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
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
Court of the Kings-Bench as he had there made in the said former Cause he likewise obtained a Prohibition in this Cause as in the other but the said Court being likewise by the Libel in this Cause informed of the nature of the Cause a Consultation was awarded in this Cause as in the other and concludeth in like manner as the other did that the said Prohibition was in grave damnum Johannis Fox libertatis Curiae Admirallitatis laesionem manifestam and with a Nolentes c. as in the former and both the suggestion and substance and effect of the said Libel are inserted in the body of the Consultation upon the File in the Registry of the Admiralty with the others as it and they came directed from the said Court of Kings Bench thither under seal 42 Elizab. William Rolfe of Woolwich in the County of Kent did contract and agree with Thomas Freeman Shipwright upon a certain rate for day-wages for himself and his Servants and for certain other materials or necessaries for and towards the building of a certain Ship or Pinnace for him the said William Rolfe according to which agreement the said Freeman and one Arthur Argill and others as his Servants did afterwards in the Moneth of April in that year at Woolwich in the County of Kent for divers dayes labor in performance of the said work in their Art about the structure or building of a small Ship or Pinnace for the said William and built a great part of the same and the said Ship or Pinnace being built she was named or called by the said William The Anne and Francis and the said William being in possession of her as his own proper Vessel and standing so possest he afterwards to wit upon the eighth day of March in the 43 year of the said Queen at Woolwich aforesaid in the County of Kent for a certain summe of money unto him then and there paid by one Hugh Lydyard sold and delivered the said Ship unto him the said Hugh by which means the said Hugh upon the said eighth of March in the year aforesaid became possessed of the said Ship or Vessel as his proper Ship or Vessel and the said Thomas Freeman caused the said Ship or Vessel being upon the River of Thames to be arrested by which means the said Hugh Lydyard was constrained to appear in the Admiralty Court and to answer unto the said Tho. Freeman after upon a Contract of or concerning the retaining or hyring him the said Thomas being the Shipwright to make build the said Ship and of and concerning several promises and undertakings of the said Hugh and William made unto the said Thomas in the Moneths of March April c. in the year c. concerning the payment of divers summes of money to be paid unto the said Thomas for his Wages and Salary for his work about the structure and building of the said Ship or Vessel and for meat and drink of other Workmen that wrought upon the said work and for other necessaries for the fitting of the said Ship bought and bestowed thereon by the said Thomas The said Hugh Lydyard alleaging the Statutes of the 13 and 15 of Richard the second and the 2d of Henry the fourth unto the Court of Common-pleas and there suggesting the same fact and further suggesting the same to be done and the said Contracts to be made within the body of the County of Kent and not within the Jurisdiction of the Admiralty that therefore the Action was brought contrary to the form of the said Statutes and procured a Prohibition to the Court of the Admiralty but upon consideration of the whole matter the said Court upon the last day of January in the 45th year of the said Queens Reign awarded a Consultation and remitted the said Cause to the Admiralty Court And now in regard that the fact in this case was agreed on both sides and therefore no repetition made of the Libel in the Body of the Consultation the right of jurisdiction and power of the cognizance of the cause being only in question and in regard this Prohibition and Consultation issued out of the Court of Common-pleas and the former mentioned out of the Kings's-Bench take this Consultation at large as it came to and remaineth in the Registry of the Admiralty Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. Dilecto sibi Julio Caesari Legum Doctori à libellis supplicum nostrorum Magistrorum uni Curiae nostrae Admiralitatis Angliae Judici sive praesiden ac locum tenen ejusdem legitime constitut aut c. salutem Cum Hugo Lydyard Gen. in Curiâ nostrâ coram Justiciariis nostris apud West suggerit quod cum per quendam actum in Parliamento Domini Richardi nuper Regis Angliae secundi post conquestum apud Westm anno Regni sui tertio decimo tent edita inter alia inactitata sub authoritate ejusdem Parlimenti quod Admiralli et eorum Deputati se ex tunc de aliqua refacta infra regnum Angliae nisi solumodo de rebus factis super altum mare prout tempore Domini Edvardi Regis avi praedicti quondam Regis Richardi secundi usum fuisset nullatenus intromittant cumque etiam per quendum alium actum in Parliamento praedicti quondam Regis Richardi secundi anno regni sui quinto decimo tent edit inter caetera declarat ordinat stabilat suisset authoritate ejusdem Parliamenti quod de omnibus contractis placitis querelis ac de omnibus aliis rebus factis sive