reparation of their old Laws then a structure or edifice of new For the rest some say they are additional some say explanatory to remove false constructions and interpretations and some say both but certainly for the most part they are but explanatory for the other Laws before mentioned are accounted most authentick and of chiefest authority throughout all or the greatest part of Europe But be these additional yet the addition of Sea-laws to Sea-laws is no diminution of Sea-Jurisdiction but rather a compleating and perfecting thereof but the composure of new land-Laws or if it be but the reformation of old if those Laws look but toward the Sea they oftentimes cause the discomposure of Sea-laws and unless well lookt unto the very destruction of that Jurisdiction but of that more will appear by what shall be said hereafter And now before I proceed to any other argument for the proof of the antiquity of this Jurisdiction I shall give you one reason only which induceth me to believe that the same was settled long before the time before mentioned and that the Rhodian Sea-laws were here settled long before the Laws of Oleron by Richard the First and that is an Ordinance made by Henry the first at Ipswich concerning the banishing a man for Felony or Trespass which I find mentioned in an Article of the antient Inquiry of maritime offences annexed unto the antient Statutes of the Admiralty in the antient Parchment-leaved Book called the black Book of the Admiralty where after the manner of such banishment is set forth it is said Et cêste ordonnance fat faitte primerement a Gyspswiz ou temps du primer Roy Henry per les Admiralx de North West autres Seigneurs adheirdantz CHAP. V. The antient Introduction of the Sea-laws argued and inferred from the King of Englands Dominion over the British Seas THat the Kings of France have no Dominion at all over the British Seas or any right or claim thereunto whatsoever is made plain by what is set forth in the 14th Chapter of the second book De Dominio maris written by Mr. Selden who in his 27th and 28th Chapters of the same Book proceeds to make further proof thereof and therein sets forth that there being warre between King Edward the First of England and King Philip the Fair of France but agreed by Covenant that all Commerce on both sides shall be free so that to all Merchants whatsoever there should be induciae which were called sufferantia guerrae and by both of them Judges were appointed that should take cognizance of all things done against these Truces and should exercise judicia secundum legem mercatoriam formam sufferantiae Now it being contained in the first head of this League that they should defend each others rights against all others this afterwards was the ground of an action which was instituted in the same Kings time c. before these Cognitors chosen by both the said Princes by the Proctors of the Prelates Nobility and high Admiral of England and of all the Cities Towns and Subjects of England c. unto which are joyned the Proctors of the most maritime Nations throughout Europe as of Genua Catalonia Spain Alemania Zealand Holland Frise Denmark and Norway and divers others subject to the Roman Empire against Reginer Grimbald the then Admiral of France for that there being Warres between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their voyage to Flanders and dispoyled them of their goods whereas the King of England and his predecessors as they all joyntly by libell do declare and affirme without all controversie beyond the memory of man have had the supreme Government of the English Seas and the Islands thereof Praescribendo scilicet leges statuta atque interdicta armorum naviùmque alio ac mercatoriis armamentis instructarum cautiones exigendo tutelam praebendo ubicunque opus esset atque alia constituendo quaecunque fuerint necessaria ad pacem jus aequitatem conservandam inter omnimodas gentes tam exteras quà m in imperio Anglicano comprebensas quae per illud Transierint supremam â—sdem item fuisse atque esse tutelam merum mixtum imperium in juredicendo secundum dictas leges statuta praescripta interdicta aliisque in rebus quae ad sumumm imperium possint attmere in locis judicatis Ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectare jurisdictionem ex imperio ejusmodi exercendam And he sets forth further in the same Libel that they do all of them together desire ut à custodiâ liberati qui carceri ita traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae ad quem solum tam ex jure rerum ac loci quà n personarum hujusmodi jurisdictio attinebat subirent These things I have cited out of Mr. Selden not only to shew here for my purpose that the Kings of England have had from antient times the power and dominion over the British Seas for then might I have referred the whole matter to his whole book which