and determining of all offences debates and differences arising or growing from any thing done or to be done within the several bodies of the Counties thereof whether they be Criminal or Civil whether they concern Estates real or personal whether they be between the King and any other party or between party and party which are tryable by the said Law Fourthly they are different and distinct in respect of the rules the Judges proceed unto judgement by those of the one Jurisdiction proceeding according to the rules of the Civil Law known and used by all or most Courts and Judicatures in Christendome Those of the other proceeding according to Rules and Laws municipal known only unto themselves and such as are well skilled and verst in the same and are Inhabitants and Subjects of this Nation To set forth the differences between these two Jurisdictions in their proceedings was to undertake the setting down of the whole proceedings in all several causes tryable both in the Admiralty and the common-Common-Law Courts the one of which with some pains I might very wel do but the other belongs not to me to undertake yet so much I know of them as that I am sufficiently informed in my judgement that they are exceednigly different even in their proceedings Fifthly they are different even in the Laws themselves whereby the Judges are guided to their determination and directed in their giving of judgement those of the one Jurisdiction determining according to those Civil Laws which are Maritime and still retained and kept in use in most Nations in Europe adjoyning thereunto those few and short Laws of Oleron with some other customary Laws of the Seas which are commonly accepted and known where such Judicatories are kept and held and are expresly declared and published by several Maritime Writers Those of the other judging according to a municipal Law fitted prepared and composed only for Land affairs and indeed only for the Land affairs of this Kingdome by the advice of such as have had the best judgement in those Land affairs And as these are different and distinct from the Civil and Maritime Laws which have been composed by the advice of such as have had frequent Traffique Trade and Commerce at sea and by that means have had best knowledge and judgement in sea affairs So indeed in the same manner are the Civil Laws which have been composed and established in other Nations by such as have been of best experience in businesses of the Republique for the guiding and governance thereof distinguished and kept apart from those other Civil Laws which are Maritime The absolute necessity of keeping these two Jurisdictions thus distinct one from the other you shall have fully set forth in the 14. and 15. chapters of this second Book wherein is shewed the use and practice of the Civil Law in most forraign Nations and that the same is absolutely necessary to be used and practised in all Admiralty Courts unto which two chapters I especially referre the Reader CHAP. II. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-trading men SEeing then that the Admiralty is a distinct Jurisdiction from the Land Jurisdiction in the next place the bounds and limits thereof are to be considered and those will best appear by the before mentioned Records of the Patents and grants of that Jurisdiction First then that this Jurisdiction extendeth to all manner of Ships and Shipping I conceive will not be denyed for it is plain by the Records already quoted that the Kings had in those antient times their Admirals as well for the Northern Seas and Coasts as the Western yea and sometimes several Admirals for one of these Coasts as in the twentieth year of Edward the second quidam habuerunt custodiam costerarum maris inter Toffe Thaw quidam aliarum and in the tenth year of the same Kings reign one W. 〈…〉 had the same power ab ore aquae Thamesis usque Ipswic and Johannes de Thorpe ab Ipswic usque Linn Shall we think then that this King had in those times when shipping was farre more scarce then it hath been since in each of these Coasts and in every of these particular places within these Coasts where he had Capitaneum Admirallum flotae suae a Fleet consisting of his own particular Ships which he called flota nostra which required a Captain and Admiral to govern them Certainly no but all Ships Boats and Vessels whatsoever belonging unto sea tam remiculi quà m corbitae sive gauli tam naves frumentariae sive onerariae quà m naves praesidiariae tam Beucentauri quà m naves praetoriae sive Navarchae c. were all comprehended under flota navium And this is plain for that these Governors were sometimes stiled Capitanei navigii as well as Capitanei Admiralli flotae navium And that navigium signifieth all manner of shipping I have already shewed And likewise very many of the antient Patents expresly run flotae nostrae omnium navium I shall instance only in one or two as in that of the 8 Ed. 3. which runneth thus Rex omnibus ad quos c. salutem Sciatis quod nos de fidelitate probatâ circumspectione providâ dilecti fidelis nostri Rogeri de Hengham plenariè confidentes constituimus ipsum Rogerum Capitaneum Admirallum flotae nostrae omnium navium c. tam quinque portuum quam aliorum portuum locorum per costeram maris versus partes c. And in that of the first of Edward the Third in these words Rex omnibus ad quos c. salutem Sciatis quod nos de circumspectione fidelitate dilecti nobis Johannis Parbroun confidentes constituimus eum Capitaneum Admirallum flotae nostrae omnium navium magnae Jernemouth omnium aliorum locorum c. per costeram maris versus partes Boreales quamdiu nobis placuerit c. So that these who were Admirals of the Kings Fleet were Admirals of all Ports and Admirals of all Ships of all Ports And as it extendeth to all manner of Shipping so doth it extend unto all manner of Shipmen for to little purpose was it for the Admiral to have had power and authority over the wooden Vessels if they had not had power over all the Seamen and Mariners in them yea and over all others that belonged thereunto or had to do therewith or were skilled therein For by almost all the beforecited Patents they had not only potestatem super omnes singulos marinarios but also super omnes de flotâ of or belonging to the Fleet Navage Ships or Shipping as well the owners of them the Merchants and Traders with them and Imployers of them as the Mariners of what degree soever sailing in them or in any wise belonging to them tam mercatores exercitores quà m proprietarios tam naucleros quà m helciarios tam gubernatores quà m diaturios tam proretas
be proceeded in according to the rules of the Civil Law and have their determination from the same or else be decided without testimony which is to judge blindfold or else to rest unadjudged and the wronged and injured party to be left remediless and unrelieved But it will be answered that in such cases they may have a Commission out of the Chancery for that purpose To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law or to the Civil and Maritime Law And then surely it must more properly belong unto that Law and that Court which can of it self without the assistance of any other Court make a compleat proceeding and tryall and give a direct judgement according to express rules of Justice in such causes then to that Court which without the assistance of another Court can do neither Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions neither hath it in as many causes any express rules to direct the Judicature thereof I shall here set down some few of those Laws which the Civil and Maritime Laws give in such Cases so farre forth onely as to shew that the Maritime Laws were ordained as well for the Ports and Havens as for the main Seas First then for the lading of a Ship which is always or commonly in a Port or Haven the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading as shall be put aboard the said Ship and who shall not sunt quidam in navibus qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diaetarii Si quis igitur ex his receperit puto in exercitorem dandam actionem quia is qui eos hujusmodi officio praeponit committi eis permittit quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant Sed si hoc non extet tamen de recepto navicularius tenebitur non debet per remigem aut mesonautam obligari sed per se vel navis magistrum This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship but likewise what things they are chargeable for and saith Quod cujusque salvum fore receperint hoc est quamcunque rem sive mercem receperint and least it might be thought that it is onely meant of Wares and Merchandizes and nothing else it explaineth it self yet further and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent veluti vestimenta quibus in nayibus uterentur cetera quae ad quotidianum usum habemus parvi referre res nostras an alienas intulimus si tamen nostra intersit salvas esse And assoon as such Merchandizes and other Commodities are put aboard the Ship whether she be upon Port Haven or any other part of the Seas he that is exercitor navis is chargeable therewith and if the same be there lost or purloined or sustain any damage hurt or loss whether in the Haven before or upon the Seas after the Ship be set forward on her voyage whether it be done by the Mariners or any other through their permission or negligence he that is exercitor navis is to make good the same For saith the Law recepit salvum fore utrum si in navim res missae ei assignatae sint an etsi non sint assignatae hoc tamen ipso quod in navim missae sint receptae videntur omnium recepit custodiam quae in navini illatae sunt Et factum non solum nautarum praestare debet sed vectorum And in these cases two several Maritime Actions do lie whereof the Agent hath his choice Dicendum duas proponi actiones exercitorias una est de recepto in simplum quae dicitur in factum altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur Et haec est in duplum sed in eam non venit factum vectorum So that the very lading of goods aboard the Ship chargeth him that is exercitor navis therewith which the Common Law doth not for he is lyable for whatsoever his Mariners shall do aboard the Ship be she in Port Haven or upon the high Seas but he is not lyable for what they shall do being at land and not aboard the Ship so that the Ship maketh distinction of Actions but maketh no distinction at all between her being upon the high Seas or upon Port or Haven Debet Exercitor omnium nautarum suorum sive liberi sint sive servi factum praestare nec immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam in ipsa nave damnum datum sit caeterum si extra navim licet a nautis non praestabit But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda and shall lose them or suffer them to be stoln from him before they shall be laden aboard the said Ship he shall be lyable to make satisfaction Idem ait etiam si nondum sint res in navim receptae sed in littore perierint quas semel recepit periculum ad eum pertinere If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship and transported in case they there perish or be otherwise damnified much more shall he be answerable for such goods and merchandizes as he shall receive or shall be laden aboard his Ship if the same perish or be damnified in or upon the Port or Haven Those Laws of the Rhodes which we find inserted into the body of the Civil Law which are the ancientest Sea-laws extant do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship and the remainder of goods and of the Avaridge payable out of the same whether the Ship be in such stress of weather upon the Ports or Havens or upon the high Seas and the rules there set down do serve as well for the one place as the other These Laws and Rules being general and not restrained to the high Seas do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved And such danger doth not alwayes fall out upon the high Seas but oftentimes upon the Ports and Havens But least this shall be thought not sufficient but that notwithstanding the generality of the Sea Laws which have provided directions sufficient for what is to be done in such cases
either be built or bought at such rates or prizes as they then were so that they cannot be let for the same freight they then were For the other clause of Forreigners transporting their Wares and Merchandises in English Bottoms to pay no more Custome then the English whether the Customers have disused the same and so made it obsolete or not I know not But in case they have so done I know no warrant or necessary cause they have for so doing but for the last mentioned clause That Masters and owners of Ships shall provide that all the Merchants Wares and Merchandises shall be in good order saved and kept and that the Merchant which shall thereby or by delay or protracting of the Voyage without just cause longer then the time agreed by the Charter-party find himself aggrieved shall and may have his remedy in the Admiralty This is only in affirmance of the Law of that Court and was both before the making of that Act and hath been ever since used and practised in that Court and cannot by the disuse of it at the Common Law where it is not by that Act at all to be used be made obsolete but is by the practice and use of it where it is appointed to be used held continued and preserved from being made obsolete there Now no man can say but that this saving and keeping of Merchants Goods and Merchandises honestly and in good order is clearly meant of such saving and keeping them honestly and in good order as well whilest the Ship or Vessel remaineth in the Port or Harbour as when she cometh at high Sea and the delaying and protracting of time in taking of the Voyage with the next good wind according to the time agreed on by the Charter-party is most certainly a wrong or injury done upon the Port or Haven and the Jurisdiction of the Admiralty in causes of this nature upon the Ports and Havens by this Statute affirmed and confirmed And moreover the very breach of the Charter-party though made at land is by this Act affirmed to be cognoscible in the Admiralty which bringeth me in the very next place upon that point and particular wherewith I shall begin the next Book THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE THIRD BOOK CHAP. I. That all Differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof HAving been thus long upon the Ports and Havens it is now full time to begin to think of the discharging of the Ship and the delivery out of her lading to the Merchants to whom the same belongeth and for to come to the Caulking fitting trimming preparing and furnishing of her with Victual Tackle Apparel and furniture c. and manning her with Seamen and Mariners for some voyage and taking in of her lading from the Merchants or their Factors to be transported in the same In the effecting of all which several men of several Occupations Trades and imployments are severally to be contracted with as well at Land as upon the Port and Haven The validity and invalidity of all which contracts Sir Edward Coke would have to be Cognoscible Tryable and determinable in the Common Law Courts according to the Course of the Common Law and not in the Admiralty Court or according to the Proceedings Rules and Grounds of the Civil and Maritime Laws But I must here likewise adventure another dispute with him upon this point And first I shall offer some reasons to the contrary and then endevour an answer unto his Arguments And after both I shall set forth what Laws have been made for the determination of such differences as shall arise upon such contracts by which Laws certainly they are still to be determined And first I say that by Ships and Shipping this Nation is secured and preserved from foraign Invasions and by Trade and Commerce with foraign Nations not a little enriched and neither Shipping nor Trade can be upheld without the welfare of Merchants Owners of Ships Fitters Furnishers of them Mariners c. And this welfare of the Merchant Owner Fitter Furnisher and Mariner cannot be maintained without a settled Jurisdiction of Admiralty regulated according to the Civil and Maritime Laws setled amongst and known unto all Maritime Nations Because as it is well known all of them have dealings with such foraign Nations abroad and such foraign Nations with them at home who both expect and will have the same Justice meted to them that they measure unto others else will they both forbear to Trade with that Nation which shall deny them that Justice and likewise deny that Nation to Trade with them Now it is most certain that the municipal Laws of this Kingdom are so different from the Civil and Maritime Laws that if Maritime Causes be they either for freight wages damages done to Merchants Goods Building Tackling and furnishing of Ships c. should be here determined by the municipal Laws of this Nation and beyond the Seas by the Civil and Maritime Laws they must necessarily receive many of them a different many of them a clean contrary Judgment To instance briefly in some few of many If Mariners be hired to serve in a Ship for so much by the Moneth and serve divers Moneths in her and the Ship dieth at Sea and never maketh port here the Judgement of these two Laws will be clean contrary Likewise if a Ship be let to freight at a certain rate by the Moneth from Port to Port and so home again and the Ship in some of those Ports shall be imbarqued for some moneths here the Judgements of the two Laws both for freight and wages for those moneths will be contrary and upon other emergent causes from hence arising the Judgements will likewise be in some farre different and in other some clean contrary If the Merchants Wines Oyls c. be leaked out end for end the Judgements upon Action for the freight will be different if not contrary If the Merchants Goods shall be damnified by ill stowage or careless looking to or shall be purloyned or stoln the party not known or if known not able to make satisfaction here upon Action brought by the Owner for his freight and by the Mariner for his Wages the Judgements will differ very much If in a storm at Sea or in any Port or Haven the Ship and her lading be in danger and some Goods be cast over board for preservation of the rest by the Maritime Laws the remaining Goods are to be cast into an Avaridge to make satisfaction for the Goods cast over-board by which Law certain Rules as well concerning the danger the nature of the several Goods and the casting them over board as concerning the Avaridge it self to be made are prescribed which Rules are not known or owned by the municipal Laws of this Nation and therefore cannot that Law take cognizance thereof and consequently upon Action brought by the owners for freight
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
judicandis quam in classe Regiâ gubernandâ insignitur And further saith that we had the name of this Magistracy viz. Custos Maris Marinae Maritimarum partium from the Romans as may be gathered from Cicero in Epistol ad Attic. ubi ait vult me Pompeius esse quem tota haec maritima ora habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. speculatorem custodem CHAP. III. The Beginning of Sea-Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued DIonysius ascribeth the first making of Sea-laws to the Phenicians Pliny to the Carthaginians but according to the observation of most Authors out of most ancient Monuments our Sea-laws have had their beginning and original from the Island Rhode Rhodiae leges navalium commerciorum sunt ab Insula Rhodiae cognominatae in qua antiquitùs mercatorum usus fuit an Island scituate in the Carpath Sea part of the Mediterranean which being but a small Island but yet very populous the Inhabitants yea the very Indwellers thereof chose rather to live by water then by the aire and to seek their subsistence and provide for their sustenance by constant sayling and continued navigation by which means they encreased their strength and augmented their power at Sea to the terrour of all their Enemies the hinderers of their Traffique and quelling of all Pirats the disturbers of their peace They multiplyed their riches with an infinite increase and advanced their wealth to the very height And these principal ground-works being laid and chief foundation settled that which makes principally to the purpose in hand they grew so exquisite in their Navigation so skilfull and cunning in their Traffique and so expert in the discipline of both that as time now required they framed Edicts to be instituted decreed and published to be established and observed for Laws for the guidance of all men according to the most exact rules of equity in all manner of Sea-businesses insomuch that all Cities and Nations near unto them therein sought knowledge of them and to the further encrease of their riches by a ready and willing Tribute still exchanged wealth for wisedom and thought not that they paid any what too dear for the gain of such knowledge and to be directed in the rules of such Discipline and Laws as might settle such a constant determination of every mans just right at all times in all manner of Traffique Trading and Employment upon and by the seas as the Islanders had which Laws and Discipline did afterwards spread to further Nations and the very Emperours of Rome did successively referre all seafaring Debates and Controversies to the Decrees Determinations and Judgements of the Rhodian Law Leges nauticas dicimus quas Rhodii condiderunt quorum disciplinam navalem ut Strabo ait 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admirabilem omnes populi libenter etiam Romanus sequebatur And Eudaemon Nicomediensis making his complaint to Antoninus thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Domine Imperator Antonine naufragium in Italiâ facientes direpti sumus à Publicanis Cyclades Insulas habitantibus Antoninus answereth thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego quidem mundi dominus Lex autem maris Lege id Rhodiâ quae de rebus nauticis praescripta est judicetur c. Hoc idem quoque Divus Augustus judicavit Yet be there severall other titles in the body of the Civil Law which set forth several Decrees and Laws particular to the Seas and sea-faring matters to be observed And Vlpian a Father of the Law having set down some of them gives his reason why they should be precisely kept and observed Quia saith he ad summam rem-publicam navium exercitio pertinet These Rhodian Laws what of them are left and inserted in the Pandects and their defects being supplyed by the Code and novell Constitutions and their Rents repaired by the fair Applications and candid Expositions of the old Roman Lawyers and other authentique Authors which have since wrote of matters of that nature still give the rule and guidance to all seafaring business of what nature soever throughout all or well nigh all Europe and have never been opposed obstructed or interrupted but by such as least understood them And these severally had their original from that Island of sea-faring men though they have been by successive observations collected and gathered together as most just and equal for the determination of every mans just due and right in all their Maritime affairs whether they concerned complaints offences Criminal or Civil Sales or Assecurations of Ships Accounts Covenants or Contracts by Charter-party or otherwise Exchanges Freights Hyres or Money lent upon casualty or hazard at sea Causes of Reprizals Letters of Marque or concerning lading or unâ—ading and whatsoever other things else among seafaring men either of one or several Islands or Nations done or to be done either on or at the sea concerning Sea-trade Now who shall be imagined to have the supreme governance and power over these seafaring men and the cognizance of their Maritime causes to judge them according to these sea-Sea-laws established amongst them and duly to put them in execution Certainly these Laws were hatcht of order and could not be bred up to disorder Seamen surely had amongst them a supreme Governor one or some that swayed and ruled the rest in the composure of them and so must they necessarily have in the dispensing of them and administring justice according to them Now I hope it will not be said that the maritime and seafaring men contrived and made Laws amongst themselves which concerned themselves their Traffique and Trade and when they had done gave them over into the Land men hands which could not possibly understand the grounds and depth of them with a power to put them in execution and so give others a power over themselves which before had nothing to do with them If they would so have done which no man will judge yet it is not to be believed that in this Island of Rhodes they could which consisted generally of seafaring men Who should then be fit to be chiefest in managing these Laws but such a one as had chiefly a hand and was most dexterous in making of them so that I doubt not but that we may boldly say and conclude that as these Laws were composed gathered and collected by maritime and seafaring men so were they put in execution by the principal Governor and Ruler of them and so had they both birth and growth under the jurisdiction rule and governance of the chief Captain Commander and Governor over all these seafaring men and shipping And as Causes encreased and multiplyed so did the Laws according to the nature of the Causes and as the Causes varied so did the Laws untill they required the constant and continuall study of such as were to judge by them CHAP. IIII. Of the Laws of Oleron and the Antiquity of the Admiralty argued
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without
