the Grecians calls a Bill of this kinde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quae de nautico soenore conscripta est of which nauticum foenus there are several Titles in the Digest and Code of the Civil Law and the monies so lent to be transported at the hazard of the Lender in the Civil law is called Pecunia trajectitia of which Salmatius Pecunia trajectitia dicitur quae trans mare vehenda accipitur usurae quae ex pacto in eam pecuniam praestantur Maritimae nauticae dicuntur Fourthly Bills of sale of Ships are made conformable to Maritine Laws for as West in his Presidents delivers the form it is in such Bills of sale exprest and declared That he that sells the Ship bindes himself his Executors and Administrators the said Ship so bargained and sold to warrant and defend against all men for one whole year and a day according to the Law of Oleron the danger of the Sea Fire and Enemies onely excepted These things being considered it may be thought reasonable that such Contracts and Writings being grounded upon the Civil Law the Laws amongst Merchants and other Maritime Laws the Sutes arising about the same should rather be determined in those Courts where the proceedings and Judgements are according to those Laws than in other Courts which take no notice thereof For the restraining of the Court of Admiralty from proceeding in Sutes arising from such Contracts and Writings made at Land although the businesses therein contained are to be performed at Sea amongst the Authorities cited by Sir Edward Cook there may be intended appliable to this purpose First the Act of Parliament of the 15. of Richard the 2. Chap. 15. Secondly some judgements given and Prohibitions granted in the Courts of Common Law concerning causes of this sort commenced in the Admiralty Touching the Statute of the 15. of Richard the 2. Chap. 34. which is the ground of the main Objections against the Admirals Jurisdiction it may be conceived That whereas that of the 13. Chap. only in general restrains the Admirals from medling with things done within the Realm and allows them to meddle with things done on the Sea that is relating to the Sea This Statute was intended to declare more expressly both in what places and in what matters they should not meddle And touching the places in regard the word Realm as Sir Edward Cook observes in a general sence extends to the Sea within the Kings Dominions as well as to the Land declares the restraint to be only within the bodies of Counties And it may be supposed that he intended a difference betwixt the Bodies and the Extremities or bounds of Counties as the Statute of the 3. of Edward 1. makes a difference betwixt things done within the Shires and things done within the Marches and Borders of Shires whence the Statute of the 5. of Elizabeth Chap. 5. allows to the Admirals Jurisdiction as the main Sea so also the Coasts of the Sea being no parts of the Bodies of any Counties of the Realm and in that respect this Statute specially excepts from the Admirals Jurisdiction the Conusance of wreck of Sea as happening on the Coasts or Shores of the Sea out of the bodies of any Counties so that as to the place or Territory of the restraint this Statute declares it streighter than that of the 13. of Richard the second Touching the matters with which the Admiral by this Statute is not to meddle within the bodies of Counties they are expressly declared First Contracts Pleas and Quarrels That is personal Actions concerning Contracts and Secondly are implyed matters Criminal and the prosecution of them Touching the First which concern this Assertion the words are That the Court of Almiralty hath no manner of Conusance of any Contract Plea or Quarrel rising within the bodies of any Counties But all such Contracts Pleas and Quarrels shall be tried determined and remedied by the Common Law Which words are so general that it is pretended they ought to be understand of all Contracts and Writings whatsoever even of such as concern Sea businesses if they be made or written within the Bodies of any Countries In answer whereunto there may be taken into consideration a General Rule cited by Sir Edward Cook allowed as he saies by all Laws in construction of Statutes viz. Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit anima vigorque ipsius legis non videtur legislatur id sensisse quod ratione caret â—tiamsi verborum generalitas prima facie aliter suadeat And the reason of this Statute as may be gathered from the Praeamble as the Key thereof was to hinder the Admirals encroaching of divers Jurisdictions Franchises and Profits pertaining to the King and other Lords besides those they were wont or ought to have of right by which words it is acknowledged that the Conusance of some maâ—ters did formerly belong to that Jurisdiction And not to diminish any of their Ancient and just rights in things belonging to the Sea which are permitted and allowed to the Admiral by the Statute of the 15. of Richard 2. and unto which neither the Kings Courts noâ— the Courts of any other Lords had formerly before this Statute any pretence Sir Edward Cook in his Answers to the 1. Objection of the Complaint 8â— Iacobi saith That the Judges acknowledge that of Contracts Pleaâ— and Quarrels made upon the Sea or any part thereof c. the Admiralty hath and ought to have Jurisdiction and that no President can be shewed that any â—rohibition hath been granted for any Contract Plea or Quarrel concerning any Marine cause made or done upon the Sea By which words he implies that although the Admiral had and ought to have Jurisdiction upon the Sea yet it was only concerning Marine Causes but if a Contract Plea or Quarrel were made or done upon the Sea concerning any Terrene Cause or matters concerning businesses of the County a Prohibition might be granted Now it may seem worthy of Consideration whether any Reason can be shewed why the Courts of Common Law ought to have cognizance of Contracts Pleas and Quarrels which concern Terrene Causes or Matters concerning businesses of the County made or done upon the Sea Yet if Contracts Pleas or Quarrels which concern Marine Causes or Matters belonging to the Sea be made or done within the Bodies of Counties the Admiral ought not to have the like Cognizance And if no reason thereof can be shewed how according to the general Rule which Sir Edward Cook delivers touching the Construction of Statutes the common Interpretation which is made of that of the 15. of Richard 2. Chap. 3. by which Contracts Pleas and Quarrels arising within the Bodies of Counties are extended to Contracts Pleas or Quarrels relating to Marine affairs can be justified the reason of the Rule being Cum Ratio sit anima Legis non
