and to these particulars which bartol mentions under this head , the dd do add one more , and that is the creating of tabellions general or publick notories . s the second degree is merum imperium majus . this extends to the taking away of life , and hath the power of the sword. t under this head also is that potestas gladii in homines facinerosos forementioned ; u but derivative from the prince . the third degree is merum imperium magnum , under which head is comprehended deportation or perpetual banishment . w but these two last degrees jason comprehends under one and the same head , x for says he , under the power of the sword in facinerosos homines is comprehended three kinds of capital causes , viz. first , when the life natural is taken away either in whole or in part , as by dismembration , amputation , or mutilation . y secondly , when the life civil is taken away , as by loss of liberty and by perpetual imprisonment ; for such are dead in law. thirdly , when a man is deprived of his franchise , freedome or priviledges which he had in any place by a natural or civil right . z the fourth degree is merum imperium parvum , under which head is comprehended relegation or temporal exilement ; a which is no more then an extermination , whereby a man is commanded out of the confines of his own country for a season . and although deportatio & relegatio be often used promiscuously in the law for one and the same , yet the law discriminates them by very different characters ; for in deportation there is a perpetual , in relegation but a temporal banishment . and as they differ in the circumstance of time , so also in the circumstance of place ; for in relegation the party is only circumscribed , and it's part of his punishment that he shall not go out of the limits of such a certain place . so shimei the benjamite that cursed david in his way to mahanaim , was after davids death confined by his son solomon unto hierusalem , and not to pass over the brook kidron ; who upon occasion of his going afterwards to gath , exceeded the limits of his circumscription , and for so doing was put to death by benaiah at the kings command . but now in deportation the party is not so confined to or circumscribed by any certain place , but is quite banished and exiled out of all the precincts of his own country . again , in deportation the party cannot take his goods with him , in relegation he may ; but this difference holds not always . likewise under this head is comprized every corporal punishment , b provided it be tortura ad poenam delicti ; for if it be tortura only ad investigationem veritatis , then it may be otherwise . the fifth degree is merum imperium minus , under which is comprized that moderate coertion by corporal castigations which are ad vindictam maleficii , to distinguish it from coertio verbalis per officium merum , and is competible with the office or function of magistrates in authority . c also cognizance of such crimes as are of the lesser and inferiour kind . d of this and the last precedent degree or member of imperium merum , jason makes but one , as forme●ly but one of the second and third degrees ; so that although here be six species , degrees , or members of imperium merum , according to bartolls accompt , yet here are but four according to jasons computation , and to him in this matter the dd do generally incline rather then unto bartoll . the sixth and last degree is merum imperium minimum , which comprehends whatever is imposed by way of pecuniary mulct upon some crime , e provided such pecuniary mulct be in reference to the publick utility , and not in satisfaction of private injuries . the second species or kind of jurisdictio taken in this large sense , is imperium mixtum ; and it is that jurisdiction which respecting only private utility is exercised officio judicis nobili . f it is so called , as being of a mixt nature , because it consists partly of imperium merum , and partly of jurisdictio simplex ; and as it consists in commodo pecuniario , respecting only private utility , so it doth participate of jurisdictio simplex , and is differenced from imperium merum . of this imperium mixtum , bartol as in the former makes other six degrees , which jason contracts to three , and calls them gradum maximū , medium , & minimū g the first and second of bartols degrees jason doth join in one , as being both competible only to the prince or supreme magistrate . the third and fourth of bartols degrees he likewise joyns in one , as both requiring plenam causae cognitionem , and both incompetible with interiour magistrates . so likewise of the fifth and sixth degrees . now because this last division of jasons seems to take best with the most part of the dd , as being the most succinct yet comprehensive of all , jasons method shall here be followed , as formerly was bartols . the first degree then of imperium mixtum according to jasons account is imperium mixtum maximum , which pertains solely to the prince , and concerns only actus voluntarios ; h yet it may be al●o in the ordinary magistrate , but then it must be by way of derivation from the prince . i this imperium mixtum maximum comprehends veniam aetatis impetranti , k that is , that whereas by the civil law a man is held a minor and under age until he attain unto the age of twenty five years , the prince might at his petition grant veniam aetatis impetranti , that is , if such minor being a male could prove himself to be of the full age of twenty years , or being a female could prove her self to be of the full age of eighteen years , then might such by way of petition impetrare veniam aetatis à principe , that is , they might for the better management of their estate request the prince's favour for an exemption from their minority , and to be held and taken as of full age , that is , as of the age of twenty five years , to all intents and purposes of law whatever ; only they could not by vertue of such priviledge alienate their praedials or immoveables without a special decree for that purpose ; and this priviledge was obtainable only by the prince's grant. l also under this head is comprehended that which the civilians call arrogatio , which is a kind of adoption , but something different from it ; m for the prince did interponere authoritatem arrogationi , n likewise under this head is comprehended legitimation , or the power of legitimating such as are unlawfully begotten ; o and also emancipation , which , properly so called , is a judicial and solemn transference , alienation , or vendition of free-born children ( for manumission relates only to servants and bond-men ) from and out of the dominium , power , and jurisdiction of their natural parents into the power ●nd right of another , had and done by the authority of the competent judge with the concurrency and mutual consent of both parent and child . by such emancipation the patria potestas is dissolved , si filium suum forisfamiliaverit ; for it is a kind of vendition or sale by a tradition or delivery of his child out of his own right over to another , who thereby becomes as it were pater fiduciarius , or a father in trust to the child ; although anciently such emancipation was held no less then civil death to the child , or then an ingressus religionis . p likewise under this head is comprehended that which the law calls supplicatio , which is a cognition or retractation of a judicial sentence , from which lies no appeal , by way of supplication , pertaining only to the prince , and in the roman government to the praetorian praefect . q this is that remedy of a judicial sentence which the canonists call revisionem sententiae , or the review of a sentence . r this is used but very rarely and only in extraordinary cases , but chiefly against the sentence of such judges as from whom by reason of their eminency non licet appellare . s in such cases the imploring of the grace and favour of the prince or supreme authority is properly called supplicatio . the second degree is imperium mixtum medium , under which is comprized a full and plenary cognition of a cause , with coertion as well real as personal ; of such is the putting a man into possession by vertue of a secundum decretum ; likewise restitutio in integrum ; also the expulsion or outing another of his actual possession ; t in like manner under this head are comprehended all matters that require a plenary cognition , although it hath not real or personal coertion ; as to give such a possession of goods as shall convey and carry a right of property with it ; also to pronounce for the putting into possession ex secundo decreto ; also to interpose ones authority for the alienation of things appertaining to minors ; also in transactions of alimony , and the like . u the third and last degree is imperium mixtum minimum ; and this consists in such things as are expedited officio judicis nobili , but do not require a plenary cognition as the former , but are determined by a summary proceeding , and have respect only to private utility . of this kind is the putting into possession by a primum decretum ; also any possession which to the cognizance of the cause doth not require a proceeding de plano , but only summarily & sine strepitu judicii . w of this kind also is the granting of possession to minors ex edicto carboniano , so called from cneus carbo the praetor , and authour of that edict . for when upon the death of a parent intestate any question or controversie arose to the pupil or minor , either male or female by the masculine line , concerning the inheritance or goods of such parent ; as also concerning the state , quality or condition of such minor , or whether he were the legitimate child of such parent ; in all such cases da●ur carboniana bonorum possessio , saith the law ; that is , such minor shall by that edict be put into possession of the said goods , he first giving good caution or security not to diminish the same during his minority ; and in the mean time the dispute in law or controversie touching the right of title to the said goods , as also touching the state , quality and condition of such minor , is by the same edict to be deferred and put off untill he come of full age . x likewise under this head falls manumission , y or the setting at liberty such as were under the servitude and dominium of others , and refers properly to servants that were under the domination of masters , as emancipation doth to children free-born , that were under the power of their natural parents ; of these kinds are causae libertinitatis , & causae ingenuitatis . z the third and last species or kind of jurisdictio taken in this large sense is jurisdictio simplex ; and it is that jurisdiction which is exercised officio judicis mercenanario ; respecting only private utility , jure actionis . a and being thus exercised officio judicis mercenario , it differs from both the former , viz. both from imperium merum , and from imperium mixtum . of this jurisdictio simplex , which in truth is jurisdictio propriè stricte & specialiter sumpta , bartol as in the former makes no less then six degrees ; but jason again as formerly reduces and contracts them to three , viz. gradum magnum , medium , minimum . b which method now follows , as being the acceptablest with the modern dd. and distinctly comprehensive of all , that the six degrees which bartol makes , are capable of . under the first of these , viz. gradum jurisdictionis simplicis magnum , are comprehended such as the law looks on as matters of great prejudice ; such are causae liberales , wherein are controverted all disputes concerning liberty or servitude , freedome or bondage , ingenuity ( not of wit , but of birth ) or libertinity . c these causae liberales , are understood in the law as certain species opposite to such things as are either of merum or mixtum imperium . d the actions that hence do arise are as formerly actiones liberales , cogni●able only before the superiour judges . e the truth is , such actions as these that concern the state , quality , condition , or reputation of perions are in the law termed causae arduae , & negotium arduum . f and therefore inferiour judges ( who by interpretation of law according to the civil laws account are judices municipales g are no way competent to take cognizance of such cases . h likewise under this head fall all causes , wherein upon any action any castigations , coertions , restraints , or other corporal punishments in execution of some definitive sentence do happen , i according to that smart proverb in law , qui non habet in aere , luat in corpore . k but to make it yet more clear ; the actions specially aimed at and properly intended hereby in the law that fall under this head , are such cases as in themselves and according to their nature are criminal , but yet are civilly proceeded in or prosecuted , quando ex causd descendenti ex delicto , quis fuit condemnatus civiliter . l or such actions quae civiliter ex maleficiis intentantur . m the second degree of jurisdictio simplex is gradus medius , under which are comprized all such peouniary causes as in value exceed treoent ' aureos . n this aureus among the ancients was in value about our english noble , or six shillings and eight pence ; but in justinians time it was something more , viz. about the value of an angel in our gold coin. o which is something less then centum cestertii , according to the roman account , which some would have the aureum antiquum to amount unto , p if every cestertius must be in value three half pence farthing according to our account . q the third and last degree of jurisdiotio simplex comprehends only such small and petty summes , as will not defray the charges of a plenary and judicial order of proceeding , and therefore they are heard and determined summarily & velo levato . r bartol would state , liquidate and ascertain these petty summes to the value of centum aureos : s others to twenty , others to ten duckets . t but jason tells us plainly , that the truth and the more received opinion is , that in such cases the just and exact values are not determined or ascertained in the law , but left ad arbitrium judicis , u according to that rule in law in ff . de jur . delib . w and thus although here hath been distinctly touch'd each of the three species or kinds of jurisdiction , taking the word jurisdictio as the genus generalissimum ; and although here have been given some instances for the more clear description of each member or degree of each species thereof ; yet all this would be but imperfect if such things as are or may be both of merum imperium and of jurisdictio simplex also , but in divers respects , should be omitted . of this kind therefore is that tortura , formerly hinted at ; which , when it is imposed or executed ad poenam , or in criminal causes ad veritatem eruendam , is of merum imperium ; x but when in civil causes it was wont to be used or imposed , because the witnesses did vacillare , and were inconstant , staggering or wavering in their testimony , it was then of jurisdictio simplex . y in like manner all moderate and light correction or punishment being inflicted ad poenam levis delicti , is of merum imperium ; but being imposed for contempt or contumacy in civil actions , it is of jurisdictio simplex . z also , excommunication , when pronounced ex publica causa against rebellious and contumacious persons , is of merum imperium ; but being pronounced ad instantiam partis , it is of jurisdictio simplex . a so likewise restraint or . imprisonment , when imposed by the canon law ad delictum puniendum , is of merum imperium ; when otherwise imposed , it is of jurisdictio simplex . b lastly , appeals in all criminal causes are of merum imperium ; but in civil causes they are both of jurisdictio simplex , and of merum imperium also . c there are also in the law ( for these things are only hinted to the memories of such as know the law ) several other distinctions of jurisdiction . such as jurisdictio voluntaria & contentiosa . d but this is a distinction in respect of the parties litigant ; the former distinctions being in respect of the judges themselves . there is also jurisdictio ordinaria & delegata ; which though a very common received distinction from the speculator , e yet in truth 't is less true then common , and is reproved by bartol , because the one differs not from the other according to the law of distinctions , both being in their nature one and the same , though diversified in the exercise thereof ; for the judge delegate doth but exercise jurisdictionem delegantis . f there is also jurisdictio prorogata ; as when the parties litigant do of themselves consent unto a jurisdiction in one , who without such consent were no judge in the case ; g but this seems more like a compromise or arbitrary decision , then like a jurisdiction properly so called . there are several other distinctions of jurisdiction in the law , here purposely omitted as being not so pertinent to the design in hand ; this therefore that hath been said may suffice for a hint to all such appendexes on the law , as sollicite rather for the lawyer then the clyent , to learn what a jurisdiction in the eye of the law is , before they attempt the invasion thereof . to apply the premises , and so to conclude this point with omphalius , that famous and modern german lawyer , h jurisdictio est res indivisibilis : si tamen ejus domini in eodem territorio dissentiant in exercitio jurisdictionis , pertinebit ad superiorem potestatem , conoordia partes interponere , vel usum jurisdictionis exercendae dividere . this seems to be the admiralties case in terminis . all jurisdictions are essentially radicated only in the prince or supreme magistrate . i the law ranks them inter regalia principum . k the right and power of the conservation of jurisdictions doth lodge and reside properly there , from whence they had their being and origination . jurisdictiones omnes ab ipso principe velut rivuli à fonte suo manarunt . l when the prince or supreme authority ex plenitudine potestatis doth create or constitute a jurisdiction , he doth not devest himself of the right of expounding his own grant , according to that in the law , m jurisdictio licet concedatur à principe , semper tamen inhaeret ejus ossibus . so that when differences do arise concerning the rights or demands , the ampliations or restrictions , the latitude or boundaries of jurisdictions , the prince is the competent judge to decide and reconcile ; in this case therefore to caesar is the appeal . chap. vi. of prohibitions ; their several kinds , causes and effects in the law. having spoken of jurisdictions in general , it may not now be of less consequence to enquire , of what superseding faculty a prohibition in its original and due intendment of law may be in point of right and power for the removal of the cognizance of causes from one jurisdiction to another . and although in the precedent chapter there hath been a clear and distinct prospect of the matter of jurisdictions out of the civil law , being the best and indeed the only law that could with such transparency present us with an object of that depth and difficulty , yet now being to look through other mediums , so clear a sight of prohibitions may not be expected to be presented in the same glass ; for prohibitio in the sense now intended , may not be taken for interdictum , quo praetor vetat aliquid fieri ; a nor be thence dissected into its several kinds and distinctions according to the analogy of civil law ; this would be as little pertinent to the present purpose in hand , as rationally it could expect of credit or belief out of its proper sphere . suffice it therefore that it be described under such rules and characters as the law of this realm doth not disown . it shall therefore only be premised what boerius , that famous civilian says of it ; b that a judge in matters cognizable before him , may prohibit such as are within his jurisdiction , from impleading any in another court to his prejudice ; and that an ecclesiastical judge may issue his mandate to a judge secular , prohibiting him from medling with matters of ecclesiastical cognizance . and the same boerius in another place c says , that in such cases of excess by the power of one jurisdiction exercised over another , the king is to decide the controversie . a prohibition in the sense most adequate to the purpose in hand , is a writ forbidding to hold plea in a matter or cause supposed to be without the jurisdiction and cognizance of that court where the suit depends ; sir thomas ridley calls it a commandement sent out of some of the kings higher courts of record , where prohibitions have been used to be granted in the kings name , sealed with the seal of that court , and subscribed with the teste of the chief judge or justice of the court , from whence the prohibition doth come , at the suggestion of the plaintiff , pretending himself to be grieved by some ecclesiastical or marine judge , in non-admittance of some matter , or doing some other thing against his right , in his or their judicial proceedings , commanding the said ecclesiastical or marine judge to proceed no farther in that cause , upon pretence that the same doth not belong to the said ecclesiastical or marine judge . but this description of the writ of prohibition , though large enough , yet not comprehensive enough ; for prohibitions may issue to courts that have neither ecclesiastical nor marine cognizance , as appears by the learned fitzh . who among sixty several cases by him mentioned , wherein a prohibition doth lye , doth not instance in any against the admiralty ; nor do the statutes ( though express as to prohibirions against courts ecclesiastical ) speak of any in express terms or in the letter of it as against the admiralty . hence probably it is that the authour of the terms of the law d makes no other description of a prohibition then this , viz. that it is a writ that lyeth where a man is impleaded in the spiritual court of a thing , that toucheth not matrimony , nor testament , nor meerly tithes ; and this writ shall be directed as well to the party as to the judge or his official , to prohibit them that they proceed no farther ; but if it appears afterwards to the judges temporal , that the matter is to be determined by the spiritual court , and not in the court temporal , then the party shall have a writ of consultation , commanding the judges of the court spiritual to proceed in the first plea. which description of the writ of prohibition is consonant to the statute of 2 ed. 6. cap. 13. whereby it is provided , that he that sueth for a prohibition , shall make a suggestion and prove it by two witnesses ; and in case it be not proved true by two witnesses at the least in the court where the prohibition is granted , within six moneths next after the said prohibition ; then the party so hindred by such prohibition , shall have a consultation , and recover double costs and damages against the party that sued for the prohibition . and in the said description of a prohibition by the authour of the terms of law , there is not any thing express'd as to a prohibition against the admiralty , but only against judges in matters spiritual , wherein the court of admiralty is not concern'd ; by the proceedings whereof there is not ( as in the other once was ) the least pretence for any fear of dis-inheritage of the crown-rights , which will be agreed to be originally the causa finalis of prohibitions . whence it was long since observed and published by a learned civilian of this nation , e that this writ of prohibition in those days may well be spared ; for although it were some help to the kings inheritance and crown , when the two swords were in two divers hands ; yet now that both jurisdictions are settled in the king as the only supreme magistrate , there is little reason thereof . and indeed the jurisdiction of the admiralty of england was ever inherent in the crown of england ; so that there was never in that sense that parity of reason for