and such as do destroy the Fry of Fish and of such Mariners as do violence to the Owner of the Ship contrary to the Laws of the Sea and Statutes of Oleron such Mariners as disobey the lawfull commands of their Master such Masters as keep not their Mariners in order and peace according to the Laws of Oleron and likewise of Loads-men and Loads-manage And here particularly is to be enquired of such as do claim propriety in any Port or Haven which belongeth unto the King without Charter or Prescription to the disinheritance of the King Item soit enquis se aucun clame properte en port ou commers qui attient a â—â—stre sur le Roy ne la my par chartre ou praescription en disheritance du Roy. And in this respect as well as others is the Admiral called Custos portuum Custos maritimarum partium c. Here again as by the former Articles are Forestallers and Regraters as is before mentioned to be enquired of and so are Weights and Measures and the abuses of water Officers By another Article here are Fishermen to be enquired of which take Salmons out of season in any Arme of the Sea as Thames Trent c. specifying some particular Arms of the Sea and concluding withall in general so that by Arms of the Sea in these Laws exprest Ports and Havens must needs be meant the same things which Sir Edward Coke under the same notion would have to be within the Bodies of Counties and out of the Jurisdiction of the Admiralty which we see plainly did thereunto belong in far more ancient times then any of his proofs and authorities are of to the contrary and these are the words of the Article Item soit enquis de poissonners que prennent saulmons bors de saison aux bras de mer cestassavoir Thames Trent Deve Derwent Agre Reme Humbre autres riviers q'l conq's ou destroint fry de saulmont en aucun temps de lau For any one to remove an Anchor of any Ship or Vessel without warning given to the Master or some of his Company by which means the Ship doth perish or any man is slain or cut the Boy from the Boy-rope so that the Anchor is lost are offences against the Laws of Oleron presentable before the Admiral or his Lieutenant and punishable according to those Laws Here likewise is an Article agreeable with the former amongst those adjoyned unto the old Statutes concerning Shipwrights wages Divers other Articles there be which concern other matters belonging to the Jurisdiction of the Admiralty some of which might have been likewise deduced into proof for the Admirals Jurisdiction upon the Ports but I conceive these will be sufficient to convince any indifferent man that he had Jurisdiction there in Edward the Thirds time and by those that are adjoyned to the ancient Statutes of the Admiralty and introduction of the Laws of Oleron it will appear that he had Jurisdiction there long before Unto these Articles are joyned several Admonitions drawn into several Articles for the due observance of these Articles and putting them in Execution And next unto them is set forth the manner of proceeding according to the Maritime Laws both in causes Civil and Criminal CHAP. XIII That by the aucient Statutes of Enquiry translated out of French into Latine by Rowghton the Admirals Jurisdiction is upon the Ports and Havens aswell as over the high Seas WElwood in his Proeme to his Abridgement of the Sea Laws maketh mention of the Inquisition taken by 18 most famous persons for skill in seafaring matters assembled at Quinborough and the Articles there agreed on out of which I have cited some in the foregoing chapter and he saith that Thomas Roughton afterwards turned them into Latine and entitled them Articles De officio Admiralitatis Angliae But I do not find that the Articles which Roughton translated out of French into Latine were the Articles agreed on at Quinborough for the Articles of Quinborough set not down the penalties upon the breach of every particular Article but referre the punishment to the former ancient Statutes and Articles of the Admiralty and the Laws of Oleron whereas those translated by Roughton do besides at the Inquision of Quinborough there were by those exquisite skilfull men in Maritime businesses both at home and abroad several Sea Laws or Statutes agreed on and by the King confirmed which I find not translated by Roughton where he averreth such his translation of Articles out of the French tongue into the Latine and calleth them Statutes in regard the penalty of all or most of them are therein determined and appointed which his averrement is in these words at the end thereof Haec statuta fuerunt translata per me Thomam Roughton à linguâ Gallicanâ in Latinam signum meum manuale in testimonium ejusdem hic apponendo Now in this averrement there is no mention of the Articles of Quinborough besides those and these agree not in method nor in number Nor are these the translation of those ancient Articles adjoyned unto the ancient Statutes of the Admiralty which have the penalty upon the breach of every of them set down in them as these have for they have neither the same method nor the same division these being divided into 50 Articles those but into 38. Yet are not these Articles in any one particular contrariant or repugnant one unto another but so agreeable in matter of substance that that agreement amongst them may stand for a true confirmation and a strong corroboration both of the justice equity and authority they carry along with them and also of the credit that is to be given to them They all so agreeing as I have said these must needs prove the same thing that the others have done namely the Admirals Jurisdiction to be upon the Ports and Havens I shall set down some few of these in their own language to shew this agreement and so pass to a yet further proof of this particular But I shall first observe that as heretofore I have shewed that the Admirals anciently have had joyned unto their Patents for that place whereof they were Admirals a special Precept to all Sheriffs Mayors Bayliffs Constables Headboroughs c. commanding them to be obedient unto the Admiral and his Lieutenants and to be aiding and assisting unto them when they should be thereunto required so by the front of these Articles or Statutes the Admiral is directed to grant his Warrant to the Bayliffs of the Port if it be a liberty as well as to his Marshall for the summoning of a Jury to make enquiry according to these Articles of all such offences as are committed contrary thereunto which Articles are there said to concern the Maritime Law and these are the words of that direction Inprimis cum veneris ad portum per costeras maris si sit in
knowledge of the Civil Law which guideth and directeth both the Proceedings and Judgments in all Admiralties of Europe as necessary and farre more requisite for him that will justifie to any other Nation or learned Civilian his due and legal proceedings and justify his Judgments and Determinations in Maritime causes though according to the Laws before mentioned For Vinius himself in his Epistle Dedicatory to the Consuls of Amsterdam to his said Work praefixed who I doubt not but in regard that which he then said in the behalf of the Civil Law he said not to any that I now write will be believed before me that may be thought to speak for my profession in mine own Country affirmeth that Peckius in his work intended to keep himself within the rules of the Civil or Roman Law yet he did by that work shew that he wanted not the perfection of Learning or solid and sound knowledge of Law and many other things Ac forâ—asse Peckius intra limites Juris Romani se continere voluit utcunque sit ostendit sane hoc in opere Peckius sibi non defuisse justam eruditionem solidamque juris multarum rerum scientiam And this I will further add that he that in the Civil Law only and without the learning and knowledge which other Authors afford hath justam eruditionem a iust perfect or grounded learning or skill and thereby this solidam juris multarum rerum scientiam this solid and sound knowledge of the Law and multiplicity of business or matters for which the same was composed and continued may be fit to judge and determine of these Maritime matters and controversies which happen concerning the same when as he which hath the learning and knowledge of these other Authors only and hath no perfection in the learning and knowledge of the Civil Law shall be very defective in the proceedings to the due or just judgment therein But herein I shall plainly agree with this my learned Author Vinius that these Authors are of very good use may conduce much to the perfection of him that is either to judge or determine of such Controversies or shall be practicant in the same and likewise in that he further addeth in the same place viz. that notwithstanding the most perfect knowledge and learning in the Civil Laws and these other Maritime Laws it is sometimes and in some things requisite to make use of and consult with such Merchants and Mariners as are expert and skilfull in Navagation and Commerce Equidem inficior in negotiis nauticis nonnunquam confugiendum esse ad expertes sive nautas sive Mercatores aliosve hujusmodi peritos Yet this is by no means used or ought to be done but where some such thing falleth out whereof there is nothing certain set down in the written Law or introduced by Custome so that I with my same Author affirme the same with that learned Civilian Benveautus Straccha in these words Caeterum nego id fieri solere aut debere nisi ut rectè monet prudentissimus Straccha tale quid occurrat de quo nihil certi aut scripto jure cautum aut conâ—uetudâ—ne introductum est Now seeing that these Marine controversies and differences are to be adjudged and determined by these Civil and Maritime Laws certainly then are none so fit to heare and decide the same as those that are well verst and skilled in these Laws which necessarily must be such as spend their whole time pains and labour in the study thereof and by that means do better understand the diversity of such Laws and gather more knowledge therein then such as are daily imployed in Forreign affairs and continually busied in multitudes of negotiations which bring home a golden Harvest which will not be left or at any time set apart to give way for the study of those Laws which bring in no such profit Such men will rather be found in their Sellars and Ware-houses amongst their rich and precious Commodities which are to be bartered and sold then in Studies amongst mustie Books that are to be kept and not parted with And will rather be seen upon an Exchange Mart or Meeting-place of Merchants then upon a Bench of Justice And in this my said Author Vinius agreeth with me who saith Caetera enim scire possunt etiam qui vitam umbratilem colunt hi si quid literis mandare volunt plura conquirere solent curiosiùs cuncta rimari quam aut pragmatici qui rarò relictâ messe aureâ quà m assidua rerum forensium affert tractatio literarum monumentis unde nullus praeventus est student aut quilibet alii quos nimia circumfusa obsidet opprimit negotiorum multitudo And now since I have thus farre deviated and digressed from the way that I was in give me leave here in so necessary a course or rather discourse to go a little further and afterwards get home again as well as I can Let me shew of what necessary use the Civilian is in these Admiralty Courts which have the decision of Maritime Controversies and how unfit other men not verst or skilled in that Law are for the undertaking thereof I know it will be objected unto me in the first place that some Admiralties in forraign parts are regulated and ruled by the Justice and Judicature of Merchants and other feafaring men well experienced in matters of that nature I must confess I am no Traveller and that in regard have not been amongst these Mercatorian and Nauticall Judges but yet have I in my study travelled through the decisions and determinations of many forraign Judicatures and by that means I believe do know their Laws somewhat better then they which have travelled through those Countries but not through those Courts And I do finde that where such Mercatorian and Nautical Judges are they are either Civilians themselves or at least farre better verst in the Civil Law then any of the Merchants or Mariners of our Nation do seem to be or else they are not only assisted but regulated and ruled by Civilians and moreover by certain Letters yet remaining in my Study which I have in that short time that I have been verst in the high Court of Admiralty in England received from such forraign Admiralty Courts and the Copies of Letters which were unto them returned in answer and their replyes thereunto I can shew that upon contest for the right of Jurisdiction in the cognizance of causes which have happened between Forraigners and English whether the Causes were to be decided by their Court or this that they have urged and quoted the Civil Law for the foundation of their Arguments for their right of Jurisdiction therein and have received satisfaction by answers framed out of the same Law unto their said Arguments If I should here set forth those Letters and Copies it would thereby appear that the Jâ—risdiction of the Admiralty Court of England hath been maintained and defended by Civilians
made the Grant far larger then the request which must not be but must be reduced thereunto and receive a Construction with a due relation to it It being complained of in Parliament that the Admirals and their Deputies had encroacht as is before set forth It is desired by the Petition that they and their Deputies may not meddle with Contracts Covenants or Regraters c. tryable before the other Judges It is answered that henceforth they shall not of a thing done within the Realm but of a thing done upon the Sea The Construction of the Answer with relation to the Petition which as I humbly conceive must not be separated by any Logician will plainly be this The Admirals and their Deputies shall not henceforth meddle with any Contracts Covenants c. of or concerning any thing done within the Realm but onely of Contracts Covenants c. of or concerning things done upon the Sea So that we plainly see an Answer to a Question or Petition turned into a positive Thesis without relation to the thing whereof it is an answer is easily turned into another sence never intended And this answer to a Petition translated alone without the Petition and put positively as the translation of the Statute putteth it doth seem clearly to take away from the Admiral the Cognizance of all Contracts and Covenants whatsoever made within the Realm whereas taken with the relation to the Petition it as clearly confirms the Cognizance of Contracts of or concerning things done at Sea unto him For as the answer to the Petition doth grant that the Admiral shall not meddle with Contracts of things done within the Realm so doth it reserve the Contracts and Covenants of things done upon the Seas unto him And the words as I said before can imply no other thing to the best of my understanding For the following words Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust Poulton having thus translated the Answer without mention of any one word of the substance of the Petition rendreth barely thus as it hath been used in the time of the noble Prince King Edward Granfather of our Lord the King that now is As if this positive Thesis by him extracted out of that which was the King's Answer to a Petition and had onely a relation thereto had been so used in Edward the thirds time whereas the words are a restriction to the answer and bindeth up the Law to what was used in the Kings time for Solonc which in true French is Seloon signifieth secundum or juxta according or agreeable so that if the Answer could be taken positively without relation to the Petition which as I conceive it cannot be yet these words Solonc ceque ad estre dument use c. had restrained and limited it not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in Edward the thirds time So that under correction by that strained construction and interpretation that is made of the former part thereof the Admiral is not barred the Cognizance either of Contracts Covenants or any thing else which he had Cognizance of in that Kings raign Take that part of the Petition wholly and the King wholly grants it but no more By the Petition it is desired that the Admirals may not meddle nor encroach upon the Cognizance of Contracts Covenants Regraters c. cognizable before the other Judges the King granteth it putting a difference between the Contracts c. of things done at Land and of things done at Sea and by this restriction referreth to what Covenants Contracts Regraters c. were duly used and tryed in the Admiralty in Edward the thirds time and those he thereunto reserveth the Cognizance of but no other And now it cometh to be mainly considered whether Contracts and Covenants of and concerning Maritime businesses though made at Land were cognizable in the Admiralty Court or at the Common Law in Edward the thirds time And it seemeth plaine unto me that in Edward the thirds time the Admiral had the Cognizance of all Maritime Causes by the words of their Patents I will give but one instance of the Patent of Robert Herle already cited in which you shall finde these words Dante 's ei plenam tenore praefentium potestatem querelas omnium singulâ—rum de his quae offieium Admiralli tangunt cognoscendi in causis maritimis justitiam faciendi c. Now if Bills of Botomery whereby Ships only are lyable to the payment of the debt contracted upon them though contracted for at land or if freight for the service of Ships at sea or Mariners wages for their service at sea likewise for which either the Ships or Contracters are lyable at the parties Agents choice though the said Contracts were made at land and the like businesses which have their first rise from somewhat done at sea are not maritime causes I would gladly know what causes can be called maritime for sure I am that maritimus is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that which is on the Sea coast or nearest the Sea which the French render ou demeure aupres ou sur le bord de la mer and the Spaniard cerca de la mar Or it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 belonging to the sea take which signification of the word you will and the before mentioned causes will be causae maritimae if for on the Sea-coast or near the Sea then the Contracts in such causes though they he made at land are made on the Sea-coast in the Sea Town or near the Sea If for belonging unto the Sea then these Contracts wheresoever they are made are made for things to be agitated and done at sea and for things that cannot be done without the sea and such Contracts they are that if the sea was not would never have been made and therefore these Contracts must necessarily belong unto the sea and so must those causes which arise from them and must as necessarily be those causae maritimae which the Admiral is to take cognizance of And I am confident that it cannot be shewed that the Common Law had any cognizance of these or the like causes in Edward the Thirds time or that these or such like causes were the causes wherein the Admirals are said then or after to have encroacht upon the Kings Courts Nor that the Common Law had then nor hath yet any positive Laws rules or grounds for the decision of causes of this nature And clear enough it is that even in Edward the Thirds Reign to which this Statute hath reference many Laws and rules were confirmed and many made for direction of the Admiral in the decision of Causes of this nature as by several antient Records shall hereafter appear by which I doubt not but that it will evidently appear that the cognizace of these Contracts concerning
Domini nostri Regis ejus concilium ad retinendum conservandum antiquam superioritatem maris Angliae nos officii Admirallitatis in eodem quoad corrigendum interpretandum declarandum conservandum leges Statuta per ejus antecessores Angliae Reges dudum ordinata ad conservandum pacem justitiam inter omnes gentes Nationis cujuscunque per mare Angliae transeuntes ad cognoscendum super omnibus in contrarium attemptatis in eodem ad puniendum delinquentes damna passis satisfaciendum quae quidem leges Statuta per dominum Richardum quondam Regem Angliae in reditu suo à terrâ sanctâ correcta fuerunt interpretata in insulâ Oleron publicata nominata in Gallicâ Linguâ la ley Oleron These Laws thus brought in and thus established for the direction and use of the Office of the Admiralty as its plain they were by the very words of this Establishment Et nos Officii Admirallitatis in eodem c. were many of them of no use at all if the Admiral had not at and after the time of the bringing of them in or were not at and after the time of the settlement thereof to have had the Cognizance of Contracts and Covenants made at Land of and concerning Maritime affairs for many of them do set forth and declare what Judgement is to be given by the Admiral upon such Covenants and Contracts and the very first Judgement setteth forth in what case the Master of a Ship being come to a strange Port may there sell the Ship and in what case he may not and in what case he may pawn some of his tackle and in what not all which must needs be done by Contract or Covenant and he must necessarily seek his Chapman at Land and not at Sea And who should have the Judgement of such contract whether it be good or a void contract but the Admiral who hath his direction by these Laws how to Judge I know not The words of the Judgement are these Premierement leu fait ung homme Mastre d'une nef la nef est a deux hommes ou a trois la nefs seu part du pais dout ille est voyent a Bordeaux ou a la Rochelle ou alles c. se frette pour aler en pags estranges le Mastre ne puet passe vendre le nef sil na commandement ou procuration des Seigneurs mais sil a mestier de despens il puet bien mettre aucuns des apparilz exgaige par conseil des compaignons da la nof cest le Jagger en ce cas Again a Master of a Ship hyreth Mariners in the Town where the Ship is and by their Agreement contract or covenant some are to be at marinage others at whole pay in mony which done the Ship can find no freight to go to the place where the Master intended to go and whether he hyred his Mariners but must go further or not so farre This no doubt is contracting and covenanting at Land for a Maritime voyage which cannot as I believe be by the common Law according to the Maritime Rules decided nor hath it any rule of it self to Judge it by whether any of the Mariners so hired are bound to performe this new voyage or not which if the professors thereof shall undertake I much fear that in this very first question they must judge clean contrary to the Laws of the sea or clean contrary to the grounds and principles of their own Law which are very good and very reasonable in the land affairs but the reason thereof will not hold in Maritime businesses as I have said before And excellent Authors there be written by Civiliâ—ns which give exact reasons of the differences of judgments in land businesses and sea affairs 2. Whether those that are hired at marinage of those that are hired at full deneirs are the rather bound to performe the Voyage 3. Upon what termes those that are freest are bound and must performe the same 4. What is to be done in case the Voyage prove shorter or longer then that which was agreed for The Judgement upon these particulars is set down briefly in the 20th Judgement of Oleron and is by other Civil Law Authors amplyfied with express reasons of every particular The words of the Judgment in the Laws of Oleron are these Vng Maistre dune nef loue ses Mariners eu la ville dont la nef est les lowe les ungs a Marinage les autres à deniers ilz veoient que la nef ne puet troun fretts a venie en ses parties leur couÌ„ient alzr plus loing nes ceulz qui vont a marinage la doivent servir mais ceulx qui vont a deniers le maistre est tenu a leur croistre leurs loyer veve par veve corps par corps par la raison qui les avoit lovez a termine lieu cliz vienneÌ„t plus peres que leux covenant la pris il doit avoir son loyer tout au lang mais il doit aidera rendre la nef la ou illa prist se le maistre veult a la venture de dieu cest le judgement en ce cas Other Judgements there be which determine in what cases the Master of a Ship may sell part of his Merchants wines or other goods without breach of his Charter-party or contract of a freightment and in what case such his sale or contract for such wines or goods which must necessarily be made at land shall be good and sufficient in law And such cases as these the Admiralty adjudgeth sometimes at 1 2 3 or 4 hours warning or in a very short time for if such Cases should wait Terms or Courts many a Voyage would oftentimes be lost to the extraordinary great damage both of Merchants Owners Masters and Mariners of Ships But for Contracts and Covenants between the Master of a Ship and his Mariners for their wages some have thought them to be upon sufferance allowed by the Common Law unto the Admiralty for the quick dispatch of Mariners and they should not be inforc'd to bring several Actions at that Law but had it been at the allowance or sufferance of that Law another reason might have been added of such their allowance or sufferance viz. because these poor men seldome have any money to expend in Suit for obtaining of so small a summe as commonly their wages severally amounteth unto whereas in the Admiralty they are and alwayes have been heard summarily without payment of one penny for the Judges extraordinary pains in the hearing and determining causes of this nature and an Advocate expecteth but a single Fee from them all be they never so many which oft-times amounteth not to 2 d. a piece But we see plainly that such manner of Contracts belonged unto the Admiralty Court by the Law established and confirmed in the twelfth year