of Common Law by witnesses which saith he cometh to pass because in those parts there be no neighbours by whose oaths Juries of twelve men may be made as in Contracts and other cases arising within the Realm is accustomed to be done To avoid the Admirals Jurisdiction in holding Pleas of Contracts or things done beyond the Sea Sir Ed. Cook affirms that Bargains and Contracts so made wherein the Courts of Common Law cannot administer Justice did belong to the Constable and Marshal for the Jurisdiction of the Admiral is wholy confined to the Sea which is out of any County whence it may be gathered that as to this point he intends for Authorities the Statutes of the 13 of Richard 2. which sets forth the Jurisdiction both of the Constables and Marshals Court as also of the Court of the Admiralty That concerning the Constable and Marshal is as far from the purpose as it was from Sir Edward Cooks thought to give any addition of power to that Court The Act declares That to the Constable and Marshal it belongs to have Conusance of Contracts and Deeds of Arms out of the Realm whence it is inferred that therefore out of the Realm the Admiral shall have no Conusance of Contracts or matters concerning Navigation and Trade It may be better argued from that Act That as the Parliament allowed to the Constable and Marshal Jurisdiction in Causes of Arms and Warr arising both within and without the Realm which cannot be determined by the Common Law so it did intend Causes of Navigation and Trade arising either within or beyond the Seas to be tried by the Admiral The nature and the Quality of the business more Conducing to the point of Jurisdiction than the Circumstances of the place where it happens The Statute which allows the Admiral to meddle with things done upon the Sea by Sir Edward Cooks leave doth not confine his Jurisdiction to the Sea in respect of â—ny place beyond the Sea It is rather â—retended to debarr him from medling with things done within the Realm which notwithstanding it being formerly shewed that the Admiral may â—old plea of Maritime Causes arising â—rom Contracts made within the Land 〈◊〉 may be less needfull to labour to prove â—hat it doth not hinder him from taking Conusance of Sutes concerning Navigation and Trade arising from Contracts made and businesses done beyond the Sea The other Authorities which may be collected to prove how the Admiral hath no Jurisdiction of things done beyond the Sea are a writ in the Register and Fitz Herbert and a number of Prohibitions That of the Register is If goods be taken from an English-man in Spain or beyond the Sea and the party cannot obtain Justice there he shall have a writ of the Sheriff to arest the Bodies of the offenders and to seize their goods to the value which proveth saith Sir Edwarâ— Cook that the Admiralty cannot hold plea thereof for that the party hath remedy at the Common Law That Argument is as good as if he had said There lies a writ of Withernam at the Common Law therefore no Letters oâ— Reprisalls can be granted in the Admiralty It stands with great reason that iâ— a Subject be spoiled of his goods in anoâ—ther Realm and can have no remedy there that the party or the goods belonâ—ging to him being found within the Juâ—isdiction of the Common Law they â—hould be made lyable to satisfaction And why should it be thought unreasoâ—able that upon the like occasion if the â—arty or his goods be found within the â—urisdiction of the Admiralty the Subâ—ect should have remedy there But this Authority concerns not Contract or barâ—ains made beyond the Sea Besides how far this writ agrees with â—he Common Law it may be consideâ—ed in regard Mr. Selden writes in Triâ—unalibus nostri Iuris Municipalis c. in â—ur Courts of Common Law the Juâ—â—sdiction hath been ever held to be such â—â—at according to the strict Laws antiâ—â—tly practis'd an Action could not be â—ought upon a business hapning elseâ—here than within the Kingdome as for â—any Ages since it hath been held that â—â—e Action ought to be rejected unless â—â—e ground of it be arising from someâ—â—ing done within the Body of a Counâ—â— And Sir Edward Cook recites divers â—â—thorities by which the same is mainâ—â—in'd as agreeable to the Common Law â—â—t this Law he allows where the â—â—ings were totally done out of the â—â—alm and Implies that it is otherwise where the Contract is made in oâ— Realm and the performance ought to bâ— in another for then sayes he as to thâ— present purpose of necessity the Conuâ—sance must be where the Contract waâ— made for otherwise there can be no triâ—al had at the Common Law and that iâ— is most reasonable that it should be so because the Contract is the ground anâ— foundation of the debt But now in casâ— a Contract be made in partibus exteris transmarinis whereby payment or perâ—formance is to be made within thâ— Realm notwithstanding the Contract bâ— the ground and foundation yet the Juâ—risdiction follows the place of paymenâ— and performance and no doubt for thâ— same reason because otherwise theâ— could be no pretence for a trial at thâ— Common Law so that the Rule is fraâ—med to the building and not the buildinâ— to the Rule The last Argument is that divers Proâ—hibitions have been granted upon sutâ— brought in the Admiralty for thinâ— done in partibus exteris transmarinâ—â— and the first is as ancient as the 36. Hen. 8. But upon what Contracts buâ—â—â—nesses or occasions those sutes weâ— grounded and Commenced it is not â—pecified and to conclude this point as the former First the third request of the Judge of the Admiralty in the year 1575. viz. That the Judge of the Admiralty according to such ancient order made by King Edw. 1. and his Councel and according to the Letters patents of the Lord Admiral for the time being and allowed of other Kings of this Land ever since and by Custom time our of memory of man may have Cognition of all contracts and other things arising as well beyond as upon the Sea without â—et or prohibition The answer is that it â—s agreed upon by the Lord Chief Iustice and â—is Collegues Secondly All the Judges before the King and his Councel Octavo Caroli aâ—reed That if sutes shall be commenced â—n the Court of Admiraly for Contracts â—ade or other things done beyond the â—ea or upon the Sea no Prohibition is â—o be awarded Concerning the Concessions of the â—udges of the Kings Bench and the Reâ—olutions of all the Judges alleged for â—â—e Confirmation of the precedent Asâ—ertions it may be noted That touching the former by them are intended certain Answers of the Chief Justice and other Judges of that Bench to the Requests of the Judge of the Admiralty in the year 1575. of which mention is made in the complaint of the Admiral 7. Object wherein it is set