doth so learnedly so many wayes and by so many several arguments convince in that point but as well to shew that the Kings of England's Admirals have likewise as antiently had jurisdiction under them over those maritime affairs which fell sub isto regimine dominio And also to shew that so many Nations did concurre and agree therein and that they had istud regimen dominium exclusivè of the Kings of France bordering upon the same seas and of all other Kings and Princes whatsoever for they all likewise joyntly agree an usurpation and interruption of the King of England's right of Dominion over these Seas by the King of France in granting a Patent of the Admiralty of the Seas unto his Admiral Reginer Grimbald and therefore all joyntly proceed in their Petition further Vt cognitorum sententia Reginerus Grimbaldus ipsa damna Actoribus resarciret si nimirum solvendo esset sin minùs tunc ut ad idem faciendum damnaretur Rex Franciae qui ejusmodi praefecturae codicillis eum donasset Damnis autem resarcitis tum etiam Reginerus ob foederis violationem poenas daret quales alios à simili facinore in posterum deterrere possent And in the 28th Chapter of the same Book the Libel is set out at large in its own language worthy the reading Now all these things considered shall any man that understands that the Kings of France who have no Jurisdiction at all over these Seas have so antiently had and continued their Admirals in such power as the Edict by Parliament at Paris declares them to have done so much as imagine that the Kings of England who have had from Edward the First 's time and so long before as that all the aforenamed Nations do joyntly acknowledge it to be then beyond
and is not in that space discharged More particulars I might instance in out of the said Laws of Oleron to the same purpose and how farre the said Laws are extended or limited by latter writers upon the Civil and Maritime Laws but that will be a work more properly to be entred upon when this Jurisdiction of the Admiralty shall be compleatly settled and freed from interruptions in its due procedings I shall therefore onely set down this last Judgement in its own language not endeavouring to shew what the Law is either in this case or any of the other before recited but to conclude that by these Laws so long since established for the directions of Judgements in Maritime causes it plainly appeareth that the Ports and Havens are within the Jurisdiction of the Admiralty and that all differences therein or thereupon arising are cognoscible and tryable in the same The words of the Judgement are these Item ordonne est pour custume de mer q'se une nef arrive en ung Port a sa droitturier le descharge demoure la nef illecq ' chargee jusq's axxi jours ounrables la mettre puet been mettre hors sur ung keye le Maistre doit ordonner bailler ung de ses Mariners an Marchant pour prendre garde aux vins ou autres derrenes jusque a tant q'le Maistre soit pay de son frett Et cest le Judgement en ce cas Very many more there are which will be too tedious here to set down None of all which is by any part of the Common Law treated of at all nor can it if it keep its own rules render the same Judgement with these Laws but a diverse if not in many cases a clear contrary CHAP. XI That by the ancient Statutes of the Admiralty setled before the last Confirmation of the Laws of Oleron 12 Edw. 3. and Articles of enquiry added thereunto it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas THere are likewise ancient Statutes of the Admiralty to be observed both upon the Ports and Havens the high Seas and beyond the Seas which are comprised in an old authentick Book called The black Book of the Admiralty which Statutes are ingrossed upon Vellam in the said Book and written in an ancient hand in the ancient French Language which plainly shew the Admirals Jurisdiction to be upon the Ports and Havens as well as upon the high Seas I shall set down onely one of those Statutes for proof thereof which sheweth how and in what manner damage done by one Ship unto another in a Port or Haven as well as upon the high Seas shall be satisfied in case the same be wilfully done and how and in what manner in case the same be unwillingly done by chance by reason of tempest or other mishap The words of the Statute are these It que nulle nef ne vessel de la flotte pour orgueil ne pour haine ou envie sur le mer our entrants es ports ou en port ottroie veille audommage dautre nef ou vessell de la flotte au pris par ceux de la flotte sur payne de faire playne amende de ce qui est endommage en son default qui endommage debrysse au tres entrants aux ports ou dedens ports ou sur le mere neuvoillautz par cause de tempeste ou autrement il paiera amendera la moitie du dommage a la discretion Judgement de l'Admiral There are likewise in the same Book added unto