fuisse nullum remedium in hac parte habere potuisse dictos Willielmum Thomam in Curia Constabularii Marescalli Angliae ad respondendum sibi in causa praedicta summoneri venire fecit ac quendam libellum super actionem praedictam in eadem Curia coram dilectis fidelibus nostris Johanne Cheyne locum tenente Constabularii praedicti Willielmo Faringdon locum tenente dicti Marescalli nostri versus praedictos Willielmum Thomas adhibuit proposuit idemque Johannes Willielmus locum tenentes in causa praedicta minùs rite indebitè procedentes ac judicialiter affirmantes allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos Willielmum Snoke Thomam à cura praedicta de instantia praedicti Johannis Coppin sine causa rationabili quacunque dimiserunt deliberaverunt ipsum Johannem Coppin in quadam magna pecuniae summa argenti pro custibus ipsorum Willielmi Snokes Thomae in hac casu coram eis in eadem Curia factis per sententiam suam seu judicium condemnârunt dictos custus ad quandam summam nimis excessivam taxarunt limitarunt de quibus quidem sententia judicio condemnatione expensarum de taxatione earundem aliis gravaminibus praetensis praefato Johanni Copyn in hac parte illatis per partem dicti Johannis ad nos nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet qui quidem Johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu nobis supplicaverit ut sibi super appellatione sua praedicta certos Judices sive Commissarios dare assignare dignaremur nos supplicationi praedictae tanquam juri consonae annuentes vobis de quorum fidelitate industria fiduciam gerimus specialem commitimus vices nostras plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa sive causis appellationis hujus prout dictaverit ordo juris ipsamque ipsas cum suis emergentibus dependentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend debito fine terminand ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis coram vobis judicialiter producentes sine dolo vel fraude odio vel favore aut alià s injustè subtraxerint veritati testimonium perhibere compellandum Et mulctae alteriusque temporalis cohertionis cujuslibet potestate ideo vobis mandamus quod vocatis coram vobis partibus praedictis aliis quos in hac parte fore videretis evocand auditisque in hujus causis appellationis earum rationibus allegationibus circa praemissa diligenter intendatis ea faciatis exequamini prout justum fuerit consonum rationi volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis aliâ—s vel alii vestrum libere procedere valeat sive valeant in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus In cujus c. T. R. apud Westm xiiii die Novembris After this and after the making of the other Statute of the 2d of Henry the fourth one Edmund Brookes Mariner brought his Action in the Admiralty Court before John Sturmister Lieutenant General of Edmund Earl of Kent Admiral of England against John Birkyrne Richard Honesse John Walls and William Burton of Kingston upon Hull Merchants Partners in a Maritime Cause of contracting and taking to freight of a certain Ship called the Laurence of Gyppelwich and the same was there proceeded in unto sentenc and sentence was given for the said Edmund Brookes against the said John Byrkyrne and Company from which sentence the said Byrkyrne and Company appealed unto the King in Chancery and there obtained a Commission of Appeal from thence directed unto John Kington and others who by virtue thereof proceeded in the said Cause unto sentence and thereby reversed the former sentence and condemned the said Brookes in expences from which said sentence the said Brookes again appealed unto the King in Chancery and obtained a Commission of Review directed unto the then Bishop of London and six Civilians to review discusse and hear the said Cause in due course of Law and to determine the same according thereunto And this last Commission of Review was granted but eight years after the making of the said Statute of the 2d of Henry the fourth and therefore the Cause must needs be instituted and begun in the first instance some years before nearer unto the time of the making of the said Statute the same having been proceeded in even unto seentences in two several instances before the granting of this Commission all which appeareth by the Commission of Review it self which is upon Record in the Tower in these words following Rex venerabili in Christo patri R. Episcopo London ac dilectis ac fidelibus suis Thomae Beauford Thomae Eppingham Magistro Thomae Field Roberto Thorley Willielmo Senenocks Johanni Oxney salutem ex parte Edmundi Brookes marinarii nobis est ostensum quod licet Magister Johannes Sturmyster nuper locum tenens generalis Edmundi nuper Comitis Cantiae nuper Admiralli nostri Angliae in quadam causa maritima quae in Curia Admirallitatis occasione affectationis conductionis sive locationis cujusdem navis Laurence de Gippelwich coram praefato Johanne tunc Judice in ea parte competenti inter praefatum Edmundum partem actricem ex una parte Johannem Birkyrne Richardum Hornesse Johannem Walas Willielmum Burton socios ut dicitur in causa praedicta Mercatores de villa de Kingston super Hull partem ream ex altera vertebatur quandam sententiam pro parte dicti Edmundi contra partem praedictorum Johannis Birkyrne c. rite legitime tulerit definitivam pars tamen eorum Johannis Birkyrne Johannis c. a sententia praedicta ad nos nostram audientiam frivole appellavit quo praetextu quidem Magister Johannes Kingston alii colore ejusdem commissionis nostrae eis ad cognoscend procedend in dicta causa appellationis praetens negotio in ea parte principali praetens directae perperam illegitimè procedentes ac dicti parti appellanti plus debito faven dictam sententiam pro parte dicti Edmundi ut permittitur latam licet nullam habuerint jurisdictionem infirmarunt cassarunt irritarunt adnullarunt ac ipsum Edmundum in expensis per partem dictorum Johannis Birkyrne Richardi Johannis c. in praedicta praetâ—â—â—sa causa appellationis negotio principali praetenso eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus
that they should altogether and without delay forbear all manner of cognizance in Civil and Maritime causes contracted in the parts beyond the seas upon the high Sea or in any place where his Admiral of England had jurisdiction or from thence proceeding against the said John Bates by what names soever called by whomsoever or in what manner soever begun or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid in like manner as before remitting the parties if they would sue to the Court of the Admiralty of England for justice to be to them there administred in that behalf The words of the Supersedeas are these Rex c. Majori Vicecomitibus Civitatis nostrae Ebor. salutem Vobis cuilibet vestrum praecipimus quatenus ab omni cognitione in causis civilibus maritimis in partibus ultramarimis vel super alto mari aut alibi ubi magnus Admirallus noster Angliae habet jurisdictionem contractus originem contrahentibus versus Johannem Bates Mercatorem cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis deliberatis per quoscunque vel qualitercunque motis seu movendis omnino indilate supersedeatis partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes Teste meipso apud Westm decimo quarto die Aprilis Anno Regni nostri trice simo primo Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas and out of these words apud Civitatem Burdugaliae venditioni expositis That though by the course of the Common Law if a man do deliver certain Goods unto another man and doth intrust him with the keeping of them for his the Owners use or to be by him disposed of in one manner and he either selleth them or disposeth of them in another I do conceive he that so intrusted the other may recover of him such damage as he hath sustained by such the others sale or disposal Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas for his own use or for the use of any other particular man to whom the same are by him consigned or doth intrust him to dispose of them in any particular manner whatsoever yet he may in many cases upon certain exigencies happening sometimes sell the same sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them and no damage shall be by the course of the Civil and Maritime Laws recovered of him and herein those Laws have very many nice and curious distinctions and for this Cause when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all he presently flyeth to the Common Law where he knoweth he shall recover damage against the Master who was in no fault at all in such manner as mutinous and disobedient Mariners who have either through their misdemeanors by the Civil and Maritime Laws forfeited their wages or some part thereof or having received due correction from the Master at sea do fly to the Common Law either for recovery of their wages upon their Contract which they have no wayes deserved or do there bring their Actions of Battery against the Master when as he hath only given them such due correction as the Civil and Maritime Laws do allow that being a thing done at sea where complaint cannot be presently made or remedy had before a Magistrate as may be at land and therefore the like at land not to be allowed in both which cases they oftentimes recover and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas which cannot oftentimes be possibly done but by Commission out of the Admiralty Court which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships which if not remedied will be the utter destruction of Navigation And another thing I shall observe in general from both the two preceding Supersedeas's That all Contracts of and concerning Maritime affairs made between Merchant and Merchant Masters and Owners of Ships and Mariners or between them or any other person whatsoever and in what manner soever to be agitated or performed by sea upon the seas beyond the seas or elsewhere within the Jurisdiction of the Admiralty or taking their rise or original from thence or do in any manner of wise touch or concern the same were not permitted in those times to be examined or adjudged in any Court but the Admiralty And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes viz. that Contracts of this nature though made at land which do maris per transitum sive viagium aut negotia maritima quoquo modo respicere vel qualitercunque tangere concernere and so do arise from things done or to be done at sea and not from things done or to be done within the body of a County do de jure belong unto the Cognizance of the Admiralty and are in no wise by the said two Statutes taken from the same and if by them not taken from thence then doth not the penalty of the other praementioned Statute of Henry the fourth run upon those that do sue in the Admiralty Court in causes of this nature but only upon such as shall there sue upon Contracts made at land of or concerning things done or to be done or performed at land and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued CHAP. IX That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted I Shall here proceed to shew that the Maritime Contracts whereof I have hitherto treated in this third Book of this Treatise and particularly exprest in the Title of this Chapter have been by Consultations out of the Courts of Common-Law at Westminster after Prohibitions from thence obtained determined and adjudged to belong unto the Admiralty One Robert Baker of the City of London Vintner sued one John Maynard in the Admiralty Court upon a Contract made at land of and concerning a thing done upon the Sea as by the Consultation it self doth appear But one John Gilbert Esquire being Bail for the said Maynard endeavouring to decline the cognizance of that
Whitehall Aug. 13. 1664. Let this Book be Printed HENRY BENNET THE Maritime Dicaeologie OR SEA-JURISDICTION OF ENGLAND Set forth in Three several Books The first setting forth the Antiquity of the Admiralty in England The second setting forth the Ports Havens and Creeks of the Sea to be within the Jurisdiction of the Admiralty The third shewing that all Contracts concerning all Maritime Affairs are within the Jurisdiction of the Admiralty and there cogniscible By JOHN EXTON Doctor of Laws and Judge of his Majesties High Court of Admiralty LONDON Printed by Richard Hodgkinson Printer to the Kings most Excellent Majesty 1664. TO HIS ROYAL HIGHNES JAMES Duke of York and Albany Earl of Vlster Lord High Admiral of England and Ireland c. Constable of Dover Castle Lord Warden of the Cinque-Ports Governor of Portsmouth c. YOur Royal Highness having been graciously pleased to constitute me Judge or President of the High Court of Admiralty I held it my duty according to my poor ability to assert the just Jurisdiction thereof against those undue encroachments and usurpations whereby the power of the Lord High Admiral hath been heretofore and is at this present straightned in decision of matters relating to Maritime affairs wherefore having some time since in those sad and distracted times bestowed some labour in searching and perusing such of the Records of our own as well as Forreign Nations as I could meet with wherein the just extent of the Admirals Jurisdiction is sufficiently and undeniably evidenced together with the necessity of deciding all controversies about Maritime affairs according to the ancient Sea customes and the reason and directions of the Civil and Maritime Laws I held it no less my duty to recollect the said Papers and reduce them into some method for the clearing those objections which hitherto have been and still are made use of either against the antiquity or extent of the Lord High Admiral his Jurisdiction in Maritime causes or against the decision of them by the ancient Sea customes and the rules of the Civil Law And as I have observed this Nation hath happily flourished a long time under that happy Government of all Land affairs by its municipal Laws practiced in the Common Law Courts so hath it no less prospered and been enriched in its Navies Trade and Commerce under that exact Government which hath ordered and guided all Maritime businesses and Sea affairs by the Civil and Maritime Laws and Customes corresponding agreeing and according with the Laws of Forreign Nations being suitable to the nature and negotiations of the people that are subject to them exercised and practised in the High Court of Admiralty The design therefore that I propound to my self in the publishing this Treatise is to shew how necessary and fitting it is that the power and jurisdiction of this Court should be no longer subject to such interruptions and how expedient it now is that the rights and privileges of the same should be observed and kept and the Laws and ancient Customes thereof whereby all Commerce and Navigation is upheld should be precisely and strictly preserved and maintained That all which may appear I have set forth the antiquity of the Lord Admirals Jurisdiction here in England by ancient Records of the Tower Next the Jurisdiction it self and the extent thereof as also the necessity and necessary use of it in divers respects In all which I have endeavonred neither to eclipse the honour power or least right of the Muncipall Laws of this Kingdome nor in any sort to detract from the renown of the Reverend and Learned Professors thereof but hope I have manifested that the upholding of both Jurisdictions and restraining each of them to its proper limits and confines will be more advantagious to this Kingdome and the Inhabitants thereof then the suffering eitber of them to swallow up or devour the other Be pleased therefore to receive this unpolished work from the hand of your Servant as the same is dedicated unto the protection of your Royal Self THE CONTENTS The Chapters contained in the First Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THe Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Thirds time to whose time the Statute of the 13 of Ric. 2. referreth argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times and from their Grants and Patents Page 1. Chap. 2. That these High-Officers or Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governours of Land-Provinces had over them and had their Maritime Laws for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs page 10. Chapt. 3. The beginning of Sea Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued p. 13. Chap. 4. Of the Laws of Oleron and the Antiquity of the Admiralty argued and inferred from the introduction of them into England p. 16. Chap. 5. The ancient Introduction of the Sea Laws argued and inferred from the King of Englands Dominion over the British Seas p. 21. Chap. 6. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Coâ—rts in deciding of Maritime Causes in those antient times p. 25. Chap. 7. Of the Exercise of the Sea Laws by the Grecians Athenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile p. 29. Chap. 8. Of the Admiral of France and Denmark p. 30. Chap. 9. Of the Admiral of Scotland p. 32. Chap. 10. From the common acceptance of the Sea Laws in other Nations is inferred the acceptance of them in England p. 34. The Chapters contained in the Second Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat the Sea-Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependancie each upon the other Chap. 2. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-tradingmen p. 41. Chap. 3. That the Ports and Havens and Creeks of the Sea are within the Jurisdiction of the Admiralty p. 52. Chap. 4. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiraltie redargued p. 57. Chap. 5. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued p. 62. Chap. 6. That from the two other Actions instanced in to be brought against the Parties suing in the Admiralty Court for a business done upon the Ports no concludent Argument is deduced p. 72. Chap. 7. The Argument deduced from two
Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued p. 73. Chap. 8. The Book-Cases and Authorities brought to prove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered p. 78. Chap. 9. That the Rhodian and other Maritime Laws were ordained as well for the decision of the differences happening upon the Ports and Havens as upon the high Seas p. 102. Chap. 10. That the Laws of Oleron and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening arising from things done upon the Ports and Havens as from things done upon the high Seas p. 111. Chap. 11. That by the ancient Statutes of the Admiralty settled 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 p. 115. Chap. 12. That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas p. 120. Chap. 13. That by the ancient Statutes of Enquiry translated out of French into Latine by Roughton the Admirals Jurisdiction is upon the Ports and Havens as well as over the high Seas p. 124 Chap. 14. That the Civil Law is used and practised in all or most Nations of Christendome p. 129. Chap. 15. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in Foreign Nations they have their distinct Judicatories guided by the distinct Laws and that though the Judicatories for Land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely neceâ—â—ary in the decision of all Maritime causes Sea differences p. 135. Chap. 16. That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the cognizance of the Admiralty Jurisdiction p. 147. Chap. 17. That by the Records of the Admiralty it appeareth that the Admiral had and hath power and Jurisdiction upon the Ports and Havens p. 157. Chap. 18. That by Writs de Procedendo out of the Chancery upon Supersedeas from thence granted the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens p. 166. Chap. 19. That by Consultations out of the Courts of Common Law upon Prohibitions thence granted it is clear the Admiral hath Jurisdiction upon the Ports and Havens p. 170. Chap. 20. That the Ports Havens and Harbours where Ships do lye or ride at Anchor are not within the bodies of Counties but that the Jurisdiction which the Admiralty hath anciently had thereon hath been by Act of Parliament reserved thereunto p. 175. The Chapters contained in the Third Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat all differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof page 180. Chap. 2. The Arguments deduced out of the Statute of the 13th of R. 2. cap. 5. to prove that Maritime Contracts made at land concerning Maritime affairs are not tryable in the Admiralty Court answered p. 188. Chap. 3. 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 p. 193. Chap. 4. That by the ancient 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 p. 202. Chap. 5. The Argument deduced out of the Statute of the 15th of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered p. 204. Chap. 6. The Argument deduced out of the Statute of the second of Henry the Fourth cap. 11. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty redargued p. 216. Chap. 7. That the Admiral by these Statutes was not barred the cognizance of Maritime Contracts though made at land made appear by the practice of those times proved out of ancient Records remaining in the Tower of London p. 220. Chap. 8. That by other Records out of the Chancery Contracts made at land concerning Maritime Affairs are cognoscible in the Admiralty Court p. 229. Chap. 9. That by Consultations granted from the Courts of Common Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted p. 234. Chap. 10. That divers and several of the Laws under the Titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other Titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at Land concerning matters to be done at Sea p. 256. ERRATA PAg. 7. lin 10. pro Jesemuch lege Gernemouth pag. ead pro Norfolcae Suffolcae lege Norfolciae Suffolciae p. 12. l. 2 5. 7. pro Prince lege Province p. 16. l. 3. pro the others lege others p. 18. l. 40. pro find lege I find p. ead l. ult pro ameâ—amuntis lege amertiamens p. 19. l. 25. pro praecepti lege percepti l. 29. pro percellas lege parcellas l. 32. pro hinc lege huic l. 41. pro quandam lege quondam p. 20. l. 37. pro our own lege their own p. 33. l. 11. pro Covent lege Covenant p. ead l. penult pro all wares lege ill wares p. 37. l. 26. pro Admiral lege Admiralty p. 38. l. 9. pro de tour lege de lour p. 40. l. 5. pro did lege dit l. 7. pro ia lege la p. 43. l. 32. pro in self lege in it self p. 46. l. 13. pro Admiral lege Admirals p. 49. l. pro fidelum lege fidelem p. 53. l. 19. pro saith lege he saith p. 54. l. 2. pro Marrii lege Martii p. ead l. 13. dele p. 72. l. 32. pro concluded lege concludent p. 93. l. 34. pro nostr lege nobis p. 94. l. 7. pro
le dit Monsieur Remeyr soit condempne distreint a faire due satisfaction a touts les dits damages seavant come il purra suffire en sa defalte son dit Seignior le Roy de France per que il estoit deputey al dit office que apres dewe satisfaction faitz as dits damages le did Monsieur Reymer soit si duement punis par le blemissement de la dite alliance que ia punission de luy soit as autres example par temps a venir Item in alio Rotulo annexo Item A la fin que venes consideres les formes des proces les letters ordenees per les consaillers le Aiel nostre Seignior le Roy c. especialment a retinir maintenir la souveraign que ses dits ancesters Roys d'Englitere loloyent avoir en la dite mier d'Englitere quant al amendment declaration interpretation des loix per eux faites a governer touts maneres des gents passants per la dite mier Et Primerement a son Admiral as Maisters Mariners des niefs de Cync ports d'Englitere des autres terres annexes a la corone d'Englitere emendant asa armee en la dite mir pur retinir maintenir la garde des lois avantditz la punission de touts faitz al encountre en la mier susdite Libri primi finis THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE SECOND BOOK CHAP. I. That the Sea Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependance each upon the other ALthough the exact time of the beginning or first settlement of the Jurisdiction of the Admiralty Court here in England be not by me in the preceding book so clearly set forth as some might have expected yet is some foundation thereof deduced from such hight of Antiquity as that I cannot but hope that the Jurisdiction it self will for that cause and what shall be shewed in this ensuing Treatise deserve a continuance to posterity And although in the precited antient Records we find not the same title of that Office observed and kept yet may we very well perceive the same Office to have been preserved exercised and executed though under several titles And we find that in Edward the First 's time as plainly appears by the before quoted Libel and other before cited Records the same was exercised under the title of the Admiral And doubtless that title was long before that time known to belong unto the chief Captain Commander or Keeper of the Fleets Ports and Seas and hath been so used by many other Nations in Europe However the diversity of names neither extinguisheth the nature of the Office nor doth so much as make any distinction between the one and the other person so diversly named whilst they both bear one and the same signification But here I shall proceed next to distinguish this Jurisdiction from the Land Jurisdiction and shew that the Land Jurisdiction and Sea Jurisdiction are and must necessarily so be two absolute different and distinct Jurisdictions having no dependency one upon the other And first these two Jurisdictions are absolutely different and distinct in respect of the parties which exercise them the one being exercised in the active and directive part by the Admirals Captains and Governors of the Seas Sea-coasts Ports and Shipping which have all or most of them from antient times been Equites Aurati descended from Royal Bloud Noble-men or descended from Nobility as Sir Henry Spelman saith The judicial part by the Judges of the High-Court of the Admiralty and Vice-Admirals Courts learned and well verst in the Civil and Maritime Laws juxta illud venerabilis ejusdem Spelmanni verb. Admirallo Gollico pag. 16. Nos enim c. de quo vide supra cap. 2. lib. 1. sub fine The other exercised by the learned Judges of the Land in the Courts at Westminster and within the Bodies of the several Counties of the Nation in their several Circuits the Judges of one Circuit having no authority or power over the other nor having any thing to do to intermeddle with the other in their Circuits Secondly the Court of the Admiralty hath from antient times been styled Suprema Curia suae Majestatis Admiralitatis Angliae so that the same hath antiently been styled the Kings Court as well as his Courts at Westminster But from the one Jurisdiction there lyeth an immediate appeal unto the supreme authority in Chancery which Court appointeth Judges Delegates by Commission under the Great Seal upon the apprehension of an illegal sentence who are assigned and appointed Judges for further hearing deciding and adjudging of the said sentence and cause of appeal according to the rules of the Civil Law In the other there lies a Writ of Error from the Common-Pleas to the Kings-Bench and from that Bench to the Judges of all the three Benches in the Exchequer Chamber The Appeal from the Admiralty is for the rectifying of the Sentence as well as of the proceedings which appeal the Forraigner must be allowed otherwise he will complain at home of injustice done here and so proceed to the course of obtaining Letters of Reprisal for his satisfaction whether the first sentenc was good or not upon this ground only that he had not the due course of Law allowed him for the tryal of that Sentence which was first given against him The Writ of Error reverseth the Judgement though never so just if an error be found in the proceedings but reverseth not the Judgement though the same seem never so erroneous to him against whom it was given if no error be found in the proceedings Thirdly they are absolutely different and distinct in regard of the different and distinct subjects the Judges of them do handle and are busied about they of the one being busied and occupied in the ordering and disposing of all businesses upon the Coasts and Havens of the Seas tending to the preservation of this Nation from forraign Invasion and keeping thereof in safety and quiet and in the building repairing tackling and furnishing or causing the building repairing tackling and furnishing of all manner or sorts of Ships Boats or Vessels whatsoever for that purpose and keeping the dominion over the British Seas and in the otherwise ordering and directing of all manner of Ships and Shipping and seafaring Men and all manner of Trading Merchandising Traffique and Commerce thereby or therewith and in hearing deciding and adjudging all differences debates and controversies arising from things done or to be done at Sea or in any Port Harbour or Creek thereof either between the King or the Lord High-Admiral and any party or between party and party Forraigner or others whether Criminal or Civil Those of the other Jurisdiction being employed in ordering of all things for the good peace and quiet of this Kingdome within self and in the hearing