alwayes that if any Merchant stranger or other finde himself grieved or damnified by negligent keeping of his Wares or Merchandises or by long delaying or protracting of time in making of the Voyage by the said Owner his Master or any of the Mariners of the said Ship otherwise than shall be agreed in or by the said Charter-party not having been leâ—ten by wind or weather he shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owners or Masters who shall or may summarily and without delay take such order therein as shall be thought to their discretions most convenient and according to right and justice in that behalf It is true that the Cases exprest are for the Merchants to recover satisfaction for delay or damage done to their goods according to the Charter-party from the Owners and the Masters of Ships and it were very unreasonable if the Master or Owner having dâ—ely performed their Voyage might not seek the like remedy before the same Judge against the Merchants not observing the Charter-party either in not Lading their goods within the time appointed or not paying the Freight according to agreement in the same contained and exprest the causes being hinc inde reciprocal and it being sometimes held an absurdity Illud quod in uno eodemque judicio terminari potest apud diversos Iudices ventilari The Statute of the 43 of Elizabeth Chap. 12. declares That whereas differences growing upon Policies of Assurance had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those Causes until that of late years divers persons did withdraw themselves from that arbitrary course and have sought to draw the parties assured to seek their monies of every several assurers by Sules commenced in her Majesties Courts to their great charges and delay thereupon it was enacted that a Commission should be granted giving power to certain Commissioners the first whereof is the Judge of the Admiralty to order and decree such Causes in a brief and summary course without formalities of pleadings and proceedings Malines affirms that he amongst others was one who upon experience of the great inconveniences which followed upon the drawing of those Causes to the Courts of Common Law solicited the Parliament to pass that Act. The Legal authorities which may be conceived to be intended to debar the Admiral from the Conusance of Contracts and writings made at Land touching things to be performed at Sea or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before the Courts of Common Law have admitted and held Pleas of Charter-parties of Policies of Assurance and declared something concerning Mariners wages Touching Charter-parties it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute of double damages by William Hore against Ieffery Unton who had sued the said Hore in the Admiralty for fourscore pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes imployed to go towards Island in regard Contractus ille apud novam Sarum infra corpus Comitatus non super altum mare factus junctus fuit whereupon damages were assessed against the Defendant to an hundred Marks and costs to 40 l. Again that in the 28 of Elizabeth in the Kings Bench upon a Charter-party by a Deed indented which was made at Thetford in the County of Norfolk Euangelist Constantine sued Hugh Glynn for the breach of Covenant in not staying at Muâ—trel in Spain so many dayes as were limited by the Covenant whereupon he was condemned in 500 l. and in arrest of Judgement it being shewed That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had and that therefore the trial was not sufficient Sir Christopher Wray and the whole Bench resolved that the Plaintiff should recover 500 l. besides the costs and damages because the Charter-party was made at Thetford within the Realm Concerning Policies of Assurance That in the 38 of Hen. 8. in a Case betwixt Crane and Beâ—l touching a promise made at Dartmouth That the Ship should pass without taking which was afterwards surprized by the Spaniard upon the high Sea it was held not determinable in the Admiralty for although the taking were upon the Sea yet the promise was upon the Land Again that in the 36 of Elizabeth an Action of the Case was brought in the Kings Bench upon an Assumpsit from a Policy of Assurance where it was undertaken That a Ship should sail safely from Melcomb Regis to Abbevil in France the Ship being arrested by the French King in the River of Somme in the Realm of France and the matter was there adjudged â—o which may be added what Sr Ed. Cook delivers for Law in Dowdales case Cum combein le contract comme le performance c. when as well the Contract as the performance of it is wholy done beyond the Sea and it so appears the Trial fails at the Common Law But here saith he the Assumpsit was made at London which is the ground and foundation of the Action and therefore the Trial of necessity shall be there or otherwise it shall not be tryed at all and the Arrest which is in issue is not the ground of the Action but the Assumpsit c. Touching Mariners wages is that of the Book of 48 of Edw. 3. where it is said That if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded in that Court by the Common Law Nemy per ley Mariner To these Authorities it may be replied in general that all but the last are grounded upon the commonly received sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there where it is made or written with out any respect to the nature of the business and the occasion thereof from whence in truth it doth more properly arise And whereas other acts of Parliament have in some special points ordained and declared otherwise it may be hoped that it may not be held a crime unexcusable if a man should doubt of the reasonableness of those authorities Touching the particulars As First of the 31. of Henry 6. betwixt Hore and Unton wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party it is said that the Sute was upon a Charter-party of Freightment for four score pounds It doth not appear that it was for the freight of the Ship although it be most probable and if it were so why the Master of the Ship should not as well sue for his freight by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute might sue in the Admiralty for dammage done to his
