8 lus gentium in the practice of the Court of Admiralty around 1600
Alain Wijffels
Traditionally, the reputation of the early modern English Civil lawyers has to a large extent been based on their supposed expertise in international law.
At an academic level, writings by Gentili, Zouch and others are presented as pre- and post-Grotian ‘classics’. Much in the same way as on the European continent, jurists trained in ius civile at law faculties were usually called upon for diplomatic missions. Their role, however, was mostly a subordinate one. In the new literary genre on ambassadors and embassies which flourished from the last two decades of the sixteenth century onwards, the ‘perfect ambassador’ was deemed to be well-versed in history, but much less in law. Apart from diplomatic service, the practice of the High Court of Admiralty, a preserve for members of Doctors’ Commons, provided the Civil lawyers with the aura of a specialism in international law. Litigation at the Court of Admiralty, fostered by privateering or more peaceful foreign trade, reflected the world-wide commercial interests of late Elizabethan England and, consequently, the need to settle international disputes according to universally accepted legal standards among European nations. This need was acknowledged at the paramount level of government, as evidenced in a notorious (and often-quoted) speech by James I in 1610:It is true, that I doe greatly esteeme the Civill Law, the profession thereof serving more for generall learning, and being most necessary for matters of Treatie with all forreine Nations. And I thinke that if it should be taken away, it would make an entrie to Barbarisme in this Kingdome, and would blemish the honour of England: For it is in a manner Lex Gentium, and maintaineth Intercourse with all forreine Nations: but I only allow it to have course here according to those limits of Jurisdiction, which the Common law it selfe doth allow it.[237]
The assimilation of Civil law and ius gentium is of course not unequivocal.
It raises the question of the foundation of the Civil law’s authority in England, and hereby the controversial problem whether the Civil law was to be considered as part of the lex terrae or not. The King’s speech also illustrates another ambiguity regarding the concept of ius gentium. The reference to the law of treaties suggests something similar to the modern notion of the law of nations as inter-state law, whereas the latter part of the quotation is characteristic of a far less positivistic era, when the national municipal laws of the sovereign states had not yet acquired a monopoly of the authoritative legal sources regulating the relations between private persons.The theoretical and political aspects of these controversies have often been discussed.2 In what follows, which implicitly relies much on Peter Stein’s fundamental publications on the ‘character and influence of the Civil law’ both in England and in the rest of the world, I shall try to express the English Civil lawyers’ concept of ius gentium from a more pedestrian, and at the same time very different, perspective. Drawing on Julius Caesar’s notes as Admiralty judge (c. 1582-1606),3 the following paragraphs will show how the Civil law practitioners at the High Court of Admiralty referred to ius gentium in their pleadings and memoranda.4
In general, technical references to the learned law (allegationes) reflect the method followed by civilian practitioners throughout European courts at the time. Both Roman Civil law and Roman Canon law are extensively quoted.5 Besides the fundamental texts (the corpora iuris), a wide range of doctrinal authorities are constantly being referred to. The
2 On various uses of the terms ius gentium and ius naturale in the English context, see D.
R.Coquillette, The Civilian Writers of Doctors’ Commons, London. Three Centuries of Juristic Innovation in Comparative, Commercial and International Law, Comparative Studies in Continental and Anglo-American Legal History 3 (Berlin, 1988), 32-7.
3 On Julius Caesar as Admiralty judge: L. M. Hill, Bench and Bureaucracy. The Public Career of Sir Julius Caesar, 1580-1636 (Cambridge, 1988), chapter 2.
4 The notes are mainly concentrated in BL MSS Lansdowne 129, 130, 131 and 135. In many cases, the notes are not very elaborate, and sometimes they simply consist of a few references to authorities. In 1992-7, a research project sponsored by the Netherlands Scientific Organisation (NWO) will try to establish a data-base combining the Caesar Papers at the British Library (both the notes which are referred to in the present contribution and various other documents collected or transcribed by Caesar) and the records of the court (PRO, HCA).