emergentibus infra corpus Comitatus tà m per terram quà m per aquam ac etiam de wrecco maris Curia Admirallitatis nullam habeat cognitionem potestatem nec jurisdictionem sed quod essent omnia hujusmodis contract placita querelae ac omnia alia emergentia infra corpora Comitat. tam per terram quà m per aquam ut praedictum est ac etiam wreccum maris triat terminat discuss remediat per leges terrae non coram Admirallo nec per Admirallum nec ejus locum tenentem quodque post edictionem statutorum praedictorum sc primo die Aprilis Anno regni nostri quadragesimo secundo Quidam Willielmus Rolfe apud Woolwich in Comitatu Cantiae infra corpus ejusdem Comitatus non super altum mare nec infra jurisdictionem Admirallitatis retinuisset quendam Thomam Freeman tunc naupegum existen ad quandam naviculam vocat a Pinnace pro eodem Willielmo construend fabricand vel saltem in structurâ fabricatione hujusmodi naviculae ad laborand operam navand per se servien suos in arte suâ pro merced per diem eidem Thomae per praefatum Willielmum solvend virtute cujus retentionis idem Thomas quidam Arthurus Argill alii ut servien sui postea scilicet sexto die ejusdem mensis Aprilis apud
or any other thing whatsoever which touch the King against Him his Crown and Regality or his Realm as is aforesaid And they which bring within the Realm or them receive or make thereof notification or any other execution whatsoever within the same Realm or without That they their Notary Procurators Maintainers Abetters Fautors and Counsellors shall be put out of the Kings Protection and their Lands and Tenements Goods and Chattels forfeited to our Lord the King that they may be attached by their bodies c. In these antient Statutes which are by way of Petition and Answer the Answer hath alwayes relation to the Petition and granteth what is therein desired sometimes less but never more by this Petition nothing is desired but the restraint of the Popes power and assumed authority in those things therein exprest nor is there any thing more in the Answer granted if these words in the genuine sence thereof be duly examined which can be no other then this If any purchase c. in the Court of Rome or elswhere from the Pope or any Power or authority derived from him viz. either in his Court at Avignon which he sometimes held there or any other Ecclesiasticall Court under his Supremacy whether beyond the Seas or in the Realm of England For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him as their supreme only or at least as well as the King and of these Courts and none other can this elsewhere be understood as will plainly also appear by the things specified in this answer to be purchased and pursued viz. If any purchase or pursue in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunications Bulls c. Now cannot these things nor could they elsewhere or in any other place besides the Court of Rome be purchased or pursued but from the Pope or his Authority in those other Courts before mentioned Again these words else where were necessarily inserted and necessarily to be understood of those Courts under the Popes authority from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise whosoever had purchased any of them elsewhere to wit in any of these other Courts under his authority and not in the Court of Rome had not been by this Statute lyable to the punishment thereof But some perhaps may say I have here purposely waved the general words which close up the particular specified things forbidden to be purchased or pursued viz. Bulls Instruments oâ— any other things whatsoever which words perhaps may seem to have relation to else where and be thought to be of so large an extent that the words else where must be stretched to all places whatsoever beyond other Courts of the Popes or under his authority But indeed I intended it not But as they are the last words which close up the particulars specified so I reserved them to the last place wherein I shall disclose and clear that doubt When several particulars then of the same nature are closed up with a general that general comprehendeth all other particulars of that nature and nothing of a different and distinct quality So here these general words or any other things whatsoever must be understood of any other thing whatsoever of the same nature with those Translations Processes c. And this is plain enough by the words themselves if seriously observed and rightly understood For take them as they run and they carry their limitation with them which bindeth them close and restraineth them unto what precedeth in the Petition And as the Court of Rome and elsewhere have relation to the Pope to the Popes Court at Rome and unto his Courts elsewhere so must these words Instruments and other things whatsoever have reference and relation thereunto And then take these words as they answer the Petition and they can bear no other sense then this viz. Whereupon our Lord the King by the assent aforesaid and at the request of the said Commons hath ordained and established that if any purchase or pursue or cause to be purchased or pursued in the Popes Court of Rome or any other of his Courts elsewhere any such Translations Processes and Sentences of Excommunications Bulls Instruments or any other things