quà m missarum custagiorum ad septuaginta libras per juratores praedictos superius assess in duplum per Statutum c. Quae damna in duplo se extendunt ad mille 400 l. Et idem Barthol poenam decem librarum erga Dom. Regem nunc per statutum incurrat capiatur c. querens remittit 400 l. And he saith that it appeareth by the Record that this being the first Case that can yet be found that received judgement in the Court of Common-pleas upon the said Statutes and that the same depended in advisement and deliberation eight Terms whereby it plainly appears the time being computed from the making of the said Statutes whereon this Action was grounded to the time of the Judgement 6 Hen. 6. that the Courts of Common-law had not for above 20 years after the making of these Statutes ever medled with causes of this nature Nor can it I am confident be found that cases of this nature were any of those cases wherein the Admirals had encroached upon the common-Common-law before the making of the said Statutes and what ground these Statutes then gave them for this Judgement I could wish he had reported with the Judgement it self The Statutes I have endeavoured to the utmost of my weak skil to examine one by one but cannot find that in such cases as this the Admiralty was by them in any wise prohibited to proceed of which Examition of mine I shall hereafter render the best Accompt I can more especially when I come to treat of Contracts made at land of and concerning maritime and sea affairs but I must here in the first place examine the observations by Sir Edward Coke himself gathered out of this Judgement From the whole he gathereth these four observations 1. That it is contemporannea expositio being made within 20 years of the making of one of the said Statutes and he saith that contemporanea expositio est optima 2. That albeit the said three Ships with the Prisoners and Merchandizes in them lay in the Haven inter fluxum refluxum aquae and infra primos pontes yet that the Haven is infra corpus Comitatûs and that for taking of the Ships with the Prisoners and Merchandizes in the same no Suit ought to be had in the Admiralty Court but at the Common Law 3. That the Court of Admiralty hath no Jurisdiction but super altum mare which is not within any County for the Record saith as he averreth that the said three Ships with the Prisoners and Merchandizes in the same did lie infra Comitat. Bristoliae non super altum mare as the Plaintiffe in the Admiralty Court supposed the same to be 4. That this Judgement so solemnly and with such advisement given if it were alone were sufficient to give full satisfaction in this point for saith he Judicium est tanquam juris dictum judicium pro veritate accipitur I conceive that by two of these four observations the first and the last he endeavoureth to prove that this Judgement is a good Judgement which ought to be observed ever after for Law which if he hath thereby proved the two other the second and third may be deduced into some conclusion otherwise not He then that will examine the argument comprehended in these two observations must deduce it thus or else he shall find no argument therein at all viz. a Judgement given per contemporaneam expositionem of a Statute or Statutes made within twenty years after the making of one of them and that solemnly upon two years advisement given is a good Judgement which ought ever after to be observed for Law But this Judgement was given by a contemporary exposition of the said Statutes made within twenty years after the making of one of them and that solemnly with advisement by the space of two years therefore this Judgement is to be observed for Law ever after then will the other two observations be easily deduced into a conclusion otherwise not But I must crave leave that without offence I may call into question the truth of the premisses out of which this conclusion is deduced First then whether a Judgement given per contemporaneam expositionem of a Statute made within the space of twenty years next before such interpretation or exposition though solemnly advised on by the space of eight Terms which is two whole years must necessarily be ever after observed for law is that which first cometh in question Under correction I conceive that neither the time of such interpretation or exposition-making nor the deliberate advisement thereupon conclude this necessity that the Judgement thence proceeding must be ever after observed nay I conceive it ought not ever after or at all to be observed unless such exposition be grounded upon both law and reason or at least one of them This is said to be the first and leading Case and so the first exposition of those three before mentioned Statutes made to this purpose and therefore the law and reason whereupon such exposition had its ground and foundation might very well have been expected to have been there by him set down where the Judgement it self is urged but finding neither I have according to my weak abilities endeavoured to search both or either of them out But indeed am so thick-sighted that I can find out neither the one nor the other to warrant the same The Statute of the 5 Eliz. 5. before mentioned and urged for the proof of this assertion might had it been made before this exposition of the other three have set some colour thereon but no more then a colour for there is nothing therein contained substantial that could have afforded this interpretation of the other three but coming after this interpretation this interpretation hath lost that colour and is left upon the Statutes themselves wherein I for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation The first of them is that of the 13 Rich. 2. 5. which Statute hath relation unto a Petition upon which the interpretation thereof ought to be grounded according to the manner of making Acts in those dayes which Petition in other Acts is inserted as a preamble to the Act it self but in this is premised only in part and that not truly rendred by the Translation as shall appear when we come to treat of Contracts made at land for sea affairs the Statute it self runneth thus Le Roy voit que les Admiralls lour deputees ne sic mellent de sore ana vant de nul chose fait deins le Roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre sâ—r ' le Roy quorust The Kings pleasure is that the Admirals and their Deputies shall not from henceforth so meddle viz. as is complained of in the Petition of
any thing done within the Realm but only of a thing done upon the Sea Here sur le meer I hope shal not be taken for super altum mare when as the Statute is so absolutely free from distinguishing any one part of the sea from the other or limiting the Admirals Jurisdiction unto one part thereof more than to another but leaveth all to his cognizance Solonc ce que ad estre dument use en temps du noble Roy Edward ail nostre sur ' le Roy quorust according to that which had been duly used in the time of Edward the Grandfather of the then King which was Edward the third Now do not I find nor do I believe that either the makers of this Exposition or their followers can find that the Admirals Jurisdiction was in any part of Edward the Third's time restrained to the main Sea by any such distinguishing between the main Sea and the Ports and Havens where all sea businesses are agitated But this I am sure of that by the Records throughout his Reign the Admirals were Capitanei Admiralli omnium portuum locorum per costeram maris as hath already been shewed as well as of the main Sea and by other more antient Records as hath been likewise shewed they were as well Custodes marinae maritimorum portuum c. as Custodes maris And it is plain that in Edward the Third's time they had plenam potestatem audiendi querelas omnium singulorum de his quae officium Admiralli tangunt and likewise cognoscendi in causis maritimis c. in causes belonging to the Sea In causis quae oriuntur ex maritimis negotiis without any limitation or restraint to one part or other thereof The second Statute is that of the 15th of R. 2. 3. which Statute hath two parts the first considereth the Admirals Jurisdiction exclusivè what things he shall not have cognizance of and it concerneth Contracts Pleas and Complaints and other things done arising within the bodies of Counties as well by land as by water and wreck of sea which will come to be treated of hereafter The second part considereth his Jurisdiction inclusivè retaining and upholding the same within the limits thereof And in regard the Sea floweth sometimes further and sometimes shorter upon the great Rivers leaving the extent of the Admirals Jurisdiction somewhat uncertain it therefore reduceth it to a certainty setting forth how farre it shall extend notwithstanding it is said in the former part as well by land as by water and distinguisheth how farre the water is to be taken to be within the bodies of Counties and how farre not which followeth in these words Nientmeyns de mort de home de maheym faitz en grosserniefs est-zantz hooranz en my le haut fil des grosses Rivers tant solent per a vale les pontz de mesme les rivers pluis proheyms meer en nul autre luen de mesmes lez rivers eit la Admirall conisance auxint darest des niefs en les grant flotes pur grants voyages du Roy de Roylme c Nevertheless of the death of a man and a maim done in great Ships being and hovering in the main stream of great rivers only Beneath those Bridges of the same rivers which are neerest to the sea and in no other places of the same rivers the Admiral shall have cognizance and also to arrest Ships in great Flotes for great voyages for the King and the Realm c. Here the Bridges next to the sea by this Statute are appointed and put for the limits to terminate each Jurisdiction the one above and the other below and I cannot think that any man can conceive that the expressing of some particulars cognizable in the Admirals Court doth restrain his cognizance unto those particulars only for certainly those particulars in the reading of this Statute must and are emphatically exprest and so understood as expressing that he shall have cognizance below those Bridges even of things of the highest nature belonging unto the cognizance of any Judge even of the death and maim of a man yea and shall have power to arrest great Ships for the Kings service and take them out of the hands and possession of the owners or freighters of them to what necessitous end soever designed no wayes at all excluding his cognizance of things of a meaner and inferiour nature but is thereby a confirmation of his cognizance in such things and the causes concerning them nam si majus est etiam minus erit cui majus convenit etiam minus is a general rule If one be stricken on the sea and dye on the land the common-Common-Law cannot try this murther And Mr. Sergeant Callis in his Reading giveth this reason thereof that all Tryals at the Common Law are to be by Jury which must come out of a proper County which in this case cannot be the Sea being in no County This being the reason doubtless the Ports and Havens at the time of the making of this Statute were not accompted to be within the bodies of Counties for if they had the Jury might have been summoned out of that County in whose body the Port and Haven lay whereon the death and maim of a man should happen for to have tried the same but the Ports and Havens being not within the bodies of Counties so that the death and maim of a man thereon could not be tryed by a Jury summoned out of a proper County according to the course of the Common Law therefore in express terms was the triall thereof appointed unto the Admiral who even in such cases then proceeded according to the rules of the Civil Law by which no Jury was required but so much the more exact proof The same reason then which is the reason that such an Act done at Sea could not be triable by the Law of the Land must be the reason why the like Act done upon any Port or Haven should be triable by the Civil Law and not by that Law But I shall proceed further to make it more plain that this Statute neither did nor doth limit the Admiral to the cognizance of those particulars only which are mentioned therein to be done or happen below the first Bridges upon the Ports and Havens All causes both Criminal and Civil which have arisen from things done or happening upon Ports and Havens as before so ever since the making of this Statute excepting the interruption made by this Judgement and some others which have hence sprang have been triable and tried by and before the Admirals their Lieutenants and Judges of the Admiralty Court according to the rules and grounds of the Civil and Maritime Laws as will hereafter plainly appear untill the 28th year of Henry the Eigthth in which year a Statute was made which affirmeth this very assertion quoad criminalia in these words VVhere Traytors
Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
without legs which must necessarily fall to the ground First then that this was contemporanea expositio made within the space of twenty years next after the making of one of these Statutes will not be made good for the last of those Statutes is that of 2 H. 4. cap. 11. which was anno 1400 and the Judgement was given the 6 H. 6. Hil. which was anno 1427 and how this can be brought within the compass of twenty years which appears so plainly to be seven years without the â—ompass I know not Besides this Statute is only in confirmation of that Statute 13 Ric. 2. 5. setting a penalty of double damage unto the party grieved and ten pounds to the King upon him that shall offend against this Statute of the 13th of Richard the Second Now it is true this Judgement doth pursue this Statute in giving double damages to the Plaintiffe and the penalty of ten pounds to the King against the Defendant But the giving of these double damages and penalty is grounded upon the breach of the former Statute unto which only this hath relation and this Statute neither needed nor had it any exposition at all But the Judgement was grounded upon an Exposition made of the former Statute 13 Ric. 2. upon which if the Statute would have born any such construction the Party suing in the Admiralty contrary to that Statute in a cause of the same nature would have before the making of the Statute of the 2d of H. 4. been liable to the single damages though not to the double but the Law whereon this Exposition was made to ground this Judgment ought to have been some Law that declareth a Haven to be within the body of a County and without the Jurisdiction of the Admiralty and must needs have been before the making of this Statute if there had been any such at all which I believe can never be found or shewed For sure I am as I said before there is not one word in the Statute it self which can so much as seem to draw any man to imagine that a Haven or Port should be within the body of a County but however it is the exposition of this Statute though groundless upon which the Judgment is founded and this Statute was made eleven years before the other and then will this contemporanea expositio said to be within twenty years scarce fall to be within twice twenty years For the Statute made in the 13th year of Richard the second was made in anno 1389 and the judgment was given in anno 1427 which is full 38 years and ought not to have had an exposition put upon it clean destructive to another Statute made within two years after and in the same Kings Raign which cleareth the Admirals Jurisdiction to be over the havens and rivers beneath the first bridges nearest to the sea even of the death of a man c. which is magis contemporanea et multo stabilior expositio being made upon as good advisement as this though perhaps not upon terms of deliberation which consideration I come to consider next And I cannot conceive the advisement upon two years deliberation upon one particular point should render the determination thereof ever the more sound but rather sheweth a great deal of doubting and fearfulness to determine But it seems after two years deliberation they determined to have the Ports and Havens without any warrant of Law that Sir Edward Coke hath declared or that I can by any means find to be within the bodies of Counties And truly I think the time was short enough and their pains great enough in that space to turn so much sea or water appertaining unto the sea into land or into the heart of a County But if the foundation of this Judgement be infirme surely it will not support it being so weighty a Judgement as it is but that the same must fall to the ground and be buried in the earth or drowned in the depth of that Sea it would have dismembred of its Ports Creeks and Havens unless whatsoever a Court shall once adjudge through misapprehension or any manner of misunderstanding must ever after be observed for law which whosoever affirmeth must maintain some men to be infallible or else that one injustice may be a warrant for another But if to persist in an error be another and a greater error then surely to square justice by so crooked and untryed a rule can produce no strait or upright future judgement I must confess the judgements of such grave and learned men in such a place and authority ought much to sway with their successors in doubtful cases and one judgement ought as little as may be to thwart and cross another but not unless the same be agreeable unto justice equity right reason and binding laws constituted appointed and published by superiour powers which are alwayes to be observed CHAP. VI. That from the two other Actions instanced in to be brought against the parties suing in the Admiralty Court for a business done upon the Ports no concluded Argument is deduced TWo Actions likewise are instanced in instituted in the Court of the Common-pleas to the same purpose which can be deduced from no better reason nor founded upon any sounder ground then this first Judgement was more then that they had this for their example At exempla mala sunt reprobanda non sequenda both of them Pasch 12 H. 6. The one is an Action brought by Robert Cupper upon the before mentioned Statutes in the Court of Common-pleas against John Raymer of Norwich for that the said Raymer did sue the said Cupper in the Court of Admiralty for that he said Raymer having a Ship in portu aquae Jernemuthae infra corpus com Norf. ready for a Voyage to Zeland the said Cupper entred the said Ship lying in the said Haven and took away divers goods out of the same asserendo per praedictum placitum res illas super altum mare emersisse acsi res illae super altum mare emersissent cum non ibi sed apud Jernmutham contra formam Statutorum praedict The other was an Action between John Wydewell and the said John Raymer the same Terme in the same Court but whether there were any Judgement upon these two Actions or not or what the Judgements were is not set forth the Judgements might be given for the Defendants as well as against them for ought appears out of what Sir Ed. Coke hath set down and since he hath spared the pains to set them down I shall spare my labour for looking them out If any Judgement were given upon either which I the rather conceâ—â— there were not for that if there had been any Sir Edward Coke would not have spared to have told of them if they had been for his purpose If the Judgements were given agreeable to the former Judgement and passed by that example yet is there no better ground for the same
for certain Judgement thereof is given for the Mariners Berry chief Justice of the Common-pleas The King willeth that the Peace be as well kept on the Sea as on the Land and we find that you are come hither by due-process and therefore ruled him to answer Out of which the Author observeth four things 1. That it is called the Sea which is not within any County from whence a Jury may come 2. That the Sea being not within any County is not within the Jurisdiction of the Court of Common-pleas but belongs to the Admirals Jurisdiction 3. That when the Ship came within the River then it is confessed to be within the County of Northumberland 4. That when a taking is partly on the Sea and partly in a River the Common Law shall have Jurisdiction For the first Observation which is that that is called Sea which is not in any County from whence a Jury may come I may very well grant it and he yet never the nearer the proof of that he aimeth at viz. that a Port or Haven is within any County out of which a Jury may come which is absolutely denied the reason whereof as before so shall be hereafter shewed For his second observation that the Sea not being in any County is not within the Jurisdiction of the Court of Common-pleas shall not be denyed him but I must crave leave to observe with him That notwithstanding this Ship was taken upon the Seas where there was neither Town nor Place from whence a Jury could be taken yet Berry the chief Justice took cognizance of this Cause and caused Mutford to answer And this might have served him for as good an Argument to have proved the Seas to be within the Jurisdiction of the Common Law as any that he hath used to prove the Ports and Havens to be within the bodies of Counties and out of the jurisdiction of the Admiralty For his third Observation which is that when the Ship came within the River it is confest to be within the County of Northumberland I conceive if Mutford might at the Common Law have pleaded two Pleas which in many cases is necessary and allowable by the Civil Law he would as well have denyed that ever he carried the Ship into the County of Northumberland as he did averre that he took her upon the Seas and silence is not a consent or confession where a man is tyed to one plea and hath divers to plead This therefore is neither confessed by Mutford or any else but by the Author himself and such as are of his party for Berry neither affirmeth nor determineth any such thing or causeth him to answer upon any such ground but upon this ground that the King willeth the peace to be kept as well on the sea as on the land And indeed the grounds are both kept alike to sound the cognizance of this Cause in the Court of Common-pleas whereas the King that willeth the peace to be kept as well on the seas as on the land hath provided instituted and appointed from antient and farre past times distinct Judges Justices and Officers for the keeping thereof on the one hand and on the other The Admiral his Deputies and other Justices with him appointed for the keeping thereof upon the Seas and the Judges of the Land and other Justices with them appointed for the keeping thereof upon the Land and neither have to do with the others Jurisdictions So that I cannot conceive nor can I grant chief Justice Berrys ground whereon he founded this Replevin and the taking this Cause into cognizance to be Terra firma And as for that which Sir Edward Coke would have to be the ground of this Replevin and cognition of this Cause namely because after she was taken at Sea she was carried into a Port or Haven which he accounteth to be within the body of a County If this should be allowed for a good ground then must all Reprizals taken at Sea by Letters of Marque and brought into the Port and Haven be exempted from their condemnation in the Admiralty Court for lawfull prize and may be set free by a Replevin granted from the Common Law and whatsoever fact done upon the Seas either by ship or man the ship or man repairing to Port or Haven Justice must be had against them from the Common Law So that by this construction the Admiral shall have no cognizance of piracy robberies c. committed at Sea either by the course of the Civil Law or by the course of the Law of the Land upon the before mentioned Statute of Hen. 8. but if the Pyrats or Robbers c. shall escape and bring that which they have stoln or by violence taken away c. into any Port or Haven or to land this pyracy robbery c. shall be tryed at the Common Law And as well may it be said that if they shall be taken upon the Sea and afterwards be brought into any Port or Haven or to land that then the Admirals Jurisdiction ceaseth and the tryal belongs to the Common Law So that the Admiral must go set up his Tribunal upon the high Seas as Sir Ed. Coke distinguisheth them if he will have any Jurisdiction at all And whatsoever injury shall happen to be done at Sea by one Ship unto another the Ship which did the injury by repairing to her Port or Haven shall free her self from the judgment of the Admiralty Court c. and the Common Law shall free the Judge of the Admiralty and all the Officers belonging to that Court from any further attendance there which doubtless was the aim of the Author as will plainly appear when I shall come to sum up all he would have And I wish it be not the aim of a great many still whose aim for their own ends must necessarily be destructive to a general good as shall be likewise hereafter shewn For the Fourth Observation which is that when a taking is partly on the Sea and partly in a River the Common Law shall have the jurisdiction For this partly taking on the Sea and partly on the River I must confess I know not how it can be for a Ship is either taken or not taken when she is taken at Sea or taken or not taken when she is taken upon the River unless we can say that one part of the Ship was upon the Sea and the other part of her upon the River at the very instant time of her taking But if the jurisdiction of the Admiralty may have its right we shall have no need of a Mathematitian to strike a line between the Sea and the River to make the distinction for indeed this distinction will be altogether needless But this Observation having relation to the matter of fact from whence it is drawn this meaning of taking partly on the Sea and partly on the River must be that a Ship is so taken when she is first taken at Sea and