5 Throughout the sixteenth century, and well after the Counter-Reformation, English Civil lawyers kept abreast of current developments in the Roman Canon law. This attitude was not inspired by religious motives, but by the need to keep pace with changes in legal methods affecting the whole of the ius commune tradition. For the English ecclesiastical courts a convincing reassessment of the Civil lawyers’ approach is offered by R. H. Helmholz, Roman Canon Law in Reformation England (Cambridge, 1990). Since Canon law also influenced to a considerable degree the general principles and the law of procedure, it is not surprising that a similar observation can be made in the practice of the Admiralty Court, even for the early Stuart period.
bulk of the latter belong to the mos italicus tradition and some monographical works (in particular, treatises) heralded the early usus modernus, while legal humanistic scholarship is virtually ignored. On the whole, these tendencies confirm the findings of recent research into the academic legal library holdings in England during the last quarter of the sixteenth century. The predominance of mos italicus authorities is also a clear indication that the characteristic method of that school still governed the forensic argumentations of the late Elizabethan and early Stuart Civil lawyers. Their arguments, therefore, very much resemble those of their contemporary continental counterparts. Predictably, a large proportion of the references are concerned with procedural questions, and more in particular with the law of evidence. General principles, or specific rules drawn from any area of the law, on which a general applicability is then conferred, play a greater role than any form of strict systematisation of the law in which only the rules belonging specifically to a particular field are applicable. In the same vein, references to rules by analogy are common practice. On the other hand, there are also clear signs that the more systematic approach of the (early) usus modernus was under way. A major impediment, however, was the absence of a specialised legal literature on international maritime law. Privateering and prize-law, probably the most important issues the Admiralty Court had to deal with, were a subject which no legal work treated systematically. Nevertheless, the pleadings show that the English practitioners endeavoured to incorporate in their arguments the more specialised legal publications offered on the bookmarket. These included works in the ius commune tradition, for example the popular collection on maritime law edited by B. Straccha, but also foreign municipal law, for instance, de La Popeliniere’s compilation L’Admiral de France. In a more traditional way, yet expressing the tendency to restrict the authorities ratione materiae, many arguments concentrate their quotations around specific titles of the Corpus luris Civilis, notably (for example on questions of liability of factors or their principals) C.4.25, D.14.1 and D.14.3, and the corresponding commentaries. For (mostly, incidental) questions on the law of war, Civil lawyers were keen to quote the late sixteenth-century treatises by Ayala, Bellus and a few others.[238] In short, the authorities referred to in the pleadings reflect the transition from mos italicus literature and method to usus modernus.This transitory character implies that, although many arguments ignore any systematisation ratione materiae, questions of international law were often treated with a certain degree of concern for its specific nature. However, international law as such was not yet fully perceived as a particular discipline, and its method was therefore still very much integrated in the general, developing, ius commune approach. In that sense, one could say (paraphrasing James I) that international law was ‘in a manner (part of) ius commune'. In this context, it is not surprising that references to international law did not require any specific justification. The paucity of explicit mentions of ius gentium in the Admiralty pleadings somehow reflects the lawyers’ view that it was simply a component of the European ius commune tradition. On the other hand, it may have been more irksome to warrant the application of Civil law by referring to ius commune as such, rather than to the lex gentium. In practice, however, references to ius commune authorities only exceptionally presented a difficulty and did not need any particular legitimation.7 A negative example of such a controversy appears briefly in a case where, shortly after the Anglo-Spanish peace treaty of 1604, Portuguese merchants claimed that their ship, which had been captured off Lisbon by a man-of-war commanded by a Dutchman to whom Dutch commissions had been granted, could not be held to be a lawful prize when it was brought into neutral English territorial waters and seized by the English authorities. The controversial argument was that under those circumstances the fiction of ius postliminii might be applicable in favour of the Portuguese.8 One of the counsel for the Dutch captain, Dr Trevor, argued
quod 1.
postliminii et 1. postliminium non extenditur ad nos, sed ad Romanos et eos qui erant sub iure eiusdem magistratus.9From a Civil lawyer, the argument may seem surprising, all the more so since the principle in question (the fiction of ius postliminii) was said to have been ‘naturali aequitate introductum’ (D.49.15.19 pr.). Perhaps Julius Caesar’s note is too brief to allow a proper reconstruction of
7 References to ‘ius commune’, ‘imperial law’, ‘pontifical law’ appear occasionally in the pleadings. One draft contains different quotations which might be used for solving the question: ‘Touching an Englishmans ship taken by a man of Newhaven being enimy and afterwards recovered by a Frenchman a friend, and brought into England; howe to bee disposed, 1591’. The quotations appear under the headings: ‘Out of the ordonnances of France’; ‘Out of the civill lawe’; ‘Out of history’ (Lansdowne 131, fol. 4V). The historical examples are taken from Livy, and the reference to civil law is a fine specimen of an argument by analogy: D.49.15.6.