goods aboard a Ship contrary to the Charter-party without any respect to the place where it was made if no reason can be shewed that Judgment may be thought not to have been grounded so much upon reason as it was upon the common received opinion of the meaning of that Statute as it is therein related quia contractus ille apud novam Sarum factus junctus fuit Touching that of the 28. of Elizabeth whereby Glynn was condemned to Constantine for breach of Covenant in a Charter-party in the summ of 500. l. it seems a Case far more reasonable though something grievous because it is not denied but that a sute upon a Charter-party may be commenced at the Common Law upon a penalty as it seems that was for breach of Covenant in not staying at Madrill so many dayes as were limitted by the Charter-party Only that is thought no concluding argument against a sute in the Admiralty for freight grounded on a Charter-party But whereas when in the Arrest of judgment it was alleged that the Trial was not sufficient because the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had Sir Edw. Cook sayes that Sir Christopher Wray and the whole bench resolved That the Plaintiff should recover cost and dammages because the Charter-party was made at Thetford in Norfolk within the Realm it is as much as if Sir Edw. Cook had said that whether the suggestion in the issue were true or false tryed by a competent or incompetent Jury yet if the sute were brought upon a Charter-party the Conusance thereof did belong to the Common Law and whether the former Judges had proceeded well or not was not material so that what is premised formerly touching Judgments and judicial Acts in the First Chap. may from this case be excused And as touching the infinite prohibitions granted upon sutes commenced in the Admiralty concerning Charter-parties there may be something declared and made appear reasonable hereafter in an other place As to the instances of Policies of assurance held tryable at the Common Law although by the Statute of the 43. of Elizabeth it hath been shewed that the proceedings in those causes at the Common Law were altogether inconvenient to the Kingdome yet in regard Sir Edward Cooks reasons in Dowdales case for the maintaining of proceedings in such businesses may be applyed to other matters to the prejudice of the Admiralty Jurisdiction something may be observed concerning the same in Sir Edward Cooks reasons as first That the Assumpsit is the ground and foundation of the Action and that the Arrest or Imbargo in that case had been no ground of an Action if there had been no Assumpsit neither could the Assumpsit have produc'd an Action if there had not been an Arrest But what was the nearest and immediate ground of the Action without doubt the Arrest And what was chiefly in question not the Assumpsit for it was taken for granted that that was done in London but it was the Arrest which as it was declared was in issue And it is likely that the Common Law which intended a Trial of the Vicinage intended it of the thing or matter which was in issue to be tried But he further argues That the Trial must be of necessity where the Assumpsit is made for otherwise there could have been no Trial at the Common Law which might have savour'd of some reason If possibly there could have been no Trial in any other Court but the Cause being Maritime and amongst Merchants it might more properly have been tried in the Admiralty or in the Assurance Court without a Jury or Trial of Twelve men by witnesses as Fortescue acknowledgeth Thirdly touching that of the Book of 48. of Edward the 3. where it is said That if a Mariner make Covenant only to serve in a Ship on the Sea yet if the wages be not paid they shall be demanded in that Court by the Common Law not by the Law Mariner the occasion was that an action of debt being bâ—ought at the Common Law upon an Obligation dated at Harflet in Kent whereas in truth it was made in Normandy and the consideration was Service done in Warr in France thereupon one of the Judges said That the summ demanded growing due for Service done in Warr the Cause ought to be tryed in the Constable and Marshals Court Another as it seems willing to retain the cause said tâ—at he hired a man to go in a message to Rome although the service were done in another Realm yet what was due by covenant might be recovered in that Court Another said if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded by the Common Law c. So that it is plain it was not a Resolution of the Court but a fuit dic as they say and one mans opinion by way of argument to another purpose And the ground thereof might be that if it were in issue whether such a Covenant were made it might be tryed at the Common Law but it doth not conclude but that if the Question were whether the service in the Ship were performed on the Sea it might more properly be tryed in the Admiralty Court For confirmation on this point First To the 4. Request of the Judge of the Admiralty to the Lord Chief Justice of the Kings Bench 12. May 1575. viz. That the Judge of the Admiralty may have and enjoy the knowledge of the breach of Charter-parties made between Masters of Ships and Merchants for voyages to be made to the parts beyond the Sea according as it hath been accustomed time out of mind and according to the good meaning of the Statute of 32. Hen. 8. chap. 14. though the same Charter-parties be made with in the Realm The answer is This is agreed upon for things to be performed upon or beyond the Seas though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. chap. 14. Secondly it was agreed unto by all the Judges and Attorney General before the King and his Counsel That if a Sute be before the Admiral for Freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Sea although the Charter-parties happen to be made with in the Realm and although the money be payable within the Realm so as the penalty be not demanded a Prohibition is not to be granted But if the Sute be for the penalty or if the Question be made whether the Charter-party were made or not or whether the party did release it is to be tryed by the Kings Court at Westminster So that at first it be denied upon Oath that a Charter-party was made or a denial upon Oath tendred to which it may be added that it was there further agreed That if Sute shall be made in the Court of Admiralty for building