whatsoever which touch the Kings protection c. So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused against whom these Praemunires were brought for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be and hath been wrested and catcht at to diminish and straighten the Jurisdiction of the Admiralty and enlarge the already extraordinary large power of the Common Law Nor are these Interpretations or Constructions in any wise contemporary with the Statutes as Sir Edward Coke would have them but taken up a long time after and crept into their Law as heresies do into Religion by new constructions of Scripture Neither indeed can either the Judgement or any of these Praemunires instanced in be said to be contemporary with the said Statutes For further proof of this point he instanceth in four or five Prohibitions unto the Court of Admiralty for holding plea of Contracts made upon Ports or Havens and beyond the Seas But to these I shall give an answer hereafter when the Contracts made at land concerning Maritime affairs shall come to be insisted upon CHAP. VIII The Book-Cases and Authorities brought to proove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered CErtain Bookâ—Cases and Authorities as Sir Edward Coke calleth them are likewise urged for proof of this particular of the Admirals having no Jurisdiction upon the Ports and Havens 1. Some Books are quoted nothing being exprest what the Books say nor any argument deduced out of them to conclude the point I cannot therefore give an answer to an argument unframed nor is it proper for me my self to raise an argument out of those books and then my self to frame an answer thereunto But I will conceive those Authorities he hath quoted at large to make most for his purpose and endeavour to answer unto them He saith in tempore Ed. 1. tit Avowry 192. a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea and for carrying the same from thence into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough which is neither Town nor Place out of which a Jury may be taken for that the Coast is four miles long And also of a thing done in the Sea this Court hath no cognizace
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
Curia nostra suggerens quod praedictus Christopherus in Curia Admirallitatis coram vobis Libellasset quod contractus ille fuit quod una pars granorum praedictorum per contract illum recipiend fuisset in navem praedictam ad quendam locum vocat Emot-land super rivolum de Humer aliàs Hull-water ubi reverà idem Christopherus libellavit in praedicta Curia Admirallitatis coram praefat Matthaeo Dodsworth in partibus Borealibus quod contractus ille fuit quod grana praedicta accipienda fuissent in eandem navem ad praedicta loca vocat Emot-land Good Alehouse super praedictum rivolum de Hull aliàs Hull-water non super rivolum de Humber aliàs Hull-water ubi revera placitum illud super eodem libello coram vobis per viam appellationis praedictae per praefat Thomam Sympson in forma praedicta protegunt tantummodo pendebat non aliter quandam prohibitionem nostram in eadem Curia nostra coram nobis impetravit vobis dirigi procuravit cujus quidem prohibitionis nostrae praetextu vos in causa praedicta distulistis adhuc differtis prout decet Nos tamen ob causas praedictas superius expressas alias defectiones in suggestione ipsius Thomae Sympson praedict coram nobis penden contend nos movend Ac simiciter nolentes per hujusmodi falsas callidas assertiones placita in curia Admirallitatis praedicta coram vobis penden diutius impediri vobis significamus quod in causa praedicta inter partes praedictas licitè procedere poteritis ac omnia alia facere peragere in ea parte quae ad forum Admirallitatis noveritis pertinere brevi nostro de prohibitione inde praedict vobis prius in contrarium in ea parte direct in aliquo non obstant T. C. Wray upud Westm primo die Junii Anno nostri regni tricesimo secundo Rooper Rooper And in the same Queens Reign John Buckhurst infra fluxum refluxum maris within the ebbing and flowing of the Sea upon the River of Thames arrested the Ship the Spark alias the Michael and John of Plymouth as belonging unto George Ascoth and citeth him in specie and all others in genere and libelleth that in the Moneths of August September c. 1597. the said George Ascoth was Owner of the said Ship and had an intent to make a voyage unto the parts beyond the Seas and to the effect of expediting the Voyage bought of him the said Buckhurst or his servant certain necessaries for his Voyage to the value of 72 l and received them and had them into the Jurisdiction of the Admiralty c. Zacharias Ashton put in Bayl to answer the Action and had the Ship released and afterwards upon suggestion that upon the tenth of March 39 Eliz. for the space of two Months before George Ascoth was in the Parish of St. Mary le Bow in the Ward le Cheap London lawfully possessed of this Ship Tackle and Furniture and that upon the eleventh of March he sold her unto him for 400 l. and that the Ship belonged unto him and thereupon obtained a Prohibition The Prohibition alledgeth the Statutes of the 13th of Richard the second the 15th of Richard the second and the 1. of Henry the fourth quodque post edictionem Statutorum praedictorum scilicet decimo Martii anno