8New Roman"> On this case, a more elaborate reconstruction of the different arguments is discussed in: Alberico Gentili and Thomas Crompton. An Encounter between an Academic Jurist and a Legal Practitioner, Studia Forensia Historica 1 (Leiden, 1992). Eventually, the argument was dropped when Alberico Gentili appeared in the proceedings as counsel for the Portuguese.
9 BL MS Lansdowne 131, fol. 276v. The references are to D.49.15.5 and D.49.15.19.
Trevor’s reasoning. Did the latter imply that in his time positive rules from Justinian’s compilations applied only to those nations which had been fully incorporated in the Roman empire and subjected to Roman law, but that this had not been the case with England? This was, indeed, a serious matter of dispute among scholars,[239] but it is hard to understand why a Civil lawyer who himself constantly referred in his pleadings to the various sources of ius commune would have made such an assertion. Alternatively, for reasons which do not appear in Caesar’s notes, Trevor may have restricted the argument to some specific rules, in this case those governing the ius postliminii.
When a more elaborate approach was required, as in the ‘note’ of which a transcript is printed hereafter in the appendix, the theoretical foundation of the applicability of Roman law is better documented.[240] Although the note’s main concern is the extension of writs of prohibition, i.e. a jurisdictional conflict, the authors included a full paragraph on substantive law, perhaps because the application of a different legal system was, in their view, a strong argument in support of a specialised jurisdiction. The arguments expressed in favour of the application of Civil law in maritime causes are threefold. First, it is founded on the very authority of the Kings of England. Further, and to some degree justifying that royal policy, it is made necessary by the ‘reception’ of Roman law ‘throughout all nations about us’, which constitutes in that sense a form of ius gentium. Finally, the authors proclaim the intrinsic value of the Roman law for dealing with maritime cases, both international and domestic. In addition, the note contains an historical argument in its references to provincial jurisdictions in the Roman Empire and to the incorporation of Rhodian maritime laws. The whole argumentation remains, perhaps for purely opportunistic reasons, very specific regarding the applicability of Roman law in England, for its proper field is strictly confined to maritime law. Ironically, the note itself betrays that Civil lawyers were all too prone to extend the authority of ius commune sources well beyond the area of maritime disputes, for the Civil law provides in the same text ammunition for highly controversial considerations of the King’s prerogative powers.
When counsel refer to ius gentium in their pleadings, the expression is in most cases borrowed from their ius commune source. The references fall into two broad categories which correspond to the equivocal meaning of the term. In the first place, it is used in the sense of Gaius’ definition, i.e. a set of legal rules which, in principle, is observed by all men and applied in all nations. More particularly, this is apparently the meaning of ius gentium when, in prize-cases, the acquisition of spoils is justified. The principal authorities are the parallel texts D.41.2.1 pr. (s.v. ‘item bello capta’) and J.Inst. 2.1.17, the first of which was discussed at great length in mos italicus commentaries.[241] The mere reference to ius gentium in the Corpus Iuris left, however, many practical questions unanswered. Prizelaw litigation was precisely fostered by the uncertainty of rules applicable to privateering. When no compromise could be found between the conflicting economic interests, Civil lawyers had a field day quoting ius commune authorities. Customary law is admittedly not altogether ignored, but it appears to play only a modest part in the Admiralty lawyers’ arguments. Moreover, the precise purport of a maritime customary rule could be challenged and was often difficult to establish.[242] When it became necessary to formulate a substantive rule of ius gentium, the Civil lawyers effectively fell back on ius commune. For the frequently occurring questions of acquisition, principles based on ius civile (in the strict sense) could provide the thread of their argumentation. For example, when it was stated that captors acquired their spoils by virtue of ius gentium, the question was often raised whether the goods had been captured as res derelictae, res nullius, or as the enemy’s property (in which case it could be relevant to examine the validity of the enemy’s title to the goods).[243] The way to acquire possession was also often discussed by the standards of ius commune,15 but occasionally a lawyer could take advantage of the distinction between ius civile and ius gentium, as in the following example:16