but which is wholly distinct from the same In the first case he confesseth that it is necessary to allege the cause of Action to arise within the new created Jurisdiction because prima facie nay de Iure the Courts of Common Law have general Jurisdiction of those things but in the later case as of the Admiralty if the cause be Maritime there is no need to averr it to have been done upon the Sea out of any respect to the Courts of Common Law for that it doth not tend to the diminution of any of those Courts and for Confirmation thereof he affirms that the Jurisdiction of the Marshalsey stands partly upon the Statute Articuli super Chartas and the words of that Statute are as restrictive as any words of the Statutes touching the Admiralty and by the books of the Common Laws the Marshal cannot hold Plea in some cases unless both parties be of the Kings Houshold nor in any case unless one of the parties be so yet it is resolved that the Declaration is good although it be not averred therein that any of the parties be of the houshold and therefore a Fortiori it is not necessary in the Admiralty to specifie in the Libel the thing to have been done super alto mari the Admiralty Jurisdiction being more distinct from the Common Law than that of the Court of Marshalsey That the trial of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Subjects and Kingdome of England than in the Courts of Common Law HOw much the maintenance and advancement of Navigation and trade by Sea concerns the Kingdome and Subjects thereof Sir Edward Cook delivers who saith That Trade and Trafique is the lively-hood of a Merchant and the life of the Common-wealth wherein the Kingdome and every Subject hath interest For the Merchant is the good Bailiff of the Realm to Export and Vent the Native Commodities and to Import and bring in the necessary Commodities for the defence and benefit of the Realm So much is confirmed by several Acts of Parliament fram'd by common consent of the Kingdome The Statute of the 32. of Henry the 8. chap. 24. sets forth That it is notoriously known that the Realm of England for the most part is invironed with the Seas so that the Subjects cannot convey and transport their Wares Merchandizes and Commodities by Land but only by Ships and that the Navy and multitude of Ships of the Realm is very commodious and necessary as well for the intercourse and concourse of Merchants conveying and transporting their Wares and Merchandizes and a great defence and security to this Realm as well to offend and defend as also for the maintenance of many Masters Mariners and Seamen and also hath been the chief maintenance and supportation of Cities Towns Havens and Creeks near adjoyning unto the Sea-coasts Likewise that of the 43. of Elizabeth chap. 12. declares That it hath alwayes been the Policy of this Realm by all good means to comfort and encourage the Merchant thereby to advance the general Wealth of this Realm the Kings Customs and Strength of Shipping c. It hath been formerly observed That for the encouragement of those who maintain trade by Sea in all Nations and States there have been special Judges appointed to hear and determine causes concerning Trade and affairs of the Sea and it may be further noted that such Judges have been directed to proceed at such times and in such manner as might best consist with the opportunities of Trade and least hinder or detain men from their Imployments Amongst the Graecians as at Athens it was provided That all sutes betwixt Sea-men and Merchants should be determined in those vacations when the Seas were barred or in those Moneths when Navigation was restrained So much is confirmed by Salmatius Eo tempore quo oritur Arcturus navigationes suas ut plurimum desinebant mercatores domumque redibant Boedromion quippe mensis qui septembri respondet quo tempore ferè Arcturus oritur terminus erat navigationum Atticarum ideo ab eo mense Munichiâ—nem usque quo mense iterum se mari committebant ac vela dabunt Mercatores Athenienses in urbe desidebant lites suas disceptabant ut videre est apud Demosthenem adversus Apaturium Amongst the Romans likewise for the better dispatch of causes concerning Sea-businesses the Judges were ordered to proceed Levato velo and de plano without that Solemnity and formality which was used in ordinary Courts and Causes So in Italy Spain and France the Judges proceed in causes concerning the Sea Summarily and in a more compendious way than other Judges use And the like as Sir Iohn Davies relates hath seemed to the wisdome of this Kingdome Our Parliaments saith He have not only made extraordinary provisions for a more speedy recovery of debts due unto Merchants for their Merchandizes than is provided by our Common Law as appears by the Statute of Acton Burnel made the 11. of Edward 1. and the Statute De Mercatoribus made the 13. of Edward 1. but also hath allowed a Court of Proceedings in cases of Merchants different from the course of our Common Law For by the Statute of the 27. of Edw. 3. cap. 2. it is declared That the proceedings in causes of Merchants shall be from day to day and from hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament That all Merchants coming to the Staple shall be ruled by Law-merchant touching all things coming to the Staple and not by the Common Law of the Land and by another Article That neither any of the Benches nor any of the Iudges of the Common Law shall have any Iurisdiction in those cases To which may be added the Statute of 32 of Hen. 8. Chap. 15. and of the 43 of Elizabeth Chap. 12. which direct That such causes betwixt Seamen and Merchants shall be ordered summarily and without delay and as in discretion shall seem most convenient All which was and may be observed in the Court of the Admiralty which in many causes proceed at any time and in all causes summarily and according to Equity but neither is nor can be observed in Courts of Common Law which are open onely in Term times and proceed in an ordinary and strict way Secondly For the advantage of those who use Navigation and Trade by Sea The Law-merchant and Laws of the Sea admit of divers things not agreeable to the Common Law of the Realm which may be better insisted on in the Court of Admiralty than in the Courts of the Common Law So much is likewise declared by Sir Iohn Davyes relating several instances to that purpose 1. If two Merchants saith he be joynt Owners or Partners of Merchandizes which they have acquired by a joynt Contract the one shall have an Action of
Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