c. apud London in parochia beatae Mariae de Arcubus in Warda de Cheap London ac per spatium duorum mensium ad tunc praeantea praedictus Georgius Ascogh legitimè possessionatus fuisset de nave praedicta vocat The Spark alias The Michael and John portus de Plymouth ac apparat accession ornament ad eandem navem tunc spectan ad valentiam trecentarum librarum monetae Angliae ut de bonis catallis suis propriis sic inde possessionatus existen Idem Georgius postea scilicet undecimo die Martii anno superdicto apud London praedict in Parochia Warda praedictis pro summa quadringent librarum legalis monetae Angliae eidem Georgio per praefatum Zachariam ad tunc solveret c. contraxisset vendidisset praefato Zachariae navem praedictam ac praedict apparatus c. Quodque praedictus Johannes Buckhurst inde non ignarus machinans cognitionem placitorum quae ad c. quandam prohibitionem in Curia nostra coram nobis ne c. prosequit fuerit c. But no proof being made by the said Ashton that he had so bought the said Ship or that she was his and not the said Ascogh's and the said Court of Kings-Bench being informed that the effect and substance of the said Libel was as is before expressed and the Cause being held and adjudged cognoscible in the Admiralty Court a Consultation was awarded which saith that the Prohibition was in Johannis Buckhurst grave damnum libertatis Curiae Admirallitatis laesionem manifestam to the grievous damage of the said Buckhurst and manifest wrong of the liberty of the Admiralty Court and therefore concluded as the former did with a Nolentes cognitionem quae ad Curiam Admirallitatis pertinet in hac parte per hujusmodi falsas callidas assertiones diutius impediri c. In the Body of which Consultation the effect and substance of the Libel is thus exprest Inprimis videlicet quod mensibus Augusti Septembris c. Anno Domini millesimo quingentesimo nonagesimo septimo jam curren eorumvè mensium quolibet pluribus uno sive aliquo praefatus Georgius Ascogh fuit erat nec non tempore aresti ab hac Curia interposit ac in praesenti est Dom. Proprietarius legitimus possessor navis vocat The Spark alias The Michael John portus Plymothiae ejusque apparatus ornamentorum seu saltem mediatatis seu alicujus partis dictae navis proque tali ut talis fuit erat cōmuniter dictus tentus habitus nominatus reputatus Item quod annis mensibus praedictis eorumve uno sive aliquo praefatus Georgius Ascogh intentionem habuit profectionem faciendi in partes ultra marinas ad effectum expediendi viagium sive profectionem praedictam paulo ante decessum ejusdem pro necessariis quibusdam suis in itinere sive viaagio praedicto ab antedicto Johanne Buckhurst aut ejus famulo ad usum ejusdem Georgii nonnulla bona ad valentiam septuaginta duarum librarum legalis monetae Angliae c. In the same manner John Fox arrested the same Ship upon the River of Thames as belonging unto the said George Ascogh and libelled against the said Aschogh in the same manner for certain necessaries sold unto him to the value of 50 l. which he received and had into his possession within the Jurisdiction of the Admiralty and the said Zachary Ashton put in Bayl to the said Action in such manner as in the other Cause and afterwards upon the like suggestion made unto the said
the memory of man the sole rule and dominion of these Seas should not furnish this his maritimum regimen dominium with those antient maritime Laws before spoken of Certainly whosoever imagineth this concipit istud mare sine navibus vel naves sine naucleris navarchis fluctuantes concipit istas If furnished with Lawes then consequently with a Commander Admiral or Governor for the dispensing and ministring of Justice amongst Sea-Traders and seafaring-men according to those Laws else were these constituted and appointed to that use in vain But I may here rather from the forementioned Libel deduce a proof of the antient settlement of maritime Laws in England from the antient acknowledgement of an Admirals Jurisdiction then the settlement of an Admiral and his Jurisdiction from a former Introduction of the maritime Laws into this Kingdome for an Admiral of England and an Admirals Jurisdiction are both acknowledged by all the therein mentioned Nations to have been from that time which was anno 30 Ed. primi beyond the memory of man If then the Admiral had so antiently a Jurisdiction I must necessarily inferre from thence that so antiently if not somewhat before the Laws of the Sea must be settled for his rule and guidance For they do not say there was an Admiral for so there might have been and he have ruled by Arbitrary power but they say as before is said ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectaret Jurisdictionem ex imperio ejusmodi excercendam And in their Petition as is before exprest they desire ut à custodiâ liberati qui carceri traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae subirent Now as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus so jurisdictio is juris dicendi potestas And as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 likewise from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lex so Juris consultus est is qui jus consuluit sive studuit and so juridicus quod secundùm jus est as juridicus dies quô ritè jus dici potest and