these Statutes the Oath and Articles whereupon Juries were and are to make their presentments unto the Admiral all written with the same hand the Oath onely in old English the Articles in the same Language with the Statutes which shew what things are enquirable and presentable before the Admiral and there punishable and how and in what manner such offences are to be punished out of which it iâ— easily and plainly to be gathered that the Admiral hath a full and compleat Jurisdiction exclusive to all others upon all Ports Havens and Creeks of the Sea I shall here set down verbatim the Oath to be Administred unto the Jury and some few of those Articles which shew the Admirals Power and Jurisdiction to be upon the Ports and Havens The Oath This here see my Lord the Admiral that I John atte nashe shall well and truly enquere for our Lord the King and well and truly at this time thou serve at this Court of th' Admirate present as moch as I have in knowleche or may have by information of eny of all my fellows of all mane Articles or circonstances that touchen the Courte of the Admirate and Law of the Sea the whiche shuld be grate to me at this time and I thereupon sworne and charged and of all other that may renewe in my minde and Ine shall for nothing lette that is for to say for franchise Lordship Kynreden aliance friendship love hatred envye enemytee for dred of lost of goodnee for non other cause that I shall so doo the Kings Counseills my fellows and myne owen wel and trewly hele what oute fraude or malengyn so God my help at the holydome and by this Book Next unto this Oath is set forth the punishment of the Jurate that shall disclose the secrets of the King or any of his fellow Jurates to be inflicted upon him by the Admiral The very first and second Articles to be given in charge are for Theft committed upon any Port or Haven and the punishment thereof set down These are the words in the Articles Soit aequis des larrons es ports ComeÌ„ de cords batenlz autres ancres autres appareâ—ls des nefs se nul est endite quil a felon neusement pris ung baten ou ancre que passe xxi d. il sera pendu sil est de ce convicte It se an cuy est endite quil a felon nensement pris ung boye rope de quelle value quil soit soit lie a ung autre dedens leave pour la boye il sera pendu sil nest de ce aquite And so they proceed to set down the punishment of him that shall cut any Cable whereby the Ship is cast away or any man lose his life c. And of such as shall remove an Anchor And likewise of such as shall rob Strangers Ships not being enemies And how their goods shall be restored to them though they pursue not the Felon to death And what course is to be taken in case of such robberies Petty Larceny is by that Law punishable upon the first conviction by forty dayes imprisonment upon the second half a years imprisonment upon the third death By the next Article common disturbers of Ships and Passengers either upon the Seas or the Ports are to be enquired of and their punishment is therein described
and other places that in express words it confirmeth same and further extendeth his power unto a twofold manner of tryal of such offences committed within the same limits that to his Jurisdiction formerly belonged to make use of each as he should see cause And the Cognizance and tryal of all offences of this nature whether committed upon the high Seas or upon the Ports Havens or Creeks of the Sea and whether proceeded against by the course of the Civil Law or the course of the Common Law hath belonged unto the Admiral or Admirals and his or their Lieutenant or Lieutenants Judge or Judges of the high Court of the Admiralty or Judges of Vice-Admiralties and hath been by them constantly and continually practised and used I might here lead you into a labyrinth and so involve both my self and you in such a vast thicket of heaps of ancient Records which remain in the Registries of our Admiralty which plainly set forth this constand and continued Power and Jurisdiction of the Admiral upon the Ports and Havens that we should in no short time nor with little labour get out again If I should here go on where I left in the first Book of this Treatise and endeavour to give you a view but of the Patents onely which several Admirals of England have since Edward the thirds time had they having from time to time had more plain and clear expressions of the Admirals Right Power Authority and Jurisdiction they having by that means grown very large I should too much swell this small Treatise in proving that which will be by farre shorter Records more briefly and yet plainly enough made to appear Therefore to spare mine own labour in writing and transcribing these Patents and yours in reading them I shall pitch upon some few other of the shortest Records onely of one year amongst above a hundred since the making of