videtur Legislator id sensisse quod ratione caret etiamsi Verborum generalitas prima facie aliter suadeat And that the place only where a Contract is made of written should alter or transferr the Jurisdiction to the Courts of Common Law may seem very unreasonable for the reasons following First for that Contracts Pleas and Quarrels being things incorporeal or matters of right may more properly be said to arise from that from which they are caused or occasioned than from the place where they happen to be made and so Contracts Pleas and Quarrels occasioned by the businesses of the County may be said to arise within the Body of the County and Contracts Pleas and Quarrels occasioned by the businesses of the Sea may be said to arise from the Sea in what places so ever they happen to be made or Written So it is properly said Ex facto jus oritur actio oritur ex delicto Because the Law results from the fact and the Action is occasioned by the fault So where the Jurisdiction of the Admiral of France is said to be pour le fait de la Mer Mr. Selden renders it in Latin ob causam aliquam à re maritima ortam and Salmatius as before saith usurae propter pecuniam trajectitiam praestandae maritimae nauticae vocantur etsi nummi in terris dantur Secondly that the end of a Contract being to have something performed and Pleas and Quarrels are occasioned by the non-performance or ill performance of the same The place of performance is more considerable than the place where the Contract was made or written So Ulpian a famous Roman Lawyer saith Mulier exigere dotem illic debet ubi maritus â—omicilium habet non ubi instrumentum dotale conscriptum est nec enim id genus contractus est ut tam eum locum spectari oporteat in quo instrumentum dotis actum est quam locum domicilii in quem mulier per conditionem matrimonii reditura erat When a Dowry is to be restored to a Wife after her Husbands death or divorce it is not to be estimated according to the value of things where the instrument or deed of the Dowry was made but according to the value of the place where the Dowry was to be made good that is the place where her Husband lived Thirdly for that if the Question be whether a Maritime Contract were made or no it may be determined by a jury of the place But if the Plea or Sute be as most commonly it is whether the Contract be performed or not performed it cannot be determined but upon proofs made from the place of performance of which the Vicinage to the place where the Contract was made can take no notice and therefore it is improbable that the Statute should intend that such Sutes should be tried discussed and determined only by the Courts and course of Common Law Fourthly the Common Law is not so strict but that according to the nature of the business it allows Jurisdiction to other Courts For although Promises and Contracts of money are generally Pleadable in the Courts of the Common Law yet as Bracton writes causae de rebus promissis ob causam matrimonii in foro Ecclesiastico terminari debent quia cujus juris id jurisdictionis est principale ejusdem erit accessorium And in an other place he gives a reason for the same quia semper videndum propter quid aliquid sit vel promittatur And again although Sutes touching Tenures and Services belong to the same Courts of Common Law yet Littleton shews That if Tenants in Franck Almain fail to perform divine Service the Lord may complain thereof to the Ordinary and Sir Edw. Cook in his Comment thereupon observes that the Law doth appoint every thing to be done by those to whose Office it properly appertaineth and so saith he the Lord hath remedy for his Divine Service albeit it issue out of temporal Lands in foro Ecclesiastico by the Ecclesiastical Court And certainly if what constructions are made of the Law were made of this Statute it would be more easily admitted That a Maritime Contract although made or written within the County should be tried before the Judge of the Admiralty whose Office it is to determine Maritime causes Thirdly For the better discerning of the meaning of this Statute it is offered to consideration what hath been the sense of Parliaments in preceding and subsequent Statutes as first in the Statute of the Staple made in the 27 of Edw. the 3. in 3 Chap. where it is declared That the Mayors and Constables of the Staple shall have Iurisdiction and Conusance within the Towns where the Staple shall be of all manner of things touching the Staple which shall be ruled by the Law Merchant and not by the Common Law of the Land nor by the usage of Cities Burroughs or other Towns c. So that all manner of Contracts and Covenants made betwixt Merchant and Merchant or other where one party is a Merchant whether the Contract be made within the Staple or without the Plaintiff may sue his action or Quarrel before the Justices of the Staple by the Law of the Staple unless he make choice to sue in some other place of the Common Law from which may be observed First That the Merchants businesses by the Judgement of the Parliament were held fitter to be regulated by a special Law viz. the Law-merchant than by the common Laws or customes of the Countries Secondly That where Contracts or Covenants did concern Merchandize or matters belonging to the Staple it was not thought considerable to point of Jurisdiction whether the Contract or Covenant were made within or without the precincts of the Staple The susequent Statutes are that of the 32 of Hen. 8. Chap. 14. which declares that the Court of Admiralty may hold plea of Charter-parties and that of the 43 of Elizabeth Chap. 12. which hinders the Courts of common Law from medling with Policies of Assurance which two things are the main matters endeavoured to be maintained by the Statute of the 15 of Rich. the 2. to belong to the Conusance of the Courts of common Law because they are usually made at Land within the bodies of Counties The Statute of the 32 of Hen. 8. Ch. 14. prohibiting the employment of Forein ships ordained concerning the shipping of this Kingdome That the Owners or Masters make their departure from the Port of London after the Freighting or Lading of the Ship as soon as wind and weather wil serve according to the Charter-party made betwixt the Owner or Master and the Merchants without protracting of time and also that they and every of them to his power shall see and provide that all Wares and Merchandises which shall be by the said Merchants and their servants brought into any Ship or Vessel shall be honestly and in good order saved and kept Provided