class=31 style='text-indent:0cm'>lawyers: see G. Vallone, lurisdictio domini, Introduzione a Matteo d’Afflitto ed alia cultura giuridica meridionale tra Quattro e Cinquecento, Collana di Studi storici e Giuridici 1 (Lecce, 1985). The conclusion is that ‘for so much as that castle is appointed for the safety of the countrie, it may bee that the capten hath in that respect marshall authoritie. But it followeth neither hereof nor of the wordes aforesaide [namely of the letters patent], that hee may lay handes uppon straungers’ goods uppon the streame, or exercise any part of an Admirals authority’ (fol. 96v-97r). In a second paragraph, he discusses whether, at the time, there was a state of war between England and Spain. Subsequently, he deals with the acquisition of the property, disproving (inter alia) the thesis ‘that hee [i.e. Sir Thomas Gorge] tooke [the goods] iuregentium, as goods held pro derelictis’ (fol. 95v; for the arguments of Hammond’s opponent, Dr Goldingham, see fol. 95"). The argumentation follows mainly ius commune authorities (including the opinions of the Roman jurists reported in the Digest), but also refers to ius proprium sources: ‘they are taken to bee of other nature then those which as left pro derelicto; and are by the wisdome of our lawe assigned to certaine persons to keape to th’use of th’owner, if hee come within his time. Which it is like wee received from the costume of Normandie. For the booke of those customes hath one proper title, De varech et choses gaynes, where th’author of the commentary written thereuppon, expounding the word choses gaynes writeth thus, ne sont pas proprement res habitae pro derelicto, mais delaissees a possider par celuy a qui elles appartiennent, veluti animalia aberrantia. Which is th’example which Paulus useth before recited [cf. D.41.2.3.13]. And Bracton our countreman in his title de rerum divisione, cap. 12, maketh a difference betwene res habitae pro derelicto, and those quae pro waynio habentur, using th’example of cattle strayed whereto no owner maketh claime, adding this, et que olim fuerunt inventoris de iure naturali, iam efficiunturprincipis de iure gentium' (fols. 10r-102r). Bracton’s authority allows Hammond to conclude that since ‘by our lawe... wayved goods... are given to the L. Admirall by her Majestie..., it must of necessity followe, that my L. Admirall hath a cleere and a direct right to them, to keape them for th’owner if they bee demanded in time, or otherwise to enjoy to his owne use’ (fol. 102v).15 For example, in Eyrning c. Nokes (Lansdowne 131, fols. 35ff.), it was disputed which of two ships had taken the decisive action to capture a prize. Large interests were at stake, and several lawyers appeared for both parties. They all argued about which rules governing the acquisition of goods were applicable. Dr Styward, for instance, held that ‘que acquiruntur iure gentium, acquiruntur non aliter quam adprehensione vel occupatione possessoris, Jason in rubr. D. de acquir. possessio. num. 7 et 8 et 2 et 3. Alberic. in 1. naturalem, D. de acquir. possessio., § illud quesitum, etiamsi fera sit ita vulnerata, quod certum sit ex vulnere non posse evadere, tamen nostrum non fit, antequam capiatur. Et Alberic. in 1. in laqueum, D. de acquir. rer. domin. num. 2, potest quis acquirere dominium agri illaqueati per conspectum oculorum. Petr. Bel. par. 4, cap. 8, num. 15 et 16, rem que neque oculis conspicitur, neque corpora comprehenditur, possumus animo acquirere, num. 17 et 18’ (fol. 38rv, several articles omitted).
16 From Pots c. Newton (Lansdowne 130, fols. 53v, 78v-81r, 91v-92r), involving again the captains of two ships who contested each other’s part in the capture of a prize. Dr Styward appeared for Newton and quoted several authorities on which he also relied in the case cited in the previous note. The quotation in the text, Dr Crompton’s argumentation for Pots, is preceded by a summary of an argument developed by Dr Dun, also appearing for the plaintiff. It begins: ‘1. 1 de acquir. possessio. D. in princip. Instit. de rer. divisio., § item ilia que ex hostibus, que ex hostibus capiuntur, ex iure gentium nostra fiunt. In acquisitione dominii ex iure gentium, is prime acquirit dominium, qui prius nanciscitur possessionem, id est apprehensionem naturalem, d. 1. 1, D. de acquir. possessio., § Item belle capta’ (several paragraphs omitted).