the said Statute and that shall be the eight and twentieth year of Queen Elizabeths Raign at which time all the Judicatories of this Nation were in as good perfection and absolute lustre and splendor for due observation of their just rights and priviledges as at any other time whatsoever In the 28th year of Queen Elizabeth against the Sessions to be held for the Admiralty by vertue of a Commission grounded upon the said Statute of Henry the eighth several precepts or mandats issued out of the Admiralty Court unto several persons for the summoning and returning of Juries for the enquiry and tryall of all such offences as are mentioned in the said Statute whether committed upon the Sea or upon the River of Thames below London bridge towards the Sea or upon the Sea-shore wheresoever within the Maritime Jurisdiction and Limits of the Admiralty of England or elsewhere in or upon publick Rivers Ports Creeks or places overflowed by the Sea I shall here set down a Copy of one of them onely which beareth date in the Moneth of Feb. in the same year Carolus Dominus Howard Baro de Effingham praeclari ordinis garterii miles magnus Admirallus Angliae Hiberniae Walliae ac dominiorum insularum earundem Villae Calisiae merchiarum ejusdem nec non Gasconiae Aquitaniae classium marium dictorum regnorum Angliae praefectus generalis ac socii sui Justiciarii serenissimae Dom nostrae reginae suae Admirallitatis Angliae ad omnia singula proditiones felonias roberias furta murdera homicidia confederationes delicta piratica spoliationes depraedationes c. delicta quaecunquae tam in aut super mare vel publico flumine Thamises citra pontem Civitatis Londini versus mare quam super littus maris ubicunque locornm infra jurisdictionem maritimam limites jurisdictionis Admirallitatis Angliae praedictae vel alibi in aut super fluminibus publicis portibus crecis locis super inundatis quibuscunque contra pacem ejusdem Dominae nostrae Reginae atque Statuta leges ordinationes dicti Regni sui Angliae ac communes leges Statuta ac ordinationes maritimas curiae suae Admiralitatis Angliae ejusdem qualitercunque habita facta attemptata sive commissa perpetrata vicecomiti Surr. c. Tihi praecipimus c. quod venire facias c. And the like Warrants or Precepts were at the same time directed unto the Bayliffs of the Liberty of the City of London in the Burrogh of Southwark and likewise unto the Bayliff of Southwark Another Warrant was likewise directed unto Jasper Swift the then Marshall of the Admiralty that he should have Richard Jones Osmund Sparke John Barnard Humphrey Hood and Thomas Seal committed for Pyracies and Felonies by them done upon the Sea and upon the River of Thames below Bridge towards the Sea before the said Courts in these words Carolus Domminus Howard c. ut in superdicto praecepto Jaspero Swift curiae Admirallitatis Angliae mariscallo tibi praecipimus quod Richardium Jones Osmund Sparke Johannem Barnard Humfridum Hood Thomam Seale in Custodia Militis Macresc modo detent existent nuper de pyratiis feloniis per ipsos super mare rivum Thamiseos infra pontem c. coram c. habeas c. And there being then divers other Pyrats and other offenders in the Marshalsey another Warrant was directed unto the Knight Marshal Keeper of that Prison to have all and singular the Pyrats and other offenders before the said Court which Warrant likewise ran in the manner of the former viz. Carolus Howard c. tibi praecipimus quod tertio die Octob. c. coram c. omnes singulos pyratas c. habeas c. And upon return of the said Warrants several Indictments were preferred against several persons for several pyracies and other offences committed upon the River of Thames below the bridge besides such Indictments as were preferred against Pyrats and Robbers upon other navigable Rivers and at high Sea One against Conray Bowes for that upon the 20th of February he with a certain Wherry upon the River of Thames within the Jurisdiction of the Admiralty did enter upon and into a certain Lighter lying over against Debtford c. upon the same c. did c. Inquiratur pro Dom. Reginâ si Conraye Bowes nuper Grenwici in Comitatu Kantiae watermanus vicesimo die mens Februarii anno regni Dom. nostrae Elizabeth Dei gratia Angliae Franciae Hiberniae nunc Reginae fidei defensoris c. vicesimo octavo in cymbâ quadam vectoria vocata a Wherry super publicum flumen Thamiseos infra Jurisdictionem maritimam praefatae Dom. nostrae Reginae suae Admiralitatis Angliae intentione malevola existent ac deum prae oculis suis non habens sed instigatione diabolica seductus circa mediam noctem cymbam quandam vectoriam dictam a Lyghter tunc super publico flumine rivi Thamiseos ex opposito Depforde Creeke infra