then brought into some Port or Harbour which I shall leave to the judgement of the world whether this Ship was taken on the Sea or on the River or can be said to be taken partly on the Sea and partly on the River And if this shall be determined to be a taking partly upon the Sea and partly upon the River and that therefore the Common Law shall take cognizance thereof I must say as I said before the Common Law hereby shall take the whole Jurisdiction of the Admiral to it self For what ship can be taken at sea or to what end shall any ship be taken at Sea if she shall not be brought into some Port or Haven that she and her goods may be there disposed of And indeed all Ships that be there taken by Letters of Marque must be brought into Port or Haven before they break bulk And the Common Law shall hereby cast off all Rules and Laws of the Sea whereby causes of that nature have been always such interruptions excepted discussed tryed and determined between us and foraign Nations and between our own Merchants and sea-faring men and try and determine them without either Rule or Law For I could never yet find that the Common Law ever afforded either Books or Presidents to guide or direct them in the adjudging and determining of causes of that nature which is a thing most requisite and necessary the Forraigner between whom and us such cases for the most part happen expecting to have his Ship and goods confiscated and condemned or quit and restored upon the same terms and according to the same Proceedings Rules and Laws as ours are in foraign parts which the Common Law affordeth not being onely a municipal Law for the guiding and governing of the Subjects of this Nation in their land affairs at home Again I would gladly know how this Observation agreeth with Lacies Case where one was stricken on the Seas and dyed on the Land the Common Law could not try this murther and Serjeant Callis in his reading at Grays-Inn An. 1622. in prima Lectura p. 19. giveth this reason thereof because that tryal was to be by a Jury which must come out of a proper County which could not in this case because the Sea was not within any County In this case the party received a mortal wound at Sea and was brought unto Land and there dyed in the other case the Ship was taken at Sea but brought into a Haven and there unladen here the party may more properly be said to be partly killed at Sea and partly killed at Land then the Ship can be said to be partly taken at Sea and partly taken at Land and yet the Land shall not find a Jury for tryal of one but the Sea Port shall find a Jury for the tryall of the other which I shall leave to be observed upon this his fourth observation how farre the same will hold water Next he urgeth that 8 Ed. 2. tit Coron 399. it is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one Land to another And that the Coroner shall exercise his Office in this case and that of this the Country may have knowledge whereby it appears saith he that things done there are tryable by the Country that is is to say by Jury and consequently not by the Admiralty Court And after in another place of the same chapter he urgeth Stamford l. 1. part Coron fol. 51. 6. to this very purpose the reducing which together can be no wrong to his Argument but rather a strengthening for vis unita fortior and so undertake the answering of both together And this is that which he saith Stamford saith If one be slain upon an arme of the Sea where a man may see the land of one part and of the other the Coroner shall enquire of this and not the Admiral because the Country may take cognizance and doth vouch the said authority of 8 Ed. 2. whereupon he concludeth in these words So this proveth that by the Common Law before the Statute of 2. H. 4. the Admiral had no Jurisdiction but upon the high Sea which only authority saith Sir Edward Coke is sufficient to over-rule all the said questions for saith he hereby it appeareth that the Jurisdiction of the Admiral is only confined by the Common Law to the high Sea and agreeth with all the Book-cases and Acts of Parliament For the first 8 Ed. 2. which saith that it is no part of the Sea where one may see what is done on one part of the water and on the other that is indeed to be on the one side of the River and see discern what is done on the other and that must be so to see and discern that he may perfectly judge of the action yea and certainly of the party acting too else can this seeing be to no purpose And hereby it may appear that the Admiral had in those times Jurisdiction upon all ebbing and flowing Rivers so farre as they continued of such breadth that one standing on the one side of the River could not see nor discern what was done and by whom on the other side So that his Jurisdiction in some places extendeth farre above the first Bridges for what man is so quick-sighted that standing on the one side of the Thames above the Bridge can so discern as to judge of the actions of men on the other and who and what manner of men they are For to see and not so exactly and judiciously discern in the adjudging of such actions is as much as not to have seen at all But this being too ambiguous and uncertain a distinction between the Sea Jurisdiction and the Land by reason of the different breadths in one and the same River and the different apprehension of things by several mens eyes and difference of the aire at several times being sometimes thick and cloudy sometimes serene and clear The next Bridges unto the Seas have been alwayes held the most certain distinction between them But indeed this Record is stretcht further and indeed so farre that it is impossible it should hold for by Sir Edward Coke it is thus set down It is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one land to the other as if there was no difference between seeing what is done on the one part and the other and seeing from one land to the other Here to make sure work with the Ports and Havens and to bring them within the compass of the Coroners Office he will bring the main Sea his altum mare likewise within the compass thereof For he that will make that to be no part of the Sea where one may see from one land to the other must needs make France and England to be one Continent which
the interest of all other parties for that had been to have judged the cause inaudita nec vocatâ parte interesse habente For the controversie was then whether the Judges of the Common Law or the Major c. had the cognizance of that cause and they having dismissed it from their cognizance could grant it no otherwise to the Major and Bailiffs of Hull but insomuch or for that it belonged not unto their cognizance so that after the dismission this controversie was no longer between the Judges of the Common Law and the Major of Hull but now the difference concerning the Jurisdiction of and over this cause must rest between the Admiral and the Major and Bailiffs of Hull for that the Admiral being no party in fudicio the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull then that they should have it for ought that Court in which the Action of Trespass was brought had to do therewith or to hold plea thereof which could not barre the Admiral of his claim of Jurisdiction who was no party in judgement And then this only resteth as an Authority quoted that such an Action was brought at the Common Law and as it appeareth that the same was never there determined so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors might very well conceive that the Action being there brought the same was rather tryable before them by virtue of that clause in their Charter which was urged then by the Judges of the Common Law and the Cause being dismissed as it appeareth not that the Major and Bailiffs determined it no more doth it any ways appear that they did yet by virtue of this Dismission or Grant as Sir Edward Coke termeth it take upon them so much as the cognizance thereof or if they did that the Admiral ever had notice thereof But if the Admirall did or if he did not yet if he had taken to his Court the cognizance of this Cause I am confident that the Major and Bailiffs could no ways by virtue of that clause or upon any other ground have taken it out of his hand unless they have Admiralty Jurisdiction granted unto them as the Town of Ipswich hath the substance of whose Patent concerning the same I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports Henricus Dei gratia c. octavus c. Cumque praedictus avus noster per chartam suuam praedictam quam ut praefertur confirmavimus concesserit Ballivis Burgensibus Villae praedictae successoribus suis inter alia libertates Franches privilegia immunitates in eadem chartâ contenta specificata authoritatem potestatem faciendi exequendi infra eandem villam Gypewici ac libertatem praecinctum ejusdem omnia singula quae Admirallo seu ad officium Admiralli pertinent Cumque portus villae praedictae aqua currens recurrens prout casus exigerit ab eodem portu per fluxum refluxum maris versus le Southeast ad quendam locum vocat Polleshened alias dict Polished nec non tota terra folum quae per hujusmodi fluxum refluxum maris aliquo tempore aqua fuerit superundat sive coâ—pert infra libertatem villae praedictae extiterint Et quod iidem Ballivi Burgenses Communitas successores sui habeant gaudeant eis successoribus suis omnia singula libertates Franches authoritates privilegia jurisdictiones immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum quas nos per litteras nostras praedictas de confirmatione acceptavimus ratificavimus confirmavimus contenta specificata tam in dictâ aquâ sive in cursu aquae ac praedictâ terrâ solo per fluxum sive refluxum maris aquâ quandoque superundat sive coopert quam in omnibus singulis aliis locis quibuscunque infra villam praecinctum suburbum libertates Franches praedict juxta formam chartarum concessionum praedictarum prout ea ante tempora usi fuerunt gavisi Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi Burgenses Communitas successores sui securius liberius absque ambiguitate questione vel dubio habeant officium Admiralli nostri haeredum nostrorum infra libertatem praecinct Franchesc praedict omnia quae ad officium Admiralli tam super mare littus maris quà m alibi infra libertatem Franchisc praecinct praedict pertinent concedimus nunc Ballivis Burgensibus ac communitati villae praedictae eorum successoribus per praesentes quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri haeredum nostrorum per infra totam villam praecinctum suburbia aquam cursum aquae ac dict terram solum per fluxum refluxum maris quandoque aquâ superundat vel coopert seu in posterum superundand vel cooperend Ac omnia singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare littus maris quà m alibi infra libertatem praecinctum limites supra specificat faciant exequantur in tam amplis modo forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit facere debuit quoquo modo c. Et insuper nos de gra nostra ampliori ad relevamen incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr successoribus nostris annuatim ut praemittitur solvend damus concedimus per praesentes pro nobis haeredibus nostris eisdem Ballivis Burgensibus Communitati successoribus suis wrecum maris ac omnia bona catalla quae dicuntur Wreck Flotson Getson omnia alia bona catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent aut poterint infra dict portum aquam ac terram solum praedict per fluxum refluxum maris ac omnia bona per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend qualitercunque contingent vel ibidem in mari aut super littus maris invent seu inveniend etiam omnia singula bona catalla felonum de se nec non bona catalla quae dicuntur deodanda infra libertatem Franchesc praecinctum villae praedictae ac in infra
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
yet they were to be made use of only when such accidents happened and fell out upon the high Seas and that they were constituted and ordained only for such causes falling out upon the high Seas and not upon the Ports and Havens but left such causes there falling out unto the cognizance of the Common Law here in England and other municipal Laws in other Nations I shall here set down one express Law inserted amongst the rest of 〈◊〉 Sea Laws which sheweth that all these Laws were as well appointed for such causes happenning upon the Ports and Havens as they were ordained for those that fell out on the high Seas which Law maketh further provision in a cause of the like nature happenning either upon the high Sea or Port in express words and sheweth plainly too that all the rest were constituted and appointed for both which runs thus Navis onustae levandae causa quia intrare flumen vel portum non potuerit cunâ—â—onere si quaedam merces in scapham trajectae sunt ne aut extra flumen periclitetur aut ipso ostio vel portu eaque scapha submersa est ratio haberi debet inter eos qui in nave merces salvas habent cum his qui in scaphâ perdiderunt perinde tanquam si jactura facta esset Here it is manifest by this Law that if for the lightening of a laden Ship because she cannot enter into the River or Port with her burthen some of the Goods shall be put into the Ships boat least the Ship should be endangered either without the River or in the door of the Sea or Port it self and that Boat shall be drowned a consideration is to be had between those which have their Goods saved in the Ship and those that have lost their Goods in the Boat as if there had been a jacture made so that here we see the same rule holdeth for the preservation of a Ship as well within the Port or Haven or the mouth or door thereof as for her preservation upon the high Seas It may be further observed out of this Law that ostium maris and portus maris be both one and the same thing for as ostium is a door-gate or entrance so is portus a Port or Portal beginning or entrance of the Sea or into the Sea and that ostium maris is not an imaginary thing between the Sea and the Port or Haven as Sir Edward Coke would have it to be for as by saying a Port or Haven we mean but one and the same thing intimating that you may take which term you will as this Law doth in the beginning by the words flumen vel portus mean one and the same thing when it saith quia intrare flumen vel portum non potuerit c. so doth it in the next place by ostium or portus mean one and the same thing likewise when it saith ne periclitetur aut extra flumen aut in ipso ostio vel portu the aut making the disjunctive and not the vel And indeed the whole Port withal its banks is door slender enough for the keeping of the raging waves and wallowing billows of the Sea from overflowing the Land And the banks may properly enough though they be termed the Sea banks be said to be the doors of the land to keep the Sea out of it yet must the Haven or Port wherein the water floweth and and refloweth necessarily be said and concluded to be the door portal or entrance whereat all Ships and Vessels whatsoever must necessarily enter into the main Sea and this door of the Sea is as much a part of the Sea as a door of an house is a part of that house where it is the door and doth more properly belong to the Sea then to the land whereof it is no part but different and is distinct both in name and nature being two several Elements and the causes arising from things done either upon the high Seas or upon the Ports being of one and the same nature all belonging to Shipping Navigation Trading and Commerce c. they are all more properly cognoscible and tryable by one and the same Law then by two namely by the Civil and Maritime Laws then by the Civil Law and the Law of the land too For nulli prorsus audientia praebeatur qui causae continentiam dividet ex beneficii praerogativa id quod in uno eodem que judicio poterat terminari apud diversos judices voluerit ventilare poena ex officio judicis eminente ei qui contra hanc supplicaverit sanctionem And the Rules of the Civil and Maritime Laws in Cases of this nature are very many and very observable for the directions of the Judicature therein setting forth what is to be done according to the variation of the Case as the Law navis onustae before mentioned setteth forth what is to be done in case divers Goods and Merchandizes be taken out of the Ship and put into the Boat and the Boat perish so contrary if the Ship and remainder of Goods and Merchandizes remaining in her perish either upon the Sea or in the Port and the Boat arrive in safety with the Goods and Merchandizes put into her the same is to be done It is not enough to know a general Rule without its exceptions and limitations nor is it enough to know that si levandae navis gratia jactus mercium factas est omnium contributione sarciatur that an avaridge must be had upon all the Goods that are saved towards satisfaction of the owners of those Goods that were cast into the Sea but it is necessary to know in case the Avaridge be not agreed of what action those whose goods were cast into the sea have against the Master of the Ship for those goods and what action the Master hath against those whose goods were saved and what the duty of the Master is in these cases It is likewise necessary to be known and the Civil and Maritime Laws do set forth whether the Ship be lyable and ought to be cast into the Avaridge or not and whether if the Ship be worn and become worse by the tempests and storms she shall be considered therefore out of the Avaridge of the goods saved And likewise these Laws set forth what is to be done in case there be goods and merchandizes of several sorts and many passengers bond-men and free and whether goods of all sorts ought to be cast over and what is to be done in case there be goods aboard which do not burthen the Ship as Jewels precious Stones and Rings and at what proportion or rate they are to be cast into the Avaridge whether Apparel or the Passengers and Merchants wearing Rings whether the Passengers themselves and their or the Ships victualls shall be cast into the Avaridge the contribution shall be made according to weight or according to the value
Item soit en quis de touts communs malfaiseos sur la mer en ports se acun homme est endite quil soit comun malefaiseur il sera pris par ung caper par le mariscalt c. By the next takers that take and pay at pleasure and so downwards What Sureties shall be taken of such as shall be convict of misdemeanour What punishment shall be inflicted upon common fighters being convict What upon him that maimeth any other wilfully In what case the Master of a Ship is bound for the forth-coming of his Mariners The manner of out-lawing and banishing a Felon that absenteth himself and cannot be taken And this Law as appeareth by the Article was made by Henry the Fâ—rst which runneth thus It en temps du primier Roy Henry en temps de pluseurs Roys devant de puis quant ung homme estoit endite en fellonnie l' Admirall ou son lieutenant manderoit ung cape a l'Admirall de la Court ou au visconte de lu visconte aux second sessions quil restoit trouve sera espace en tres deux sessions xxi ovors ou plus il sera demaunde a la second session solempne lement c. And likewise the manner of out-lawing and banishing one that hath done any trespass upon any Ship Tackle or Furniture thereof c. whether upon the Seas or upon any Port which Law by the Article appears to have been made by the same King Henry the First and his Admiral of the North and West and others of authority and power adjoyned to them The Law begins thus Item gens quit sont banniz en trespass ne seront une banniz sinon par ung an ou deux c. se lon la discretion de l' Admirall sil est trouve en Angleterre dedens le temps il avara judgement comme devant est dit les biens du banny en trespass ne seront une forfeitz au Roy Comment c. And endeth thus Et ceste ordounare fuit faitte premieremet a Gypswiz out temps du primer Roy Henry per les Admiralz de North West autres seigneurs adheirdantz If Ships be arrested for the Kings service or for any other reasonable cause by the Kings Officers or Admiral and break the Arrest the penalty is by these Laws declared and this Law wherein the penalty is declared appeareth to be made in the time of Richard the First at Grimsby by the advice of most of the Lords of the Realm The Law begins thus Item soit en quis de nefs qui sont arrestes pour le service du Roy ou pour autre resonnable cause per les officers du Roy ou de l' Admirall debrisent larrest And afterwards it followeth thus Ordonne estoit en temps du Roy Richard le primier a Grymsby per advys de pluseurs seigneurs du Roylme que quant nefs seront arresters c. Divers other things of the like nature are likewise enquirable in the Admiralty Court the penalty and punishments whereof are declared by these Laws Sir Edward Coke for proof that the Admiral hath no Jurisdiction upon the Ports amongst other things instanceth in one particular that 7 Hen. 6. 22 35. an Action was brought at the Common Law for forestalling in a Port or Haven because it is infra corpus comitatûs which is a thing taken for granted but no ways proved at all as is before set forth I shall therefore here set down two or three Articles which shew that if by Port be meant within the flood-mark in the Havens forestalling and regrating there are within the cognizance of the Admiral in the Admiralty Court the first is this Item soit enquis de touts Merchants Mariners qui vont hors des Ports aux nefs charges de Marchandizes quant les dictes nefs voul droient enter ouz dits Ports les Marchandises a chattent en gros les amesnent aux Ports puis les vendent a greigneur et plus chier marche plus que les preimer Merchans vouldroient engrevance du commun peuple si aucun est endite en tel cas convicte par xii il sera imprisonne per demy an puis fera fin autant come les biens amsi a chattez amonterent maiz se la ditte nef sois repose dattendre son temps homme a chate de lui Marchandise en tel marne il ne serame dese impeshâ—e ne riens ne perdra vers le Roy. Another against forestallers in any Ship is this Item soit enquis de tous ceulx quia chattent bledz poisson ou autres vitailles dedens la nef en regratant devant quilz soient venuz adeu marche se aucun est en ce endite c. it sera greissuousement pugny fera fin au Roy de tant comme la value des bledz ou poisson amsi achattez a monte Another against Regrators within the flood-mark is this Item de ceulx qui achattent en gras bledz poisson sale poisson freiz ou autre vitaille dedens le flodmarks en Regratant c. aient mesme le judgment Divers other Articles are there expresly set down against several offences committed upon Ports or Havens with the particular punishments to be inflicted upon such offenders as against the exactions of Water-officers Against any mans appropriating to himself the benefit of salt-waters Against Kidles Wears and the like hinderance of the Fishing which is common to all Against the false Weights false Measure and the like used in any Ship or Vessel Against erecting of Mills or adding or altering any thing about them to the hinderance hurt or damage of any Port or Haven Against the taking up and concealing or keeping back from the possession of the Admiral any Flotson Jetson or Lagon found as well upon the Ports as upon the Seas Against the excessive Wages of Ship-Carpenters All which do plainly shew that the Admiral hath had and ought to have absolutely power and jurisdiction of and over even such things and in such causes as Sir Edward Coke instanceth in long before the times from whence he deduceth his authorities And divers others of these Articles to the same purpose I might instance in which for brevities sake I omit CHAP. XII That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. Annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas EDward the Third by a solemn Inquisition of divers persons most famous for skill in Maritime matters and sea-faring businesses selected and chosen from divers parts of the Kingdome and assembled at Quinborough upon the second of April in the 49th year of his reign Anno Dom 1375. set down