prohibitions against the one as against the other . that which at first hath its origination from a principle of well-grounded policy , and is of good use in one age , may afterwards be otherwise in another , specially if the rule cessante ratione cessat lex should hold in this case as in others . the fiery brazen serpent when first erected , was of happy use ; yet when abused by the people , hezekiah brake it in pieces ; f yea , though of divine institution , yet when it became a snare to the people , that good king did not scruple to call it nehushtan . the court of admiralty is one of the courts temporal , one of the courts of our soveraign lord the king , and long since owned as such , as appears by the resolutions upon the cases concerning the jurisdiction of the admiralty in anno 1632. if the court of admiralty be one of his majesties temporal courts , then the old argument of the conservation of the crown-rights , seems not to hold in this case , and only for that reason , as to prohibitions against the admiralty ; as well for that the said court is a court temporal , as that it is one of his majesties courts ; specially in cases that are either locally or materially maritime . it may not therefore be much material to inquire whether prohibitions do lye as well against temporal as spiritual and eccsesiastical courts ; for admitting a prohibition according to the learned fitzh . [ g ] to be a writ for the forbidding any court ; either spiritual or secular , to proceed in any cause there depending , upon suggestion that the cognition thereof belongeth not to the said court ; yet it is presumed that this doth not concern such cases as primo intuitu appear to be locally maritime , or according to the nature thereof have been time out of mind properly of the admiral cognizance ; for without doubt the suggestion mentioned in the said definition doth not in construction of law pretend to any thing beyond the very truth of what is suggested ; or so , as to transplea a cause from one jurisdiction to another , absque minimo fumo probationis , of the truth and reallity of the suggestion , or that the cognition of the cause belongeth not to the court prohibited . thus having seen what a prohibition is , which in truth is no more but this , viz. a charge by writ to forbear to hold plea either in some matter or manner , which ( as is supposed or suggested ) a man dealeth in beyond his jurisdiction , or otherwise then law will warrant ; it follows , that every prohibition is either prohibitio juris by the law it self ; or prohibitio hominis , where the ministery of a competent judge is used ; or prohibitio facti , of meer fact , where it hath no fufficient ground or foundation in the law : the second of these , viz. the ministery of a competent judge is so essential , as without which neither of the other can proceed . prohibitio juris is a very prohibition in it self , and therefore it is a contempt to sue against it . prohibitions of law are such as are set down by any law or statute of this land , whereby ecclesiastical courts are interdicted from dealing in the matters in such statutes contained . such are the statutes of 2 ed. 6. cap. 13. whereby judges ecclesiastical are forbidden to hold plea of any matter , cause , or thing , being contrary or repugnant to or against the effect , intent , or meaning of the statute of westminster 2. cap. 3. the statutes of articuli cleri , circumspecte agatis , silva caedua , viz. 43 ed. 3. cap. 3. the treatise de regia prohibitione , stat. 1 ed. 3. cap. 10. such also is the statute of 9 ed. 2. cap. 2. there are also other statutes declaring in what cases prohibitions will not lye ; such are the statutes of 9 ed. 2. cap. 1 , 4 , 5. also 18 ed. 3. cap. 5. & 50 ed. 3. cap. 4. prohibitions of fact , are such as having no sollid foundation ( as the other ) on the laws and statutes of this kingdome , may yet pro tempore have some kind of operation like prohibitio juris , because therein also is prohibitio hominis , or the ministery of the judge or superiour magistrate . such prohibitions of fact ( where they happen ) may administer more matter for lawyers to work on , then possibly the merits of the cause require , and have in former times occasioned several complaints by reason of the perplexity of law-suits , uncertainties in matters of jurisdiction , multiplicity of litigious controversies , excess of charges , delayes of proceedings , retardations of justice , and the like . hence it was , that sir tho. ridley in his view of the civil and ecclesiastical law so long since on this subject said , h that the right of the supreme magistrate is not to be supposed by imagination , but to be made plain by demonstration . and so both the statute of 18 ed. 3. cap. 5. is , whereby it is provided , that no prohibition shall issue , but where the king hath the cognizance , and of right ought to have ; which is very observable ; and also by the fore-mentioned of 2 ed. 6. which prohibits ▪ prohibitions to be granted otherwise then upon sight of the libel , and other circumstances in the said statute expressed . by which it is intended , the meaning of the law-givers was not that every idle suggestion of every atturney should breed a prohibition ; but such only should be granted , as the judge according to law should think worthy thereof , if there were right to deserve it . where the said sir thomas ridley goes on and says , that as emulation between the two laws in the beginning brought in these multitude of prohibitions , either against or beside law : so the gain they brought to the temporal courts maintaineth them ; which also ( they are his words ) makes the judges that they sesse not costs and damages in cases of consultation , ( although the statute precisely requires their assent and assignment therein ) because they would not deterre other men from suing out of prohibitions , and pursuing the same . though this was the observation , and these the very words of sir thomas ridley upon this subject in his time , yet we may not thence inferre that so it is also now in our time , specially now that justice runs again in its proper channel , and her ballance equally poized ; it was too true that in late years of unhappy memory the said words and observation of that civilian were too sadly verified ; which now no doubt will in some short time ( as is already in a good degree ) be completely rectified . in order to a prohibition there is to precede such a suggestion as may be proved , not such a suggestion as is not capable of proof ; improbable suggestions lay no foundations ; non-entities are no basis for existencies ; it hath been a rule without exception ever since the creation , that ex nihilo nihil fit . by suggesting the place , where a contract is supposed to be made , to be at burdeaux in france in islington in the county of middlesex , seems to imply as if the alledging the place , ( viz. to be within the body of some county within the realm ) were essential for the entituling of that jurisdiction , where such suggestion is made , to a cognizance of the cause grounded upon that suggestion , so that the place seems to be of such jurisdictional weight , as not capable of being translocated by the highest strength of imagination , which may present strange things in apparitions , but cannot possibly enervate the energy of truths and reallities ; and thence possibly it is , that for prevention of improbable surmizes , as a suggestion may be quasi causa sine qua non of a prohibition , so the said statute of 2 ed. 6. cap. 13. provides that probability by witnesses ( which cannot be without verity ) be a due requisite of suggestions . the lord coke upo● this subject of suggesting and surmizing , viz. of places beyond sea to be as within the body of some county within this realm , doth acknowledge , i that there is variety of opinions in the very books of the common law upon this point . this kind of suggesting and surmizing did in late years of fatal memory much impede the judicial proceedings of the admiralty , when it was no rare thing to meet with a suggestion of a contract to have been made or other thing done upon the land in some certain place within the body of some county , that really and in truth was made or done upon or beyond the seas , and farther possibly then the suggestor ever saw in a map. the civilians say , there are certain cases wherein prohibitio vim suam non exercet , whereof one is , quando aliquid prohibetur sinel causa ; and the law of this realm allows another , and that is , quando consultatio conceditur . prohibitions in the law there are of other kinds , though not so pertinent to the purpose in hand ; such is the writ indicavit , as in matter of tithes ; k this lyeth also for the patron , where the incumbent is impleaded for the advowson or right of patronage in a spiritual court ; though it lyeth not till the libel be brought to be viewed in chancery , et lis contestata ; l and it lyeth only before sentence is given in the ecclesiastical court , being afterwards void . lastly , a prohibition ceaseth and loseth his vertue after a consultation is granted , as appears by the statute of 24 ed. 1. which declares in what cases a consultation is grantable ; which again is afterwards more full in the statute of 2 ed. 6. cap. 13. whereby it is enacted , that a consultation shall be granted for default of proving the suggestion , and double costs and damages ( as aforesaid ) awarded to the party hindred by such prohibition , against him that so pursued the same . and where a consultation is once truly granted , the judge formerly prohibited , shall according to the statute of 50 ed. 3. cap. 4. proceed in the cause , notwithstanding any other prohibition thereupon , provided the matter in the libel be not altered . chap. vii . of fictions ; what a fiction in law is ; how farre and in what cases fictions may be used according to the rules of law. by fiction is here intended no other then such as the law it self intends , no other then such as being authorised by law , and introduced upon a warrant of law , hath in operation the due effect of law. as for other fictions , the law understands them but as meer cyphers , tollerating none but such as are grounded upon and regulated according to the just principles of the law ; the essence of law being more rational , her designs more equitable , her mediums more feasible , and her style more serious and venerable , then to hazard either under the conduct of any notions inconsistent either with equity or possibility ; for the law doth imitate nature ; such fictions therefore as cannot endure the test of law , are fictions indeed , proper only for a comment upon lucians dialogues . to proceed therefore to the law. a fiction in the eye of the law , and such whose practice may be warranted by law , is legis adversus veritatem in re possibili ex justa causa dispositio . a so that it is legis non hominis dispositio ; it must be a fiction framed according to the rules of law , not whatever is imaginable in the conceptions of man. this word [ dispositio ] is sometimes taken for a quality of the mind , or imperfect habit , that is , an inclination or affection . b but in this place it signifies an act proceeding from good authority of law ; for it must be ex justa causa ; which word [ just ] hath divers acceptations or significations in the law ; as sometimes it is opposed to that which is wicked or contrary to justice and equity ; whence it follows , that the suggestor may not frame or model a fiction opposite thereto ; sometimes the word [ just ] is in the law taken for full or perfect ; and hereby all defects and imperfections for want of any legal requisites in the suggestors notions to the fabricating of a fiction , are excluded ; such are the defects or imperfections in respect either of equity or possibility ; for as the suggestions are to arise ex justa causa , so they are to center in re possibili . but to prevent mistakes , let it not be hence inferred , as if it were here implyed , that all surmizes and suggestions at law in order to remove or transplea a cause from one jurisdiction to another , were such fictions as fall not within the compass of the said definition of a legal fiction ; if any such inconsequent construction be made of the premises , or shall be made of what follows , it is no mans errour but the readers ; for though all fictions , whether legal or illegal , may be surmizes , suggestions , or suppositions , yet all surmizes or suggestions are not illegal fictions ; and many of the suggestions used in the practick part of the law for the end aforesaid , are both true , equitable , and possible , and consequently probable , and so of good and necessary use in practice , according to the law in the statute of prohibitions in that behalf provided . and this not by way of digression , but ad majorem & necessariam cautelam , to prevent all mis-apprehensions . the foresaid definition of a fiction legal , not finding general entertainment among the dd , it may be free to incline with the more received opinion to bartols definition thereof ; whose words are c these , viz. fictio , est in re certa , ejus quod est possibile adversus veritatem , pro veritate a jure facta assumptio . a fiction is an assumption of law upon an untruth for a truth , against the truth , in some thing possible to be done , but not done . so that surmizes and suggestions in judicial practice that are true , are not ( as was aforesaid ) fictions . in this definition it is said to be in re certa , to difference it from presumption , which ever fixes upon something that is dubious , d yet carries so much of truth with it , as without better evidence is not counterpoized ; but fictio fit super certo , e super falso & certo fingitur ; super vero & incerto praesumitur . f likewise , in in this definition it is said to be ejus quod est possibile , because super eo quod est impossibile non potest fingi . g of impossibilities there can be no fiction according to law whereon to ground any suggestion . reason it self proves this , for art ( as aforesaid ) ever imitates nature ; and what is impossible according to nature , is impossible according to art ; and though art in some sense may be said to perfect nature , yet it may not contradict nature in any sense . a fiction in law ever imitates a possibility in natur● . h again , it is said to be adversus veritatem , because if it were really true , it would cease to be a fiction , yet withal it is said to be pro veritate , an assumption of law upon an untruth for a truth , because it hath the effect of law , being thus qualified , as fully as if it were an assumption upon a truth . lastly , it is said to be à jure facta assumptio , to exclude all illegal untruths , which are not of law , but of man , and therefore have not the designed effect in operation of law. the premises considered , it is most evident , that on every fiction according to law , attend two such essential requisites , that if either of them be wanting , it ceases to be a legal fiction ; the one is equity , the other is possibility ; these are the duo necessaria to every legal fiction ; and such fictions thus qualified , are introduced by the civil law , wherein among many others there are specially two that may be said to be the capital or more principal fictions in the law ; the one whereof is in lege cornelia ; the other in jure postliminii ; a fiction legis corneliae takes place , when a captive intra praesidia hostium dyes under such captivity ; for if so , then such captive by that law , if he made a will before such his being taken captive , shall in favour of such will , and for the upholding of the same , be feigned to be dead in puncto temporis , immediately before such his being taken captive . i and so by that legal fiction of death his will is firm and valid , as if he had really dyed without ever being taken by the enemy . that de jure postliminii is , whereby for the preservation of a mans right of property , the law doth feign him that is returned out of captivity to be and to have been as if he had never been captive , or at all absent from that place of his freedome and priviledge , whereof he was before such his capture ; k whereby he is redintegrated into his pristine state and condition . as it is thus as to persons , so also is it as to things , such only excepted as by law are exempted from the priviledge of postliminium . there are divers other fictions in the law , though of less weight , which have not any dependance at all on the former , yet not one of them without equity and possibility . thus he that is in contempt for non-appearance in court upon due summons , is by law feigned to be present , that so neither the law might be rendred elusory by his absence , nor himself get any advantage by his own laches , nor the adverse party receive prejudice by the others contempt . l so on the other side , he that is present in court , but doth there lurk and hide himself , vel latitare inter columnas , is by the law feigned to be absent . m also , he that is in utero , and as yet unborn , is by the law quoad suum commodum , feigned to be born , lest otherwise he should be left without remedy as to a childs portion . n likewise , such as enter into mutual contracts of partnership , though themselves may not therein create fictions other then the law allows , yet in matters of society and partnership the lex aquiliana doth feign a mutual stipulation or hypothecation in such consortship , which the law styles stipulatio aquiliana , & in such cases socius socio tenetur lege aquiliana . o and in such cases of partnership for the acquisition of a dominium and property in all the goods in partnership without any actual delivery , the law doth tacitly feign such a delivery , albeit it never specially intervened . p likewise the law feigns the person of one to represent the person of another , that so nephews and nieces may succeed together with their unkles and aunts in their grand-fathers and grandmothers goods and chattels , for so much thereof as should have come to their parents respectively , in case they had been alive at the time of their said grand-parents decease . q in like manner he that is dead , may by law be feigned to be alive to several constructions and operations of law , if others his equals in age be then alive , or in case his being really alive at such time of feigning him to be alive , doth not exceed the natural age of man. r many more instances of legal fictions might here be added , but these may suffice for proof , that though the law allows of fictions , yet never but where there is justa causa with equity and possibility , disowning all others as monstrous fictions , that are propagated meerly of the froth of the brain ; for the law ( as aforesaid ) ever resembles and imitates nature ; and therefore if any man will enter the lists with lucian , or strain his imagination to forge rarities beyond his dialogues , and feign a battel of elephants to be fought on a cobweb in the air , or fresh water-spring to rise out of the whales belly , or a mine of gold fifty fathome under ground in the middle region of the air , or the like , he may expect no protection from the law for such irregular notions . a legal fiction under the foresaid qualifications , is threefold ; either inductiva , or privitiva , or translativa & extensiva . a fiction inductive , is , when the law feigns that to be which indeed is not ; a fiction privitive , is , when the law feigns that not to be which indeed is ; and a fiction translative or extensive , is , when the law doth feign a thing to be done in one manner , which in truth is done in another . the first of these , or the inductive fiction ▪ is an assumption of law in a thing certain and possible , upon a non-existency for an existency ; the second , or the privitive fiction , is alike definable , only the words inverted ; and the third , or translative fiction , is only an assumption of law more upon the modus then the thing it self ; so called , because it is mainly conversant in one of these four varieties ; as either when the law by a fiction transfers or translates some act or thing , either from one place to another , or from one person to another , or from one thing to another , or from one time to another ; but which soever of thes● the fiction be , it must still keep within the due limits and bounds of equity and possibility . whatever the fiction be , it may be reduced to one of these three heads , either inductiva , privitiva , or translativa ; and neither of these but must quadrare with bartols said definition , or the law rejects it as spurious and illegitimate . for the yet clearer apprehension of the premises , it may be no digression to insert a word by way of caution to the imperfect notionist , that he would not hence infer as if the law did feign impossibilities , because it supposes the living to be dead , and the dead to be alive ; the absent to be present , and the present to be absent ; and the like . for although they would indeed be impossibilities , if only considered simply in an identity of fact and time , of person and of place , without their right and due diversifications ; yet they are not impossibilities , being rightly according to the law of fictions distinguished in respect of fact , time , person and place , together with such transactions , translocations , transtemporations , and transpersonalities , as according to rules of law are requisite to every fiction that enures to any effect in law ; for that which may seem deceptio intellectus , and by mis-apprehension possibly be taken for an impossibility in the precedent instances of a legal fiction , is in truth nothing but that defect or absence of verity in the person , act , thing , manner , time or place feigned ; indeed , to look for truth in a fiction , is to expect an impossibility with as much vanity as some men do for revelations : if it were possible that there could be the least verity in the thing supposed , it would immediately cease to be a fiction . legal fictions may be aptly styled , the just policies of law , to attain unto the end and effect of law by remedies extraordinary , only where the ordinary means do fail . this therefore is no warrant to fly to fictions though legal , much less to others , as remedies extraordinary , when the ordinary means by law provided may be used . this point of fictions having now been put to the touchstone of the law , and impartially weighed in the ballance thereof , it plainly appears , what kind of fictions they are , that are legally qualified to take place in the judicial proceedings of the civil law in forraign nations , as also in this kingdome ; which ( before the late unnaturall and intestine wars ) was , and now seems to be for religion , justice and commerce , regina insularum totius orbis . chap. viii . that the cognizance of all causes and actions arising of contracts made , and other things done upon the sea , is inherent in the jurisdiction of the admiralty . this truth in the law is not denyed in the judgements of men , though it hath not wanted at least a seeming contradiction in practice . witness susans case against turner in noys reports ; where it is said , that if a suit be in the court of admiralty for a contract supposed to be made super altum mare , the defendant upon a surmize or suggestion that it was made upon the land within the realm , may have a prohibition . such and the like begat that complaint of the admiralty , which gave the lord coke occasion to assert in these words following , viz. a that by the laws of the realm the court of admiralty hath no cognizance , power , or jurisdiction of any matter of contract , plea , or querele within any county of the realm , either upon land or the water : but every such contract , plea , or querele , and all other things rising within any county , either upon the land or the water , ought to be tryed and determined by the laws of the land , and not before or by the lord admiral or his