Maritime affairs wheresoever made were then duly used in the Admiralty Court and did properly thereunto belong CHAP. III. That by the ancient Statutes of the Admiralty and by the Laws of Oleron it appeareth that Contracts made at land of and concerning Maritime affairs were cognizable and tryable in the Admiralty both before and even in the time of Edward the Third whereunto the last mentioned Statute maketh reference IF Contracts and Covenants of and concerning Maritime businesses made at land were cognizable in the Admiralty in Edward the Third's time then doth the last before mentioned limitation of the Statute of the 13th of Rich. 2. 5. continue them tryable there still taking the construction of the Statute to be with relation to the Petition or without But before that I go about to shew that they were then cognizable there I shall make it first appear that they were there triable long before his time and so come to the cognizance of them in his time In the beginning of that antient authentique book called the black Book of the Admiralty whereof I have formerly made mention in which all things therein comprehended are ingrossed in Vellam in an antient character which hath been from time to time kept in the Registry of that Court for the use of the Judges of the Admiralty successively and is as free from suspition of being corrupted or falsified as the Records of any Court whatsoever are set down the ancient Statutes of the Admiralty with directions how in what manner and of what things every Admiral shall enquire at every Port and Haven after his being made high Admiral Where amongst other things I find an Ordinance made by Edward the First at Hastings as is plain by the Ordinance it self whereby all Stewards and Bayliffs of Mannours upon the Sea-coasts are forbidden to meddle with any plea or try any cause whatsoever touching or concerning any Merchant or Mariner whether by deed or charter party of Ships or other things amounting to the summe of 20 or 40 Shillings The words are these Item ordonne estoit a Hastings par le Roy Edward le primer ses seigneurs que coment divers seigneurs avoient diverses franchises de trier plees ou Ports que leur seneschaulx ne Baliffs ne tendroient nul plee sil touch Merchant ou Mariner tant par fait come par chartre de nefs Obligations autres faitz comment la somme amont que a xx s ou a xl s saucun est endite quil a faite le contrare de ce soit convict il avera mesme le Judgement come desus est dit They that shall do to the contrary and shall be thereof convict they shall have the same Judgement as is aforesaid which is a years imprisonment set forth in the next preceding Article for a Mariners breaking an arrest made upon him for to serve the King in any Ship And the same Ordinance concludeth this Item chūn contract fait entre Marchant Marchant ou Marchant ou Mariner outre la mer ou dedens le Flod markes sera trie devant l' Admirall nemient ailleurs par lordonannce dudit Roy Edward ses seigneurs Also every Contract of a thing done between Merchant and Merchant Merchant or Mariner beyond the Seas or beneath the Flood mark shall be tryed before the Admiral and nowhere else by the Ordinance of the said King Edward and his Nobles And in another thick covered Book with great Brass Bosses kept in the Registry of the said Court wherein are set down some things of Antiquity and likewise some things of latter times I find this very Ordinance set down in express words agreeing both with the former part and with the Addition thereunto Wherein I likewise find an Article of Enquiry in Latine containing the whole substance of this very Ordinance in these words Item inquiratur de hiis seneschallis ballivis quorumcunque Dominorum per costera maris Dominia habentium qui tenent vel tenere usurpent aliquod placitum mercatorum vel marinarum concernens excedens summum quadraginta solidorum paena qui inde presentati fuerint super hoc convicti paenam quinque librarum judicium subibunt haec est Ordinatio Edwardi primi apud Hastings regni sui Anno secundo Item quod quilibet contractus initus factus inter Calcatorem Mercatorem Marinarium aut alies ultra mare sive intra fluxum maris vel refluxum vulgariter dictum Fludd marke erit triatus terminatus coram Admirallo non alibi per Ordinationem praedictam And by an Inquisition long since translated out of an ancient French Copy into Latine by one Roughton and Ingrossed in the said black Book I find this whole Article in the self same words save that instead of these words paenam quinque librarum judicium subibunt the words are these Eandem paenam ut super judicium subibunt which agreeth with the Ordinance it self which referreth to the punishment in the preceding Article thereunto which punishment is as is set forth before a whole years Imprisonment Now that this Ordinance and this Article onely forbiddeth Stewards and Bayliffs of Mannours for medling with such Maritime Contracts and Causes it is because that at that time there were no other Courts that could