juridica actio quae secundùm jus est dicitur etiam juridicus qui jus dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. At cui jus ignotum est ignota jurisdicendi potestas cui jus non est jus non consuluit ubi jus non est ibi jus dici nequit No man can have a Jurisdiction or power of declaring the Law or judging by the Law to whom the Law is not known more especially where there is no known Law to declare or judge by Therefore seeing the Admiral by common consent and by so common a judicial acknowledgement so antiently had a Jurisdiction necessarily he must so antiently have had certain known and settled Laws to declare and judge by I do observe likewise that all the Patents granted unto Admirals from the 35th of Edward the Third upwards unto the 34th of Edward the First do conclude in binding them to the execution of their office prout justum fuerit fieri consuevit And as this prout fieri consuevit led me to the more antient Patents wherein the Officers bear not the title of Admiral and taught me to understand that the variation of the title did not differ or alter the property in the Office or the quality of the Officer so this prout justum fuerit shews me as well as the Jurisdiction in the Libel before spoken of did that the Admirals had then and prout hactenus shews me they had so before a Law to rule and judge by For though a private man which is vir bonus a good man which deals uprightly and punctually with all men is usually said to be vir justus and not improperly when we speak of a private man in his private dealings And vir probus sanctus which observeth the Divine Law is very properly called vir justus when we speak or discourse of matters of Religion c. But if we speak of a man set and put in place and authority over others in Sea-affairs we say he is vir justus qui jus observat à jure non discedit for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth justus doth as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do come from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the same word signifieth legitimè jure justè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifieth jus the Law it self CHAP. VI. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Courts in deciding of Maritime Causes in those antient times THat in those antient times the Custodes marinae maritimarum partium c. to whose care and trust these marinae and maritimae partes the Seas the Coasts and Ports of the Seas were committed had a great power and grand authority over all those maritime parts whereunto they were limited and over all Ships and Shipping and over all things thereunto belonging and over all persons whatsoever who were therein concern'd within the said limits and had powet and authority of hearing and determining of all differences and controversies which did or might arise concerning the same may be very well concluded upon this further ground that no other Court in those dayes presumed ever to take cognizance of any such matters or affairs which I am confident of for the reasons ensuing I hope no man will say that maritime causes were tried in the Heal-gemote now called the Court Baron nor in the Hundresmote now called the Hundred-Court and is of the same nature with the County-Court nor yet in the Scyedgemote now called the Sheriffs Turne which were the Courts then in use and had been long before the Conquest and do yet continue and never did nor do assume nay not so much as challenge any right at all to any such power Nor did the Kings Court of Exchequer which was the first Court was settled after the Conquest ever undertake to deal in causes of that nature but as Mr. Lambard determineth this point very well was only setled and appointed for causes concerning the Kings Demeasnes and Receipts And he saith that after the Conqueror had suppressed the Forces of those that made head against him here he settled this Court for his Revenues and called it his Exchequer after the name of his Exchequer in Normandy but saith he it differed not a little from that for the Exchequer of Normandy had not only the Government of the Revenues of the Duke there but was also the Soveraign Court for the administration of Justice amongst his Subjects until Lewis the Twelfth King of France anno 1499. converted it into a Parliament consisting of a President and Councellors and established it at Roan in Normandy where it still continueth But saith he this Exchequer in England had only the
direction of his Demeasnes and Receipts and the administration of Common Justice continued still in that high Court of Justice and Equity which did then and a long time after as well as before the Conquest follow the King himself and for proof thereof he quoteth Gervasius Tilburiensis who wrote many observations upon the Exchequer which he dedicated to King Henry the second and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there But because as Mr. Lambard saith some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas for all Subjects whatsoever and that for the maintenance of their assertion they do alledge the title of Mr. Glanvil's Book in part thus Et illas solùm leges continet consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium lest others should hereby be misled and for this reason