lieutenant in any manner : so as it is not material , whether the place be upon the water infra fluxum & refluxum aquae , but whether it be upon any water within any county . wherefore we acknowledge that of contracts , pleas , and quereles made upon the sea or any part thereof , which is not within any county ( from whence no tryal can be had thereof by twelve men ) the lord admiral hath and ought to have jurisdiction . this was the answer long since given to an objection made by the admiralty ; but the objection was , that whereas the cognizance of all contracts and other thiags done upon the sea , belongeth only to the juisdiction of the admiralty , the same are made tryable at the common law , by supposing the same to have been done in cheapside , and such like places . so that the sinew of the objection is , that things done upon the sea , being cognizable only in the admiralty , are made tryable elsewhere by supposing them to be done in cheapside , and such like plaees . the said answer speaking nothing as to the said manner of supposing , seems not to enervate the said objection ; the answer distinctly declares and sets forth where and in what places the jurisdiction of the admiralty hath not cognizance , viz. not upon land or water within any county ; but why ( according to the said objection ) things done upon the sea , and belonging only to the admiralty , are made tryable at common law , by supposing them to be done in cheapside , and such like places , seems yet to be resolved ; statutum simpliciter loquens , debet intelligi de his quae vera sunt secundum veritatem , non de his quae sunt secundum fictionem . b the scruple touching the surmize implyed in the supposition mentioned in the said objection , doth arise from the fact so supposed , as whether solid enough to lay foundation for such superstructures as are built thereon . it is acknowledged , that of contracts made and other things done upon the sea , or any part thereof , which is not within any county , the lord admiral hath and ought to have jurisdiction ; but if this super altum mare should by a meer surmize or suggestion be translocated in operation of law , and so thereby become as it were infra corpus comitatus , the said acknowledgement would seem to be disacknowledged , and the said objection would seem to be an objection still . veritatis congressus invictae est major veritas . and he that sues an admiral cause in another court , ought to withdraw it , and to fine to the king. c brownlow reports , d that if a bond bear date super altum mare , it must be sued only in the admiral court. whether then an obligation or other contract made on board one of the frigots of the navy royall , or the like , in the straights , may be tryed in other then the admiral court , by alledging or supposing the same to have been made in the straights in islington in the county of middlesex , seems to be the question ; for the very truth of the fact as to the place of making such obligation in the straights , or super altū mare , seems not to alter the case , if the place so suggested is not to be traverfed , it being as easie and as feasible to suppose and suggest the said frigot and the straights , as burdeaux in france to be in islington . but the great oracle of the law assures us , e that things done out of the realm may not be tryed within the realm by the oath of twelve men . it is reported in palmers case against pope , f that jennings libelled in the admiralty against one audley , upon a contract laid to be made apud malaga infra districtum maris vocat . the straights of gibralter infra jurisdictionem maritimam ; and because it appeared , that the contract was made at the island of malaga , prohibition was granted , for it was not regarded , that he added infra jurisdictionem maritimam , which appeared contrary . if in another case it happen to be elsewhere supposed that the contract is made at burdeaux in france in islington , though by the very light of nature it appears , as soon as it is put , to be contrary , yet there may be that reason of law to hold the place is not traversable as to the infra corpus comitatus , which the infra jurisdictionem maritimam cannot duly expect , when that appears to be contrary . it was once said by justice wray in sir julius caesars case , g that it was hard that his jurisdiction should be tryed before himself . it hath been observed for these last twenty years , that it is far more easie to preach good doctrine then to practise it . the law in all jurisdictions is but reason regulated ; no wonder therefore if sometimes a cause as to the merits of it meet with a right decision in a wrong jurisdiction ; but less wonder if it oftner happeneth otherwise . it is reported in the case of bright against couper , h that an action of covenant being brought upon a covenant made by a merchant with a master of a ship , viz. that if he would bring his fraight to such a port , then he would pay him such a summe ; it was shewed that part of the goods were taken away by pyrats , and that the residue of the goods were brought to the place appointed , and there unladen ; and that the merchant had not paid , and so the covenant broken : and the question was , whether the merchant should pay the mony agreed for , since all the merchandizes were not brought to the place appointed : and the court was of opinion , that he ought not to pay the mony , because the agreement was not by him performed . here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed , albeit there was vis major , or casus fortuitus , without any default in the master or mariners , in the case ; the court being of opinion that he ought not to pay the mony , because the agreement was not by him performed ; nor had it been performed in case of stress of weather , part of the goods had navis levandae causa , been thrown over-board ; probably this pyracy , whereby came this casual incapacity of performing the agreement , was super altum mare . and the same reporter in westons case , i a merchant hath a ship taken by a spaniard , being enemy , and a moneth after an english merchant with a ship called the little richard , re-takes it from the spaniard ; and the owner of the ship sueth for that in the admiralty court. and prohibition was granted , because the ship was gained by battel of an enemy . probably this capture and re-capture , the occasion of this plea and querele , was only super altum mare ; and the property of shipping called into question by reason of such supermarine accidents , the matter of this plea and querele , is of every days practice in the admiralty , and so accustomed time out of mind . but at another time in a case something parallel to that quoad merita causae super altum mare , a prohibition would not be granted , k a dunkirker having seised a french mans vessel super altum mare , sold the same with her lading at we●mouth , whither it had been driven before its brought infra praesidia dom. regis hispan . whereupon the french man libelled in the court of admiralty against the vendee pro interesse suo , who shewed that it was taken not by letters of mart , as was pretended , but by piracy ; and prayed a prohibition . and it was agreed by the justices , that if a ship be taken by piracy , or by letters of mart , and be not brought infra praesidia , of that prince by whose subject it was taken , that it is no lawful prize , and the property is not altered : and such was said to be the law of the court of admiralty . and therefore the court would not grant a prohibition . in the former case where prohibition was granted , the property of the ship seems not to be altered , for though she were , as that case puts it , taken by an enemy , and a moneth intervened between the capture and re-capture , and so did pernoctare with the captors , yet it does not appear by that case that she was ever brought infra praesidia hostium before such re-capture , or that ever judication passed thereon ; and if there were any alteration of property of that ship , the property must have been altered super altum mare , which is properly cognizable in the admiralty in respect of the place as well as the thing it self in its own nature . littleton , that famous oracle of the law , as aforesaid , asserts , l that a thing done out of the realm may not be tryed within the realm by the oath of twelve men . the lord coke ( as aforesaid ) acknowledgeth , m that the lord admiral hath and ought to have jurisdiction of contracts , pleas and quereles made upon the sea , or any part thereof not within any county . and sir george crook says , n that if a suit be commenced in the court of admiralty upon things done upon the sea , no prohibition is to be granted . therefore it follows , that contracts made and other things done upon the sea are inherent in the jurisdiction of the admiralty . 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 , o 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 vltra-marine . but the lord hobard in bridgmans case goes farther , and says , p 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 , 't is 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 , q 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 , r 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 non-entities 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 , s 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 , t 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 . u if an obligation 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 't is 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 , w misera est servitus ubi jus est vagū aut incognitum . it hath been said , x 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 . y 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 , z 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 , a 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 . b 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 , est locus conclusus quo importantur & exportantur merces . c 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 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 , 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 , d 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 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 , e 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 . f 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 , g 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 , h 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 . chap. x. of judicial recognizances and stipulations for appearance , and performance of the acts , orders , judgments , and decrees of the court of admiralty ; as also whether the said high court of admiralty of england be a court of record . although the court of admiralty time out of mind hath ever used to take such recognizances and stipulations for judicial appearances , and due performance of such acts , orders , and judgments , as are made and given in the said court ; yet this ancient practice of the admiralty , though so adequate to the genuine rights of judicatories and tribunals of justice , quatenus , such , hath not escaped a contradiction founded upon this assertion , that the court of admiralty is no court of record . such as hold prohibitions may be granted to the court of admiralty upon the ground or reason aforesaid , seem to model the argument syllogistically , and say , that for the taking of recognizances against the laws of this realm , prohibitions have been and ought to be granted : but the court of admiralty doth take recognizances against the laws of this realm , ergo , &c. the minor proposition is said to be proved thus , viz. no court being not a court of record , can take such recognizances : but the court of admiralty is no court of record ; ergo , &c. that unhappy minor is said to be a truth , how fatal soever , built upon this double foundation : first , because the court of admiralty proceeds by the civil law. secondly , because if an erroneous sentence be given in that court , no writ of errour , but an appeal doth lye , according to the statute of 8 eliz. cap. 5. reason is , or should be the source or fountain of all humane laws , no waters rise higher then their springs ; the first enquiry therefore will be , what a court of record is , or what court may properly be said to be a court of record ; which being known and considered , if you be not then satisfied , you may , if you please , farther enquire , whether the being of record be such an essential qualification to a court , as without which it is incapable of taking such stipulations ( i say , such stipulations ) as the court of admiralty hath ever used to take , and de jure ought to take . the lord coke makes this description of a court of record , i every court of record is the kings court , albeit another may have the profit ; wherein if the judges do erre , a writ of errour doth lye . but the county-court , the hundred-court , the court-baron , and such like , are no courts of record ; and therefore upon their judgments a writ of errour lyeth not , but a writ of false judgment , for that they are no courts of record , because they cannot hold plea of debt or trespass if the debt or damage do amount to forty shillings , or of any trespass vi & armis . it is observable that it is here said , that every court of record is the kings court ; so is the high court of admiralty styled the kings court , as appears not only by the title or preliminary description , but also by the second article or proposition in the resolutions upon the cases of admiral jurisdiction , k subscribed in anno 1632. by the reverend judges in presence of his late majesty of ever blessed memory , and the lords of his majesties most honourable privy councel . and whereas in the said description of a court of record , it is said , they are no courts of record , because they cannot hold plea of debt or trespass , if the debt or damage do amount to forty shillings , or of any trespass vi & armis , it is well known that the court of admiralty can hold plea of a debt or trespass maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings , and not only of trespass vi & armis , but also of maihem , yea , of death it self . l wherefore , as the former character of a courts being of record , may be applyed to the high court of admiralty as the kings court : so the other character of a courts not being of record , is no way applicable to the said court of admiralty . but in the said description of a court of record , it is said , that every court of record is the kings court , wherein , if the judges do erre , a writ of errour doth lye ; the question then is , whether it be a question whether a writ of errour doth lye in the consistory court of the university of cambridge , which queen elizabeth by her charter dated 26 april , anno 3 reg. made a court of record . m and writs of errour did also properly lye in any court where they have power to hold plea by the kings charter , or by prescription in any summe , either in debt or trespass above the summe of forty shillings . n in which sense the court of admiralty as aforesaid , is sufficiently qualified as a court of record ; which though eminent enough for its practice and interest in the realm , and so not probable to have escaped a particularization among the other fore-mentioned courts , the county-court , hundred-court , and court-baron , as no courts of record , by reason of any oblivion , yet is not there instanced among those other courts not of record . and the county is called a court of record . westm . 2. cap. 3. anno 13 ed. 1. but it seems by britton , cap. 27. that it is only in these causes , whereof the sheriff holdeth plea by special writ , and not those that are holden of course or custome . o and whereas brook seemeth to say , that no court ecclesiastical is of record ; p yet bishops certifying bastardy , bigamy , excommunication , the vacancy or plenarty of a church , a marriage , a divorce , a spiritual intrusion , and the like , are credited without farther enquiry or controlment . q this only by the way , and in transitu . if it be said , the court of admiralty is no court of record , because it proceeds by the civil law , it may be demanded by what law the consistory-court of cambridge proceeds , which q. elizabeth ( as aforesaid ) made by her charter a court of record ; for the king may make a court of record by his grant ; r which seems to allay that antipathy that is supposed between a court of record and a court proceeding by the civil law , a law allowed , received , and owned as the law of the admiralty of england . yet serjeant harris in the case of record against jobson , argued , that a recognizance taken in the court of admiralty to stand to the order of the court , is void , and that it hath been so adjudged . s so it 's argued ; it is not said , resolved . it is a happiness as well as a truth , what was once said in dr. james his case , t that the king is the indifferent arbitratour in all jurisdictions , and of all controversies touching the same , and that it is a right of his crown to distribute to them , that is , to declare their bounds . it is no novel doctrine to assert , that stipulations taken in the high court of admiralty for appearance , or performance of its own acts , orders and decrees , are in modo procedendi quasi accessorium quoad principale ; and the modern reporter in a case depending before the commissioners of ensurance between oyles and marshal , u says , that it being moved in the kings bench for a prohibition , and a rule there given to shew cause why a prohibition should not be granted to the court of ensurance ; it was then declared , that if they had jurisdiction of the principal matter , they had jurisdiction of matters also incident thereto . and what are recognizances taken in the court of admiralty , for appearance , and performance of its own acts and decrees , more then stipulations judicio sisti & judicatum solvi ? insomuch as to deny the right or power of taking such stipulations , seems in effect as to imply an inhibition of the whole jurisdiction ; for without such stipulations in praeparatorio litis , the subsequent judgement , be it for plaintiff or defendant , would prove but vain and elusory ; and a judgement without due and effectual execution is quasi sententia inanimata ; without such stipulations justice may be perverted into injustice , for default of that which is the complement , or ultimate design of all justice , viz. facultas suum cuique tribuendi . the practice of taking such stipulations for the legality thereof according to that law whereby that court proceeds , is nothing inferiour in point of antiquity to the jurisdiction it self , the style of that court in that point of practice being as ancient as the court it self ; and whereas the right of taking such stipulations for appearance , and performance of the acts , orders , judgements and decrees of the court of admiralty hath not been without contradiction upon the foresaid ground ; that the said court is no court of record , it doth plainly appear by a record of good antiquity , and with the learned mr. selden of good authority , that the said court is a court of record . w and if the court of admiralty be discharactered as no court of record , by reason of its proceeding by the civil law , it would thence seem to be implyed as if no part of the civil law were any part of the law of england ; it is not concealed from the world by a person of no less honour then knowledge in the laws of this realm , that the imperial or roman law is in some cases the law of the land. x this worthy authour speaking of the right of prerogative in absolute kings and princes , as to impositions upon merchandizes , doth upon that occasion in the fore-cited place declare himself in haec verba . forasmuch as the general law of nations , which is and ought to be law in all kingdomes , and the law-merchant is also a branch os that law , and likewise the imperial and roman law have been ever admitted , had , received by the kings and people of england , in causes concerning merchants and merchandizes , and so are become the laws of the land in these cases ; why should not this question of impositions be examined and decided by the rules of those laws so far forth as the same doth concern merchants and merchandizes , as well as by the rules of our customary or common law of england , especially because the rules of those other laws are well known to the other nations , with whom we have commerce , whereas the rules of our own municipal laws are only known within our islands . what this worthy authour here speaks of the civil law in england , as to this point of impositions by the king on merchandizes , is applicable in any case of navigation , naval negotiation , or other affairs properly relating to merchants or mariners within the sphere of the admiralty of england . and the same learned authour in another place , y when the city of rome was gentium domina & civitas illa magna quae regnabat super reges terrae , the roman civil law being communicated unto all the subjects of that empire , became the common law , as it were , of the greatest part of the inhabited world , &c. and again in the same place , all marine and sea-causes which do arise for the most part concerning merchants and merchandizes crossing the seas , our kings have ever used the roman civil law for the deciding and determining thereof . thus far goes the said worthy authour in this point . it is most true , the civil law in england is not the law of the land , but the law of the sea ; great brittain , and the dominions thereof comprizing the adjacent seas , as well as the land ; the law by which the high admiralty of england proceeds , being in all causes cognizable in that jurisdiction allowed , owned and received by prince and people , soveraign and subject , seems to be a law of england , though not the law of england , not the land-law , but the sea-law of england ; for as in matters terrene and in land-affairs it is proper to say infra corpus comitatus , so in matters maritime and sea-affairs it is no less proper to say sur le hout mere . the jurisdiction of the admiralty of england is one of the jurisdictions of england , which ever implyes a law to proceed by that cannot be but of that place whereof the jurisdiction it self is . it neither may , nor ought to be denyed , but that for the taking recognizances against the laws of the realm , prohibitions have been granted ; yet possibly it may not thence by a necessary concludency follow that the high court of admiralty ( in taking stipulations for judicial appearance , or performance of the acts and orders of the court , vel judicio sisti vel judicatum solvi , and this according to that law whereby it is to proceed ) is involved under such a guilt of transgression against the laws of the realm , as eo nomine to incur a prohibition ; which if grantable upon every such recognizance or stipulation for appearance , and performance of the acts and judgements of the court ( without which it cannot proceed according to law ) there could then be no suit or action depending in the high admiralty of england , be it for place , nature , or quality in it self , never so maritime and of undoubted admiral cognizance , but must be subject and lyable to a prohibition , and consequently to a removal from its proper jurisdiction ad aliud examen , to the great grievance of merchants and mariners , and others the good people of these his majesties dominions , by reason of the multiplicity of suits , protelation of justice , excess of judicial expences , together with the uncertainty of jurisdictions , and all as the unavoydable consequences of such prohibitions . chap. xi . of charter parties made on the land , and other things done beneath the first bridge next to the sea ; vel infra fluxum & refluxum maris ; and how far these may be said to be cognizable in the admiralty . touching this subject it hath been asserted , that if a charter-party be made