encroach upon the Admiralty for the Kings-Bench was not setled in any constant place but followed the King wheresoever he went and the Justices in Aire and Justices of Assize being Itinerantes and sometimes at home and sometimes in their Circuits and somerimes in one place sometimes in another and so in no certain place and least of all in any Ports or Haven Towns never did nor could take Cognizance of Maritime Contracts or Causes which always required a most sudain dispatch and could not expect their uncertain coming nor was the Court of Common Pleas then settled for it was resolved to be settled in some constant place but in the 9th year of Hen. the 3. all which will appear by what I have formerly set down Now that these Contracts and Covenants concerning Maritime affairs though made at Land were continued cognoscible in the Admiralty Court in Edward the 3. time as well as before will likewise plainly appear thus The Laws of Oleron which were brought into this Kingdom by Richard the 1. were absolutely and compleatly settled and established in this Nation by Edward the 3. in the 12 year of his raign as will plainly appear by that ancient Record of the Tower Intituled De Articulis super quibus c. Anno Regni Regis Edward 3. 12. which is already set down which I will here repeat because I will not turn you back to the other place being there made use of to another purpose Item ad finem quod resumatur continuetur ad subditorum prosecutionem forma procedendi quondam ordinata inchoata per avum
the other If not so yet let no man say that the two famous antient Universities of the Land wherein there be so many Colleges and houses of antient foundation in which have been by the Founders themselves so many Fellow-Ships Scholar-ships and places founded settled and employed properly and solely for Students in the Civil and Maritime Laws or the Laws proper and necessarily usefull for Navigation and Maritime affairs being so scattered or I will rather say decently as flowers strewed and disperst through the whole body of the Civil Law the subject whereon those Students were to spend their daily labour pains and employment could possibly be long ignorant of those Laws that these so many forenamed nations had so long and so well known What if known by this Nation was there yet any use made of them in it That they were known by what hath been said or considered cetainly I cannot have so ill a conceipt of my Country men the antient Inhabitants of this Nation as to think them so long ignorant and unskilfull of those antient Laws of the Sea and Laws so necessary for maritime affairs as some would make them to be much less will I think the Government of this Nation to be without so good order and justice in any particular as not to settle these Laws once known for the government of its maritime matters nor will I imagine the maritime men to be so dull or stupid as not gladly to embrace the settlement of such Laws as tended so much to their quiet and advance of their profit being to trade and commerce with such as used in this particular no other Laws but these Again shall we say that so many Nations some so remote and some so near home as France but over against us and Scotland even within the same Island all governed by the Civil Laws or Municipal Laws thence derived and by them regulated and guided as the Sea Laws are and keep the pathes and very footsteps thereof in their proceedings as the Sea Laws do have with so much eagerness pursued and sought for these Sea Laws and with so much chearfulness embraced and continued them and that this Nation that is invested in a Law particular and municipal which doth in no wise so much as challenge or claim any derivation from or dependency of the Civil Law but is altogether different and disagreeable thereunto in its proceedings and oftentimes in its determinations and hath no foundation or grounds whereon the dicisions of sea-controversies can be built should without the knowledge and practise of these Civil and Maritime Laws deal and trade with such as do live under them and are guided by them surely no so many inconveniences distractions distempers by reason of the variousness of two Laws both in proceedings oftentimes in determinations would long agone have destroyed all our Commerce and Traffique with these other Nations and so consequently have dispoiled us of our Navigation and Shipping the principal safeguard of this Land Nay I am so farre from doubting the acceptance of these Maritime and Sea Laws here in England as well as in other Nations that I am confident they were here settled before they were settled in divers of those Nations before mentioned For I must not so much as think or have the least conceipt that England ever borrowed any thing at all from those Articles which are cognoscible in the Admiralty of Scotland But I