think so too and so be brought to conceive that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco that the Exchequer might have the cognizance of all Causes between party and party as well maritime belonging to the Sea and Sea-affairs and from thence arising as terrene belonging to the Land and Land-affairs and from thence growing I shall here set down Mr. Lambards answer to that which is alledged for the proof and maintenance of this assertion who confidently affirmeth that the aforementioned words are not the words of Glanvil himself but of the Publisher of his Book in print which appeareth by what precedeth the words alledged in the Title viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo which saith he doth plainly shew and bewray that the Publisher spake of Glanvile as another man and which also lived not then but at another time And herein he must needs say very truly for never was there any Author of any credit that ever gave himself this or the like title or being living would say that he was juris regni antiquarum consuetudinum eo tempore peritissimus And again they have not taken in all the words of that title which do follow but have left out these viz. Et coram judiciariis ubicunque fuerint which being so the Kings Bench or Court which then followed the King must needs be herein comprehended and included and the whole title being collected thus Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo eas solùm leges continet consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium coram Justiciariis ubicunque fuerint Then doth this title make no argument for the proof of their assertion And so I shall leave the Exchequer then only to govern and rule the Kings Revenues Demeasnes and Receipts and such matters as belong only thereunto and next cast only a glance upon the Justices in Eyre and their Jurisdiction The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes but by Bracton are called itinerantes For King Henry the Second in the 32th year of his reign divided the Realm into six parts from which the Circuits which our Judges do now ride do not much differ and to every of those parts appointed three Justices who at their appointed times kept Circuits in their several parts to them limited and held plea as well of Criminal as of Civil Causes But Justices of Assises being likewise appointed whose first office was to take Assises of Mort d'ancester and Novel Desseisins according to the customes of Normandy where it is called la Novellette and gaining a further power of taking Attaints Juries and Certificates and delivery of Gaols These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre who about that time did surcease and take leave Now could neither of these Justices the Justices in Eyre not coming every year into the Country nor the other Justices being sometimes at home sometimes in their Circuit and in their Circuit sometimes in one place and sometimes in another take cognizance or have the hearing and determining of maritime causes seafaring matters or any thing them concerning For such causes did and do require a more speedy dispatch and determination than these Justices could afford them Nam breviter summariè tales sunt examinandae causae nec ad plenissimas Judiciorum formulas recurrere oportet sed suceinctè de plano sine strepitu judiciorum solenni figurâ immo velo levato in eis procedendum est ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem transfretationem properant judicium sic properat ad navigandum transfretandum festinatio Merchants Mariners and Seamen whose business and affairs are ordered here ventulated at sea and agitated beyond the seas must have a quick and sudden dispatch of Justice that as they come in with one good wind so they may go out with another the Mariners cause admitteth no delay but must have a judge and a settled place of Judicature at all times in readiness for his dispatch for whilest his cause is pleading for his right his Ship is preparing for his Voyage to which I may well apply the verse in Virgil Interea classem velis aptare jubebat For his ditty is alwayes the same with another verse of the same Authors Rursus agam pelago ventis dare vela jubebo Neither for the very same reason if there had been no other could the Court of Common-Pleas when it was settled take cognizance of maritime causes or seafaring matters nor did the settling thereof dissettle the Marina which had at and before that time been committed unto the care and charge of several persons as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited for the Court of Common-pleas 't is plaine began not to be settled untill the ninth year of the same King if so soon for it was but that year determined that it should be so settled but the power thereof rested in the King himself and his supreme Court which constantly followed him whithersoever he removed and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place by these words Communia placita non sequantur curiam nostram sed teneantur in certo aliquo loco Now although differences and controversies of what nature soever were then perhaps neither so many nor did so frequently arise as now nor were of so great consequence and concernment as since they have been yet cannot I or any man else as I conceive think that