within any city , port-town , or county of this realm , although it be to be performed upon or beyond the seas , yet is the same to be tryed and determined in the ordinary course of the common law , and not in the court of admiralty . a this is exclusive as to the admiralty in matters of charter-parties made upon the land ; but yet it is agreed and resolved , hill. 8. car. upon the cases of admiral jurisdiction , that 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 . b were it otherwise , or that the jurisdiction of the admiralty might not take cognizance of such maritime contracts though made on land , then by thereunto adding what was formerly observed out of the same place , c viz. that the court of admiralty hath not any jurisdiction of any contracts made beyond sea for doing of any act within this realm , or otherwise , wherein the common law can administer justice ; it would follow , that if ( according to the one of these assertions ) such maritime contracts when made upon the land , though to be performed upon or be●ond the seas , may not be tryed or determined in the court of admiralty ; and when ( according to the other of these assertions ) made beyond the sea for doing of any act within this realm , &c. the court of admiralty hath not any juriidiction thereof ; in such ca●e it must necessarily follow , that the jurisdiction of the admiralty ( being thereby excluded the cognizance of such maritime contracts both sides the water ) must keep to sea in all weathers , yet scarce retain the libert , ( if i may so say ) of a confinement super altum mare , according to the energy of that suggession reported in the case aforesaid , of susans against turner ; d where it is said , that if a suit be commenced in the 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 prohibition . according to which comnutation , with the premises considered , the jurisdiction of the admiralty seems to be hard put to it both by sea and land ; nor need it seem any thing strange that the jurisdiction of the admiralty seems excluded of cognizance in such cases of charter-parties , whether made at land or beyond sea , if a bare surmize or suggestion according to the ●aid report in the case of susans against turner , may work as to a prohibition against the admiralty when a suit is there commenced for a contract not appearing other then made super altum mare . according to these premises , if the charter-party be made at land , though to be performed upon or beyond the seas , it is to be tryed in the ordinary course of the common law ; and if the contract be made beyond sea , for doing any act within the realm , &c. the court of admiralty hath not any jurisdiction thereof ; and if the suit be commenced in the admiralty for a contract supposed to be made upon the sea , then by a surmize or suggestion , that it was made upon the land , a prohibition ( according to the said case ) may be had . thus in matters of charter-party this side the sea , the common law seems to claim the cognizance ; in contracts made beyond sea , the admiralty seems not to be allowed any jurisdiction ; and in contracts supposed to be made upon the sea , the defendant upon a surmize may have a prohibition ; but no fiction can spunge the ocean , nor turn the sea into dry land , or the bay of mexico into middlesex , till it be proved as well as surmized , in the said case of susans against turner , where it is said , if a suit be in the admiral court , for a contract supposed to be made super altum mare , the defendant upon a surmize that it was made upon the land within the realm , may have a prohibition . it is there farther added in these words , viz. and that it may come in issue if it was upon the land or upon the sea. but by the justices , their rule is , that upon such a suggestion they shall not grant a prohibition after sentence pass'd . so that , be the verity of the fact ( as to the super altum mare ) in it self never so liquid , yet being primarily but supposed ( as all things in judicio , though in themselves never so clear , never so true , yet must be alledged before the court can proceed ) a counter-supposition or crosssurmize may work ( according to this ) as to a prohibition , to bring it in issue whether it was upon the land or upon the sea ; and so it seems as if scarce possible in any case to avoid a prohibition , for the reallest truths and the undenyablest verities under the sun , if in judicio & foro contentioso , can be at first but supposed truths ; for the court , if it proceed legally , cannot but proceed secundum allegata first , & probata next . charter-parties , bills of sale of ships , and the like maritime contracts are commonly made according to the law of oleron , and frequently wic● a clause express to that purpose inserted therein ; the civil law , the laws and customes of the sea , whereby the admiralty proceeds , takes notice thereof , and can judge and determine accordingly ; how far other laws , that are accommodated to matters of another element , though in them●elves and in their proper sphere most excellent , can do the like , is no part of the design of this compendious treatise to determine . but that prohibitions have been granted upon charter-parties , is undenyably true . e ye● , the lamentable cases of poor mariners , for their wages have not of late unhappy years escaped prohibitions , although it be not denyed but they may all joyn in one libel in the court of admiralty , whereas at the commo● law ( if they must there prosecute ) ▪ they may not bring their actions otherwise then severally and apart , to their greater expence and charges , respect being not had to the identity of the case , or the poverty of the dem●ndants , to introduce a joynt action . to this purpose it is reported , f that where judgement was given in the court of admiralty against one jones a master of a ship at the suit of certain poor mariners for their wages , a prohibition was prayed upon a suggestion that the contract was made at london in england ; but the prohibition was denyed , because he had not sued his prohibition in due time , viz. before a judgement given in the court of admiralty . whereby it seems as if it was not the nature of the case , though for mariners wages , that prevented the prohibition , but the unseasonable suing for it , viz. after judgement given in the court of admiralty . touching the jurisdiction of the admiralty in ontracts made , and other things done upon the rivers beneath the first bridges next the sea , where it ebbs and flows , and in the ports , creeks , havens , peers , sounds , harbours , rhodes , bayes , channels , and other places infra fluxum & refluxum maris ; it hath been asserted , g that by the laws of this realm the court of admiralty hath no cognizance , power , or jurisdiction of any matter within any county , either upon land or water ; so as it is not held material , whether the place be upon the water , infra fluxum & refluxum maris , but whether it be upon any water within any county ; and it is farther added , h that for the death of a man , and of mayhem , ( in these two cases only ) done in great ships , being and hovering in the main stream only beneath the points of the same rivers , nigh to the sea , and no other place of the same rivers , nor in other causes , but in these two only , the admiral hath cognizance ; yet probably it will not be denyed , but that by exposition and equity of the statute of 15 r. 2. cap. 3. ( whence , as supposed , that assertion is taken ) he may inquire of and redress all annoyances and obstructions in those rivers , that are any impediment to navigation or passage to or from the sea : and also try all personal contracts and injuries done there which concern navigation upon the sea. and no prohibition is to be granted in such cases . i the reader may at his leisure consult the said statute , whether it says , [ in the main streams only beneath the points of the same rivers nigh to the sea ] or whether the statute doth not say , [ in the m●in stream of great rivers , only beneath the bridge of the same rivers nigh to the sea ] for the difference may be material . in the case of palmer against pope it is reported , k that the statute saith , ad prim●s pontes . and in the case of leigh and burley , l it is said , that the 15 of r. 2. is mis-printed , viz. that the amiral shall have jurisdiction to the bridges : for the translator mistook bridges for points , that is to say , the lands end . so reported in the said case . the words of the statute are , viz. [ in the main stream of great rivers , only beneath the , &c. of the same rivers nigh to the sea , and in no other places of the same rivers the admiral shall have cognizance ] it is not denyed by the statute , but the admiral hath jurisdiction in cases of mayhem and death in the main stream of great rivers ; rivers are not found beneath the lands end ; if bridges be mistaken by the translator for points , and points be taken for the lands end , then rivers and the main stream of great rivers should be beneath the lands end , where they empty them●elves into the main ocean . again , the words of the statu●e are , [ in the main stream of great rivers only beneath the , &c. ] and the words in that ca●e of leigh against burley are , [ that the admiral shall have jurisdiction to the , &c. ] question is , whether there also be a mistake in the translation ? for the difference is great and very significant between to a place , and beneath a place . in the said case of leigh against burley , it is said , that the statute of 15 r. 2. is mis-printed ; yet probably the press followed the copy , and in so doing it may be excused from an errour of mis-impression ; in the said case it is also said , that the translator mistook bridges for points , that is to say , the lands end ; a right impression of a mis-translation ( if any such be ) seems not to render the word bridges , in stead of points or lands end , as mis-printed , so long as the press agrees with the copy . pons in the latine rendred into english seems rather to be a bridge then points , or a lands end ; pons in the latine sounds more like points then bridge , and so doth pont in the french , which yet is a bridge , and not point or lands end ; which in the french seems to be more properly rendred by the word la poincte or un poinct ; but a point of land at which rivers or waters meet , seems to be most properly rendred by the word bec in the french , which seems sufficiently dissonant from the word points . and those navigators , that by experience know the meaning of doubling the point , probably do ●eldome sail over rivers , either great or small , beneath such points . but this only by way of observation upon the said mistake , as reported in the ●aid case of leigh against burley ; and not in the least by way of any thing else in reference to what is not of any private interpretation , but reserved only for ●uch as unto whom are specially committed the oracles of the law. the assertion , [ that it is not held material , whether the place be upon the water , infra fluxum & refluxum maris , but whether it be upon any water within any county ] was formerly hinted ; yet possibly it may be material to know what waters are held to be within a county , specially if the question put by doderidge serjeant in the same case of leigh against burley be duly considered . in which case it is reported , that the lord coke said , that the admiral should have no jurisdiction where a man may see from one side to the other : but the coroner of the county shall inquire of felonies committed there ; which was held to be good by all the other justices ; and he gave this difference , that where the place was covered over with salt-water , and out of any county or town , there est altum mare : but where it is within any county , there it is not altum mare : but the tryal shall be per vicenetum , of the town . doderidge serjeant demanded this question , the isle of lunday de corpore comitatus of devonshire , and lyes twenty miles within the sea ; whether is that within the county . foster , if the sea there be not of any county , the admiral hath jurisdiction , or else not . in this case it is said , that the admiral hath no jurisdiction where a man may see from one side to the other ; which in a transparent horizon a man may do from the lands end to the cassi●erides , or isles of scilly , which lye seven leagues at least thence distant in the main ocean ; and almost the like from some part of england to the other side the water over to france . the said isles of scilly are de corpore comitatus cornubiae , yet doubtless the high admiral of england ( notwithstanding both sides are mutually visible ) hath jurisdiction on the interflux there , though the said word [ within ] should be taken in a sense as large as the ocean it self . and whereas it is said , that the admiralty hath not any jurisdiction of contracts , pleas , or quereles made or done upon a river , haven , or creek , within any county of this realm , probably it is not thereby meant or intended to be limited or restrained otherwise then according to the statute-law , the laws and customes of the realm , whereof those of the sea are a part ; the realm of england consisting of more elements then one . and if you consult the topography of several of the harbours , havens , ports , rhodes , bayes , sounds , and creeks of this kingdome , probably the admiralty might have in more senses then one a more liquid demonstration , then so to be disjuri●dictioned by any meer supposition , which had no small operation to the prejudice of the admiralty in the days of the late licentious times , when fancies were much in fashion ; thereby reducing jurisdictions to uncertainty , the common fate of all things , in the said days of legerde brain , but especially to the needle●s protelation of justice , as to merchants and mariners in the legal prosecution of their maritime contracts , notwithstanding the resolutions upon cases of admiral cognizance , subscribed by all the reverend judges and justices of both the honourable benches in the eighth year of the reign of our late soveraign charles the first , of blessed memory ; wherein among other things relating to that jurisdiction , it was then unanimously resolved , l that in cases arising upon the thames , the admiralty hath jurisdiction , specially in the point mentioned in the statute of 15 r. 2. and by equity thereof may inquire of and redress all annoyances and obstructions in those rivers that are any impediment to navigation , or passage to or from the sea , and in all navigable rivers . and no prohibition to be granted . but in the case of goodwin against tompkins , it seems something otherwise ; according to the report , m the case was this . a suit was in the admiral court for setting a ship in a wharf to the damage of the plaintiff : so that none could come to his wharf , which is said within the bill to be within the ward of saint mary hill : and a prohibition was granted : upon a suggestion , that it was good for the ordering of ships . a consultation was granted , hut afterwards upon good advice and opening the matter , a supersedeas to the consultation w●s granted , & quod prohibitio stet ; for the wrong and fact is said to be within a county and ward ; and for that it does not belong to the admiral : for all civil contracts or trespasses done upon the river of thames , or any other river , that is proper to the common law , are tryable in that county , which is next to the bank , and that side of the river where the fact was done ; but in criminal matters upon any river , that is given to the admiral by the statute of 28 h. 8. cap. 15. thus it is reported . but the resolution aforesaid , is , that in cases arising upon the thames the admiralty hath jurisdiction , specially in the point mentioned in the statute of 15 r. 2. and no prohibition to be granted . 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 , a le ts us to understand , that it appears by ancient and publick records , b 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 , of●ngland ●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 . c 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 . d 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 , e 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 , f 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 , g ) 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 't is 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 , h 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 , i 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 straight-laced 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 , k 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 . l 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 , m 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 , n 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 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 , o 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 . chap. xiii . of the agreement touching the admiralty in anno 1575. as also of the resolutions hill. 8. car. 1. upon the cases of admiral jurisdiction . the non-observance of the said agreement , being for the more quiet and certain execution of admiral jurisdiction , was one of the objections of the admiralty in anno 8 jac. reg. whereof mention is made by the lord coke , in par. 4. instit . cap. 22. and where it is said to be a supposed agreement , and that it had not been delivered to the then judges , but acknowledged to have heard the same read over in his majesties presence ; and to which answer was then made , that for so much thereof as differeth from those answers , ( viz. to the other objections then made ) it is against the laws and statutes of this realm : and therefore the judges of the kings bench never assented thereunto , as is pretended , neither doth the phrase thereof agree with the tearms of the laws of the realm . this was the answer then given to that objection grounded upon the said agreement . whether the same were no more then supposed , may be referred to the matter of fact ; wherein , if so , the evidentia rei will easily liquidate the scruple , and dissipate dubieties . though the said agreement be disagreed , yet the law like the axis of the body politick , remains fixed notwithstanding the rotation of opinions ; and whether so much thereof , as differed from the answers then made to the other objections , were repugnant to the laws and statutes of the realm , or the phrase discrepant from the tearms thereof , would be more visible upon an inspection , were it free to insert that as an imprinted agreement here , which is called but a supposed agreement there ; therefore to inquire how far the said agreement made , or supposed to be made , in one age , may be obligatory in another , may possibly have an implication of more verity and reality , then the thing it self with general consent doth or may challenge ; yet being in substance consonant to the subsequent resolutions upon the cases of admirall jurisdiction , and being an objection long since under a former impression , with the answer thereto as aforesaid , it may be now a less transgression to omit the thing it self , saltem in terminis , then digression to have given this short hint thereof , quasi in nubibus . the resolutions , hill. 8. car. 1. upon the cases of admiral jurisdiction , being the articles , propositions , and agreement made and subscribed in febr. 1632. by all the reverend judges of both the honourable benches , for the accommodating and setling the differences concerning prohibitions , are very energetical in affirmance of much of the rights of the said jurisdiction . the sun need not borrow the auxiliaries of art to demonstrate his light. these articles and this agreement ( whatever the former be ) are more then supposed , being reall and true . you have it here ( as to the body and substance thereof ) in no other words then sir geo. croke in his reports delivers it ; with the requisite addition of the style or preface thereto , together with the names of the lords of his majesties most honourable councel then present ; as followeth , viz. at white hall , 18 febr. 1632. present , the kings most excellent majesty . lord keeper . lord arch-bishop of york . lord treasurer . lord privy seal . earl marshal . lord chamberlain . e. of dorset . e. of carlisle . e. of holland . e. of denbeigh . lord chancellour of scotland . e. of morton . lord v. wimbleton . lord v. wentworth . lord v. faulkland . lord bishop of london . lord cottington . lord newburgh . mr. treasurer . mr. controller . mr. vice-chamberlain . mr. secretary coke . mr. secretary windebank . this day his majesty being present in councel , the articles and propositions following for the accommodating and setling the difference concerning prohibitions , arising between his majesties courts at westminster , and his court of admiralty , were fully debated and resolved by the board ; and were then likewise upon reading the same as well before the judges of his majesties said courts at westminster , as before the judge of his said court of admiralty , and his atturney general , agreed unto and subscribed by them all in his majesties presence , viz. 1. if suit should be commenced in the court of admiralty upon contracts made , or other things personal , done beyond the seas , or upon the sea ; no prohibition to be awarded . 2. if suit be before the admiral for fraight , or mariners wages , or for breach of charter-parties , for voyages to be made beyond the seas : 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 . but if the suit be for the penalty ; or if the question be , whether the charter-party were made or not ; or whether the plaintiff did release or otherwise discharge the same within the realm ; this is to be tryed in the kings courts at westminster , and not in his court of admiralty . 3. if suit be in the court of admiralty for building , amending , saving , or necessary victualling of a ship , against the ship it self , and not against any party by name , but such as for his interest makes himself a party ; no prohibition is to be granted , though this be done within the realm . 4. although of some causes arising upon the thames beneath the first bridge , and divers other rivers beneath the first bridge , the kings courts have cognizance ; yet the admiralty hath also jurisdiction there , in the point specially mentioned in the statute of 15 r. 2. and also by exposition and equity thereof , he may inquire of and redress all annoyances and obstructions in these rivers , that are any impediment to navigation or passage to or from the sea : and also to try personal contracts and injuries done there which concern navigation upon the sea. and no prohibition is to be granted in such cases . 