may very well believe that those Articles of Scotland were borrowed from some of the three antient Records of the Admiralty of England For so are all things by the Admiral Judge or Lieutenant decreed and registred by an Ordinance of Richard the First made at Grimsby styled and said to be which are with very many other antient things comprised in the black Book of the Admiralty which are therein ingrossed in an antient Character upon Vellam one of which immediately followeth the antient Statutes of the Admiralty and is there set down in old French as the said Statutes are and conteineth 38 Articles A second is a Latin Copy translated out of another antient French Record by Roughton and in an antient Character in the same manner inserted into the same book and containeth 52 Articles The third is the Inquisition taken at Quinborough the 2. of April in the 49th year of the Reign of Edward the Third at which time and to which place he caused several maritime and seafaring and sea-trading men of the best judgement and knowledge in sea-affairs of most of the maritime parts of England to be summoned and there before W. Nevel Admiral of the North Philip Courtney then Admiral of the West and William Lord Latimer Chamberlain of England and Warden of the Cinque-Ports to meet together and consider of all such points and matters as had antiently and usually been observable inquirable and punishable in the Admiralty upon which inquisition 81 Articles were concluded on which are likewise ingrossed they being more particular than the former in old French in the said antient black Book of the Admiralty But these as the Scottish Articles do concern only matters to be proceeded against criminally and not matters of Trade Traffique and Commerce and damages susteined at Sea or in Ports havens c. whereof I shall come to treat in the second Book yet do these several Records in several Articles set forth in what manner such as shall sue or implead any Merchant Mariner or seafaring man for any Contract maritime whether made by Charter-party or otherwise or for any thing whatsoever done of or concerning any Ship or other Vessel in any other Court then the Admiral shall be proceeded against as I shall more particularly hereafter set forth But my chiefest reason that the Civil and Maritime Law-Courts were here settled in England before they were settled in divers of those other Nations is for that this Nation hath had the Dominion over the British Seas and their High-Admirals their Jurisdiction over those Maritime Affairs which fell sub isto regimine dominio so antiently as that in Edward the Firsts time the same was acknowledged by very many other Nations to have been then beyond the memory of man as I have before set forth in the 5th chapter of this Book where I take my authority from an antient Record of the Tower in nature of a Libel intituled De superioritate maris Angliae jure officii Admiralitatis in eodem as is in the same 5th chapter exprest The Record it self I was a long time since shewed by my old friend Mr. Collet who for a long time had the keeping of the Tower Records under several men unto whose care and custody the same were committed and afterwards I met with the same in Mr. Seldens Book De Dominio maris which I had not before read over and after that I found the same set forth by Sir Edward Coke in his Jurisdictions of Courts yet I will not
ce que ad estre duement use en temps du noble Roy ail nostre quorust doth no ways at all take away the Admirals or the Court of the Admiralties Cognizance of any thing whatsoever was cognoscible before them in Edward the 3s time and so consequently doth it not take away the Cognizance of Contracts for freight nor wages nor are they any of the encroachments complained of in the Petition whereunto that Statute is an answer And divers other Judgments there be amongst these Laws of Oleron which determine Contracts made between the Masters of Ships and Pilots or Loads-men whether the same be made at land or elsewhere for the conducting of Ships into Ports and Havens or from one Port or place to another I shall only quote some two or three of them and leave the rest Item se ung lodeman prent charge sur luy de amaner une nef en aucun port avient quen sa defaulte la nef soit perie c. marchandises endomagees c. Item estably est pour custume de mer que se une nef est perdue par la defaulte de une lodeman c. Vng bachellor est lodeman de une nef est love alamener jusquis au port ou len la doit discharger c. And some others there be of the same nature And the ancient Statutes of the Admiralty and Laws of Oleron before mentioned established by the said King Edward the Third in the 12 year of his Reign as is before declared having settled the cognizance of such Contracts and Maritime Causes in the Jurisdiction of the Admiralty he granteth the same to