the Admiralty according to the Statutes It is further confirmed by a manuscript Copy of the Statutes in French in the Library of Merton College in Oxford in which are these words Niene meyns de mort de omme de mayheme engrosses neifs estants oâ—erantâ—s a my le haut fio des grosses reviers tant seculament par-avali des pounts des mesmes les riviers L'n Admiral coâ—usance The second Statute that may be applied to this purpose is that of 5 Elizabeth Chap. 5. which relating to divers things made offences by that Statute ordains that all and every of the said offences done on the main Sea or Coasts of the Sea being no part of the bodies of any Counties of the Realm and without the Precinct Liberty and Iurisdiction of the Cinque Ports and out of any Haven or Pier shall be determined by the Lord Admiral Touching this Statute it may be observed That the end thereof was according to the Title for the maintenance of the Navy and as for a mean to that end for the imploying of English shipping especially for the bringing in of Fish for which purpose it provides That Wednesdayes should be held Fish-dayes That none shall demand toll of Fish brought in Subjects ships That no Herring unsalted should be bought out of strangers bottoms besides that no Wares should be carryed from Port to to Port and that no Wine nor Woad shall be brought in but in English ships of which businesses it might be more fit for the Officers of Corporate Sea-Towns to enquire than for the Admiral which the Parliament understanding might without prejudice to his Jurisdiction in other matters except from him touching offences of that kinde the enquiry within Havens and Piers. Besides whereas Sir Edw. Cook recites the words That all such Offences shall be tryed before the Admiral the words of the Staâ—ute are before the Lord Admiral of England or his Lieutenant or Deputy or Deputies and other Iustices of Oyer and Terminer according to the form of the Statute of the 28 Hen. 8. for Causes of Piracy So that it concerns not the Admiral in his ordinary capacity but as he is chief in that Commission And whereas Sir Edw. Cook from this concludes That by the Judgement of the whole Parliament the Jurisdiction of the Admiral is wholy confined to the Sea and Coasts of the Sea being no parcel of the County how strongly soever he conceives it under favour it is no good argument to infer from these new created offences of which he is to enquire in an extraordinary way that he hath no Jurisdiction in other matters which did formerly belong unto him especially touching Navigable Rivers of which in this Statute there is no mention nor exception Moreover whereas the Judgement of the Parliament in this Statute is so confidently urged for the limiting of the Admirals Jurisdiction it is deâ—â—red that to the points in question two other Statutes the one long subsequent to that of Rich. 2. the other not long preceding that of the 5 of Queen Elizabeth may be taken into consideration The first is that of 28 Hen. 8. Chap. 15. concerning the trial of Piracies and other crimes committed within the Admirals Jurisdiction wherein it is declared That all Treasons Felonies Murthers Robberies Confederacies committed in or upon the Sea or in any other Haven Creek or place where the Admiral or Admirals have or pretend to have Iurisdiction shall be enquired tried heard or adjudged by the Admiral and others appointed by the Kings Commission under the Great Seal in such shires and places of the Realm as shall be limited in the Commission as if any such offence had been committed upon the Land c. The end of this Statute was that whereas Piracies and other offences committed within the Jurisdiction of the Admiralty were formerly tryed according to the Civil Law and Offenders could be convicted onely by confession of the parties and proofs by Witnesses to reduce the Trial of the same to the course of the Common Law by a Jury of Twelve men by which Statute although the Manner of the trial of Offences were altered yet the Limits of the Admirals Jurisdiction are allowed to extend not onely to the Sea but to Havens Creeks and places where the Admiral or Admirals have or pretend to have Jurisdiction And in the Commission of Oyer and Terminer grounded on that Statute the places of Offences committed to be heard and determined before the Admiral and others are thus described Tam in aut super mari aut aliquo portu rivo Aqua dulci Creca seu loco quccunque infra fluxum maris ad plenitudinem a quibuscunque primis pontibus versus mare quam super littus maris alibi ubicunque infra jurisdictionem nostram Maritimam aut limites Admiralitatis Regni nostri Dominiorum nostrorum By which words not onely power is given to hear and determine offences in those places but it is likewise declared that those places do belong to his Majesties Maritime Jurisdiction and of his Admiralty The second Statute is that of the first of Elizabeth Chap. 17. made for the preservation of Spawn and fry of Fish and the remedies thereof being provided it is ordained That the Lord Admiral of England and the Lord Mayor of London for the time being and all and every other which lawfully have or ought to have any conservation or preservation of any Rivers streams or waters shall have power to enquire according to that Act which plainly shews that the Parliament then conceived that the Admiral of England had power and Jurisdiction to some purposes in Rivers and Streams salt and fresh otherwise he had not been named in the first place amongst those who had right of conservation of the same The Jurisdiction of the Admiralty as to publick offences and causes criminal since the Statute of 15 Rich. 2. hath been so well settled by the Statute of 28 Hen. 8. that there can be little occasion of difference touching those matters betwixt the Courts of the common Law and the Court of the Admiralty yet Sir Edw. Cook having unnecessarily collected many other legal authorities which may be applied to maintain that by the Common Law the Admirals Jurisdiction did not extend to Ports and Navigable Rivers it may not be amiss to examine the grounds and weight of the chiefest of them which may be reduced to two heads First such as shew that Havens and Navigable Rivers are within the bodies of Counties and that the common Law hath held plea of things done in them Secondly That the Courts of common Law have punished such as have sued in the Admiralty Court for things done in Ports and Navigable Rivers Touching the first these Authorities might be intended First That in the time of Edw. the first a Replevin was brought for the taking of a ship on the coasts of Scarborough in the Sea and carrying her into the County of N. The