5. if any be imprisoned , and upon habeas corpus brought ; if it be certified , that any of these be the cause of his imprisonment , the party shall be remanded . subscribed febr. 1632. by all the judges of both benches . an extract , by way of appendix , of the ancient lavvs of oleron . rendred into english out of garsias aliàs ferrand . together with some marginal observations thereon . london , printed in the year 1661. an extract ( by way of appendix ) of the ancient sea-laws of oleron ; rendred into english out of garsias , aliàs ferrand . the judgements of the sea , and the isle of oleron . for the regulation and government of merchants , owners of ships , part-owners , masters of ships , and common mariners in all maritime affairs . i. when a ship or other vessel , whereof a master is made , belonging to several part-owners , and departing from her own port , arrives at burdeoux , rouen , or such like place , and is there fraighted to sail for scotland , or some other forraign country ; the master in such case may not sell or dispose the said vessel without licence or a special procuration for that purpose from the said owners ; but in case he want monies for the victualling , or other necessary provisions of the said vessel , he may for that end with the advice of his mariners , hypothecate , pawn , or pledge part of the tackle or furniture of the said ship. ii. if a ship or other vessel be in a port or haven , waiting for her fraight , therewith to depart ; the master , before he depart thence , ought first to consult with his company , and say , ( sirs ) we have now an opportunity to set sail ; some of them possibly will say , the weather as yet seems not good enough , the wind being but now newly changed , and we ought to see it somewhat setled ; others of them possibly will say , the weather is good and fair : in this case the said master is to concur with the opinion of the major part of his company ; if he does otherwise , and the vessel happen to miscarry thereby , he is obliged to make good the same , according to the value upon a just appraisement . iii. if any vessel through misfortune happen to be cast away , in whatsoever place it be , the mariners are bound to use their best endevour for the saving as much of the ship and lading as possibly they can ; and if they preserve part thereof , the master is bound to allow them reasonable consideration , whereby to get home to their own country ; and in case they save so much as whereby the master may do this , then may he lawfully pledge to some honest persons such part thereof as may serve for that occasion . but if they have not endevoured to save as aforesaid , then the master is not bound to provide for them in any thing ; but rather they lose their wages when the vessel is lost . and the master may not sell the furniture of the vessel , or her lading without a procuration for that purpose from the owners and merchants ; but yet he ought , if it may be , to have the mariners in a readiness , until he knows the pleasure of the owners ; and herein he ought to doe as becomes a prudent master ; for if he does otherwise , he is obliged to satisfaction . iv. a vessel laden , departing from rochel , or some other place , happens in the course of her voyage to be rendred unfit to proceed therein , yet the mariners save as much of the lading as possibly they can ; the merchants and master are at variance , requiring to have their merchandize or the lading from the master ; they ought indeed to have them , paying fraight for so far as they made the said voyage , kenning by kenning , and course by course , if it so please the master . but if he will , he may repair his vessel , if so be she be in such case as that readily she may be repaired ; but if otherwise , and he cannot hire another vessel to finish his said voyage , then the master shall have his fraight for so far of the said voyage , and for so much of the lading as is there saved . and the fraight of the goods that are saved , ought all of it to be reckoned liver by liver , and the saved goods to pay the costs of their salvage , according as they shall happen to be . and in case it happens that the master , merchant , or mariners promised the people of the country , where such misfortune is , a third or one moity of what by their help should be saved of the ship and lading , out of the dangers they were in ; in that case the justice of that country , where such misfortune happens , ought well to consider what pains they bestowed , and what hazards they did run in the saving thereof , and to reward them accordingly , notwithstanding what promise in such distress so made them as aforesaid by such master , merchant , or mariner . v. if a vessel depart from any country laden or empty , and arrive at any port , the mariners ought not to leave the ship , or to go out of her without the masters leave or licence ; for if otherwise , and the vessel should happen to be lost , or by any misfortune be damnified , they are obliged to make satisfaction for the same . but if the vessel was in such a place , as wherein she was anchored and moared with two or three cables , they may then lawfully go out of her without the said masters licence , provided they leave behind them on ship-board such a number of the ships company , their fellow-mariners , as is sufficient to keep the decks , and the merchandize or the lading of the ship , provided also that they return again in due time and season to their said ship. for if they make unnecessary delays , or stay from the ship longer then is meet , they ought to make satisfaction , if they have wherewithal . vi. if some of the mariners , that hired themselves with the master , go out of the ship without his leave , and drink themselves drunk , or the like , whereby there happens contempt to their master , besides debates , fightings and quarrellings among themselves , whereby some happen to be wounded ; in this case the master is not obliged to get them healed , or in any thing to provide for them , but rather to discharge them of the vessel , and to turn them out of the ship , both them and their comrades . but if by the masters order and command any of the ships company be in the service of the ship , and therein happen to be wounded or otherwise hurt , in this case they ought to be healed and provided for at the costs and charges of the said ship. vii . if it so happens that sickness doth seize on any of the mariners of the ship , while he is in the service of the said ship , the master ought to set him on shore , and to let him have candle-light , and to provide him a lodging , as also to spare him one of the ship-boyes to look to him , or hire a woman to attend him ; likewise to afford him such diet as is usual in the ship , that is to say , so much as he had a ship-board in his health , and nothing more , unless it please the master to allow him more ; and if he will have better diet , the master is not bound to provide it for him , unless it be at his own costs and charges . and if the vessel be ready for her departure , she ought not to stay for the said sick party ; if he recover , he ought to have his full wages or competent hire , rebating or deducting only such charges as the master hath been at for him ; and if he dyes , his wife or next of kin ought to have it . * viii . a vessel is laden to sail for rouen , or some other place ; it happens that a storm overtakes her at sea , and so violent that she cannot escape without casting some of her lading and the merchandize over board , for lightning the said vessel , and preserving the rest of the lading , as also of the vessel it self ; in this case the master ought to say , sirs , it is fit or expedient to cast over board some part of the lading to save the vessel ; and if there be no merchant that answers his pleasure herein , or accords and approves thereof by his silence ; then the master ought to use his discretion , and to do what in him lyes , and to cast part of the lading over board ; and if this please not the merchants , but that they gain-say or contradict it , yet the master , notwithstanding this , ought not to forbear casting out so much goods as he shall see may be for the common good and safety ; he and the third part of his mariners making oath on the holy evangelist , when they arrive at their right port of discharge , that he did it only for the preservation of the vessel , and the rest of the lading that remains yet in her . and the wines ( or other goods ) that were cast over board , ought to be valued and prized according to the just value of the other goods that arrive in safety . and when these shall be sold , the price or value thereof ought to be divided liver by liver among the me●chants ; and the master ought to make the division , and to compute the damage of the vessel , or the fraight at his own choice for the recovery thereof ; and the mariners also ought to have one tun free , and another divided by cast of the dice , according as it shall happen , if he make it appear he did the part of an able sea-man . but if he make not this to appear , then he shall have nothing freely ; and the merchants in this case may lawfully put the master to his oath . ix . if it happen that by reason of much foul weather the master is like to be constrain'd to cut his masts , he ought first to call the merchants , if there be any a board the ship , and such as have goods and merchandize in the vessel ; and to say unto them , sirs , it is requisite to cut down the mast , to save the ship and lading , it being in this case no more then becomes my duty ; and oft times it comes to pass that they also cut their moaring cables , leaving behind them their cables and anchors to save the ship and her lading . all these things are reckoned and computed liver by liver , as goods are that were cast over board ; and when the vessel arrives in safety at her right port of discharge , the merchants ought to pay their shares or proportions without delay , or sell the goods and pledge the mony thereof proceeding to satisfie the same before such time as the said goods may be unladen out of the said ship. and if the vessel be such as usually is let out for hire upon fraight , and there happen controversies and debates touching the premises , if the master observes collusion therein , he ought not to depart , but is to have his compleat fraight as if his tunnage were full . x. when a master arrives in safety at the right port of his discharge with his vessel , he ought to shew his merchants the cordage , ropes , or slings , wherewith he intends to hoyse the goods over board ; and if they find that they need mending , he ought to mend the same ; for if a pipe , hogshead , or other vessel , should happen by default of such cordage , or slings , to be spoyled or lost , the master and mariners ought to make satisfaction for the same to the merchants . so also if the ropes or slings break , the master not foreshewing them to the merchants , he is obliged to make good the damage . but if the merchants say the cordage , ropes , or slings are good and sufficient , and it notwithstanding happen that they break , in that case each of them ought to divide the damage , that is to say , the merchant to whom such goods belong , and the said master with his mariners . xi . a vessel being laden with wines or other goods , hoyses sail to transport the same to brest , or some other place , but the master and mariners trim not their sails so as they might or ought to have done , and it happens that ill weather overtakes them at sea , and so as that the main yard shakes or strikes out the head of one of the pipes , or hogsheads of wine ; this vessel being in safety arrived at her port of discharge , the merchant says to the master , that by reason of his main yard his wine was lost ; the master replying , says , it was not so : in this case if the master and his mariners will make oath ( be it four or six , and such of them as the merchant hath no exception against ) that the wine perish'd not by the main yard , nor by them , or through their default , as the merchant charges them , they ought then to be acquitted thereof ; but if they refuse to make oath to the effect aforesaid , they are then obliged to make satisfaction for the same , for that they ought to have ordered their sails aright before they departed from the port where they took in their lading . xii . a master having hired his mariners , he ought to keep the peace betwixt them , and to be as their judge at sea ; so that if there be any of them that gives another the lye , whilest they have wine and bread on the table , he ought to pay four denieres ; and if the master himself give any the lye , he ought to pay eight denieres ; and if any of the mariners give the master the lye , he also ought to pay eight denieres . and if the master strike any of his mariners , he ought to bear with the first stroak , be it with the fist or open hand ; but if the master doth fiercely assault him with more stroaks , the said mariner may defend himself ; but and if the said common mariner doth first assault the master , he ought to pay five solz , or lose his hand . xiii . if a difference happen between the master of a ship , and any one of his mariners , the master ought three times to take away from him , or lift up before the said mariner the towel , ere he turn him out of the ship , or discharge him thereof ; but if the said mariner offer in the presence of the rest of the mariners to make the master satisfaction , and the master be so resolved that he will accept of no satisfaction from him , but notwithstanding such offer of satisfaction will put him out of the ship ; in such case the said mariner may betake himself to follow the said vessel to her port of discharge , and ought to have as good hire or wages as if he had come in the ship , or as if he had made satisfaction for his fault in the sight and presence of the ship-company ; and if the master take not another mariner into the ship in his stead , as able as the other , and the ship or lading happen thereby to be through any misfortune damnified , the master is obliged to make good the same , if he hath wherewithal . xiv . if a vessel lying at anchor be struck or grapled with by another vessel under sail , that is not very well steer'd , whereby the vessel at anchor is prejudiced , as also wines , or other merchandize in each of the said ships damnified ; in this case the whole damage is to be in common , and to be equally divided and appraized half by half ; and the master and mariners of the vessel that struck or grapled with the other , are bound to swear on the holy evangelist that they did it not wittingly or wilfully . and the reason why this judgement was first given , was , that an old decayed vessel might not purposely be put in the way of a better , which will the rather be prevented when they know that the damage must be divided . xv. suppose two or more vessels in a harbour where there is but little water , so as that the anchor of one of the vessels lyes dry ; the master of the other vessel ought in that case to say unto him whose anchor lyes dry ; master , take up your anchor , for it is too nigh us , and may do us a prejudice ; if neither the said master nor his mariners will take up the said anchor accordingly , then may that other master and his mariners ( who might be otherwise thereby damnified ) take up the said anchor , and let it down again at a farther distance from them ; and if the others oppose or withstand the taking up of their anchor , and there afterwards happen damage thereby , they are bound to give full satisfaction for the same ; in like manner it is , if they neglect the placing of a boy to the anchor , and damage happen thereby , they are obliged to repair the same ; and so also it is in case damage so happen in a haven at low water , for they ought to fasten such boys or anchor-marks , and such cables to theit anchors , as may plainly appear and be seen at full sea. xvi . a vessel going to seek a fraight , arrives at her place of lading in england , or elsewhere ; the master ought then to say to his company ; sirs , will you fraight by your selves , or be allowed at the fraight of the ship ? they are to answer which of the two they intend ; if they take as the fraight of the ship shall happen , they shall have proportionably as the ship hath . and if they will fraight by themselves , they ought to fraight so as that the ship be not impeded or hindred thereby . and if it so happen , that fraight may not be had , the master is blameless ; and he ought to shew them their ship-fare , which he may weigh out to each of them . and if they will there lade a tun of water in stead of so much wine , they may ; and in case there should happen at sea a casting of goods over board , the case is the same for a tun of water as in a tun of wine , or other goods , liver by liver . and if so be that merchants do fraight the said vessel for transportation of goods , what freedome and immunity the said mariner hath , the said merchant shall also have . xvii . the mariners of brittain ought to have but one meal a day from the kitchin , because they have beverage or drinkings out and home ; but those of normandy are to have two meals a day , because they have only water at the ships allowance ; only when the ship arrives at a wine-country , there the master is to procure them wine to drink . xviii . when a vessel doth discharge or unload , and the mariners demand their wages , whereof some have neither bed , chest , nor cabbin aboard , the master may lawfully retain part of their wages till they have brought back the ship to the port from whence she came , unless they give good caution to serve out the whole voyage . xix . if the master hire the mariners in that town whereunto the vessel belongs , whereof some at their own finding , others of them at his own costs and provision ; and it happen that the ship cannot procure fraight in those parts where she is now arrived , but must sail yet farther to obtain it ; in such case they that are at their own finding , ought to follow the master , and such as are at his own costs , ought to have their wages advanced kenning by kenning , and course by course , for that he hired them to one certain place . and if they go not so far as to that place for which the contract was made , yet they ought to have the whole promised hire , as if they had gone thither ; but they ought to bring back the vessel to the place from whence they took her . xx. when a vessel arrives at rouen , or any other place , two of the mariners at a time may go a shore and take with them one meal of such victuals as is in the ship , therein cut and provided , as also bread proportionably as much as they eat at once , but no drink : and they ought very speedily and in season to return to their vessel , that thereby the master may not lose the earnest or hire of the ship ; for if so , and damage come thereby , they are bound to make satisfaction ; or if any of their company be hurt for want of their help , they are to be at such charge of his recovery as one of his fellow-mariners , or the master , with those of the table shall judge or arbitrate . xxi . if a master lets his ship to fraight to a merchant , and set him a certain time within which he shall lade his vessel , that she may be ready to depart at the time appointed , and he lade it not within the time , but keep the master and mariners by the space of eight days , or a fortnight , or more , beyond the time agreed on , whereby the master loseth the opportunity of a fair wind to depart , by reason of this the merchants said default ; the said merchant in this case is obliged to make the master satisfaction for such delay , the fourth whereof is to go among the mariners , and the other three fourth parts to the master , because he finds them their expences . xxii . when a merchant fraights a vessel at his own charge , and sets her to sea , and the said vessel enter into an harbour , where she is wind-bound , that she stays so long till her monies be all spent , the master in that ease ought speedily to send home to his own country for mony ; but he ought not to lose his armogan , or desert his voyage or main design ; for if so , he is the● obliged to make good to the merchant all such damag●s as shall ensue thereby ; but yet the master may take part of the wines or other merchand-goods , and dispo●e thereof to compass his return ; and when the said vessel shall be arrived at her right port of discharge , the said wines that the master hath so disposed of , ought to be valued and appraized at the same rate as the other wines shall be commonly sold for , at no more nor less , and accordingly be accounted for to the merchant ; and the master ought to have the fraight of such wines as he hath so taken and disposed of for the use and reason aforesaid . xxiii . if a pilot undertaking the conduct of a vessel , to bring her to st. mallo , or any other port , fail of his duty therein , so as the vessel miscarry by reason of his ignorance in what he undertook , and the merchants sustain damage thereby , he is obliged to make full fatisfaction for the same , if he hath wherewithal : and if he be not able to make satisfaction , he ought to lose his head . and if in that case the master or any of the mariners , or the merchants , cut off his head , they are not bound to answer for it ; but yet before they do this , they ought to know whether he hath wherewith to make satisfaction . xxiv . a vessel being arrived at her port of discharge , and hoysed up there into dry ground , and so as the mariners deeming her to be in good safety do take down her sails , and so fit the vessel a loof and aft , the master now cught to consider an increase of their wages kenning by kenning ; and if in winding or hoysing of wines , it happens that they leave open any of the pipes , or other vessels , or that they fasten not the ropes well at the ends of the vessel , by reason whereof it slips , and falls , and so lost , or falling on another , both are damnified , or lost ; in these cases the master and mariners are bound to make them good to the merchants , and the merchants must pay the fraight of the said damnified or lost wines , because themselves are to receive for them from the master and mariners , according to the value that the rest of the wines are sold for ; and the owners of the ship ought not to suffer hereby , because the damage happened by default of the master and mariners , in not fastning the said vessels of wine . xxv . it two vessels go on a fishing design in partnership , as for mackerel , herring , rayes , or the like , and do set their nets , and lay their lines for that purpose ; the one of the vessels ought to imploy as many fishing engines as the other , and so shall go in equal shares as to the gain , according to the agreement betwixt them made . after this , if it so happen , that one of the said vessels with her fishing instruments and engines perish , the other escaping , arrive in safety ; the surviving friends of those that perished , may require of the other to have their part of the gain , as also of their fish and fishing instruments ; and they are to have it accordingly upon the oaths of those that escape ; but in or of the vessel it self , they are to have nothing . xxvi . if any ship or other vessel sailing to and f●o , and coasting the seas , as well in the way of merchandizing , as upon a fishing design , happen by some misfortune through the violence of the weather to strike her self against the rocks , whereby she becomes so bruised and broken , that there she perishes , be it on what coasts , country or dominion soever , and the master and mariners , merchant or merchants , or any one of these escape and come safe to land ; in this case the lord of that place or country , where such misfortune shall happen , ought not to let , hinder , or oppose such as have so escaped , or such , to whom the said ship , or vessel , and her lading belong , in using their utmost endevour for the preservation of as much thereof as may possibly be saved . but contrariwise , the lord of that place or country , by his own interest , and by those under his power and jurisdiction , ought to be aiding and assisting to the said distressed merchants and mariners , in saving their ship-broken-goods , and that without the least imbezilment or taking any thereof from them . nevertheless there may be a remuneration or consideration for salvage to such as took pains therein , answerable to their conditions , according to right reason , and a good conscience , and as justice shall appoint , notwithstanding what promise in that case was made to the salvers by such distressed merchants and mariners , as before is declared : and in case any shall do contrary hereunto , or take any part of the said goods from the said poor , distressed , ruin'd , undone , ship-broken persons , against their wills , and without their consent , they are excommunicated by the church , and ought to receive the punishment of thieves , without speedy restitution be made by them ; and there is no custome or statute whatever that can protect them against the said penalties . xxvii . if a ship or other vessel entring into an harbour , or elsewhere , happen by misfortune to be broken and perish , insomuch that the master , mariners , and merchants , which were on board her , are all drowned ; so that the goods thereof in part are driven a shore , the rest floating on the sea , without being sought after by those to whom they belong , they being ignorant of this sad disaster , and knowing nothing thereof ; in this case , which is very lamentable , the lord of that place or country ought to send persons to save the said goods , which he ought to secure and to put into safe custody ; and thereof ought also ( if it may be ) to give notice to the friends or next of kin to the deceased , and to satisfie for the salvage thereof , not out of his own purse , but of the goods saved , according to the hazard and pains taken therein ; and the remainder to reserve in safe custody for one year or more ; and if in that time they to whom the said goods did appertain , do not appear and claim the same , and the said year or more be fully expired , he may publickly sell and dispose thereof to such as will give most , and with the monies proceeding of the sale thereof , he is to procure prayers to be made for the * remission of the sins of the deceased , or to provide marriages for poor maids , and to do therewith such other works of piety and charity as is consonant to reason and a good conscience . but if he assume the said goods either in whole or in part unto himself , he shall incur the curse or malediction of our mother the holy church , with the foresaid pains and penalties , without ever obtaining remission , unless he make satisfaction . xxviii . if a ship or other vessel happen to be lost by striking on some rock , or elsewhere nigh the shore , and the mainers thinking to escape and save their lives , attempt to come nigh the shore or brink of the sea in hope of help , but in stead thereof it sometimes happens that in many places they meet with people more barbarous , cruel , and inhumane , then mad dogs , or ●nraged wolves , who to gain their monies , apparel , and other goods , do sometimes murder and destroy these poor distressed mariners ; in this case , the lord of that country ought to execute justice on such wretches , to punish them as well corporally as pecuniarily , and in their goods , and they are to be plunged into the sea until they be half dead , then to be drawn forth out of the sea , and stoned or knock'd down as you would do even to a dog or a wolf. xxix . if a ship or other vessel arriving at any place , and making in towards a port or harbour , set out her flag , or give other sign to have a pilot come a board , or a boat to towe her into the harbour , the wind or tide being contrary , and contract be made for piloting the said vessel into the said harbour accordingly ; but ( by reason of an unreasonable , yea , accursed and damnable custome in some places , that the third or fourth part of the ships that perish and are lost , shall accrue to the lord of the place where such sad casualties happen ; as also the like proportion to the salvers , and only the remainder to the master , merchant , and mariners ) the persons contracting for the pilotage of the said vessel , to ingratiate themselves with their landlords , and to gain to themselves part of the said ship and her lading , do like faithless villains and treacherous persons sometimes even wittingly , willingly , and out of design to ruine ship and goods , guide and bring her upon the rocks ; and then feigning to aid , help , and assist the now distressed mariners , themselves are the first in dismembring and pulling the ship to pieces ; then purloyning and carrying away the lading thereof contrary to all reason and a good conscience ; and that they may be the more welcome to their landlord , do with all speed post to his house with the sad narrative of this unhappy disaster ; whereupon the said landlord with his retinue appearing at the place takes his share , the salvers theirs ; and what remains the merchants and mariners may have . but seeing this is contrary to the law of god , the edict and judgement is , that ( notwithstanding any law or custome to the contrary ) the said lord of that place , salvers , and all others ●hat take away or embezil any of the said goods , shall be accursed , excommunicated , and punished as robbers and thieves , as fotmerly hath been declared . xxx . touching such false and treacherous pilots , the judgement is , that they ought to suffer a most rigorous and unmerciful death ; for there ought to be very high gibbets erected for them in the very same place , or as nigh as conveniently may be , where they so guided and brought the said ship or vessel to ruine as aforesaid , and thereon these accur-pilots are with ignominy and most shamefully to end their days ; which said gibbets are to be made substantially strong , to the intent that they may abide and remain to succeeding ages on that place , as a visible caution to other ships that shall afterwards sail thereby . xxxi . if the said lord of that place were so feloniously inclined , and so barbarous withal , as not only to permit such inhumane people , but also to maintain and abet them in such villanies , that he may participate of the spoil , and have a share in such wrecks ; in such case the said lord of that place ought to be apprehended , all his goods confiscate , and sold to be converted into pious uses , and for restitution and satisfaction to such as of right it appertaineth ; and himself to be fastned to a poste or stake in the midst of his own mansion house , which being fired on the four corners or quarters thereof , all are to be burnt together ; which done , the walls thereof are to be demolish'd , the stones thereof pull'd down , turn'd to rubbish , and then to be converted to a market place , for the sale only of hogs and swine to all posterity . xxxii . if by reason of tempestuous weather it be thought expedient , for the lightning of any ship or vessel at sea , or riding at anchor in any road , to cast part of the lading over board , and it be so done accordingly for the preservation of themselves ; know , taht the said goods so ejected and cast over board do become his that can first possess himself thereof , and carry them away ; nevertheless , it is here to be farther known and understood , that this holds true only in such case , as when the master , merchant , and mariners have so ejected or cast out the said goods , as that withall they quit all hope or desire of ever recovering them again , and so leave them as derelict , or as things utterly lost and forsaken , without ever making any inquiry or pursuit after them ; in which case only , the first occupant becomes the lawful proprietor thereof . xxxiii . if a ship or other vessel hath cast over board several goods or merchandize , which are in chests well lock'd and made fast ; or books so well secured , and so well conditioned , that they may not be damnified by salt-water ; in such cases it is to be presumed , that they who did cast such goods over board , do still retain an intention , hope , and desire of recovering the same ; for which reason such as shall happen to find such things , are obliged to make restitution thereof to him who shall make a due inquiry or pursuit after them ; or at least to imploy them in charitable uses according to a good conscience . xxxiv . if any man happen to find any thing in the sea , or sea-sand , or on the shore , ( be it precious stones , fishes , or the like , which never belonged to any man in point of property ) it becomes his own ; for such things belong to the first finder , who carries it away . xxxv . touching great fishes that are taken or found dead on the sea-shore , regard must be had to the custome of that country where such great fishes are taken or found ; for by the custome the soveraign prince of that country ought to have his share , his demand or pleasure therein . and good reason , for the subject owes obedience and tribute to his soveraign . xxxvi . in some cases also the lord of the place where some fishes are found may have his share , respect being always had to the laudable custome of the country where such fishes are found ; and he that there finds them is no farther obliged then to save them by bringing them without the reach of the sea , and then forthwith to make it known to the said lord of the place , that so such care may be taken therein as appertaineth to justice . xxxvii . if the lord of the place please , and it be the custome of that country where the said fish was found , he may cause the same to be brought to him that found it , or to the publick and open market-place , but to no other place ; and there the said fish ought to be inventaried and appraised by the said lord according to the custome . and the price being set , the other party that made not the price , shall have his choice or election either to take or leave at that price ; and if either of them whether per fas , or nefas be an occasion of loss or damage to the other , though but to the value of a deniere , he is obliged to make him restitution . xxxviii . if the costs and charges of carrying the said fish to the said market-place , may probably amount to a greater summe then the fish it self may be worth , then the said lord is bound to take his share at the place where such fish was found . xxxix . also the said lord ought to submit to the foresaid costs and charges , for that he ought not by anothers damage to inrich himself ; otherwise he sins . xl. if by some chance or misfortune the said fish happen to be lost , or otherwise stoln away from the place where it was first found , and this about the time of the said lords going to see it , or before ; in this case he that first found it is not any way obliged to make it good . xli . in all other things found by the sea-side , which have formerly been in the possession of some or other , as wines , oyls , and other merchandize , although they have been cast over board , and left by the merchants , and so ought to appertain to him that first finds the same ; yet herein also the custome of the country is to be observed as formerly in the case of fish . but in case there be a presumption that these were the goods of some ship that perished , then neither the said lord , nor finder thereof , ought to take any thing thereof so as to convert it to their own use ; but they ought to doe th●rewith as before hath been said , that is , to cause therewith that prayers be made for the deceased , as also other special good works ; or otherwise they shall incur the forementioned maledictions . xlii . if any ship or other vessel at sea happen to find a fish , it is wholly theirs that found it , in case no due pursuit be made after it ; and no lord of any place ought either to challenge it or demand any part thereof , although they bring it to his ground . xliii . if any seek for gold or silver on the sea-shore , and findeth some ; he ought to restore it all , without any diminution thereof . xliv . if any going along the sea-shore to fish , or otherwise , happen to find gold , or silver , or the like , he is bound to make restitution thereof , deducting for his own pains ; otherwise if he be poor , he may retain it to himself , that is , if he know not to whom to restore it ; yet he ought to give notice of such his sinding the same , to the neighbourhood and parts next adjacent to the place where he found it . moreover he ought to advise with his prelate , curate , or confessor , who ought to weigh and take into consideration the indigency and poverty of the finder , and the quantity of the silver , and then to give him such advice as is consonant to a good conscience . xlv . if a vessel by stress of weather be constrained to cut her towes and cables by the end , and so to quit and leave behind her both cables and anchors , and make to sea as please the wind and weather ; in this case the said cables and anchors ought not to be as lost to the said vessel , if there were any boy at them ; and such as fish for them are bound to restore them , if they know to whom : but withal they ought to be paid for their pains , according as justice shall determine . but because sometimes they know not to whom to restore them , the lords of the place have their shares , and the finders theirs , and they neither cause pater noster to be said , nor avie maria , as they ought . and therefore it hath been ordained , that every master of a ship cause to be ingraven , or set upon the boyes thereof , his own name , or the name of his ship , or of the port or haven whereof she is ; which will prevent great inconveniencies ; for it sometimes happens , that he that left his anchor in the morning , hath recovered it again by night ; and such as detain it from him , are no better then thieves and pirates . xlvi . if any ship , or other vessel by any casualty or misfortune happen to be wreck'd and perish ; in that case the pieces of the bulk of the vessel as well as the lading thereof ought to be reserved and kept in safety for them to whom it belonged , before such disaster happened , notwithstanding any custome to the contrary . and all takers , partakers , abettors , consenters , or contrivers in the said wreck , if they be bishops , prelates , or clerks , they ought to be deposed and deprived of their benefices respectively ; and if they be lay-men , they are to incur the penalties aforesaid . xlvii . which is to be so understood , when the said ship or vessel so wreck'd did not exercise the thievish mystery of robbing and free booting , and when the mariners thereof are not pirates , sea-rovers , or enemies to our holy catholick faith. but in case they be pirates , robbers , sea-rovers , turks , or other enemies to our said catholick faith , every man may then deal with such as with meer brutes , and despoil them of their goods without any punishment for so doing . a series or catalogue ( according to sir spelman's computation ) of such as have been dignified with the office of lord high admiral in this kingdome , since king john's time to to the reign of king charles the first of blessed memory . wherein no mention is made of marthusius , that princeps nautarum , in k. edgars time ; nor of those other tetrarchs of his navy , who for the guard of the ●rittish seas had no less then a thousand sail of ships under their command ; nor of those other commanders in chief touching the sea-affairs , who have been , beside the common and usual mode , constituted by his successors , kings of england ; but of such only , as in the ordinary way have been dignified with the said office and marine authority in this kingdome , viz. 8 h. 3. richard de lucy is said to have maritimam angliae . 48 h. 3. thomas de moleton was constituted capitaneus & custos maris & portuum maritimorum . 25 ed. 1. william de leiburne is styled at the assembly at bruges , 8 martii , 15 ed. 1. 1286. admirallus maris angliae . 22 ed. 1. john de botetort , admiral of the north , for the coast of yarmouth , and that station . william de leibourn , admiral of the south , for por●●●outh , and that station . a certain irish knight , admiral of the west , and the parts thereof . admirals of the north , viz. admirals of the west , viz.   from the mouth of the river of thames north-ward . from the mouth of the river of thames west-ward .   34 ed. 1. edward charles . gervase allard .   8 ed. 2. john botetort . william cranis .     10 ed. 2. nichalds cryoll .   10 ed. 2. john perbrun , aliàs perburn . robert leiburn , knight .     12 ed. 2. john athey .   15 ed. 2. john perburn . robert de leiburn , knight , admiral of the western ports of england , wales , and ireland .   16 ed. 2. john perburn . robert battail , aliàs batall , one of the barons of the cinque-ports .   18 ed. 2. john sturmy . robert bendon .   19 ed. 2. john otervin . nicholas keriel . walsingh . calls these the three admirals of the three coasts of england , viz. of yarmouth , portsmouth , and the west . and here note , that the south coast is comprehended in the west .   john de felton .   19 ed. 2. john de stormy . nicholas criell .   20 ed. 2. john sturmy . nicholas criell .   20 ed. 2. john layborne .     1 ed. 3. john perbrun . wares . de valoniis .   7 ed. 3. william de clinton .     8 ed. 3. john de norwico . roger de hegham , aliàs higham .   10 ed. 3. thomas ughtred .     10 ed. 3. john de norwico . walter de say , baronet .   10 ed. 3. robert ufford , & william de manton .   john de roos . admiralli flotae .   11 ed. 3. walter de manney . barthol . de burghershe , k t.   12 ed. 3. thomas de draiton . this thomas elsewhere appears not as admiral , but only as vice-admiral to walter de manney : so possibly in some others there may be some errors also . peter dardus , aliàs bard.   13 ed. 3. ro●ert morley , robert trussell . bar. de hengham .     14 ed. 3. richaard , fil. alani , com. arundeliae .     15 ed. 3. robert de morley . william clinton , com. huntingd .   16 ed. 3. william trussel . robert beaupell .   17 ed. 3. william trussell . john de monte gomerico .   18 ed. 3. robert uffer . com. suffolk . reignald de cobham .   19 ed. 3. richard , fil. alani , com. arundeliae .     20 ed. 3. robert de ufford , comes suff. richard , fil. alani , com. arundeliae .   21 ed. 3. john de howard , knight . john de monte gomerico , knight .   22 ed. 3. walter de manny , bar. s. salvato . reignald de cobham , knight .   24 ed. 3. robert de causton . john de bello campo , knight of the noble order of the garter .   25 ed. 3. robert de morley .     25 ed. 3. william de bohun . com. northampt. henry d. of lancaster .   26 ed. 3. william de bohun . com. northampt. tho. de bello campo , senior , com. warwicen .   29 ed. 3. rob. de morley , bar. de hengham . john de bello campo , brother to the said thomas .   30 ed. 3. robert de morley . guido de brian , knight .   31 ed. 3. guide de brian .     33 , 34 ed. 3. robert de morley . guido de brian .   34 ed. 3. john de bello campo aforesaid , was constituted high admiral as well of the north as of the west of england , 18 julii , 34 ed. 3. at which time he was also lord warden of the cinque-ports , constable of the tower of london , and of the castle of dover ; and dyed decemb. 2. the same year in possession thereof .   35 ed. 3. robert herle , knight . admirallus omnium flotarum utriusque partis .   38 ed. 3. ralph spigornell . admirallus utriusque partis .   43 ed. 3. nicholas tamworth , knight . robert aston , knight .   44 ed. 3. john nevill , kt. bar. de raby . guido brian .   45 ed. 3. ralph de ferrariis . robert aston , knight .   46 , 47 , 48 ed. 3. w. de nevill . phillip courtney .   50 ed. 3. william de ufford , william de monteacuto . com. suff.   50 , 51 ed. 3. mich. de la poole , knight , dn. de wingfield . brother of rob. de hales , prior of the hospitall of s. jo. of hierusalem .   1 r. 2. thomas de bello campo , jun. com. war. richard , fil. alani . com. arundel .   2 r. 2. thomas percy , frat. com. northumb. hugh calveley , knight .   3 , 4 r. 2. william de elmham , knight . phillip courtney , knight .   5 r. 2. william de elmham . john roches , knight .   6 r. 2. walter , fil. walt. knight , dn. de woodham . john roches , aliàs de rupibus , knight .   7 r. 2. henry percey , com. northumb. edward courtney , com. devon .   8 r. 2. tho. percey , frat. hen. com. northumb. jo. radington , prior of saint john of hierusalem .   9 r. 2. phillip darcy , k t. thomas trivet , knight .   10 r. 2. richard , fil. alani , com. arundel , admirallus angliae .   12 r. 2. jo. de bello monte , bar. de folkingham . jo. holland , com. huntington .   12 r. 2. jo. de rupibus , kt.     13 r. 2. jo. de bello monte , praedict . jo. holland , com. praedict .   14 r. 2. edward com. rutland . jo. holland , com. praedict .   15 r. 2. edward , com. rutland , & cor●●giae , afterwards d. of albemarle . constituted high admiral as well of north as western parts .   21 r. 2. john beaufort , marq. dorset , & com. somerset . fil. jo. de gandavo , d. of lancaster , admiral 〈◊〉 north and west .   ●● r. 2. thomas percey , com. winchester , frat. hen. com. northumb. he was then constituted admiral of both parts .   2 h. 4. rich. gray , bar. de codenore . thomas reniston , knight .   5 h. 4. tho. beaufort , frat. praed . marq. dors . tho. dom. berkley , knight .   7 h. 4. nicholas blackburn , esquire . richard cliderhow , esquire .   admirals of england , &c. 6 h. 4. tho. lancastrius , reg. h. 4. fil. vice-roy of ireland , high steward of england ; afterward d. of clarence . admirallus utriusque partis . 8 h. 4. john beauford , praedict . com. somerset . admirallus angliae . 8 h. 4. edmund holland , earl of kent . admirallus angliae . 9 h. 4. thomas beuford , praed . adm. angliae . 4 h. 6. john lancastrius , d. of bedford , e. of richmond and candale , high constable of engl. fil. reg. h. 4. admirallus angliae . 14 h. 6. joh. holland , d. of exon. e. of huntington . constituted ( together with his son ) admirals of england , ireland , and aquitain , for life . 25 h. 6. will. de la poole . mar. & e. of suffolk , made admiral of england , ireland , and aquitain , during the minority of hen. d. of exon ; who with his father had that office by the kings ●rant , ad terminum vitae eorum , &c. 28 h. 6. hen. holland , d. of exon. adm. angliae , hiberniae & aquitaniae . 1 ed. 4. rich. nevil , comes warwic . & sarisb . admirall of england , ireland & aquit . 2 ed. 4. will. nevil , e. of kent , & bar. falconberg . adm. of engl. ireland , & aquit . ed. 4. richard d. of gloucester , brother to the king ; adm. of engl. irel. & aquit . 49 h. 6. rich. nevil , e. of warwic . & sarisb . capt. of the town and castle of calice . constable of the castle of dover , & custos 5. portuum . adm. ut supra . 11 ed. richard d. of gloucester , praedict . constituted admiral , ut supra . 1 r. 3. john howard , d. of norfolk . adm. of engl. ireland & aquit . 1 h. 7. jo. de veer , e. of oxford , high chamberlain of england , &c. adm. ut supra . 4 h. 8. edw. howard , knight , fil. tho. e. of sur. afterwards d. of norf. adm. ut supra . 5 h. 8. tho. howard , eld . brother of the said edw. e. of sur. afterwards d. of norf. adm. ut supra . 17 h. 8. henr. fil. nothus , reg. h. 8. d. of richm. & somers . e. of nottingh . adm. ut supra . 28 h. 8. will. fitz william , e. of southampt . adm. ut supra . 32 h. 8. john russel , knight , dom. russel . admirall , ut supra . 34 h. 8. john dudley , knight , vicecom . insulae , & bar. de malpas , &c. adm. ut supra . 1 ed. 6. tho. de s. mauro ( vulg. seimor ) knight , dom. de s. mauro de sudley , brother to edw. d. of somers . adm. angl. hib. walliae , cales . bologniae , &c. 3 ed. 6. john dudley , e. warwic . vicecom . lisley , &c. magnus admirallus angl. hib. wall. cales . bologn . & marchiarum earundem , normanniae , gasconiae , & aquitaniae ; also praefect . gen. classis & marium regis , &c. 4 ed. 6. edw. clinton , knight , bar. clinton , & saius . admiral , ut supra . 1 mar. will. howard , knight , bar. effingham . adm. ut supra . 3 mar. edw. clinton , knight , bar. clinton & saius . adm. ut supra . 27 eliz. charles lord howard , knight of the noble order of the garter , baro de effingham , e. of nottingh . magn. adm. angl. hiber . ac dominiorum & insularum earundem villae calesiae & marchiarum ejusdem , normandiae , gasconiae , & aquitaniae ; also , praefect . gen. class . & marium dict . regnorum . 16 jac. georgius , marchio & com. buckingh . vicecom . villers , baro de whaddon , deinde d. buckingh . knight of the noble order of the garter , &c. constituted magn. adm. ut supra . non est dubium ( uti spelman ) quin perplures procerum istorum , equites fuerint periscelidis sive garterii ; sed cum id sibi non prompte innotuerit , aliis reliquit disquirendum . an alphabetical table of the principal things contained in this treatise . admiral ; it 's etym●n or original , with the various appellations thereof . page 1. to 7 the antiquity thereof in forraign parts . 7. to 21 the antiquity thereof in england . 