his Admirals by their Patents as appeareth by that Patent before mentioned granted unto Robert Herle in the 35 of his Reign But as it seemeth some in those times having opposed or at leastwise afterwards interrupted this settlement the same King caused an Inquisition to be made at Quinborough the second day of April in the 49th year of his Reign before William Latimer Chamberlain of England and Warden of the Cinque Ports and William Nevill his Admiral of the North by near twenty of the most able and best skilled seafaring men of several Port Towns of this Nation of and concerning the ancient customes of the Admiralty to be held firme and continued according to their Verdict as I have at large set forth in the twelfth chapter of the second book of this Treatise I shall therefore proceed to shew that by the said Inquisition it plainly appeareth that Contracts made at land of and concerning Maritime affairs were in Edward the Third's time cognoscible and tryable in the Admiralty Court CHAP. IIII. That by the Antient Inquisition taken at Quinborough in Edward the Third's time it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court IT hath been an antient Rule or Maxime amongst Merchants Owners of Ships Masters of Ships and all sorts of Mariners and Seamen that Freight is the Mother of Wages therefore are the Mariners wages to be paid out of the freight the Ship hath earned and the damages done to the Merchants goods by the Mariners or sustained through their negligence is to be paid out of the freight and what is so paid out of the freight is to be deducted out of their wages and by this rule all are necessarily cognoscible in one and the same Court or Judicature and the damage done at sea being cognoscible in the Admiralty and no where else that cause must necessarily carry the other two along with it both which are likewise there tryable both for this and divers other reasons in the first chapter of this third Book exprest But I am likewise here to shew that by the Inquisition taken at Quinborough in Edward the Thirds time for direction of the Admiralty Jurisdiction as is already set forth the same were both then and before cognoscible in the Admiralty Court By the 14th Article of that Inquisition if a Ship be let to freight for several prices or rates of affreightment the whole freight shall be cast up rateably and the Mariners paid out of the whole so that the Admiralty is to take cognizance of the several Contracts of affreightment made by the Merchants before the lading of their goods and to cause the Mariners to be paid their wages they had contracted for before their entring into their service on Shipboard according to the said agreements of affreightment the words of the Article are these Item se une nef soit affreta a divers pris de fretters lentier de tout laffret sera accompte ensemble les portages paiez aux mariners selon lafferaÌ„t du fret de chuÌ„n tonnel lun acompte coÌ„e dit est droittement avec quis lautre Divers rules there are in the Maritime Laws for direction whether and when Mariners are to have their wages contracted for when not when all when some part thereof and what part thereof which are guided by the rates of payment of freight I shall instance but in one more out of this Inquisition and that shall be out of the very next article to that before set down which followeth in these words Item une nef soit affrettee deurs quilque ' lien quae soit ait certain jour limite de paiement de son fret en endenture ou autrement les Mariners scront paiez de la moitie de lieurs louyers a la charge de la nef de lautre moitie quant mesme la nef sera venus en lien de sa discharge se le maistre ou le seigneur de la nef ny veult come dit est avoir la nef lostel de leure serout ilz paiez quant la moitie du dit fret est receu It being plain then that this Inquisition was in Edward the Third's time taken for the direction of the Judicature of the Admiralty it is as plain by these Articles that in his time the Admiral had cognizance of Contracts made for freight of Ships and Mariners wages wheresoever the said Contracts were made and then the Statute of Richard the Second cap. 13. being shut up with this clause of Solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre doth no wayes take away the cognizance thereof from the Admiralty which is a thing I cannot too often repeat Neither resteth this Inquisition here but what matters were cognoâ—cible and to be determined before the Admiral by the Laws which I have in the former chapter quoted out of the Laws of Oleron and by divers others of them as well as those there quoted and by divers other Articles in the foregoing part of this Inquisition being then fully settled and established It is towards the latter end of this said Inquisition provided and care is thereby taken that neither those matters nor