forth That the Agreement made in anno Domini 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain Execution of Admiral Jurisdiction was not observed to which Sir Edward Cook answers that that supposed agreement had not been delivered unto them but having heard the same read before his Majesty out of a Paper not subscribed with the hand of any Judge they answer that for so much thereof as differs from their present Answers it was against the Laws and Statutes of the Realm and therefore the Judges of the Kings Bench never assented thereunto as it is pretended neither doth the phrase thereof agree with the Terms of the Laws of the Realm It is not probable that Dr. Dunn then Judge of the Admiralty would have produced such an Agreement to the Judges before the King but that he had some ground for the same which being supposed it may as well inferr that those Concessions were agreeable to the Laws and Statutes of the Realm because those Judges did assent unto them as that they did not assent because they were not agreeable to the same And it may as well be doubted whether those things wherein those Answers at that time did differ from the Resolutions of all the Judges in the 8. of King Charls were agreeable to the Laws and Statutes of the Realm as it is confidently affirm'd that wherein those Concessions did differ from those Answers were against the same wherein the phrase of the Requests and Answers is not agreeable to the terms of the Common Law is not so much considerable as how the matters therein contained may consist both with Law and Equity and to that end it may not be amiss to recite them as they are extant in several Manuscripts in which are collected things of those times remarkable both concerning the Ecclesiastical Courts and the Court of Admiralty as followeth 12. Of May 1575. The Requests of the Judge of the Admiralty to the Lord chief Justice of her Majesties Bench and his Collegues with their Answers to the same That after Judgement or Sentence given in the Court of Admiralty in any cause or Appeal made from the same to the high Court of Chancery it may please them to forbear the granting of any Writ of Prohibition either to the Judge of the said Court or to her Majesties Delegates at the sute of him by whom such Appeal shall be made seeing by choice of Remedy in that way in reason he ought to be contented therewith and not to be relieved any other way It is agreed by the Lord chief Justice and his Collegues that after Sentence given in the Delegates no Prohibition shall be granted And if there be no Sentence if a Prohibition be not sued for within the next term following Sentence in the Admiralty Court or within two terms after at the farthest no Prohibition shall pass to the Delegates That Prohibitions hereafter be not granted upon bare Suggestions or Surmises without summary Examination and Proof made thereof wherein it may be lawfull to the Judge of the Admiralty and the party defendant to have Counsel and to plead for the stay thereof if there shall appear cause They have agreed that the Judge of the Admiralty and the party defendant shall have Counsel in Court and to plead to stay if there may appear evident cause That the Judge of the Admiralty according to such an antient Order as hath been taken by King Edward the first and his Councel and according to the Letters Patents of the Lord Admiral for the time being and allowed by other Kings of the Land ever since and by custom time out of Memory of man may have and enjoy cognition of all Contracts and other things rising as well beyond as upon the Sea without let or Prohibition This is agreed upon by the said Lord Chief Justice and his Collegues That the said Judges may have and enjoy the knowledge of the breach of Charter-parties made betwixt Masters of Ships and Merchants for Voyages to be made to the parts beyond the Sea and to be performed upon and beyond the Sea according as it hath been accustomed time out of mind and according to the goodâ— meaning of the Statute of 32. of Henry 8. chap. 14. though the same Charter-parties be made within the Realm This is likewise agreed upon for things to be performed either upon or beyond the Sea though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. cap. 14. That Writs of Corpus cum Causa be not directed to the said Judge in causes of the nature afore-said and if any happen to be directed that it may please them to accept of the Return thereof with the Cause and not the Body as it hath alwayes been accustomed If any Writ of this nature be directed in the causes before specified they are content to return the Bodies again to the Lord Admirals Gaol upon Certificate of the cause to be such or if it be for contempt or disobedience to the Court in any such cause Touching the Resolutions of all the Judges 8. Caroli it may be considered That in the presence of the Kings Majesty and twenty three Lords and others of his Majesties Councel they were subscribed unto by all the Judges viz. Thomas Richardson Robert Heath Humphrey Dawenport Iohn Denham Richard Hutton William Iones George Crook Thomas Trevor Iames Weston Robert Barkley Francis Crawly and also by Henry Martin Judge of the Admiralty and William Noy the Attorney general and the Transcript thereof was ordered to be Entred in the Register of the Councel causes and the original to remain in the Councel chest 18. Feb. 1632. Sir Edward Cook concerning the answers and resolutions of the Judges to those things which he calls Articuli Cleri 3 Iacob saith That although they were not enacted by the authority of Parliament as the â—tatute of Articuli Cleri in the 9. of Edwaâ—â— 2. was yet being resolved unanimously by all the Judges of England and the Barons of the Exchequer they are for matters of Law of highest authority next unto the Court of Parliament And it may be thought that these resolutions of all the Judges touching the Jurisdiction of the Admiralty ought to be of no lower esteem the rather for that the unanimity of all the Judges to the former must be taken upon the credit alone of Sir Edward Cook but as to the latter the Evidence thereof doth appear by the joynt subscriptions of all before named which is likewise attested by Sir George Crook who was one of them who in his reports of Hillary term 8 Caroli under the title of Resolutions upon causes of Admiral Jurisdiction writes that it was agreed as followeth First if sute should be commenced in the Court of Admiralty for Contracts or other things personally done beyond the Sea no Prohibition is to be