In acquisitione ex iure gentium, consideratio est solummodo naturalis apprehensio, Jason in rubricam de acquir. possessio D., num. 7, 8 et 9. Dominium ex iure gentium nunquam causatur sine apprehensione sive occupatione possessoris, et ubi aliter sine traditione acquiritur, id fit ex iure civile, non ex iure gentium. Et iure gentium statim ex possessione acquiritur dominium, ita ut nihil sit temporis medium inter possessionem et dominium. Jo. Francisc. Ripa in d. 1. 1, D. de acquir. possessio, num. 63 et 64, ad hoc ut transferatur possessio per aspectum, opus est ut possessor tradat vacuam possessionem: sed adversario possidente non acquirit possessionem, nisi primo adversarius eiectus sit. Mynsing. in § possideri, Instit. de interdictis, ver. animo solo, opus est corporali apprehensione ad acquirendam possessionem.17
Although the link with an act of war may suggest some association with the law of nations in its modern sense, the different arguments clearly indicate that the questions regarding the law of war and the acquisition of private property were considered separately, even when they appear in the same context.18 Besides, references to ius gentium as a common law of mankind governing private acts were also borrowed from the ius commune by the English Civil lawyers outside the jurisdiction of the Court of Admiralty.19
In the second type of reference to style='font-style:italic'>ius gentium, the expression approaches more closely the modem concept of public international law. Again, the civilian practitioners did not work out the concept on their own, but borrowed it from traditional ius commune literature. In Caesar’s Admiralty notes, the English Civil lawyers seem mostly to rely on the authority of ius gentium when they discuss the freedom of international
17 D. Crumpton ex parte Pots, Lansdowne 130, fol. 80rv. It was alleged that the crew of the prize had meant to surrender to the captain of the other ship, but not to Pots: ‘That Pots with 3 Flemings entered not into the prize till long after that shee had yealded to the Julian’ [i.e. the other man-of-war], and ‘that Pots should not have come on bourd them, but that they took him to bee capt. of the Julian’ (fol. 79rv).
18 For example in a short memorandum, ‘Bona amicorum onerata in navi hostium capta in bello una cum navi fiunt capientium’ (Lansdowne 131, fols. 188r—189r): ‘Ex iure gentium introducta bella et commercium, eque igitur sunt consideranda iura belli et iura commercii, cum ex eodem iure procedant, 1. ex hoc iure, D. de iustit. et iure, glos, et DD. ibi in ver. bella et commercium. Ea, que ex hostibus capimus, iure gentium statim nostra fiunt, § item ea que ex hostibus, Instit. de rer. divis, et acquir. earum dominio, et 1. naturalem, in fine, D. de acquir. rerum dominio, glos, et DD. ibi’ (fol. 188r).
19 For example, in Henry Newton c. Georges Brooke, a testamentary cause (Lansdowne 130, fols. 136vff.)·. ‘Probatio iuris gentium non restringitur ad duos testes in testamento, Vasquius lib. 2, de testament, § 13, num. 23, requisito, 6, idem § 11, num. 68, Zuntius in responso pro uxore, num. 477. Quando probatio est iurisgentium, potest quomodocumque suppleri, Comeus in 1. hac consultissima, C. de testament., § ex imperfecto, num. 1, et sequent., Natta ibid., num. 151, Wesembec. consil. 98, num, 65, Zuntius in responso pro uxore, num. 66, Linwood in cap. statutum, ver. probatis, de testibus’ (Dr Dun and Dr Hove for the defendant); countered by Dr Styward: ‘Probatio iurisgentium est que fit per duos testes, gios, in ver. probationibus, 1. Lucius, D. de milit. testam., 1. 15, C. de milit. testam., ver. sub ipso tempore, Angelus in § plane, Instit. de milit. testam., Alexand. in I. militis, C. de testam, milit. num. 1, 2, 3’ (fols. 137r-138v, several articles omitted). trade. Both the principle of free trade and the right of the prince to restrict foreign trade under certain circumstances, viz. when the security of the realm is under threat, are founded on ius gentium. The two sides are highlighted in an opinion written in support of the principle: ‘Tempore belli nullas merces ad hostes deferri debent.’[244] Because of the general purport of the opinion, the emphasis is not on the foundation of free trade, but rather on its restrictions:
Commercia non sunt simpliciter libera, quia ex causa prohiberi possint. Quan- quam homines liberi nascantur, commerciaque libera esse debeant, attamen secus, si a Principe prohibeantur, M. Mantua in 1. comparandi, C. que res vendi non possunt.
Commercia sunt de iure gentium libera, nec princeps ipse nisi ex magna causa potest derogare, Laur. Silva, consil. 35, num. 14.