villâ quae habet libertatem fiat Warrantum Mariscallo Curiae ac Ballivis libertatis quod venire faciant xxiiij probos legales de viceneto illo viz Mercatores Marinarios alios per quos rei veritas melius sciri poterit inquiri ad inquirendum in Curiâ Admiralli certis tida loco tenenda per eorum sacramentum fideliter praestandum quicquid eis constare poterit super certis articulis legem maritimam tangentibus super quibus erant ad tunc onerati pariter jurati And the penalties of the breach of Articles first mentioned are as these are in case the party be convict and that by express words sil est de ce convicte c. as will appear by some of those I have before cited and as will here appear by some of those I am about to cite si indictatus convictus Whence I gather that which will clearly overthrow the very foundation whereon many of Sir Edward Cokes arguments are grounded viz. that wherean inquiry may be made by Jury there the Admiral hath no Jurisdiction which we plainly see is not so The first of these Articles with a nota is the same with that which precedeth the first mentioned Articles which is against such as shall discover the Kings Counsel or his fellow-Jurats and the penalty is the same here with that there which is a very terrible punishment but I am not about to set forth what the penalty or punishment of the breach of every Article is It is enough for my purpose that the Articles do some of them plainly shew that the Admiralty Jurisdiction is not limited to the high Seas as Sir Edward Coke would have it and that by this first Article as well as by many more For certainly whether a Jurate doth disclose the Kings counsell or his Fellows either at Sea or Land or upon Port or Haven in these Maritime matters it is inquirable in the Admiralty Court and there punishable for it is a ridiculous thing to set a penalty or punishment different from all punishments of the Common Law as this is upon any offence and not to have power to inflict it upon the party so offending unless he go to the sea to disclose and discover that whch he hath already done or might have done at land And this likewise will check the opinion of those that hold that whatsoever is done at land howsoever it concern Maritime affairs is cognoscible at the Common Law and not in the Admiralty but of that in its due place I shall here only set down as I said before some few of those Articles which shew the Admiralty Jurisdiction to be upon the Ports and are agreeable with the former which I have before mentioned The sixth Article doth enquire of such as have taken up any Weife Jetson Flotson or Lagon out of the Sea or any great River and have not satisfied the Admiral for his share this is punishable though it were Weife Jetson Flotson or Lagon in any great River or Port. The words of the Article are these Inquiratur si quis reperit super mare sive in grossis rivis naves ferrum plumbum seu aliqua alia bona fluctuantia vel in profundo jacentia quorum nemo est possessor quae vulgariter appellantur Flotteson Jetteson Lagon Domino Admirallo non satisfecit pro parte Dominum Admirallum contingente viz. de medietate qui secus fecerit si super hoe indictatus convictus fuerit c. partem suam amittit nichilominus cum Admirallo secundum discretionem suam finem in hac parte faciendo ad valentiam bonorum inventorum The seventh Article inquireth of Mills Kiddles or other things in the Sea or great Rivers hurtfull to Ships or Navigation and how the causers of them are to be punished the Article runneth thus Inquiratur si quis in grossis rivis levavit molendina Kydell seu aliqua alia instrumenta quae navigantibus seu navibus Communiter sunt nociva Quod si de hujusmodi molendinis Kydellis aut instrumentis in nocumentum ut praefertur scituatis domino Admirallo per inquisitionem constiterit extrahi dēant penitus destrui transgressores qui in hoc casu super hoc finem cum domino Admirallo facturi sunt The tenth Article is against such as being arrested to serve the King break the Arrest who surely are both arrested and do break the Arrest either at land or upon the Port and not upon the high Seas and how such are to be punished which the Article sheweth thus Inquiratur si arrestatus ad serviend Regi fregit arrestum hujusmodi transgressor stat in gratiâ regiâ sive Admiralli sui utrum voluerint committere Carceribus mancipandum vel finem facere in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum The twelfth Articles is against such as do take Oysters and Muscles in prohibited times of the year and such as do at any time of the year fish with Nets of too narrow a mash in great Rivers and destroy small Salmons and other fry of Fish who are to be punished as this Article sheweth Inquiratur de his qui capiunt ostria seu musculos inter primum diem Maii Festum exaltationis Sanctae Crucis etiam de his qui quocunque tempore anni per retia nimis stricta in grossis rivis deflruunt salmunculos seu alios pisces nimis juvenes omnes isti in hac parte indictati sive officio Admiralli detecti sive aliqualiter accusati finem facient secundum discretionem Admiralli c. The fourteenth Article doth most manifestly shew the Admirals Jurisdiction upon the Ports and Havens for it setteth forth the punishment of such as do hinder or resist the Admiral or his Lieutenant freely to determine decide correct and put in execution all transgressions batteries felonies and other causes whatsoever happening upon the Sea or upon whatsoever Rivers waters or Rivolets of the Sea unto the first Bridge according to the custome and Law Maritime in these words Inquiratur de his qui impediunt vel resistunt domino Admirallo seu ejus locum tenenti batterias felonias alias causas quascunque super mare infra quoscunque rivos aquas sive riviculos maris usque ad primum pontem emergentes terminare decidere corrigere executioni demandare libere possunt quia omnes isti sunt rebelles tanquam rebelles sunt puniendi The sixteenth Article is against forestallers in Ports and Havens and setteth the penalty and punishment of such offenders and in what case such shall be freed thus Inquiratur de his qui ingressu portûs vel infra portum forinstallant emunt victualia in grosso ad damnum comitatus vicinum indictatus super hoc convictus c. imprisonamentum dimidii anni habebit praeterea finem faciet domino
hundred years before mentioned for their being abolished been again suppressed born down or abolished and not received in any forraign Nation to this day What shall we say of the printing and so often reprinting of this large body of the Law since printing was first invented which was but 190 odd years agone Next what shall we say of the so late reprinting this large body with the gloss and case and other notes upon the same with the large Index thereunto in all consisting of six large Volumns in folio some printed in one Country and some in another some printted within these thirty years some within a shorter time Or what shall we say of the several Authors of most if not of all the several Nations of Christendome which have in all the several Centuries of years since the compiling of this body even unto this time wrote and commented upon the same some on one part some on another and of all those other Authors of all or most several Nations which have wrote several Tractates of Decisions and other Law-books which do ground and raise their authority from this body of the Law and quote the same for proof of whatsoever they determine Shall we say that all this from time to time continued study industry labour and pains hath been taken and all this cost charge and vast expence laid out to no end for no use or purpose or shall we say all this is done only to mock the world Certainly he that shall say either will but mock himself and such as will believe him but he can never deceive any one that hath but once seen the inside of a Civilian's study either at home or abroad for both are the same and furnished with books of the same nature and kind and all Lawyers or practisers in the Laws in all parts of Christendome are Civilians and do study and take their degrees in the Civil Law as the Civilians do here and do proceed in all causes for the most part according to the course and directions set down in the Civil Law and are regulated and guided in all their determinations and judgements by that Law saving that in several Nations they have several municipal Laws Acts or Edicts published and declared amongst themselves for the regulating their own particular Government which are binding unto no others nor observable in any other Nation then that wherein they were constituted and ordained and that in land businesses and not in maritime and sea affairs wherein several Nations by reason of their Trade and Traffique eath with other are concerned and must have their differences which happen between them determined by one and the same Law which is principally the Civil Law though some other Maritime Laws which receive their ground and foundation from the same are therewith practised by which all differences likewise happening and arising between Nation and Nation are to be regulated and determined it being now generally received as the Law of Nations although at the time of its being compiled into a body Justinian himself distinguished it both from that Law of Nations and from the Law of Nature And for other municipal Laws one Nation will not subject it self unto a municipal Law framed and constituted by an other they being in some sort different each from other though both derived from one and the same principal Law and are neither so many as the Statute Laws of this Land nor so much different from the Civil Law it self as our Statute Laws are from our ancient fundamental Common Laws For indeed the body of the Civil Law being so ample large perfect and compleat in it self for decision of all controversies of what nature soever arising between persons of what quality or condition soever The several municipall Laws of those several Countries are only some wayes confirmatory or explanatory thereof or sometimes extending or sometimes limiting the same but seldome or never contrariant or repugnant thereunto or much differing therefrom unless it be in the manner of punishment or the like and sometimes and in some places they are no other then the very same abreviated or shortned and made in affirmance of them and have their ground from them as some of our Statutes here have from the Common Law Nay those very proceedings and determinations of Controversies in the Parliament of France which many have thought most to differ from the proceedings and determinations of the Civil Law are notwithstanding plainly agreeable thereunto and grounded thereon nay the very name Constitution and Authority thereof are all derived from the Civil Law as doth plainly appear by that which Johannes Montanus concerning the Authority of that great Councel hath wrote as likewise by the additions made thereunto by Boerius that Country-man not much above 100 years since where it appeareth that the very name Parliament whereby this great Councel is called is derived from the Civil Law Bartol an ancient Commentatour upon that Law being there cited upon three several places thereof for having or using the word Parliamentum in the same sence the same is used in France and where likewise divers other Civil Law Authors are cited to the same purpose And Bartol is likewise cited for that he alloweth no Prince to hold a Parliament that acknowledgeth a Superiour Princeps non potest habere Parliamentum si superiorem recognoscat And likewise Boerius proceedeth to the setting forth the use of this Parliament namely for the profit of the people ubi super aliquo oportet provideri pro utilitate totius provinciae praeses debet facere congregare generale concilium seu Parliamentum ut super dubio proposito sanum utile concilium exhibeatur And it is there compared to the Roman assembly much mentioned in the Civil Laws Et Parliamentum potest dici coetus cujus nomen tractum est ex more Romano taking rise and example from that glorious Assembly of the Palace of Rome mentioned in the Code of the Civil Law Id ab omnibus antea proceribus nostri palatii quam gloriosissimo coetu nostro c. It is likewise called the Parliament of Paris and it is there said to be called Parliamentum Parisiense quasi Parium lamentum quia Pares Franciae qui sunt de numero ipsius querelas planctus audiunt de quo mentionem facit Paul de Castr in Consil 334. vol. antiq And it is there likewise said to be called Curia suprema or curia judicum maximorum juxta Authen de Consulibus Sect. si autem mediocre tunc dicitur curia secundum eum id est cura vel cultura juris so that it is said to be the very sollicitude care or study of the Civil Law or the very tilling dressing or trimming thereof And this great Court at first constituted by King Pipin consisted ex quatuor viginti consiliariis computatis praesidentibus eisd per conclavia quae cameras
appellant distributis And after other additions made thereunto by Charles the Great Son of the said King Pipin Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum domus regiae ut sic centenarum judicum numerum tenens illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent creavit There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House that it keeping the number of an hundred Judges it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth Nay the dignity the precedency and placing of the Counsellors of this great Councell is derived from the authority of the Civil Law as is plainly set forth in the said Montanus upon the Authority of the Parliament of France and Boerius his additions thereon who both quote the Civil Law for the same and so is likewise the very authority of the Councel from thence derived as by the said Authors doth likewise appear And shall we now say that this great Court or Councell and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law and say conceive or think that their judgements and determinations of Controversies c. there given and made are not according and agreeable to the same Law If I should here endeavour to set forth those several Authors and Writers upon the Civil Law which have as I said before in the several Nations of Christendome in all the several Ages and Centuries of years which have been ever since the Compiling that Body even unto this time written and commented thereon and those which have wrote the Decisions Determinations Judgements Objections and other Law books grounded upon the same and which cite them for their authority and proof of what they conclude I should extend this Chapter to a whole Book or Volumne and but shew the Civilian and such as have been verst in Law Libraries what they have seen already and but tell others of those things which they will neither search for nor endeavour to see And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty but before I can return to steer a right course thither it will be necessary first to shew that the Civil Law is likewise necessarily practised used and exercised in all Admiralty Courts and there binding and of authority to direct the Determinations Sentences and Judgements decisorie in Maritime and Sea affairs between party and patty be they forreigners or others and then to shew that by those Laws so exercised and practised in those Cours as well as by the other Laws already set forth it doth appear that the Ports and Havens and all things done thereou are within the Jurisdiction of the Admiralty CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely necessary in the decision of all Maritime and Sea differences SUch as were apt to believe that the Civil Law was and is abolished in all forreign Parts and no use made thereof in the rule and governance of land affairs would very hardly without the removal of that misapprehension have been perswaded that the same was of any use in their Admiraly Courts in sea businesses I must therefore in the next place shew that he which understandeth only the Rhodian Laws the Laws of Oleron and the Inquisitions and Statutes before mentioned which the Civilian must needs most perfectly do the first being a great part thereof inserted in the very body of the Civil Law and the other from thence derived cannot without much reading and knowledge in other parts of that Law be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party and between the supreme Authority and those that are employed by that authority and such as are in subjection to the same much less to judge and determine such causes therein according to law and justice For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome whereby men are made happy in possessing and enjoying their own and defending themselves against wrongs and injuries offered by others hath two wings duas volatiles habet alas she hath two wings wherewith she soars aloft and stretcheth her self unto and spreadeth her self over both sea and land she hath two Jurisdictions the one fitted with Laws most apt and proper for distributing of right in all land businesses the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs and yet how different and distinct soever these two Jurisdictions are each from other as I have set forth more at large in the first chapter of this second Book yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law and are from thence furnished and fitted with different and distinct Laws whereby they keep up and carry justice upright between them both and by the one extendeth her directions unto the business of the land and by the other reacheth forth her proceed and effects unto the affairs of the sea Which two wings if taken off Justice must needs fall flat to the ground and can by no other means so expand her self as to extend either her directions unto the one or reach forth such her effects unto the other Secundis alitibus procedere nequit she cannot go on prosperously or happily to execute or performe her own proper office either upon the one or upon the other Nay if either of these two wings should be taken off or but joynted implumed or bereaved of those feathers nature at first gave it though the other should be preserved and kept never so compleat and perfect yet could Justice by the perfection of that one wing but hover and heave her self upwards on one side whilst the defect in the other would pull her downwards and the one side falling to the ground the other must necessarily follow If the power and privileges of either of these Jurisdictions should be decayed or but impaired though the other should be left never so entire yet could not the effects of Justice in the one supply the defects in the other For the Laws of the Land are no more fit to regulate the Affairs of the Sea
nor the Laws of the Sea any more apt to rule the business of the Land then a horse is fit for a sea Voyage or a ship for a land Journey And then cannot Justice be said to be her self whilest she shall do right in one thing and wrong in another or whilest she should render that which is just in one matter when it is required and can afford no help at all in another when it is expected Justice saith Cicero est habitus animi communi utilitate servatâ suum cuique tribuens Justice doth every man right still preserving the common good I will not here say how slowly Justice hath oftentimes put right forwards and as it were but soared in a circle by one wings striving to out-fly the other But here I will say that he that will make most haste to his journeys end and setteth his best leg forward if that leg shall not cease to kick the other for making no more haste or shall by that or such other means lame it because it self would get both the credit and profit of the journey that leg must necessarily but hop instead of running or walking and cannot come so soon to its journey's end if ever it come there And one leg being lamed if the crutch that should supply it be applyed unto the other that is not lame the body will walk no whit the better and if one Wing be pluckt and those Feathers imped into or added unto the other the Bird will fly no whit the faster If one of these two Jurisdictions the two Wings which Justice hath to support her self should be bereaved of its power and proper priviledges though the same should be taken and assumed unto the other which enjoyeth all its own before Justice could proceed no whit more duly but much more prejudiciously to some or other For as I said before the Laws of the Sea are so different from the Laws of the Land that they will not serve to each others purpose And indeed they must necessarily so be for the traffique and commerce in Maritime affairs by transportation at Sea is in its own nature as different from the trade of bargaining and chaffering in Land businesses as is the fluid element of water from the solid element of earth For as the water doth admit of some mixture of the earth and yet still remaineth water and the earth doth admit of some mixture of water and yet remaineth earth though not in their absolute purity yet in such sort as that the one may properly enough be termed water and the other earth In like manner doth the trafficking and commerce in Merchandizing affairs admit in some sort of the like covenanting and contracting as the land Trade and bargaining doth but yet remaineth a seafaring Traffick and Commerce and the land-Trade and bargaining doth likewise in some sort admit of the like bartering and exchanging of Goods and commodities as the Traffiick and Commerce in Merchandizing affairs doth but yet remaineth a land bargain In the same manner do the Laws which regulate the one and the Laws which rule and dispose the other admit of some mixture each with other both in respect of their manner of proceedings to judgement and sometimes in regard of their concurrency in the Judgement it self where the nature of the causes differs not and yet the one remaineth the maritime Law or Law of the Sea and the other the Law of the Land Now if of these two different Elements of Water and Earth whereunto I have resembled the difference between the Traffick and Commerce in Merchandizing affairs by Sea and the Laws thereunto belonging and the land Trade and Laws which concern the same there should be such an equal mixture that the same could neither be said to be water nor earth but a mixt Body equally composed of both then would the same be fit for neither man nor beast to walk or tread on nor Ship or other Vessel to float or sayl on In like manner if these Laws purposely composed for the decision of Maritime controversies and the Laws established for determination of land differences should be promiscuously applyed to the decision or used for the determination of both and by that means such a mixture thereof made that the same could neither be termed the Laws of the Sea nor the Laws of the Land then would the same neither serve for the Government of the one nor the other For although the seafaring Commerce and land-trade have some resemblance as I have said in respect of the like contracting and bartering yet are the Goods and Wares so bartered and contracted for by way of Merchandizing of various sorts and the lading and stowing of them in Ships done or to be done after many various manners and wayes according to the nature of them and many differences there are in the manner of the Master of the Ship or Skippers acceptance of them according to the condition and quality of the Goods so received and acknowledged by his Bills of lading and severall are the consignments made of them the same being sometimes laden by Factours and consigned to their principals for their own proper use and accompt sometimes for the accompt of their correspondents c. And likewise much variety and difference is there in hyring and taking of Ships and Vessels to freight for the transportation of such Goods Wares and Merchandizes the Merchants having sometimes Ships and Vessels of their own which they sometimes freight wholly themselves sometimes joyntly with others Sometimes the Merchant hyreth or taketh a ship or Vessel to freight which hath sometimes but one sometimes many owners Sometimes he taketh her to freight of the owner sometimes of the Master appointed over her by the owners Sometimes he hyreth her by the Moneth sometimes for a whole voyage which voyage is sometimes from one Port unto another from that to a second and so to a third c. And sometimes the Ship maketh no Port but is lost or perished sometimes in the high Sea sometimes in the Port or Haven out of which she is to set sail sometime in the Port or Haven of her discharge Sometimes She maketh one Port sometimes two sometimes more and yet is cast away before she come to her last Port of discharge sometimes in the same Sometimes such Goods and Merchandizes are damnified through the wastfulness of the Master sometimes of the Mariners sometimes through their carelesness in stowage of them sometimes by reason of ill packing or making them up or putting such as are liquid in ill or leakie Casks c. Sometimes they are damnified by storm or tempest or stress of weather which is sometimes such as that the Master is constrained to cast over board divers of the Goods for preservation of the rest and saving both ship and men's lives and sometimes he is constrained to cut down the masts of his Ship as hath been said before in this Second Book Sometimes they are
damnified in the lading of them sometimes in the unlading of them sometimes in the Ship sometimes in the Lighter c. Sometimes they are damnified by one Ship or Vessel falling fowl on another and that sometimes by the negligence or carelesness of the Master or Mariners of either of them sometimes of both sometimes of neither but through the extreamity of the weather or through the darkness of the season happening either by mist or night c. which could not be helped or prevented by either the care or diligence of the Masters or their Mariners Sometimes the Ship by such means is damnnified onely and not the Goods Sometimes the Goods and not the Ship Sometimes both Ship and Goods Sometimes the like falleth out for want of a Pylot Sometimes through the ignorance and unskilfulness of such Pylot c. I might here instance in very many more particulars wherein this Commerce which consisteth in shipping and merchandizing voyages and affairs doth differ from other trades used and occupied in land business those being farre more perillous and dangerous then these and being likewise far more subject to depredations Pyratical robberies and spoils then these All which differences must needs introduce a Law for the regulating the various and divers controversies that must needs arise by reason thereof farre different and distinct from that Law which ruleth and guideth the determinations of such controversies and debates which happen in land businesses not subject to such or the like casualties dangers and damages arising from so divers various and different causes all which do aâ—ter the very Judgements and determinations according to their different qualities respects and conditions which Law as I have said before for the community of Traffick and Commerce and holding correspondency therein and obtaining the same Justice by each Nation from other must continue certain and unalterable when as the other may suffer alterations additions or diminutions It remaineth therefore here to shew that besides the Laws of Oleron c. and the Title ad legem Rhodiam de jactu before mentioned which is inserted in the Body of the Civil Law that there are several other Titles and Laws incorporated in the same Body proper and peculiar for the Decision and Determination of Maritime controversies which are not at all excercised or used in the Decision of the differences in land businesses nor any ways proper for them although many of the other Titles and Laws which are for land businesses are made use of in the proceedings and sometimes in the determinations of Maritime causes and that neither those general Laws which serve for both nor these particular Laws which serve for marine causes onely are either abolished taken from or disused in the Admiralty Courts in foraign parts but that the same are of most especial use in the same For proof hereof I might cite the Disputations Decisions Determinations and Judgements of divers and very many if not of all and all manner of causes set forth in several Authors of several Nations in several ages and times even to this present age which are all grounded upon the same Laws and do cite and quote the same for their their foundation and proof of what they conclude and determine as I have said before But no man can conceive that this Collection of so many Causes out of so many several Volumns could be contained in one so small as I intended this And some and those not a few would think it a vain and needless work to jumble so many Authors together to no other purpose then to confute so plain an errour as no man that hath been at all verst in the proceedings of foraign judicatures can be induced to believe I shall therefore instance only in some few particular Writers of these latter times of most common use and most generally known I shall step no further back then unto Peckius sometime Principal of the Juridical Order in the University of Lovain in France who collected and gathered together several titles by him pickt out of the body of the Civil Law which principally belonged unto Maritime affairs and wrote a Comment upon the same which was there printed in the year of our Lord God 1556 above a hundred years since for the use of such as were employed in the Judicature or practice in the Law in Admiralty Courts concerning Marine businesses in which Commentary he doth not only cite divers other Civil Law Authors but likewise enforceth extendeth and limiteth the understanding and construction that is to be made of the several Laws compâ—ehended under those several titles by other particular Laws set forth under several other titles within the very body of the Civil Law as necessarily he must do having not taken in all those titles which concern the business as himself confesseth in the very title of his Book which he saith is Commentaria in omnes penè Juris Civilis titulos ad rem nauticam pertinentes a Commentary upon almost all the Titles of the Civil Law which concern Maritime Affairs But indeed they are not near all if we consider the divers particular Lawes which concern the same and are intermixt with other Laws under other titles and some titles he meddleth not with which wholly concern such matters and nothing else nor doth he at all treat upon any other Laws which concern such affairs and are made use of in all Admiralty Courts together with the Civil Law Wherefore Vinius a learned Civilian of the Low Countries made an additional Commentary upon the same titles of the Civil Law and upon the Commentary of the said Peckius and set forth the same which was printed at Leyden in Holland in the year of our Lord God one thousand six hundred forty seven wherein he undertaketh not only to explicate and unfold those titles of the Civil Law which principally concern Maritime affairs as Peckius had done before but also to adjoyn thereunto the Laws of Wisbaith the Laws of Oleron the Laws set forth in the Book de Consulatu maris and likewise the Maritime Law of the Rhodes Jus navale Rhodiorum quod ad finem tomi secundi Juris Graeco Romano relatum est a Marquardo Trahero V. CL. as he himself saith that his said Work might be usefull to all Nations in their Judgments and Determinations in all manner of Controversies and therefore saith thus Cum in animo haberem locos juris nostri qui ad rem nauticam pertinent non explicare tantùm verum etiam cum generis ejusdem institutis moribus aliorum populorum conferre atque ad usum quendam accommodare communem c. Now although that for the due administration of Justice in an Admiralty Court the learning in and knowledge of the Laws in these last mentioned Books be very requisite that the same justice which one Nation affordeth to another may be by that other rendred unto that Nation again and it obtain the same yet is the learning and