22. to 37 who the first admiral in france . 21 twelve admirals slain at once at the siege of antioch . 17 aegina , where scituate ; supposed by some to have first invented the art of navigation . 12 aegean sea , why so called . 8 africa , by whom first peopled . 8 agreement national , between england and france , acknowledging the soveraigntie of the seas to be in the king of great brittain . 28 , 29 anchors ; h●w to be laid in harbours where but little water . 175 , 176 alcibiades , admiral to the athenians . 15 antonius pius , his memorable answer to eudemon's complaint touching shipwrack . pag. 10 arragon , famous for maritime constitutions . 13 arrogatio , what it is , and how it differs from adoptio . 62 aruad , the inhabitants thereof able marinors . 11 asia , by whom originally peopled . 8 athenians , their two chief maritime magistrates . 15 made tributaries by the sea-fights of minos . 8 averidge , what the law is therein . 170 aureus , how much in value among the ancients . 67 b. barcelonians , famous for sea-laws . 13 baxter case against hopes . 116 beast with ten horns , what meant thereby . 12 , 13 bridgmans case . 99 brights case against couper . 95 brittains , of old famous for navigation ; and how they anciently restrained all strangers , merchants excepted , from approaching the brittish coasts . 27 boyes to the anchors , to have the name of the ship or skipper engraven thereon . 195 c. candie , formerly called the isle of crete . pag. 8 canon-law , what ; the original thereof . 55 carbonianum edictum ; why so called ; the true meaning thereof in the law. 64 caria , where scituate ; the inhabitants thereof anciently reputed lords of the sea. 11 , 12 carpathean sea , where scituate . 9 carthage ; when and how demolished . 12 carthaginians ; the art of navigation anciently ascribed to them . ibid. casting goods over board ; to be done at the skippers discretion . 169 case of baxter against hopes , in brownl . rep. 2. part . 116 case of bridgman , in hob. reports . 99 case of bright against couper . 95 case of admiral court , in brownl . reports , part . 2. 107 case of don diego serviento de acuna , against jolliffe and tucker , in hob. rep. 10 , 11 case of sir hen. constable , in coke's reports . 153 case of the french man , against the vendee of a ship . trin. 17. car. in bro. reports . 97 case of goodwyn against tompkins , in noy's rep. 139 case of dr. james , in hob. rep. 123 case of jennings against audley , in br. reports , part . 2. 116 case of sir julius caesar , in leonard's rep. 95 case of leigh against burley , in owen's rep. 135 case of mariners against jones , in whinch . rep. 133 case of the merchants , mich. 8. jac. in br. rep. part . 2. 117 case of oyles against marshal , in the mod. rep. 124 case of palmer against pope , in hob. rep. 94 , 111 , 135 case of record against jobson , in noy's rep. 125 case of susans against turner , in noy's rep. 91 , 115 case of weston , in brownl . rep. 96 cases of admiral jurisdiction resolved . cro. rep. 156 , to 160 cestertius , how much in value . 67 chanaan ; so called by the hebrews ; by the greeks , phaenicia . 11 charondas , law-giver to the thurians . 53 charter-parties , properly cognizable in the admiralty . 129 , to 140 civil law , properly so called , what ; and when first introduced . 54 colossus , one of the worlds seven wonders , where scituate . 9 concurrency of jurisdictions . 33 constantinople , famous of old for sea-laws . 13 corynth ; anciently reputed lord of the sea , and by some supposed to have invented the art of navigation . 12 cyclades isles ; where scituate . ibid. cymon , another admiral of the athenians . 15 clergy , anciently to be advised with in case of treasure-trove . 194 collision of one ship against another , and damage thereby ; the law in that case . 174 , 175 custome in sea-matters , to be observed . 190 , 191 , 192 cutting of masts and cables in a storm ; what the law is in that case . 170 d. damage , happening to goods at sea ; what the law is in that case . 172 debate or difference between the skipper , and his mariners ; the law in that case . 174 decearchus , his memorable sea-commission . 15 , 16 demourage , when to be paid by the merchant . 179 demosthenes , another admiral of the athenians . 15 deportatio , what ; and how it differs from relegatio . 58 , 59 derelicts ; in what case goods may properly be said to be derelict . 189 daedalus ; what his wings were made of . 8 , 9 dominion of the sea , the right and antiquity thereof in the kings of great brittain . 24 , to 30 , & 38 , 49 dominion of the sea in general ; the original thereof . 7 don diego serviento de acuna , his case against jolliff and tucker . 110 , 111 draco , law-giver to the athenians . 53 drungarius & drungarius magnus , the admirals style in the eastern empire ; whence so called . 16 e. edgar ; his marine style and title in all his charters . 27 egyptians , the strange way of their navigation . 12 emancipation , what ; and how it differs fr●m manumission . 65 erythraeum mare , where that is ; and why so called . 12 etheldred , his incomparable navy for the guard of the brittish seas .. 27 europe , by whom first peopled . 8 execution , or the coercive power the life of the law , and a right of the jurisdiction of the admiralty . 32 extra regnum , or things done out of the kingdome , where or in what place tryable . 98 , to 118 f. fishes royal , to whom they belong . page 190 fictions legal , what they are ; the several kinds thereof ; two capital instances of such in the law ; and how the practice of fictions may be said to be prejudicial to the admiralty . 82 , to 91 fierro , where scituate ; the strange tree that grows on that island . 36 fraight , how to be apportioned when the voyage is imperfect . 166 france , when first an admiral there . 20 , 21 g. genuises , famous for their maritime laws . 13 gold , silver , precious stones , and the like , found in , on , or nigh the sea , in what cases may be kept by the finder , and in what cases not . 190 , 192 , 194 goods found , that belonged to shipping , how they were to be disposed of in ancient times . 192 , 193 goods cast over board to lighten the ship , no derclict . 188 , 189 graecians , by whom they were first civilized . 10 , 11 h. hannibal , high admiral of the carthaginians . 12 hanno & hamilco , famous for their naval discoveries . ibid. hercules pillars ; why the motto of non ultra engraven thereon . 9 i. iennings case against audley . 116 imperium , what ; the several degrees thereof in the law. 57 , to 65 impleaders of marine causes in a wrong jurisdiction punishable by the admiralty . 31 , 32 interdictum at the civil law , how it differs from prohibitio at the common law. 71 joh. rex ; his ordinance made at hastings touching the soveraignty of the kings of england in the brittish seas . 30 ionean sea ; where , and why so called . 11 jurisdiction ; the etymon of the word , with the several kinds and degrees thereof in law. 56 , to 69 jurisdiction of the admiralty of england , the great antiquity thereof . 22 , to 36 jus gentium , the original thereof . 53 jus humanum & civile , what ; and how introduced . 54 just ; the divers acceptations of that word in law , as in reference to fictions . 83 l. lading , or ships lading , in part disposed to supply the ships occasions ; the law in that cas● . pag. 179 , 180 law , the true definition thereof . 51 the law of nature ; of nations ; the civil law ; the law sacerdotal , and canon . 52 , to 55 law of the sea , or law admiral , the great antiquity thereof . laws imperial , their use and exeellency above other laws in most kingdomes . 51 , 52 laws of the heathens , fathered on their heathenish idols . 53 leigh's case against burley . 135 lycurgus , legislator to the lacedemonians . 53 lye ; the lye given to or by either the skipper or mariners ; the ancient penalty in that case . 173 m. mahomet , law-giver to the arabians . 53 manumission , what ; and how it differs from emancipation . 65 marcelleis , famous for marine constitutions . 13 mariner's case against jones . 133 mariners , their duty in case of disaster to the vessel . 102 not to desert the ship till the voyage be ended . 165 not to go out of the ship without the skippers leave . 167 in what case they may . 178 if hurt or wounded , in what case not to be healed at the ships charge . 167 , 168 messine , where scituate ; the people thereof famous for their sea-laws . 13 minos , he gave laws to the cretians . 53 minotauri fabula , why so called . 8 murderers of ship-broken men , their strange and cruel punishment . 185 n. names of ships and skippers to be engraven on the buoyes of the anchors . 195 navigation , the antiquity thereof ; to whom originally ascribed . 7 , to 12 nearchus , admiral to alex. the great . 15 neptune , why feigned to be god of the sea. 14 niceas , another admiral to the athenians . 15 noah , how long since he arrived at ararat . 7 north-starre , its use in navigation , by whom first invented . 10 numa , law-giver to the romans . 53 o. oleron , where scituate ; most famous for their sea-laws and maritime constitutions ; when and by whom first published . pag. 13 , 14 onesicratus , admiral to the assyrians . 15 p. patroclus , admiral to the syrians . 15 palmer's case against pope . 94 , 111 , 135 partnership in a fishing design , the law in that case . 182 paeni , or carthaginians , originally phoeni or phoenicians . 12 phoenicia , where scituate ; the people thereof supposed to be the first mariners , merchants , and astronomers ; as also the first inventors of arithmetick , and the art of navigation . 10 , 11 pilots ; the punishment of an unskilful pilot in case of damage thereby . 180 the punishment of treacherous pilots . 186 , 187 the strange punishment of their abettors . 188 pirates , their punishment . 122 , 196 who supposed to be the first that purged the seas of such vermin . 8 pisa , the inhabitants thereof famous for their maritime laws . 13 poles , who first descryed the two poles . 11 pericles , another admiral of the athenians . 15 pontus , the reason why the sea is so called . 9 port and port-town , how they differ . 112 , 113 prohibition , what ; the original thereof ; with its several kinds , causes and effects in law. 72 , to 81 properties created at sea , & super altum mare , whether cognizable in the admiralty . 31 r. red sea , who there first invented ships and sailed thereon ; and why called erithraeum mare . 12 relegatio , what ; how it differs from deportatio . 58 , 59 re●●er crimbald , the french admiral , his 〈◊〉 and illegal attempts on the brittish seas , in derogation of the soveraignty of england . 28 , 29 rhodes , where scituate ; their precedency to all other nations in marine constitutions . 9 rhodian law generally referred to by the emperours in decision of maritime controversies . 10 , 19 , 20 richard the first , the first that published the sea-laws of oleron , and when . 14 ridley's opinion touching . prohibitions . 78 , 79 roman admirals . 18 , 19 s. sales of ship or lading , or any part of either , made by skippers or mariners without special procuration , in what cases good , or not good in law. 164 , 165 , 179 , 180 salvage , how to be paid and satisfied . 166 , 183 sarazen admirals . 16 , 17 seleucidae over the syrian monarchy , why so called . 13 ship forced from her cables and anchors , the law in that case . 194 , 195 not to stay for a sick mariner . 168 when broken , the mariners not to be hindred from saving the goods 182 , 183 in king edgar's time 400 sail for the guard of the brittish seas . 27 sick mariners how to be provided for . 168 and what wages such may challenge . 169 skipper's duty before he leaves a port. 164 how to finish his voyage , in case of some disaster to his own ship . 166 slings for hoysing of goods . 171 , 172 if damage happen thereby , who must make it good . 181 solon , legislator to the athenians . 53 soveraignty of the brittish seas publickly acknowledged by the agents and procurators of no less then ten neighbour-nations , kingdomes and states at once , to be de jure in the monarch of great brittain . 28 striking a ship-board , whether by the skipper or mariners ; the law in that case . 173 statutes , 13 r. 2. cap. 5. & 15 r. 2. cap. 3. & 2 h. 4. cap. 11. & 27 el. cap. 11. touching the jurisdiction of the admialty . 141 , to 154 super altum mare , properly within the jurisdiction of the admiralty . 91 , to 98 supplicatio , what it imports in law. 63 surmizes , suppositions , or suggestions of places beyond sea , to be locally as within the body of some county within the realm ; variety of opinions touching the same in the common law-books . 80 susans case against turner . 91 , 115 , 130 sydonians , famous and able mariners . 11 , 16 t. tackle , ship-tackle , pawned , pledged , or hypothecated for the ships use in case of necessity , good . 164 taurus , high admiral to minos , king of crete . 8 theft committed at wrecks , the penalty thereof . 183 , 187 tortura , the different respects and acceptations thereof in construction of law. 68 treasure trove , the old law in that case . 193 trismegister , legislator of the egyptians . 53 tyrus , the maritime metropolis of phoenicia ; the costly materials of her navy ; her prosperity and misery . 11 tyrians , famous and able mariners . 11 , 16 v. venetians , famous for their sea-laws , and maritime ordinances . 13 w. vvages of mariners to be paid according to contract . 178 if deceased in the voyage , to whom payable . 169 weston's case . 96 wounded mariners , the law in that case . 168 wreck ; the ancient provisional laws of oleron in that case . 184. 194 , 195 z. zoroaster , the bractians and persians law-giver . 53 finis . notes, typically marginal, from the original text notes for div a42930-e210 de benefic . 12. angel. in rub. d. de jurisdic . om . judic . notes for div a42930-e1590 terent. in prolog . enuchi . a senec. lib. de morib . b l. 1. l. est receptum . ff . de jurisd . om . jud. & l. privatorum . cod. de jurisd . c natta . cons . 639. nu . 2. & 99. & joach . steph. de jurisd . c. 1. nu . 19. d bald. cons . 333. lib. 1. e car. tap. in ff . de const . prin. cap. 4. nu . 14. & marant . distinct . nu . 3. f l. 6. cod. de jurisdict . g l. ult . cod. ibid. h l. 11. cum seq . de jurisd . i alex. tot . tit . de offic. juridic . l. penult . ff . de pet●t . haeredit . & l. 1. cod. ubi de crim ●gi . oport . l l. 3. ubi coeptum . ff . de judic . m gail . l. 1. obs . 29. nu . 3. & obs . 42. nu . 3. n l. tune autem . 37. ff . de re judic . o l. nemo . cod. de jurisd . om . jud. p l. unic . cod. de nund . & alceat , in l. mercis 66. & l. mercis 207. de verb. signif . q accurs . & alii in l. 1. §. mercis . st . de trib. r bart. in rub. cod. de navic . s c. ejiciens 88. dist . t c. in civitate . &c. consuluit . extra . de usu . u paul. de castr . in l. in eum . ff . de instit . w l. moventium , ff . de verb. sign . x c. significavit . extra . de judaeis , ubi abbas . y decii confil . 40. nu . 3. & consil . 496 nu . 9. z ] bald. in auth. dos data . cod. de donat. ant . nupt. a §. commodum . instit . de interdict . b l. intra . §. vendentibus . ff . de minor . c bald. in l. 1. cod. ut nemin . liceat sine jud. autoritat . the skipper or master is a mariner , though no common mariner . d l. cum in debito . ff . de probat . * l. ● . cod. de navib . non excusand . e l. praetor ●it , in prin . ff . de injur . f l. non omne , ff . de stat. libe . & l. is , ff . de act. & oblig . g l. consensu . cod. de r● h l. 1. §. igitur , ff . de exerc . i aret. post joan. fab. in §. item exercitor , nu . 3. instit . de oblig . quae ex quasi delict . k bart. & paul. in l. haec distinctio . §. cum fundum , ff . locat . l l. non inter , ff . de usu & habi . m l. inter stipulantem , in §. sacram. ff . de ver. oblig . & in l. quod in §. fin . ff . de leg. & in l. qui res , §. aream , ff . de solut. & in l. quid tamen , in §. in navis . ff . quib. mod . usufr . ami● . n l. mutius , ff . de rei vendic . o ff . lib. 6. tit . 1. leg. 61. p l. si ex meis , ff . de acq . rer . dom . & l. si convenerit , §. si quis sic , ff . de pign . act . q l. fin . ff . de fund . instruct . & l. scapham , ff . de evict . & l. marcellus , in §. armamenta , ff . de rei vendicat . r bald. in l. cum proponus . cod. de nautic . soenore . nu . 6. s l. 1. ff . si quo ad . pau . fe . di . t jas . in consil . 170. nomine magnifici , &c. vol. 2. u bald. paul. & sal. in l. autem navigiae . cod. de furt . w bal. in l. furt . cod. de furt . x l. in delictis . §. si extraneus . ff . de noxa . & angel . in l. sive manifestus , in §. tam diu , ff . de com. fur . y l. mulier . ff . de captiv . z l. fin . §. si propter necessitatem . ff . de public . & l. caesar . ff . de public . wearing apparel and victuals for the ships use , pays no fraight . ff . naut . caupo . stab . &c. l. 1. §. quamcunque rem . a l. si quis . cod. de instit . & substit . b arg. l. seio . ff . de annuis legatis . & l. illis libertis . in fin . ff de condit . & demon . ar● . 7. c l. qui operas . & l. si aedes . §. cum quidam . & §. fin . ff . locati . d l. sed & addes . in §. si quis mulierem . ff . locat . e paul. in l. si uno . in §. cum quidam . & §. ubicunque ff . locat . & sign . de homod . consil . 195. nu . 6. f l. penult . §. novem . ff . locat . g bald. in l. certi juris . in 4. q. in verb. quid ergo . cod. locat . h l. qui romae . §. callimachus . ff . de verb. obl. i ang. alex. & jason in dict . §. callimachus . k l. relegati . st . de poenis . & l. ult . ff . de sep. viol. l l. 2. §. si quis in mari . ff . ne quid in loc . publ . & §. & quidem . inst . de rerum . divi . & l. uni . ff . ut in flum . pub . navigate licear . m angel. consil . 290. & veronensis . n bellissime . seld. de mar. claus . o ff . ad leg. rhod. de jactu . l. 2. §. si navis à piratis . p dict. §. si navis à piratis . & ibid. juan . de heuia lib. 3. p. 2. cur. philae . naufragio . 13. nu . 18. q leg. wisbicens . art . 20 , 21 , 38 , 39. r ff . ad leg. rhod. l. 2. §. si con●c●vatis . the persons of m●n , wearing appa el , and the ships provisions are exempt from contribution . some are of opinion that the goods saved are to be valued as they may be sold for , but the goods lost as they were bought . goods cast overboard to lighten the ship makes no der●lict , §. ult . inst . de rer. divis . & l. 9. §. ult . de acqrer . dom . s ff . ibid. l. navis . §. cum autem . t lusi sernus . 27. §. & si. 23. ad leg. aquil. v l. navis . ff . ad. leg. rhod. de jactu . demosthen . in orat . in aristogit . w grot. de jur . bel. lib. 3. cap. 2. nu . 2. x ne alius pro alterius debito & paena teneatur . auth. & omnino , ne uxor marito c. l. providendum . de decurio . li● . 19. c. titu . ne fil . pro patre . auth. imo . c. de acti . cum similib . y c. si sententiae . c. 16. de sent. excom . in 6. constir . z l. qui restituere . de rei vindicat . hom. iliad . 2. gregor . lib. 9. notes for div a42930-e6730 a lupus de magistr . paul. emil. hist . de fran. guaguin . & morisor . lib. 2. c. 3. de orbe maritimo . b morisot . ib. lib. 2. cap. 7. c spelm. gloss . verb. admiral . d petr. cothereau . in suo schedul . magistr . civil . tit . de praesibus provin . & purpur . in l. 1. col . 30. 9. exemp . dig. de offic. ejus cui mandata , &c. cassanae in catalog . glor. mund. part . 9. consid . 16. e morisot . orb. marit . lib. 2. cap. 3. anno 1216. in h. 3. matth. paris , viz. in the wars between the christians and the sarazens in the land of promise , that john k. of hierusalem with christs militia castellanum ab equo stravit , & admiraldum unum . admiraldum capio pro centurione sive capitanio , says the glossar . on that word , in that place . and the said matth. par. anno 1244. in h. 3. viz. potestas januae , quem admiratum vocant . the gloss . there , viz. ille potestas , podesta , sive praetor urbanus , nunc dierum admirallii sive thalassia●chae munere fungebatur . f this rob. the monk was one of k. johns three emissaries to miramulalim k. of morocco , to signifie his pleasure to him , how ready he was to resign his kingdome . g fragm . hist . aquit . h leon. marsic . in casinens . hist . lib. 3. cap. 44. about anno 1213. when k. john sent thomas her●inton , ralph nicholson , and robert the monk to the k. of morocco , we read misir nuncios ad admirallium murmelium , regem magnum aphricae , marrochiae , & hispaniae , quem vulgus miramumelinum vocat . matth. par. in johannem reg. ita , sed satis corrupte , regem moroccae indigitarunt nostrates . sed corruptius adhuc roger. hovedin . almiramisi sive almiramimoli . hovedin . pars poster . in r. 1. pag. 381. drungarius magn. fragm . ascripr . polybio . i matth. paris in r. 1. circa dies istos rex de maroch . potentissimus , quem mirabilem mundi vulgus , vel quod melius , admiralium murmulin , id est , admiralium bellicosum & victoriosum nominavit . et an. 988. otho . 3. imp. german . cognomin . otho rufus , iste cognominabatur mirabilia mundi . sif●rid . epit. lib. 1. p. 689. k glossar . in matth. paris in verb. admiral . notes for div a42930-e8830 gen. 1. 26. gen. 6. 14. & 7. 24. & 8. 3 , 4. the antiquity of navigation . a fazel . li. 1. decad. 2. rer. sicul. & morisot . hist . orb. marit . l. 1. c. 1. b sabellic . aenead . 1. l. 1. & 4. plutarch . in theseo . c thucid. l. 1. c. 1. d moris . ubi supra . e greg. gemist . lib. 1. rer. graec. the antiquity of the sea-laws , or laws of the admiralty . f leg. rhod. in leunela . jus graec. rom. tom. 2. g gloss . mag . in l. 1. ff . ad leg. rhod. & in decre . dist . 2. c. rhodiae . h l. depraedatio . ff . ad leg. rhod. & le. unclavius . ubi supra , in leg. rhod. i leuncla . in prin . ll. rhod. tibullus . l herodot . terpsi . m diodor. l. 5. c. 15. n morisor . in orb. marit . l. 1. c. 1. o strabo l. 16. p andr. masius in jos . 5. q dionys . afric . in vers . ezek. cap. 26. 27. cap. 27. v. 3. cap. 27. ver . 5 , to 9. r herodot . l. 1. & plin. l. 5. c. 5. & 19. & athenaeus deipn . l. 1. s morisot . ubi supra . the egpptians used to coast the shores of the red sea upon rafts , divided by king erythrus . t plin. nat. hist . l. 7. u dom. nig. w ramus . x diodor. sicul. l. 5. c. 7. gen. chron. & dom. nig. y morisot . orb. marit . l. 1. cap. 16. & polyb. plin. aurel. victor . livie , sabel . ennead . val. max. sigon . lucius florus , & alii . dan. 7. 7 , 19 , 20. vid. annot. in dan. per theolog . conv. edit . an . 1651. the readers of the lecture for the art of navigation at sivil have published divers treatises concerning marine causes , viz. hieronymo de chavez . alonzo de chavez , & rodorigo zamerano . z consul . del mare . a thucid. libanius , cels . rhod. 21. c. 3. b herod . 6. thucid. 4. & demosth . pro clesiph . c moris . orb. mar. l. 2. c. 5. ubi zonarus , codinus , bulenger . imp. rom. l. 4. c. 35. d vopiscus . e curopalates in official . aulae constant . vixit an . cir . 1059. f huntindon . qui sub steph. reg. 1148. floruit & sigeberti auctuar . g rupertus aliis robertus monachus vixit an. 1095. hist . suae de bello saracenico , l. 4. these are the same twelve amiralios mentioned by huntindon . h robertus , ibid. l. 5. in prin . & turpinus archiep. qui floruit an . 803. lib. de gest . caroli mag. cap. 17. [ si illus sit ] says the learned sir h. sp. in his day , and we in ours . i auth. fra● . hist . aquitan . k monstreletus . l sigebert . in suis chron. an . 630. chro. de flandr . c. 16. & 46. m theophanes . in chronico , à moursio citatus . n turpin . hist . de charlemaigne , cap. 17. & 20. o l. 9. depr●catio , di● . ●d leg rhod. de jact● . p c. rhodiae , 2. distinct . q aul. gell. l. 7. noct. attic . cap. 3. & fred. pruckman in sect . soluta potestas , cap. 3. nu . 134. usque ad nu . 149. p. 186. comes maris . r morisot . orb. mar. l. 2. c. 7. in prin . s idem l. 2. c. 9. in prin . t bernard . girard . de stat. & succes . rer . galliae l. 4. 2. calais . admirallus seu comes maris in gallia , post conestabilem praefertur . an. cir . 1280. an. cir . 