Principes possunt prohibere transeuntes per viam publicam, item navigantes per publicum flumen; in fluminibus publicis etiam inhibere possunt piscationes; item et vectigalia navigantibus per flumina publica, ac transeuntibus per vias publicas necnon pro piscationibus et venationibus imponere possunt, atque huiusmodi prohibitiones iure et usu gentium universali probantur, M. Anto. Peregrinus de iure fisci lib. 1, cap. num. 21.[245]
The ultimate justification for the priority of the King’s prohibition of foreign trade is the national interest.[246] However, the defence of the realm is seen to be an application of a general and more fundamental principle of natural law and ius gentium, which in this context tends to lose again its connotation of inter-state law:
Vim et iniuriam propulsare iuris naturalis et gentium est. Est hec non scripta sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa arripuimus, hansimus, expressimus, ad quam non docti sed facti, [non] instituti, sed imbuti sumus, et si vita nostra in aliquas insidias, si in vim, in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediende salutis, Cicero pro Milone. Bellum pro tuitione rerum suarum est licitum iure naturali, gentium et divino, Jason in 1. ex hoc iure, D. de instit. et iure, num. 39. Propulsare vim atque iniuriam de iure nature atque gentium est, Decius in 1. ut vim, D. de iustit. et iure.style='font-size:9.0pt;font-family: "Times New Roman",serif;color:black'>[247]
As a result, and in spite of the conventional references to ius gentium, the decisive source for restricting foreign trade became the will of the sovereign.[248] Not surprisingly, even the principle of free trade was sometimes founded primarily on the national interest, and thus on royal legislation.[249] Similarly, the task of fighting piracy is presented as a rule imposed by ius gentium, but in practice entrusted to the prince.[250]
Neither these various principles of ius gentium nor their applications by Civil lawyers at the Court of Admiralty in London were innovative. The counsel still relied mainly on the late mediaeval mos italicus and the early modern legal literature which showed a large degree of continuity with that tradition. These authorities, partly of ancient, partly of mediaeval origin, did not reflect the new European international order which emerged during the early modern period. Yet, the emphasis on the constitutive role of the territorial sovereign in regulating international relations does to some extent express the changing approach in legal scholarship.
In the absence of a uniform, clearly defined, concept of the law of nations, one should not expect that practitioners would have used the term ius gentium differently from its various meanings in the extensive library of ius commune. In the same way as the burgeoning literature on specific topics of international law (in particular, the law of war, the law of embassies, the law of the sea) incorporated much traditional ius commune learning, the late Elizabethan civilian practitioners contributed to adapting late mediaeval doctrines to early modern developments. In addition to the few explicit references to ius gentium that were discussed in the previous pages, their main arguments effectively dealt with a host of questions which would later be recognised as proper topics of international law: the law of reprisals (often including, in connexion herewith, the determination of denizenship), prize-law, the law of war. The cases always produced particular questions and in order to provide answers and arguments the practitioners necessarily relied on ius commune, combining both rules which were more or less specifically applicable and general principles of ‘topical’ principles borrowed from other areas.[251] It was precisely the versatility of the mos italicus and early usus modernus methods which made it possible to address these questions of international law avant la lettre, i.e. before the modern concept of the law of nations had been established.
Appendix: BL Lansdowne 129, fols. 80r-82vl
[8oq
A briefe note of certaine reasons giving occasion to judge that the King’s Bench prohibitions and other proceadings against the Admiralty should bee voyde; delivered mee by Duck Lambe etc. 26. febr. 1591.
First it appeareth not that there hath bene at any time till of late yeres any prohibitions or other such like proces against th’Admiralty, but onely against Curiam Christianitatis, beecause as it seemeth the Court of Admiralty being alwaies the King’s Court as well as ante other Court of the Land, was not to bee restrained or enlarged but as it pleased the Princes to order it in th’Admiral’s commissions. Whereas the Court Christian (that is to say the spiritual! Court) was till H. 8. alwaies a forreine Court, and therefor to bee withstood by the King’s prohibitions: least the crowne’s inheritance by forreine commissions might otherwise in time bee wholy taken away.
