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 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 Next that they suffer none of their company to bee idle but to punish as well the sluggard as the rebellious yea even those who are irreverent towards them 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 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 so that they may be compelled thereunto 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 justice-Iustice-court and if they transgresse unto the third time they may be suspended from their trade 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 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 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 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 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 and therefore subject to the jurisdiction of the Admiralty 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 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 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 Last of all as Shippe-wrights were of old so are they also of late forbidden under paine of treason to communicate their skill and Art to enemies and barbarous people 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 FINIS 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. eâ— c. rhodiae leges distinct 2. f L. 1. sect licet de exerc act g Suetâ— ca. 218. h De situ orbis i Lib. 7. natur histor vide â—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. â— b L. Seius Saturninus ad S. C. trebell c Vide fragmenta ascripta Polybio d Vide Alberic ad novell 17. 24. e L. Ã proconsulibus C.
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 Oleroâ— 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 usquâ— 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 priviledgeâ— 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 â—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 monumeÌ„ts 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 but also by the communicating of their trade and discipline on sea they did make neighbour Princes and Cities willingly Tributars unto them And further as Strabo writeth 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 And so likewise exemplarilie did their successor Antoninus by his rescript yet extant 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 Vlpian one of the fathers of their lawes the Romane Emperours and namely Claudius 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 And Plinius for that same cause ascribes the Art of sayling to the Carthaginians 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 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 As also the Kings of England have done before 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
no other Clerke or Writer may meddle or pen things concerning the sea-faring without licence of the Admirall 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 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 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 because all dispositions and ordinances commonly take their interpretation from consuetudes and uses 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 But in the manner of proceeding it is a perpetuall priviledge Quod velo le vato 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 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 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 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 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 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 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 which should be done within a yeer and a day namely by such as were in service to the Prince and country 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. In which doing no citation is required and that against the common law 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 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 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 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 omnibuâ— 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 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 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 aâ—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 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 TIT. VI. Of persons ordinary in ships TOuching persons ordinary for sayling in ships they are of divers orders and therefore diversly stiled as
thereby 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 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 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 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 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 except in the avoyding of a danger as the helving the maste over-boord or the slipping of a Tow-anchor or boate upon just feaâ—â— or at the desire of the Merchaâ—ts 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 Also if goods be put in without the master and clerks knowledge if they be cast they shall have no contribution 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 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 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 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 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. Item contribution should be for the Pilots fee that is taken in to guide her into an unknowne Port as also to raise the Ship off ground when the fault is not in the Master 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 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 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 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 except 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 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 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 except onely in goods unadvisedly cast wherein for the correction of
repressed at least by these represalies and letters of Merque 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 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 then what goods happen to be taken by that meanes should bee brought and presented as aforesaid before the Admirall 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 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 as comparable with theâ—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 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 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 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 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 where the sea ebbes and flowes under paine of confiscation of all the goods of the transgressors in Scotland 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 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 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 â—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 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 Likewise lest any of the Fishers harme or hurt one another it is diversly provided as also coÌ„cerning the right measure of their nets in length in bredth 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 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 Iâ—es but only the Kings customes under the paines due to manifest oppressors against them who exact the same 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 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 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 Bailâ—ffes to set downe prices and to compell the packer and peiler to sell againe for the need of the Lieges Which being done they may transport the remainder where they please And in case they contemne then their fishes to be eschete two parts to the King and the third to the Magistrate 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 and the barrell of Salmon of fourteene galons according to the measure of Hamburg under the paines of escheting there of from the paâ—ker and of five pound to be lifted from the Couper And therefore hoop irons to be made in each towne for the tryall and gaging thereof 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 Iâ—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 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 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 therefore is it that Moses saith 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 coÌ„position 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 Communio parit discordiam Quod communiter possidetur vitio naturali negligitur Habet communio rerum gerendarum difficultatem 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 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 â—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 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 that Vlpian should say 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 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 And yet neither of these two Iurisconsults pronounceth absolutely in these cases but upon another higher warrant and therefore Vlpian addes Saepissime rescriptum est nâ—c piscari c. prohibere posse 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 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
if no man claime the finder to keepe it to himselfe if he be poore 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 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 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 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 which otherwise before was allowed to the finder 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 but since the erection and constitution of Admiralls this kinde of found goods are diversly parâ—ed for in France the King draweth a third the Admirall a third and the finder a third And of old in England although such things were divided twixt the Admirall and the finder 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 even with the halfe at least according to that which Tryphonius sets downe concerning things found on land 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 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 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 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 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 quà m recepta intelligitur 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 and the remnant of the spoile should be proportionally divided amongst the takers according to the law of God set downe by Moses and practised by King David and yet not onely amongst severall persons according to every man his proved travell and hazard So that the ship that sets no saile fights not nor hazards not with the rest should have no part with the rest thereof 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 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 Besides that generally in all cases the action and cause of liberty as priviledged should be favourably considered 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 practised by King Amasia and confirmed by the Prophets 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 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