1356. notes for div a42930-e13480 * gerard. an●iens . archiepiscop . bernard . baon . episc . robertus de sabul . richardus de canvil . williel . de forz de ulerum ( opinatur ) oleron . a spelm. glos . ex hovendeno . an. domini 1264. an. domini 1286. an. domini 1295. an. domini 1325. b spelm. glossar . verb. admiralius . in temp . w. 1. odo admiralius . ita spelm. gloss . de admiralio gall. an. 1142. c edessa , a town in mesopotamia , anciently called antioch , one side of euphrates . edessa , macedoniae urbs in aemathia regione . ortelii thesaur . geogra . seldeni mar. claus . seu de domin . maris , & boroughs soveraign . of the seas . d spelm. 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 . bald. consil . 51. & tusch . concl. 87. verb. m●●e . f larreae decis . granat . disp . 4. nu . 32. & leg. unic . fect . sed neque . cod . de vet . jur . enucleando . g tearms of law , verb. admiral . h ibid. i coke part . 1. instit . l. 1. c. 1. sect. 3. & lib. 3. cap. 7. sect. 439. k caes . com. de bel. gall. l. 4. fo . 72. l ibid. l. 3. fo . 53. m ex charta fundationis eccesiae cathed . wigor . cit . per sir tho. boroughs in his soveraignty of the british seas , p● . 21. n ranulphus cestrensis . in temp. h. 3. rich. de lucy had maritimam angliae , & tho. moleton was capit . & custos m●ris ▪ spelm. glos . record in the tower of london . 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. 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. where the place is the foundation , it is more then a bare circumstance . 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 . 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. car. richlieu . purch . notes for div a42930-e16980 a peregrin . de jur . fisc . lib. 1. tit . 1. nu . 10. b l. deprecatio , dig. ad leg. rhod. de jact . c bart. in l. 1. par. de quare . d. de postul . & in l. infamem . d. de public . judic . d bald. consil 271. num . 3 e ibid. consil . 327. nu . 7. f andr. iser . & afflict . in cap. 1. de vassal . decrept . aetat . g jason jac. de are. & bald. in l. 2. ff . de rer. devis . h glos . 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 li consoli del mare . ten days by the law. fifteen days by the stat. whales , sturgeons , porpoises , bailines , dolphins , and all fishes strange for bulk , rarity , or quality , are called fishes royal , and belong to the king. bald. ad leg. 2 d. de rer. divi● . notes for div a42930-e18090 a val. forst . hist . jur. civil . l. 3. c. 40. b ibid. c. 32. c jason . in ff . de jurisdict . om. jud. rub. nu . 1. de legibu● l. 1. de legibus . l. in t . cler. c. de sum. trin. cic. phil. 11. l. 2. ff . de legib . coel. rhod. l. 18. c. 19. plat. in min. rom. 2. 14 , 15 tusc . 1. 11. 4. 17. ●●mnes pop . ●f . de just . & ●ure . gen. 4. d in arb. jurisd . lit . a. e inst . jur . civil . in proem . par. quorum . f ferrand . l. 1. explicat . in lib. 3. jurisdict . g l. potestas . de verb. sig. h l. 1. par. hujus , ff . de just . i l. munerum . par. judicandi , ff . de muneribus . k l. placui● . cod. de judiciis . l l. 1. ff . de jurisd . & jas . in rub. & l. 10 nu . 10. ibid. m bart. in arb. jurisd . lit . c. n corvin . de jurisd . & fulgos , l. 3. de jurisd . nu . 1. o bart. ubi supra . p bart. ib. 1. q l. 1. ff . de const . princip . r cacialup . in l. imperium , ff . de jurisd . om . jud. s jun. & alii in c. cum pub. tabellio , de fin . just . & bald. in tit . de jurisd . om . jud. 2. t bart. ubi supra , lit . c. u bart. de jurisd . nu . 8. 3. w ibid. nu . 9. x jas . in l. 3. ff . de jurisd . nu . 24. in prin . y cyn. in l. si quis non dicā . q. 19. c. de episc . & cler. & in l. transigere , q. 4. c. de transact . z jas . ubi sup . 4. a bart. & jas . ibid. & l. nulli , c. de sent . 1 king. c. 2. v. 8 , 36 , &c. b l. si quid erit , ff . de offic . procons . 5. c bart. ibid. & l. magistratib . ff . de jurisd . d bart. ibid. e l. fin . c. de modo mulct . & l. 1. ff . si quis jus dicen . ō . obtemp . & l. 2. c. de sportul . imperium mixtum . f bart. ibid. nu . 15. g in l. imperium , nu . 27. ff . de jurisd . om . jud. h l. 2. c. de his qui veniam aetatis impet . i l. 8. ff . de jurisd . k bart. ibid. nu . 17. l l. 2. c. de his qui ven . aetat . impet . m caius in l. 2. tit . de adop . n ibid. o auth. quibus mod . nat. effic . legit . par. illud . p flet. lib. 1. cap. 7. par. idem emancipat . & cowel . instit . jur . angl. l. 1. c. 12. par. 2. q l. 1. c. de sen . praef. & auth. quae supplicatio . c. de praecib . imper . off. & barr. ubi sup . nu . 18. & in arb. jurisd . lit . m. r c. ex literis . de integ . restitut . s l. 1. ff . de offic. praef. praetor . t l. ea quae par. magistratib . ff . ad municipalem . u bart. fulgos , & alii ubi supra . w fulgos , in l. imperium . ff . de jurisd . om . jud . nu . 40. x casus in glos . in l. 1. ff . de carbon . edict . y bart. in l. imperium . ff . de jurisd . om . jud . nu . 22. z salyc . & rubr. l. 2. de pedan . judic . jurisdictio simplex . a barr. ubi sup . nu . 23. jas . ubi sup . nu . 31. fulg. de jurisd . om . jud . nu . 42. b jas . in l. imperium , ff . de jurisd . om . jud . c rub. in ff . de lib. caus . & l. 42. § 1. ff . sol. ma rim . & l. 32. § liberali , st . de receptis , qui arb . receper . d l. placet . c. de pedan . jud. e rub. & glos . de lib. caus . & fulg. in l. imperium , ff . de jurisd . nu . 44. f defin. jur. nu . 18. ff . de jurisd . & c. ex ratione . de appell . & jason . sup . nu . 31. g fulg. ubi sup . h rub. & glos . min. ff . deliber . caus . & bart. ubi sup . nu . 24. i bart. jas . & fulg. ubi sup . nu . 43. k l. quicunque c. de ser. fug . & l. divus , ff . de injuriis . l desin . jurisd . nu . 19. ff . de jurisd . m fulg. ubi sup . nu . 42. n dd. ib. o calvin . ver . aureus . p tacit. l. 17. de othone . q godw. rom. hist . li. 3. sect. 4. cap. 3. r bart. ubi sup . nu . 26. & jas . ibid. nu . 32. s bart. ibid. t fulg. ubi sup . nu . 44. u jas . ib. nu . 32. w l. 1. § fin . ff . de jur , elib. d x bart. in l. interdum . § qui furem , ff . de furt. y anth. de test . § si vero ignoti , col . 7. z ang. & jason . in l. imperium , ff . de jurisd . a panor . in cap. cum contingat . col . 5. de foro competent . b alb. bald. sal. alex. jas . in dict . imperium . c definit . jurisd . nu . ult . ff . de jurisd . d l. 2. ff . de offic. procons . e spec. de jurisd . in prin . f bart. in l. imperium . ff . de jurisd . om . jud. nu . 26. g l. si convenerit . ff . eod . & l. sed & si . ff . de precario . h omphal . l. 1. civil . polit. cap. 105. nu . 14. & l. lucio . ff . de aqu. quot . & aestiv . & ang. in l. 2. § ex his . ff . de verb. sig. i car. tap. in ff . de const . prin. cap. 4. nu . 10. & marant . distinct . nu . 3. k auth. quae sunt regalia . coll. 10. l l. 1. ff . ubi sup . & l. 1. § cum urbem . ff . de off●c . praes . urb. & l. 1. cod. eod . tit . m tap. ubi supra nu . 14. notes for div a42930-e24040 a l. 1. § interdictum , & l. 2. ff . de interdict ▪ & § prohibitoria . instit . cod . tit . b boer . decis . 114. nu . 2. & ibi faber . in l. ante fin . cod. de off. praef. urb. per tex . in c. transmissa . de foro compet . & paris de put. in syndicat . tit. de excess . baron . cap. ult . & ang. in l. haeredi . de usu fruct . legat . ut voluit saldus in prooem . 2. lib. decret . colum . 2. c boer . decis . 9. nu . 15. & bar. & alex. in l. omnibus . § is videtur . ff . si quis jus dic . non obtemp . sir tho. ridleys view of the civil and ecclesiastical law , in part . 3. cap. 1. sect . 2. fitzh . n. b. verb. prohibit . d terms of law , verb. prohibit . e d. cowel interp. ver . prohibitio . it may not be hence inferred , that what seems to cease of use in one respect , may not remain of use in another ; as indeed this is , in conservation not derogation of jurisdictions ; and for prevention of trials coram non judice competente , by an expedient of law , whereby the gognizance of a cause may not be drawn from its proper jurisdiction ad aliud examen . f num. 21. 8. & 2 kin. 18. 4. nehushtan , h. e. brass , or brazen , or a piece os brass . this implyes not , but that prohibitions are still of necessary use , where inferiour jurisdictions meddle with matters which do not concern them , and wherein they are incompetent . fitzh . n. b. fo . 39. cowel interp. verb. prohibit . ridley view of the civil and ecclesiastical law , part . 3. cap. 1. sect . 2. h ibid. though by warrant from the proverb , losers have leave to speak ; yet in case of interest , such as cannot hold their own , may hold their peace . this hinders not , but that a thing really done super altum mare , ( though not yet so in proof ) may be surmized or suggested to be done at land , in order only to bring it to issue , whether a prohibition lyes in the case . this is but the law of one jurisdiction without any derogation of another . i cok. inst . l. 3. c. 7. sect . 440. in sin . k fitzh . n. b. tit . prohibitio . l fitzh . ibid. notes for div a42930-e25710 a schard . ver . fictio . b cas . tract . dialect . 2. part . cap. 20 , & 21. vid. larrea . decis . granar . disp . 8. nu . 58. semper fictio , licet veritati contraria , tamen veritatem imitatur . § minorem . de adopr . & l. si filius , 14. d. si cer. per. & l. triennio 18. d. de stat. liber . et solum extenditur ad id quod per veritatem & rerum naturam fieri potest . glos . in l. 3. d. pro socio , & curr . l. 2. conject . ad fratrem , cap. 13. & oswald . l. 14. ad donel. cap 19. lit . a. c bart. in l. si quis pro emptore . d. de usucapionib . d l. sive possidetis , cod. de probat . & cyn. ibid. & l. non est verisimile . d. quod metus causa . e ibid. in glos . mag . in l. non est verisim . f gothof . ad rub. d. de probat . g bart. ibid. nu . 22. h l. adoptio . ff . de adopt . i le. cornelia . ff . de testam . & l. cornel . ff . de vulg. substi● . k l. retro . & l. in bello . § 1. & l. bona . ff . de capt. & § 4. d. quibus mod . jus . patr . solvit . l l. absent● , ff . de verb. sign . m l. ibid. glos . mag . n l. qui in utero , & l. pen. ff . de stat . hom . o ff . ad leg. aquil. & rub. ibid. & l. si ex causa . d. pro socio . p l. quia licet ff . pro socio . q l. 1. § si filius . ff . de suis & legitimis , & l. 2 , 3 , 4. cod. cod . r § sed si in bello . inst . de excusat . tutor . notes for div a42930-e27860 noy rep. m. 39 40 eliz. c. b. this may be but a surmize in one jurisdiction for a supposition in another , as an expedient whereby to discover unto which jurisdiction the case doth properly belong . a coke inst . part . 4. cap. 22. this is meant when the thing is so in truth and in fact , as well as supposed . b bart. in ● . si is qui pro emptore . d. de usucap . c in lib. nig. adm. fol. 36. d brownl . rep. part . 1. mich. 10 jac. e littl. l. 3. c. 7. sect . 440. f hob. rep. in cas . palmer vers . pope . g leonard rep. 30 eliz. in sir jul. caes . case , in b. r. h brownl . rep. par. 1. case bright vers . couper . trin. 9 jac. rot. 638. in com. plac. i brownl . rep. par. 2. westons case . mich. 8 jac. 1610. in b. r. k trin. 17 char. in b. r. grand abridgment of the law. verb. admiral . res quae intra praesidia perductae nondum sunt , quanquam ab hostibus occupatae , dominum non mutarunt ex gentium jure . gror. de ●ur . bel. l. 3. c. 9. l littl. l. 3. c. 7. ●ect . 440. m coke inst . par. 4. c. 22. n cro. rep. in resol . upon the cases of the admiral jurisdiction . hill. 8 char. notes for div a42930-e29240 o coke inst . par . 4. c. 22. p hob. rep. in bridgmans case . q croke rep. hil. 8 char. r littlet . l. 3. c. 7. sect . 440. s l. cum hi § si cum lis . d. de transact . t coke par . 1. instit . l. 3. c. 7. sect , 440. u littl. l. 3. c. 7. sect . 440. 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 . w coke par . 4. instit . c. 74. x coke ibid. cap. 22. y cod. ms. de adm. angl. vulgo vocar . lib. nig. adm. in fo . 29. z hill. 8 char. a hob. rep. case of don diego serviento de acuna , against jolliff and tucker . b hob. rep. mich. 9 jac. case palmer against pope . 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 . c l. 59. d. de verb. sig. thamesim , prolemaeus jamissam , dio himensam , vocat . 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , manu & artificio factun 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , graeci vocant . morisot . histor . orb. marit . lib. 1. cap. 24. d noys rep. m. 39 , 40 el. case , susans against turner . 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 . e brownl . rep. part . 2. in cas . jennings against audley , mich. 1611. 9 jac. in com. ban. f brownl . rep. part . 2. ibid. in cas . baxter against hopes . g brownl . rep. par . 2. mich. 8. jac. in ban. reg. h croke rep. hil. 8 char. notes for div a42930-e32520 i coke on littl. par . 1. instit . lib. 2. c●p 11. sect . 195. mr. seld. in suo mar. claus . l. 2. cap. 22. styles the judge of the admiralty , summae cutiae regiae admiralitatis judicem . k hil. 8 char. 4. febr. 1632. l stat. 15 r. 2. cap. 3. m cowels interpreter , verb. record . n fit●h . n. b. writ of errour . o cowel , ubi supra . p brook tit . record . q cowel , ubi supra . ubi brook tit . bastardy . fleta li. 6. cap. 39 , 40 , 41 , 42. lamb. eirenareha , lib. 1. cap. 13. & glanvile , lib. 7. cap. 14 , 15. the register orig. fol. 5. b. bracton lib. 5. tract . 5. cap. 20. nu . 5. britton , cap. 92 , 94 , 106 , 107 , & 109. doct. & stud. lib. 2. cap. 5. & cosins apol. par . 1. cap. 2. r glanvil , lib. 8. c. 8. britton , cap. 121. & cowel , verb. record . s noys rep. cas . reord against cornel . jobson . t hob. rep. in dr. james case . u moder . rep. trin. 1654. in banc. reg. w cod. ms. de adm. viz. lib. nig. adm. fol. 19. & ibid. in art. 39. artic. inquisit . adm. citat . per d. seld. in suo mare clauso , lib. 2. &c. 24. x sir jo. davies . jus imponendi vectigalia , c. 6. y idem . jus imp . vect . c. 4. notes for div a42930-e33800 a coke part. 40 instit . c. 22. in the answ . to the fourth objection . b croke rep. hill. 8. car. resolution upon the cases of admiral jurisdiction . c coke ibid. in the answ . to the second objection . d noy rep. in cas . susans against turner . q. whether in matters of dubiovs jurisdiction , meerly depending upon future contingency of proof , a bare surmize at common law ; may not as rationally expect the relief of a prohibition , as a naked allegation at civil law the count●nance of a litis contestation . so that the law is good , if it be used lawfully . therefore to prevent this inconvenience , and obviate such objections as these ; before any prohibition doth actually issue upon such surmizes , the courts of westminster have ever used to prefix a day wherein to shew cause , if any , why a prohibition should not be granted . so that although there be a surmize , yet there is no surprize in the case . e coke , ubi supra . mich. 31 h. 6. rot. 315. in banc. hill. 2. ph. & m. rot. 130. cr. hil. 17 el. rot. 410. cr. the common law in some cases doth take notice of conjunct : persona , but not as does the civil law. f winch rep. easter term g coke par . 4. instit . c. 22. answ to the first object . h ibid. answ . to the sixth object . i croke rep. hil. 8 car. resolution upon the cases of admiral jurisdiction . subscribed 4 feb. 1632. by all the judges of both benches . beneath the bridges ] so the expos . terms of the law , verb. admiral . k hob. rep. case . palmer versus pope . mich. 9 jac. l owen rep. in casu leigh against burley . mich. 7 jac. l cro. rep. hil. 8 car. 1632. m noy rep. in cas . goodwin against tompkins . notes for div a42930-e35840 a selden , de mar. claus . lib. 2. cap. 24. b ibid. in fascic . de superioriatate maris , in arce lond. & coke , de antiquit . admiral . in par. 4. instit . cap. 22. c coke 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. d cowel , interp . verb. admiral . e terms of law , verb. admiral . f doct. & stud. dialogue vel lib. 2. c. 2. g seld. mar. claus . lib. 2. cap. 24. h temp. 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 . i ms. fo . 12. k brownl . rep. par. 2. admiral court-case . l caepol . de servit . rust . cap. 28. nu . 5. & bald. in rub. de r●r . divis . m cowel interp . verb. admiral . n coke rep. in cas . sir hen. constable . 5 eliz. cap. 5. cokes instit . par . 4. cap. 22. o croke rep. hil. 8. car. 1. resolution upon cases admirall . notes for div a42930-e39510 skippers sale , without speciall procuration , not good . ship-tackle pawned for ship-necessaries , good . notes for div a42930-e39580 skipper not to quit a port without advice of his mariners . notes for div a42930-e39620 mariners in case of that like wreck , to save what may be saved . skippers sale , in case of disaster , not good without speciall procuration . notes for div a42930-e39670 part of fraight to be paid for part of a voyage . the skipper , to hire another ship to finish his voyage , in case of disaster to his own . the reward of salvage not to be paid according to promise made in time of distresse , but as the court of admiralty shall determine according to equity . notes for div a42930-e39800 mariners ( without the leave of the skipper ) may not go out of the ship , when arrived to a port. in some cases some of them may . notes for div a42930-e39850 mariners drunk a shore , and wounded , not to be healed at the ships charge . mariners wounded in the ships service , are to be healed at the ships charge . notes for div a42930-e39900 how sick mariners are to be provided for . the ship not to stay for a sick mariner . sick mariners ought to have their full wages , deducting the charge of his sickness . * executors of a deceased mariner , ought to receive the wages due to him . notes for div a42930-e39970 in case of storm , skipper to use his discretion in casting goods over board , to lighten the vessel , and to preserve the same . what the law is in the case of averidge . notes for div a42930-e40050 what the law is in case of cutting masts or cables in a storm . notes for div a42930-e40110 the ship-ropes or slings to hoyse out goods withal , to be viewed before used . notes for div a42930-e40150 goods damnified at sea , whether by the ship-tackle or not , to be purged and cleared by the oath of the skipper and part of his company . notes for div a42930-e40200 the law in case of the lye , or a stroak given by or to the skipper or his mariners . notes for div a42930-e40310 the law in case of difference between the skipper and any of his mariners . skipper to take an able mariner in the absence of another , or to make good the damage , if any thereby . notes for div a42930-e40370 in case of collision , one ship against another , the damage to be in common , and equally divided , yet so as they both ( if need be ) purge themselves of all wilfulness by oath . notes for div a42930-e40410 what the law is in placing of anchors in harbours , specially where there is but little water ; as also of boys to the said anchors . notes for div a42930-e40450 what the mariners immunity or priviledge anciently was in fraight ; which is now grown obsolete . notes for div a42930-e40520 it seems in those days this was the law ; now no such thing in use . notes for div a42930-e40580 the skipper may compel the mariner to complete the ships voyage . notes for div a42930-e40620 the contract for wages must be performed , though the voyage be not ; so as the fault be not in the mariners . notes for div a42930-e40700 what the law is touching mariners going a shore when the ship is in port. notes for div a42930-e40750 the merchant to pay demourage , when it happens through his own default . notes for div a42930-e40790 what the law is in ●ase a skippe● on his voyage be reduced to necessities in a forraign port. in some cases the skipper may sell part of his lading . if part os a merchants carge be sold to supply the necessities of the ship , the value and fraight thereof is to be made good to and by the said merchant . notes for div a42930-e40860 the head of an unskilful pilo must go for the loss of a vessel occasioned by his unskilfulness , in case he hath not wherewith to make satisfaction . notes for div a42930-e40910 what the law is in case of damage to goods , by reason of the ship-ropes or slings in hoysing of goods over board . notes for div a42930-e40990 what the law is as to partnership in the fishing craft . in case of such partnership , part of the profits upon such a fishing design , accrue to the next of kin , to the deceased in that design . notes for div a42930-e41040 ship broken , men not to be impeded or h●ndred , but aided and assisted in preservation of ship and lading . salvage to be regulated , not according to promise made by the distressed , but as the court of admiralty shall judge in equity . art. 4. naufragium , quasi navis fractio . the penalty of such thieves as steal srom persons that are ship-broken . notes for div a42930-e41140 vvhat the law is in case of wreck . * as if the gift of salvation might be purchased with mony . good meanings will never exculpate blind and superstitious devotion . this is the law of rome by land at this day , as well as of oleron at sea , nigh 500 years since . notes for div a42930-e41220 covetousness which is idolatry , sometimes is also bestiality . they that lived like beasts , might not dye like men ; by the law of oleron . notes for div a42930-e41300 behold and wonder at the diabolical practice of some treacherous pilots . the penalty of such thieves as steal goods from poor distressed ship-broken persons . notes for div a42930-e41350 the exemplary punishment of all treacherous pilots . notes for div a42930-e41390 an adequate punishment , & without respect of persons ; which will not counterpoize one grain of honesty in the ballance of justice ; so exact was this law in punishing such politickly covetous miscreants . notes for div a42930-e41430 goods cast over board for lightning the ship , quatenus such , are not derelicts . merces è nave jactae , derelictae non videntur . leg. 7. dig. pro derelict . notes for div a42930-e41520 what symptomes for a presumption in certain cases of goods cast over board , that they are not derelict . notes for div a42930-e41560 res nullius , & noviter inventa , fit primo occupantis . notes for div a42930-e41600 now called royal fishes . out of the mouth of a fish the king of kings himself will work a miracle to pay tribute , rather then offend by denying it where it is due . matth. 17. 27. notes for div a42930-e41650 in such things custome is to be observed . notes for div a42930-e41690 consuetudo in tract of time may evaporate into desuetudo ; as in this case . notes for div a42930-e41770 this hath reference only to such times and places , as wherein such custome did prevail . notes for div a42930-e41810 locupletari nemo debet cum alterius injuria . leg. 14. tit . 6. cod. lib. 5. & dig. lib. 23. tit . 3. leg . 6. § 2. & dig. lib. 2. tit . 15. leg . 8. § 22. & dig. lib. 12. tit . 6. leg . 14. notes for div a42930-e41860 non tam tenetur , qui non tenet , quam qui detinet . notes for div a42930-e41900 consuetudo est lex non scripta , & natura postscripta . goods found and presumed to have belonged to shipping , are dedicated not to profane but pious uses . art. 26. if in heaven , they need no prayers ; if in hell , ab inferis nulla redemptio ; if in purgatory , 't is pity to trouble them , the longer there , the better purged ; this is rom●s utopia . notes for div a42930-e41990 res capta sit captentis , was law well meant at oleron ; but very ill expounded by our late interpreters . notes for div a42930-e42050 presupposing the finders knowledge of of the true owner thereof . notes for div a42930-e42090 what the law is in case of treasure trove . you may not note or infer hence , as if in all ages the clergie had a finger in all elements . notes for div a42930-e42140 what the law is in case a ship by stresse of weather be forced from her cables and anchors . well meaning devotion in a superstitious way , opens a dore to idolatrie ; and politick devotion in an hy-pocritical way le ts in blasphemy . the names of skippers or of their ships to be engraven on their boyes . notes for div a42930-e42230 what the law is in case of wreck . notes for div a42930-e42270 pirates and other unreasonable men are to be dealt with like other irrational animals . catholick signifies general or universal ; but orthodoae hath a far better signification .