And whereas the statutes of 13. and 15. R. 2. and 2. H. 4.2 doe forbid th’Admirall to meddle with any thing done within the bodies of counties, or within the realme, and suffereth him to meddle with things done uppon the sea (saving for meames3 and deaths of men happening uppon greate rivers beneath the first bridges to the sea) the power of the prince is not therein denied or restrained, as that shee shall graunt no further commission, but onely that th’Admirall is forbidden to meddle, as meerely Admiral!, further then with things done uppon the sea; and therefor the power and right of the Prince must bee considered. For the Prince being alwaies seized without impeachement of any lawe, in the right of her imperial! crowne of this realme, of all jurisdiction as well by sea as by land, and deviding the same, as by nature they are separated, into 2. several! goverments, hath ordeined the magistracy of the bodie of the land
1 Written in Julius Caesar’s hand. Additions in the manuscript are indicated by the angle brackets.
class=31 style='margin-left:0cm;text-indent:0cm;line-height:97%'>2 13 Rich. II c. 5, 15 Rich. II c. 3, 2 Hen. IV c. 11.3 Read: ‘mayhem’ (compare 15 Rich. II c. 3, in: The Statutes of the Realm, vol. II (London 1816, reprint 1963), 78-9; and in: Sir Travers Twiss (ed.), The Black Book of the Admiralty, with an Appendix (4 vols., London, 1871-6), vol. 1,412-3). to be exercised by severall officers, as the King’s Bench for Plees touching the crowne, the Common Place for ordinary actions betwixt private persons, the Chauncery for causes of equitie, th’Exchequeur [80^ for rent, issues, fines and forfeitures accrewing to the prince, with other peculier Courts of like nature to theise. And the magistracy of the sea, to bee exercised by the L. Admirall onely, called the great Admirall of England, in respect there is included in his onely office all th’offices abovesaid with charge also of military affaires, as doth appeare in the severall clauses of his letters patents.
As it is written in the civill lawes of the Romane Emperors, that unto the president of any place did continually belong all offices whatsoever, which were executed in the citie of Rome by severall magistrals, as[252] at this day the same seemes to bee resembled in the provinces of Ireland and Wales, and the counties Palentine, and so in like manner in the province of the sea. The wordes in the civill lawe bee theise, Cum plenissimam iurisdictionem proconsul habet, omnium partes, qui Rome sunt, vel quasi magistratus, vel extra ordinem ius dicunt, ad ipsum pertinent, et ideo maius imperium in ea provincia omnibus post principem habet. And againe, omnia enim provincialia desideria, que Rome varies iudices habent ad officium praesidum pertinet, 1. 7. et 8. < D. > de offic. Proconsulis[253] et 1. 10. et 11. D. de offic. praesidis.[254]
And < according to > this division or magistraces, the Princes of this realme have likewise devided the maner of goverment with 2. soundry lawes, th’one the common lawe of this land,8 appropriate to our nation onely, as best fitting those causes that happen within bodies of counties, where the eyes of iurors may give them intelligence to enquire and give veredict of truth, in fact of all controversies; th’other is the civill lawes imperiall for the sea, which for that by long continuance in the most florishing commonwealth of Rome, they have bene many ages since, the most perfect and the most equal [8IT lawes of the world, are generally received throughout all nations about us. And therefor are not onely most fittest for our traffick and other dealings with straungers, but also (for such causes as conceme the sea) are most necessary to bee practised amongst ourselves. And in this division of lawes they seeme to followe th’example of the Romane Emperors, who in deciding seacauses referred suters to the Rhodian lawes in all things, wherein theire owne lawes imperiall did not specially abrogate the same, 1. deprecatio, D. ad 1. Rhodiam de iactu.9 The Honorable seagouverment of which Rhodian lawes (as Tullie saith) was in his time famous, Cicero pro lege Manilia.[255] And that bycause the resort of all marchants to the citie and Isle of Rhodes was now exceading there, then in all the places of the worlde, and by that meanes the lawes of traffick were there most triedly qualified with all points of equity, Peck, in rubricam, ad 1. Rhodiam de iactu.[256] And also[257] bycause the commodiousnes of the place, and skill in navigation, and use of greate shipping obtained to that citie and island the space of manie yeres all gouverment by sea. And theise lawes of Rhodes nowe encorporated to the civill lawes Imperiali. And so to the whole bodie of both with th’auncient customes of th’Admiralty of England and actes of parliament concerning the same have alwaies governed seacauses by expresse commission from the Prince. Hereby it is manifest, that the magistrates both of sea and land, are equally authorised in theire severall offices to governe by severall lawes in like immediate degree from the Prince: and therefor if it falles out, that a question doth arise concerning the limits of either their jurisdictions, it seemeth that [81v] this question is not fit to bee decided by either of themselves, but rather by the Prince her selfe, in her owne person, or by such speciali commissioners or delegates as her Matie shall appoint superiour and indifferent to them both.