in an other manner then the same would have been by such Mercatorian or Nautical Judges and that the Subject of this Nation thereby hath gained that Justice and Right at home which might otherwise perhaps have been hazarded abroad But I intend not to stuffe or fill up this short Treatise which I intended should have been farre shorter when I first took it in hand with Packets of Letters received from several Forraign Judicatures and the answers thereunto returned which will hardly or not at all be understood by such as are not already convinced of that which they should be here set down to prove Nor will I here set forth how farre those Mercatorian Courts though assisted by Civilians through their over-powering of their said Assistants have fallen short of those which have been and are wholly regulated and governed by Civilians as well in point of proceedings as in point of the distribution of Justice But I will here take occasion to set forth some inconveniences not a little destructive only to Trade Traffique and Commerce and so to the Merchant himself but also to Shipping and Navigation it self which might and doubtless would happen if the dicision and determination of Maritime Causes should be left unto or settled upon Merchants and Owners of Ships to judge according to their own skill and observations without that Jus scriptum that written Law which passeth is allowed and practised in all Admiralties of Europe wherein they cannot be so well verst as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof I shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same Law in all Nations in Maritime Causes for one Nation 's rendring of the same Justice to another that it doth from thence receive which is the chiefest thing that maintaineth the Community of Traffique and Commerce which cannot possibly be done if the same should be rendred by the various fancies of men in no wise guided by any certain forme or rule but by that thing then which nothing can be more uncertain which men call opinion tot capita tot sententiae And then I will further say that for the reason before set down in this Chapter the Mariner who cometh in with one good wind and goeth out with another and must opportunè vela ventis applicare upon any controversie or difference arising upon or about the payment of his wages cannot have so sodain and quick dispatch or determination thereof by such Mercatorian or Nauticall Judges who have other affairs and businessss to attend as by those who make the decision and determination of Maritime Causes their whole work and attend wholly upon the same every day of the week both Terme and Vacation Again it is considerable what justice the poor Mariner could expect or should be like to have if the determination and adjudication of their wages should be left unto Merchants and Owners of Ships as some men would have it out of whose freight the same ought to be paid and would be as it were parties in all Causes of that nature and if the Cause should not at one time be their own yet must it and would it assuredly be at another and so at all times would it be their own case though not their own cause and very seldome would it be that it should not be their own cause there being so many Merchants that are Owners of Ships and so many Owners of every Ship of any burthen considerable and every Part-owner of one Ship for the most part Owner or Part-owner of more if not of very many so that for the most part some or other of the Judges themselves would be absolutely concerned in the matter of difference depending before them and the poor Mariner left to their good will and pleasure for his wages and recompence for his pains impended and his time spent in their service which would be a means to dishearten and discourage all Mariners for serving in English Bottoms whensoever imployment should be offered them elsewhere Again in the commixture and joynt Trade of Merchants one with another having their complices copartners in all or most of their trading and merchandizing affairs and such their trading and dealing each for other and in each others name that it might and oftentimes would fall out that when a man conceived that he had commenced a Suit against his adversary and whom he had dealt and traded with he should in conclusion find that he had commenced the same against one or more of his Judges that were to judge and determine his Cause or rather the same might fall out so to be and not be at all discovered Much more I could say to this purpose but I hasten to return to that which I principally intended to set forth in this Chapter namely to shew by some few Authors of very many that much of the Civil Law it self is of use and in force in all Admiralty Courts as well as any other Maritime Laws And as I last instanced in Vinius I shall in the next place instance in the Authors by him mentioned namely Benvenutus Straccha who writeth de mercaturâ sive mercatore de contractibus mercatorum de mandatis de sponsionibus de nautis navibus navigatione de navibus iterum iterumque de navigatione de conturbatoribus sive decoctoribus quomodo in causis mercatorum procedendum sit de adjecto Of Merchandizes and Merchants and of their Contracts Mandates Warrants and Bargains or promises of Mariners Ships and Navigation joyntly of Ships severally and of Navigation by it self of Bankrupts and failing Merchants in what manner Merchants Causes are to be proceeded in and of Factors or Substitutes c. which Book was printed and set forth within this last Century of years And I do earnestly desire those that hold the Civil Law useless in these affairs and in the Courts designed for determination of differences happening therein but to look into the before mentioned Book together with Grotius de jure Belli Pacis Gentilis Loccenius who are latter Writers being all easily to be had and they shall find the very Text of the Civil Law and Commentators thereon not only out of these before mentioned selected Titles but out of divers others cited and quoted for authority in all the several points the said Authors do handle or treat of which I hope will be sufficient to convince any judicious man and sufficiently perswade him that the Civil Law it self is of most exquisite use in all Admiralty Courts CHAP. XVI That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the Cognizance of the Admiralty
Jurisdiction HAving now made it appear that there have been several Titles selected and gathered out of the body of the Civil Law for the dicision and determination of Maritime Causes and the same then and since very lately commented on for the better understanding thereof and the more perfect knowledge therein now it will remain to shew that by these Laws and divers others of the Civil Laws mentioned in the foregoing Chapters of this Book it will plainly appear that the Ports and Havens and all things had done or agitated thereon are within the power and cognizance of the Admiralty Jurisdiction And the first of those Titles so farre forth as it concerneth the Admiralty is Nautae Caupones c. ut recepta restituant And this Title consisteth of several Laws whereby Masters of Ships Mariners c. are compellable to restore such Goods Wares and Merchandizes as they shall have received aboard their Ships Now if the Jurisdiction of the Admiralty Courts had been restrained unto the high Seas where Masters of Ships and Mariners seldome or never receive in or deliver out their Merchants goods but upon some meer accidental occasion and had had no cognizance of Causes happening and falling out upon the Ports and Havens where usually they receive them in and deliver them out then certainly little reason had Peckius had to have made this Title to have been the first of those select Titles he gathered out of the body of the Civil Law for the decision of Marine Causes which belong to the Admiralty Courts and as little reason had Vinius had to have added so lately his additional Notes thereunto for that purpose The next Title so collected is de Exercitoriâ actione which concerneth Contracts and is to be made use of in its place The next is the Title ad legem Rhodiam de jactu which I have already instanced in to this purpose in the 9th 10th and 14th Chapter of this second Book and therefore shall pass it over in this place The next to this is the Title de incendio ruina naufragio rate nave expugnata of and concerning burning destruction and ruine of things ship-wrecks robbing or spoyling of Ships Now as under the first of these Titles Caupones Stabularii Victuallers and Inholders were comprehended as well as Nautae Mariners and yet is it by Peckius collected and commented on only for so much as concerned Marine and Nautical Affairs fit and proper for Admiralty Courts who saith that it is his purpose and intent in his Comment to explain those Laws only that belong thereunto and saith that the other are but things which have some affinity with or likeness unto the other or are things handled by such as handle things of another nature which he expresseth in these words Contestatum ante omnia haec volo te Lector non expositurum me hoc titulo nisi eas leges quae ad rem nauticam pertinent illud enim nostri est instituti caetera vel adfinia sunt vel ab aliis utcunque suis locis examinata So under this Title although burning ruine and destruction of things at land be comprehended as well as shipwreck c. yet doth Peckius his Comment extend only unto those Laws therein which concern Maritime affairs Now these Laws which concern offences committed in case of shipwreck and robbing and dispoiling of Ships or other Vessels comprehended under this Title do indistinctly handle the same whether they happen to be done upon the high Sea or upon any Port Creek or Haven where most of these things most commonly happen as by the particular Laws themselves it doth manifestly appear This Title setteth forth how and in what manner such persons shall be punished which when any Ship or other Vessel not being a derelict shall be wrecked stranded or otherwise distressed by robbery opposition quarrel spoil or otherwise with a deceiptfull intention to steal take carry away receive or damnifie any of the Goods Wares Merchandizes Tackle Furniture Ammunition Provision c. belonging thereunto though the same were cast out of the Ship and that indistinctly whether the said misfortune happened either upon the high Seas or upon the Ports Havens Creeks or Coasts of the Sea where Ships and other Vessels do ride lie at Anchor or have their station and indeed more proper is this Law for the Ports Havens Creeks and Coasts of the Sea then for the high Seas it rarely or never falling out that any persons are present to steal take carry away damnifie conceal or imbezle any of the goods belonging to any Ship or Vessel which shall be there wrecked nor the goods belonging to any Ship that shall be there robbed or in fight with an Enemy but such as are either the Pirats or Enemies themselves neither of which fall under the Judgment of this Law the one falling under that Judgment which is proper to Pirats the other under that which is proper to an Enemy and this being not appointed for the punishment of such as are either the Robbers Pirats or Enemies which set upon the Ship but of such as take the advantage whilst such strife and contestation is or when any wreck doth happen and when the Master and Mariners are in a distraction do take away the Goods belonging unto their Ship which must needs most commonly fall out when any such Ship or Vessel shall happen to be so wrecked robbed or dispoiled in a Port Haven Creek or Coast of the Sea where the Shoar is near and the Goods are either cast upon the same driven thereto or with Boats Engines or other Instruments fetched or brought thereon And by the two next Laws it more plainly appeareth that this Title principally aimeth at such as shall offend in this manner when a Ship is in her Port or Haven or upon any Creek or Coast of the Sea and there doth suffer any such distress or any such sad accident doth befall for that those Laws take care as well for the punishing such as shall take away any of the Goods from off the Shoar which shall be cast or driven thereon as the punishment of those that shall take them out of the Ship it self Item ait Praetor Si quid ex naufragio hic illud quaeritur utrum si quis eo tempore tulerit quo naufragium fit an vero etiam si alio tempore hoc est post naufragium Nam res ex naufragio etiam hae dicuntur quae in littore post naufragium jacent magis est ut eo tempore And the Third Law runneth in these words Qui autem in littore rem jacentem postea quam naufragium factum est abstulerit in eâ conditione est ut magis fur sit quam hoc edicto teneatur quemadmodum is qui quod de vehiculo exciderit tulit And many things more of the same nature are comprehended under the several paragraphes of
modis eos abigere And by the same Law all Ships and Vessels of what nature condition or quality soever they be and whosoever they be may be by the power and authority of the Admitalty seized on in any Port or Haven where they ride and be taken and employed upon any service of the King and are not to be excused One Title more of the Civil Law I shall instance in which treateth of things done upon the Ports and Havens and then return to some other Arguments out of our own Presidents at home and that is the Title of the Digests Nequid in flumine publico c. where the Praetor doth interdict Nequid in flumine publico ripáve ejus facias nequid in flumine publico ripáve ejus emittas quo statio itérve navigio deterius sit fiat The Praetor forbiddeth any thing to be done or to be cast forth into a publique River or upon the banks thereof which may either hinder the lying or riding of Ships there and this Edict extendeth directly to Rivers navigable and none other which are the Ports and Havens and those other parts of the same River through which Ships and other Vessels do sail to the place of their station or anchorage Hoc interdictum ad ea tantùm flumina publica pertinet quae sunt navigabilia ad caetera non pertinet Nor doth the Praetor here forbid any publique lawfull use of these publique Streams Ports or Havens but taketh a special care that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage anchorage and lying of Ships there Non autem omni quod in flumine publico ripáve fit coercet Praetor sed si quid fiat quo deterior statio navigatio fiat and the same Law setteth forth what is accounted to be a deteriorating or making worse of the said station anchorage riding or sailing of Ships Deterior statio item iter navigio fieri videtur si usus ejus corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur proinde sive derivetur aquâ ut exiguior facta minus sit navigabilis vel si dilatetur aut diffusa brevem aquam faciat vel contra sic coangustetur ut rapidius flumen faciat vel si quid aliud fiat quod navigationem incommodet difficiliorem faciat vel prorsus impediat interdicto locus erit The Station or Anchorage and also the passage for Ships doth seem to be deteriorated and made worse if the use thereof be corrupted or made more difficult less or more shallow and more seldome to be used or shall be wholly taken away Further or if the water shall be from thence drawn and so be made less and so less navigagable or if the banks shall be taken away and the River thereby made wider and caused to spread it self more in breadth whereby the water cometh to be made more shallow or on the contrary if it shall be encroached on and so streightned that the River passeth with more strength or violence or if any thing else be done which may disaccommodate Navigation or make the same more difficult or altogether hinder it this Edict shall take place against the same From which Law many Articles of the Inquisition taken at Quinborow and of the ancient French Articles translated into Latin by Roughton set forth to be inquirable in the Admiralty are plainly derived which Articles and likewise many Statutes which forbid the same offences were enacted to make the same more notorious to the people and are only in pursuance of this Law which is the fountain from whence they flow as their original Now lest some should still strive against the stream and offer to contend that this Edict of Nequid in flumine fiat c. that nothing shall be done in any navigable River or the Banks thereof which may hinder Navigation or the station or anchorage of Ships is meant only of the River which leadeth to the Port or Haven of discharge wherein Ships do oftentimes lye at Anchor before they can come further up to be discharged in the Port. I shall further clear this point by the Interdict mentioned by Labeo in the 17th Section of the same Law where the very word Port is used Nequid in mare inve littore quo portus statio iterve navigio deterius fiat After all this perhaps some may lauch further out into the deep and say that although these Laws collected out of the Civil Law are made use of in Maritime affairs beyond the Seas and do argue their Admiralties to have jurisdiction upon their Ports and Havens yet are they of no use here for the Admiralty of England is by the Common Law of England more restrained and extendeth not unto the Ports nor hath so large a power as forreign Admiralties have Since so many Nations as are named in the Libel subsequent unto the last Chapter of the first Book of this Maritime Dicaeologie have by the same so fully acknowledged the Regimen Government and Jurisdiction over the narrow Seas to belong to to the Admiralty of England and no other Admiralty as is plainly in the same set forth Let none of this Nation for shame say that the power and authority of this Court which extendeth as farre and further then the power of any other Admiralty Courts doth shall be nothing at or near home Nor let it for shame be said that our Admiralty to which they have not only ascribed but prescribed from so antient antiquity such superiority shall not afford unto Forreigners the same Justice other forreign Admiralties afford unto this Nation But for further satisfaction to such as will be further curious I shall proceed to make further proof of this point by Presidents out of our own Courts at home CHAP. XVII That by the Records of the Admiralty it appeareth that the Admiral had and hath power and jurisdiction upon the Ports and Havens THe Statute of the 28th of Hen. 8. cap. 15. directeth that the tryal of Traytors Pyrats Theeves Robbers Murderers and Confederaters upon the Sea or in any Haven River Creek or other place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction may by virtue of a Commission under the Great Seal directed unto the said Admiral or Admirals his or their Lieutenant or Lieutenants and three or four substantial persons be made and done according to the Common course of the Laws of the Land but taketh not away the Admirals power of tryal of the same offences by the course of the Civil Law as had been formerly used but leaveth him to proceed in causes of that nature either way as the proof the fact may be most fitly had or made And this Statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the Ports Havens and Creeks of the Sea
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
was done above or beneath the said bridges they had unduly taken cognizance thereof as well beneath the bridges as above as appeareth by what Sir Edward Coke himself hath cited in this his 22th chapter of his Jurisdiction of Courts out of the 8th of Edward the Second tit coron 399. where it is affirmed that it is no part of the Sea where one may see what is done one of part of the water and of the other as to see from one land to the other that the Coroner shall exercise his Office in this case and of this the County may have knowledge whereby saith he it appeareth that things done there are triable by the Country that is by Jury and consequently not in the Admiralty Court Now by his leave it only appears that they would have made it law that of the death of a man there which concerneth the Coroners Office they might take cognizance and this saith he is affirmed for law by Stanford's Pleas of the Crown lib. 1. fol. 51. b. in these words If one be slain upon any arm of the sea where a man may see the land of the one part and of the other the Coroner shall enquire of this and not the Admiral because the Country may take cognizance of it And he voucheth the said authority of the 8th of Edward the second whereupon he concludeth in these words so this proveth that by the Common Law before the Statute of the 2d of Henry the Fourth the Admiral had no jurisdiction but upon the high Seas which is no good conclusion if well observed as if it were impossble that the Common Law could not by some men be mistaken and made to encroach upon the Jurisdiction of the Admiralty as the Admiralty is accused to have done upon theirs whereas here we see it plain in the 8th of Edward the Second they had or would have done in this particular and therefore in express words doth this Statute declare that of the death of a man and a maihme the Admiral shall have cognizance beneath the first bridges let no man therefore from this of the 8th of Edward the Second conclude that the Admiral hath no Jurisdiction of any thing done upon the Ports and Havens or water where one may see from one side to the other since that one particular from which a general is argued an argument never allowed amongst Scholars and Logicians is by Statute corrected For the rest of the particulars whereon Sir Edward Coke insisteth he instanceth not in any one before the making of these Statutes saving that before mentioned and thus corrected by this Statute nor of almost 30 years after the making of the last of three and well nigh 40 yâ—ars after the making of the first of them for it will be found to be little less then 30 years from the second of Henry the Fourth to the sixth of Henry the 6. and little less then 40 from the 13th of Richard the Second to the 6th of Henry the Sixth in which year the first Judgement is said to be given in the Court of Common-pleas upon these Statutes which Sir Edward Coke affirmeth to be within 20 years of the making of the Statutes and therefore his first observation upon the Judgment raised from this mistaken ground is that it is contemporanea expositio which he saith is expositio optima as is said before to which I may without danger agree and consent for I shall in the next chapter save one shew that there is expositio magis contemporanea and will not very well agree either with this or any other of these latter Expositions of those Statutes and what is inferred upon this Judgement by Sir Edward Coke that it depended in advisement and deliberation in the Court of Common-pleas eight Terms as is before repeated will clearly take away what is both by Stanford and himself affirmed in general upon that one particular of the Coroners taking his Inquest upon the death of a man upon the water where one may see from the one side to the other by that of the eighth of Edward the Second namely that it appeareth that by the Common Law before the Statute things done there were tryable by the Country that is by Jury and not iâ— the Admiralty Court for if this had been so clear as both these two would make it then needed not the Judges of the Common-Pleas have advised or deliberated two days upon that point wherewith they were troubled two years which long deliberation and advisement plainly sheweth that they were at first very loth to adventure themselves upon the seas though at a Port where they had never been before yet at length they adventured but truely without any offence be it said in a rotten Barque without either Pilot or Stearsman as I conceive such a Voyage hath seldome been taken since untill Sir Coke's time immediately after which some have followed his Barque or Vessel and will so continue if their Voyage be not stopt But I shall proceed unto the next Statute leaving that point of the cognizance of wreck of sea in this Statute mentioned which is a thing that concerneth not Contracts c. about Maritime affairs made at land unto a chapter by it self CHAP. VI. The Argument deduced out of the Statute of the second of Henry the Fourth cap. 11. to prove the Contracts made at land concerning Maritime affairs are not cognizable in the Admiralty redargued THe Statute of the 2d of Henry the Fourth is likewise urged against the Admirals cognizance of Contracts and Covenants made at Land concerning Maritime affairs and hath been usually recited in prohibitions with the other two This Statute is thus rendred by Sir Edward Coke It is enacted saith he that the Act of the 13th of Richard the second cap. 5. be firmly holden and kept and put in due execution and further at the prayer of the Commons that as touching a pain to be set upon the Admiral or his Lieutenant that the Statute and the Common Law shall be holden against them and the party grieved shall recover his double damages For the first part of the Statute he apprehendeth that he hath given a due exposition of that of the 13th of Richard the second by setting down the answer to the Petition without any relation to the Petition it self and then indeed this Statute to ordain that the former should be firmly holden and kept and put in due execution would have made somewhat to his purpose But if that first Statute be duly examined and receive a due construction then I conceive this will no wayes advance his cause He further inferreth that because this Statute doth ordain as touching a pain to be set upon the Admiral or his Lieutenant that the Statute and Common Law should be holden against them That therefore it appeareth by this Act that the Statute of the 13th of Richard the second is but an affirmance of the Common Law promiseth