13Adversus sententiam eius, qui vice Principis iudicavit, solus princeps restituet, auxilium apud Pretorem flagitare non potes, 1. 3, C. si adversus rem iudicatam.[258]
Magistratus qui sunt pares imperio, nullo modo possunt alter ab altero cogi, 1. nam magistratus, D. de arbitris.15
New Roman">Praetor in praetorem, et consul in consulem nullum habet imperium, sed (ut inter eos ius dicatur) auxilium principis est impetrandum, 1. ille a quo, § penult. D. ad Senatuscons. Trebellia.16
And therefor, whereas her Matie hath graunted by her letters patents to the L. Admirall, magistrate of the sea, the cognizance of all causes, arising within th’ebbing and flowing of the sea and fresh water to the full, and beneath the first bridges to the sea, and of all other causes concerning the sea, wheresoever they happen to bee done under which termes the commission of all his jurisdiction is limited. It cannot seeme to bee lawefull for magistrals of the land, to prohibite the course of the said commission within those limits, without greate impeachment of her highnes prerogative and power, and uniust iniury to their equall. For whereas the statutes of R. 2. and H. 4.[259] are supposed to warrant the judges of the land to restraine the Queen’s power in graunting such a commission, as though the lawe of parliament were not by her Mat,e to bee qualified in the rights belonging to her selfe: the truth is, that as the same statutes themselfes have not anie wordes to restraine or denie the power of the prince in making such a commission: so if they have it may well bee saide, that the prince may make a graunt [821] merely contrary to statute, and anie lawe positive to prejudice herselfe by such graunt, by a clause non obstante,[260] 1. finali, C. si contra ius vel utilitatem publicam,[261] Baldus in authent. hoc inter liberos, C. de testament.,[262] Francisc. de Aret. consil. 25, col. 4.[263] And the same statute is hereby sufficiently dispensed withall, especially where theise wordes ex certa scientia et mero motu nostris, are therewith also inserted, Alexander in glossa 1. 3, § si is, D. quod quisque iuris,[264] Baldus in 1. final., C. sententiam rescindi non posse.[265] And this power of the prince is grounded uppon that most certaine observation, that every prince imperially raigning is at free libertie from all lawes positive to annihilate the same, Zazius in 1. 2, D. de origine iuris, § eodem tempore,[266] vide de hoc pulchre distinct. Minsinger. centur. 5, observat. 97,[267] so they impeach not the rules of the lawes of nations and nature. And therefor the penalty of the same statute of 13. R. 2. and 2. H. 4.,[268] videlicet, that the statute and the common lawe shall bee holden against th’Admirall, and that the pursuant in th’Admirall Court shall forfaite to the partie grieved double dammages, and 10. lib. to the Queene, being in this dispensation27 avoyded, and no prohibition being therein mentioned, (as it is in all the statutes prohibiting the spirituali Courtes), it followeth, that the said magistrates have no warrant at all to countermaund the iurisdiction of their equall, by anie such courses, in th’exercise of the marine authority graunted them by commission.
And least this resolution shoulde bee a meanes for th’Admirall to deale further with causes of the land, then the commission authoriseth, when anie such proceading is offered, the partie greived may except against the judge’s competency for such a cause. And if th’Admirall notwithstanding, will uniustly persist in proceading, [82v] the same partie may appeale to her Mat,e in the Chauncery, and then the Judgement and sentence of such delegates,[269] as by commission, from thence shall bee appointed, shall determine that controversie 8. Eliz. cap. 5.[270]
Which authority of delegates is so confirmed by that statute of 8. Elizab. that theire Judgement must bee taken as finall in all civill and marine causes, and no further appeale or complaint to anie other Court is allowed.
To the maintenance therefor of this Admirall seagoverment according to every clause of her highnes commission, her Matie enioyneth and commaundeth her L. Admirall to enioyne all subiects, of this realme to obey the tenour of the same her commission uppon paine of contempt and perill ensueng. And the contempt thereuppon growing to punnish by fine and imprisonment. Th’example of which iniunctions all other her highnes Courts doe put in ure, to defend the limites of their severall30 Jurisdictions. And by this meanes onley the L. Admirall hath from time to time, and < so >31 hereafter shall avoyde all such impeachments of the landcourts, offered nowe commonly at every common man’s sute, uppon bare untrue suggestions, to the dammage of her highnes imperiall crowne of this realme, and to the overthrowe of that settled goverment, which hath alwaies remained in the same, to32 the greate encrease of traffick and navigation.
Ordinatum fuit tempore E. 1. an° reg. 2, that all marine causes should be tried before the L. Admirall.