not But I must not pass over a main objection which might have been or may hereafter be raised out of this Statute as the same is by Poulton rendered which is this The Statute as he rendereth it saith that whereas in the Statute made at Westminster the thirteenth year of King Richard the second amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from henceforth of any thing done within the Realm but only of a thing done upon the sea c. so that hereby it may seem and be very well urged that this Statute doth clearly confirme the Statute of the 13th of Richard the second as the same is both by Poulton and Sir Edward Coke rendered and translated without any relation to the Petition but if this very Statute be duly considered it will plainly appear that Poulton hath here thrust in a repetition of the former Statute according to his own former rendering thereof to make the same good which the original before inserted in this very chapter being consulted withall will not allow him for there is not one word of this repetition mentioned either in the Petition or Answer quod vide for the Petition is that the Statutes made in the time of Richard the second touching the Jurisdiction of the Admiralty comprehending the one as well as the other as well the latter which rendreth the true construction of the former according unto the true meaning thereof taken with relation to the Petition as I cannot conceive but that it ought to be as the former of the 13th of Richard the second may be held and firmly kept and that the Admirals and their Lieutenants may not hold any manner of plea in the Court of the Admiralty contrary to the form and ordinance of the saiâ— Statutes which by the Answer is granted in generall without repeating any part either of the one of them or of the other So then these former Statutes being onely considered with relation to the Petitions whereunto they are answers I conceive this Statute affordeth no Argument at all against the Admirals Jurisdiction or cognizance of Contracts made at Land concerning Maritime affairs more then what the other afforded and so I hasten to what I promised in the Chapter preceding this CHAP. VII That the Admiral by these Statutes was not barred the Cognizance of Maritime Contracts though made at Land made appear by the practice of those times proved out of ancient Records remaining in the Tower of London THe Judgment given in the Case of Burton and Putt by Sir Edward Coke said to be the first that can be found that was given upon the Statutes against the Admiral 's having Jurisdiction any where but upon the high Seas and by him said to be within 20 years of the making of the Statutes and so contemporanea expositio the time being duely computed as I have said before will be found to have been given full 27 years after the last of them For the Parliament wherein the last of them viz. the Statute 2. H. 4. was made was begun and holden at Westminster in the utas of St. Hillarie Anno Domini 1400 and in Hillary Term 1427 being 6. H. 6. was this Judgement given so that the largest part of four in this computation is abated to bring this Judgement within the compass of a contemporary exposition but indeed this Judgement must be grounded as well upon the two former as this latter and principally upon the first of them and then is this Judgement 37 years and more after the making of that Statute the same being made in Anno 1389. this Statute therefore having not born this construction or exposition from the time of the making of it until 37 years after and upwards this being the first Judgement thereupon as is confest and that given by the Judges not without a great deal of doubting for the space of eight Terms before they could agree or would adventure to give that construction or such exposition thereof though tending ad suam jurisdictonem ampliandam I cannot apprehend that this was contemporanea or optima expositio nor do I find by all the particulars cited by Sir Edward Coke concerning this matter that this Judgement was ever pursued as a president or example by the same or other succeeding Judges Indeed two Actions he instanceth in brought upon the same ground one by Cupper against Rayner and the other by Wydewell against Rayner brought both in the Court of the Common Pleas about six years after this Judgement viz. Paschae 12. H. 6. But he speaketh not of any Judgement given therein which if there had he would not willingly have omitted to have inserted the same which maketh me verily conceive that no Judgement was given upon either of them nor indeed can I think that the former Judgement by him cyted ever took any effect or was ever put in execution If Sir Coke's rule be true that contemporanea expositio est optima a contemporary exposition is best then is not this exposition made by this Judgement the best though it may be magis contemporanea more contemporary then the other Judgements or expositions given longer after viz. Paschae 28 Eliz. which he instanceth in That Evangelist Constantine having covenanted with Hugh Gynn that his Ship should sail with Merchandizes of the said Gynn to Muttrellâ—in â—in Spain and should there remain for certain days upon breach of which Covenant Gynn brought an Action of Debt of 500 l. in regard the Charter party was made at Thetford in the County of Northfolk and had Judgement in the Kings Bench And that Mich. 30. and 31. Eliz. of an Action of case brought upon a policy of ensurance so that the former may be said to be melior expositio a better exposition then those latter because it seemeth to be the foundation whereon they are grounded and therefore more authentique But if I shall shew that within a farre shorter compass of time after the making of the said Statutes then any of those Judgements were given which he hath instanced in no such exposition was made of the said Statutes but that the Admirâ—â—ty was held to be the proper Court for such causes and the Civil Law fittest to Judge them by then will mine be multo magis contemporanea expositio a farre more contemporary exposition then his and by his own rule si non optima multo tamen suis melior If not the best yet farre better then his I shall therefore instance in an Action brought in the Admiralty within three years after the making of the first of these Statutes and in August next after the making of the second of them and in the same year that this last Statute was made as will appear by the Record it self which I shall in this chapter set down at large The Action was brought in the Admiralty of the West before Nicholas Clifton then Lieutenant to the Earl of
Huntingdon Admiral of the Western parts by Peter Draper and Robert Ancleyn of Sherburne Merchants against William Stillard Mariner in a cause of contract and letting to freight a ship of the said William Stillard called the Lethenard of Haniel to sail thence to the Isle of Ree for Salt there to be had and carried or brought back from thence to Weymouth or Southampton at the choyce of the said Merchants as by the Charter-party of contract and affreightment of the said Ship indented and between the said parties made evidently appeared and this Action there sometime depended and was proceeded in unto sentence without any interruption or being any wayes hindered by any manner of objecting either of the said two Statutes against the proceedings in the said Cause and sentence was given for the said Stillard from which the said Draper and Ancleyne appealed unto the King in Chancery and a Commission was from thence by the Lord Chancellor awarded unto five other Civilians or to any four three or two of them giving them full power and authority to take the said cause of appeal into their cognizance to be proceeded heard and discussed in due forme of law and the same to determine according to law All which will appear by the Commission it self upon record in the Tower which I will here set down verbatim R. dilectis fidelibus suis Johanni Cobbam Magistro Johanni Bennet Magistro Johanni Runhale Magistro Thomae Southam Magistro Johanni Combe salutem Sciatis cum nuper notâ lite seu controversiâ in Curiâ nostrâ Admiralitatis Angliae in partibus Occidentalibus coram dilecto fideli nostro Nicholao Cliffton tunc locum tenente clarissimi fratris nostri Comitis Huntindon Admiralli nostri in partibus praedictis inter Petrum Draper Robertum Ancleyne de Sherbourn Mercatores partem actricem ex una parte 〈◊〉 Willielmum Stillard Marinarium partem ream ex altera occasione affrectationis conductionis sive locationis cujusdam navis praedicti Willielmi Lethenard de Hainnel nuncupat ad veland ad partes de la Ray pro sale ibidem habendum praedict inde carcandum deinde apud Weymouth vel Southampton ad electionem mercatorum reducend ut occasione conventionum contractuum affrectationem conductionem navis praedictae concernen de quibus per chartas indictatas inter personas suprascriptas evidenter apparet aliquandiae vertebatur praedictus locum tenens perperam in causa praedicta procedens parti Williemi plus debito favens sententiam contra eos Petrum Robertum pro parte dicti Willielmi tulit diffinitivam iniquam invalidam sive nullam ad instantiam ad procurationem dicti Willielmi subdolas injustas minus justè ut asseritur in ipsorum Petri Roberti praejudicium non modicum gravamen a qua quidem sententia diffinitiva caeteris gravaminibus praetensis fuisset sic per praedictum Petrum no'ie suo procuratorio no'ie dicti Roberti ad nos nostram audientiam legitimè ut praetenditur appellatum quam quidem appellationem idem Petrus intendit ut asserit pro se dicto Roberto prosequi cum effectu ac nobis supplicavit ut sibi praefato Roberto super appellationem praedictam certos judices dare seu assignare dignaremur nos supplicatione hujusmodi tanquam juri consona annuentes vobis quatuor tribus vel duobus vestrum in solid de quorum fidelitate industria fiduciam gerimus specialem committimus vices nostras ac plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa seu causis appellationis hujus nec non in causa in hac parte principali prout dictaverit ordo Juris ipsam ipsas cum suis emergentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend sine debito terminand ideo vobis cuilibet vestrum mandamus quod vocetis coram vobis quatuor tribus vel duobus vestrum partibus praedictis ac aliis in hac parte quos de jure fore viderit evocand auditisque in dicta appellationis caâ unâ cum principal eorum rationibus allegationibus circa praemissa diligenter intendatis as faciatis exequamini in forma praedicta Damus autem praefato Admirallo nostro ac ejus locum tenenti nec non universis singulis Officiariis Ministris Ligeis Subditis ac aliis fidelibus nostris quorum interest tenore praesentium firmiter in mandatis quod vobis quatuor tribus duobus vestrum in forma dicti mandati nostri prout ad ipsos pertinet intendentes sint respondentes consulentes auxiliantes vestris mandatis obedientes prout decet In cujus c. 4. apud Westm 3. Augusti And in the 17th year of the sam◠Kings Reign John Coppin Matiner and Owner of the Ship the Gabriel of Sancta Osicha of Burdugall sued William Snoke and Thomas Saxtingham Merchants for freight of that Ship first at the Common Law where the Action lay not and so failed and then in the Admiralty but before sentence appealed to the High Constables Court where his Appeal lay not and was therefore from thence dismissed and condemned in Expences who then appealed to the King in Chancery and had a Commission from thence directed unto Richard Stury Knight Mr. John Bennet Official of the Court of Canterbury and Mr. Michael Sergeaux Dean of the Arches London to hear and discusse the said cause in due form of law and to determine the same according to the rules of the Civil Law they being all three Civilians All which likewise appeareth by the Commission it self upon Record in the Tower which followeth in these words Rex dilectis fidelibus suis Richardo Stury militi Magistro Johanni Bennet Officiali Curiae Cant. Magistro Michaeli Sergeaux Decano de Archubus London salutem Sciatis quod cum Willielmus Snoke Thomas Saxtingham Mercatores quandam navem vocatam le Gabriel de Sancta Ossica apud Burdegal in quodam loco vocato le Umbier cum decem septem doliis una pipa vini caricassent cum quodam Johanne Coppin marinario de Comitatu Essex Magistro navis praedictae conventionassent quod ipsa vina praedicta usque Gadenasse in partibus Essex ' salvo duceret solvendo sibi pro quolibet dolio viginti solidos pro una pipa decem solidos ut accepimus licet idem Johannes conventionem suam bene fideliter compleverit praedicti tamen Willielmus Thomas in hâc parte debitè requisiti praefato Johanni in parte vel in toto juxta conventionem suam praedictam satisfacere non curarunt prout idem Johannes conqueritur super quo idem asserens se versus praedictos Willielmum Thomam tam per Communem legem regni nostri Angliae quam in Curia Admiralli nostri versus partes Boreales diu sequutum
juste in ipsius Edmundi dispendium non modicum gravamen unde per partem praedicti Edmundi sentientis se ex praemissis sententiis expensarum condemnatione indebite pergravari ab eisdem sententia expensarum condemnatione ad nos nostram audientiam est appellatum sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum plenius poterit apparere idem Edmundus nobis supplicavit ut in dicta causa appellationis suis procedere sibi justitiam in hac parte facere digneremur Nos supplicationi praedictae annuentes vobis c. quorum alterum vestrum vos praefatum Episcopum Thomam Field c. I shall instance only in one more one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston as Master and Owner of half of the said Vessel and the said Cause was proceeded in before Henry Bole Lieutenant-General of the Admiralty Court which Cause was from him appealed unto the King in Chancery and a Commission in the eleaventh year of Henry the fourth being but nine years after the making the said Statute and the Cause in the first instance must needs have been begun some good space of time before that The Commission of Appeal runneth thus Rex dilectis fidelibus suis Richardo Rochefort Chivaler ' Magistro Henrico Ware Magistro Richardo Brinkley Magistro Thomae Field salutem Sciatis quod â—um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti quinque librarum praeâ—â—â—â—â—ffrectamenti medietatis cujusdam navis vocat ' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom possessorem ejusdem medietatis aliis pertinen partem actricem prosequentem ex parte una Thomam Jonesson Thomam Rafin de villa praedicta partem ream defendentem ex parte altera quae coram Henrico Bole locum tenen general curiae Admirallitatis Angliae c. Now for the three Records instanced in by Sir Edward Coke and brought out of the Courts of the Common Law against the Admirals Jurisdiction upon the Ports and Havens and in matters of contracts upon businesses to be agitated at sea I have shewed four out of the Chancery which was then as by his own setting forth appeareth the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law for thus he saith Sundry Towns of the West part praying remedy against the Officers of the Admiralty for holding plea of matters determinable by the Common Law which they pray may be revoked the Kings Answer was The Chancellor by the advice of the Justices upon hearing of the matter shall remit the matter to the Common Law and grant a Prohibition And as these Records are of farre greater antiquity then those by him instanced in so are they farre more contemporary with the said Statutes and therefore by his own rule of farre greater authority Besides these three Records by him instanced in do but de facto set forth what was done and that but as those three several times in those Courts sed quo jure non arguitur But it may be very well apprehended that in 27 years after the making of the last of those Statutes and 37 after the making of the first of them the Petitions upon which those Statutes were grounded and from whence they must receive a right construction began to be forgotten but after the same were revived and brought again into remembrance and Admiralty Court had no more such interruptions but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former when the said Petitions whereunto the Answers have or ought to have reference were as it were again quite out of remembrance For if from the time of the making of those Statutes untill the time of the last of the Judgments instanced in all the particular Actions that have been brought and â—â—â—tences that have been given in the Admiralty for things done upon the Ports and Havens against the cognizance of which causes one of these Judgements is brought and all the Actions brought and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea against which the other two Judgments are brought should be set forth I might boldly say there would be many hundreds for one and I might very well and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong nay by those Records of the Admiralty and the constant the continued and the general practice and usage of taking cognizance of Causes of this nature it plainly appeareth that the Jurisdiction thereof anciently did and still doth belong unto that Court for in land businesses whose land or soil shall we judge that to be but his who hath generally continuedly and constantly reapt the Crop and not his who hath at some times come by and taken up a a Shock or two and so done as much as he which reapt where he never sowed which he must needs do which is neither verst nor skilled in jure scripto in that Law which is positively set down for that purpose but shall judge thereof at randam and will so do because others have done so before him nor under correction can it be held to be any good rule of Justice to judge by president for if one man or more have judged unjustly and not according to law I would not have it said that he which knoweth the law is notwithstanding bound to judge as the other did because he hath a president for it But I shall pass them presidents over and as I have in the second book of this Treatise shewed you that even by Records out of the Chancery and Common Law things done upon Ports and Havens are cognizable in the Admiralty Court so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated or to be agitated at sea CHAP. VIII That by other Records out of the Chancery Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court ONe Lodowick Sutton sued John Pettite of Abville in Picardy Merchant Andrew Lord and Daniel Lancel in the Admiralty Court upon several Maritime Contracts made between them in the City of London the said Pettite Lord and Lancel upon their complaint made in Chancery that they were sued in the Admiralty
reciteth the said three before mentioned Statutes Praedictus tamen Thomas praemissorum non ignarus sed machinans non solum ipsum Philippum contra debitam legis hujus regni Angliae formam et contra formam et effectum statutorum c. traxit in placitum falsè caute et subdolè libellando in Curia Admirallitatis c. cujus quidem suggestionis praetextu c. That upon the 3. of April 7 Jacobi within the body of the County of London viz. in the Parish of St. Mary de Bow in the Ward le Cheap and not upon the high Sea nor within the Jurisdiction of the Admiralty Court of England he by his certain Bill obligatory sealed with his seal as his deed then and there delivered unto one Thomas Alport bearing date the same day and year did bind himself his Heirs c. to pay unto the said Thomas his Heirs c. at any time upon demand the summe of 275 l. and 6 s. of lawfull mony of England and alleadgeth the three before mentioned Statutes and that notwithstanding the said Thomas not being ignorant thereof c. had brought his Suit in the Admiralty Court for the recovery of the said debt upon the said Bill obligatory contrary to the form of the Law of England and contrary to the form of the said Statutes and thereupon obtained a Prohibition But upon the 20th day of June in the tenth year of King James it being made appear by the Libell and Bill obligatory that the same was made beyond the seas in respect of a Maritime business had and done at sea the said Prohibition was released by consultation which concludeth that the Prohibition was to the grievous damage of the said Thomas Alport and manifest wrong of the Court of the Admiralty and saith the proceedings in that cause in the said Admiralty Court ought not to be delayed Et quia videtur praefatis Judiciariis pro certis caeusis ipsos specialiter moventibus quod processus in praedicta Curia Admirallitatis in praedicta causa ad prosecutionem praedicti Thomae ulterius retardari non debet Ideo vobis c. T. E. Coke apud Westm xx die Junii Anno Domini nostri Angliae Franciae Hiberniae decimo Scotiae quadragesimo quinto Crompton But it may be said that many more Prohibitions have been granted out of both the said Courts at Westminster as well in causes of this nature as in causes for things done upon Ports and Havens upon which Consultations have not been had and I doubt not but in latter times there have but it hath for the most part been when the parties have agreed and the cause compounded and so no Consultation prayed or sought for if otherwise let no man brag of that which hath been done which ought not to be done But another cause may be given and that is this that the Civilian not being suffered there to plead the right of Jurisdiction belonging to the Admiralty the same hath not been undertaken by any practicers in those Courts and if undertaken yet pleaded but coldly against the Jurisdiction of their own Courts Howsoever I do conceive that the Procedendoes out of the Chancery and the Consultations out of the Kings Bench and Common Pleas which I have in this and the second Book of this Treatise set forth though I might have instanced in very many more will be sufficient to determine the right of Jurisdiction as well in causes of the one nature as of the other against the said several Courts from whence such Supersedeases and Prohibitions were granted I will not say but that the Admiralty Court may sometime have intermedled with Contracts made at land arising from businesses done or to be done or performed at land which is here in England as it were to take Cattle from a Pasture and put into the sea to feed And in such cases I doubt not but a Prohibition may lye which shall not be dissolved by Consultation But by Prohibitions to take businesses of the Ports and Havens or Contracts made at land concerning Maritime affairs from the Admiralty to be determined by the Common-Law of the land is to take fish out of the sea to be kept alive and fed upon pasture or in some Forrest or Park at land For I shall in the next Chapter out of many shew you some few of those exact rules the Civil Law hath to proceed by in causes of this nature besides the Laws I have before mentioned which the Common-Law hath not CHAP. X. That divers and severall of the Laws under the titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at land concerning matters to be done at sea NOw concerning this matter I may rather referre the Reader unto Peckius himself Vinius and other Authors writing thereon then to spend any great labour about it but whilest he hath this book in his hand let him cast his eye upon some few of a great number of such Contracts made at land concerning businesses to be done at sea which are exactly determined by these Laws and are used and held absolutely necessary in all forreign Maritime Judicatories and not by any the rules of their Municipal Laws which as they are little or nothing different in their proceedings from the proceedings of the Civil Law so are they farre less different in their determinations from the determinations of that Law then our Municipal Laws be As in the first of these Titles If Mariners before they receive goods on board do contract with the Loader ut recepta restituant Quaeritur utrum Nauta an Exercitor navis pro restitutione conveniatur Quaeritur etiam an Exercitor Magister aut Nà uta ex contractu teneatur de rebus non ostensis Ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione Quaeritur etiam utrum nautae ex sola emissione teneantur Ac etiam an nautae de facto vectorum teneantur Quaeritur etiam quae quando actio detur subsidiaria protestatio an requirat consensum adversarii Ac an in scriptis fieri debet Quaenamque sit vis protestationis Cum quolibet nautarum sit contractum an detur actio in exercitorem Ac quid si nauta per Magistrum navis conductus in nave deliquerit an in exercitorem detur actio Magister navis per exercitorem conductus an alium substituere potest Mutuum dans in navis usum an caeteris creditoribus praefertur quando quare an quando navis per aversionem conducitur Dominus an quando quare invitus ignorans de peculio teneatur Merces an pro naulo contracto cum magistro sint obligatae Quaeritur etiam quando argumentum Ã