they were so few ot so mean as that they deserved no decision or determination at all I cannot see then how it can be possible but that these Custodes must necessarily have then even in those so ancient times a complete Jurisdiction for the regulating all maritime and sea affairs and for the deciding of all maritime and sea differences by those most exact Sea-laws before those times so well known unto so many Forreign Nations and by them so gladly received and put in use and execution and doubtless not unknown here for the reasons before exprest together with the antient Statutes of the Admiralty and those Laws of Oleron which as it plainly appears were introduced by Richard the First CHAP. VII Of the Exercise of the Sea-laws by the Graecians Athethenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile FRom the example of these Rhodians have all or most Princes and Common-wealths in Europe obteined their Laws continually constituted and appointed chief Captains Commanders Governors or Admirals over all their Ships sea-faring-men and sea-affairs to order rule and govern them by those Laws and to put the same in due execution distinctly and apart from and in no wise mixt or intermingled with those Laws whereby they regulated their Land-men and Land-businesses The Graecians have had from antient times and still have their several special Judges for hearing and determining of all differences happening between Merchant and Merchant Mariner and Mariner and between Merchants and Mariners and between Merchants and Owners of Ships and Owners of Ships and Mariners and between them and all others that had to do with them in their sea-trading and sea affairs And these Governors of their Fleets are termed or called their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or chief Governors The Athenians have likewise antiently had the like for the same purpose which they termed or called their Thesmothetie And the Romans had antiently their Archigubernii praefecti classis vel maris for their principal Governor Commander of their Fleet and Shipping but because of their great employment sometime at Sea sometime at Land they had their Magisteriani or Judiciarii or as Freccia saith their Comes Commerciorum for the Judicature of all maritime causes And when they came to be divided into Kingdomes and Republiques the Kingdoms had their Admirals and the Republiques their Consuls who had the Judicature of Freight c. The Italians have their l'Aamiraglio or Amirante and under them their li Consoli del mare for the decision of all causes maritime Spain hath its Adelantado and divers Admirals some for Europe some for the Indies all of equal power Naples hath an Admiral of great power over all seafaring men and all such as get their living by the Sea or are employed in building and furnishing of Ships with what necessaries soever and over all such as make it their Trade to take fish in the Sea c. And his Court is called Magna Curia from which there lieth no appeal only to the supreme Council all which he hath exclusivè to all others both for matters Criminal and Civil The Admiral of Castile hath supreme Authority over all that use the Seas and hath other Judges in Port-Towns for the dispatch of all ordinary businesses concerning Freight Avaridge and all other maritime affairs CHAP. VIII Of the Admiralty of France and Denmark BUt to come nearer home the Kingdome of France hath from antient times had Admirals and so affirmeth that learned man Mr. Selden Seculis in vetustioribus apud Gallos fuêre quidem Admiralli seu rerum maritimarum praefecti ita tamen ut eorum scriptores de dignitatis initiis haud parum discrepent saith he they are so antient that their Writers cannot agree when that dignity began Sed id plerumque aiunt reperiri sub Carolo Magno Rotlandum maris Britannici Aremoricani praefectum quem ex Eginharto vitae Caroli scriptore contemporaneo petunt But saith he in Eginharto non maris Britannici sed tantum Britannici littoris praefectus expressè is nuncupatur he was not Admiral of the British Sea but of the British Sea-coasts or Shoar Quo nomine non qui mari ut provinciae praest sed qui littori dignitatis limiti designatur For he setteth forth plainly in the same chapter that the Kings of France had no Dominion over those Seas Reges vero ipsos nullum tunc habuisse in mare imperium disertè scribit Johannes Tilius Curiae Parisiensis actuarius And there sets down Tilius his own words at large together with divers of other proofs throughout the same chapter which fully manifests the same Yet in the beginning of the same chapter he doth allow the French Admiral or their praefectus maris copiarum navalium in mari quocunque nautarum regimen jurisdictionem in personas res mobiles quae sub judice veniant pour raison ou occasion de faict de la mer id est ob causam aliquam à re maritima ortam And in confirmation of this Power and Jurisdiction and for the more plain declaration thereof the Office of the Admiral by the Parliament at Paris is since thus ratified and declared in the Kings name 1. That in all Armies which shall be raised and set out to sea the Admiral shall be and continue chief and our Lieutenant General shall be obeyed in all maritime Towns or Places which are or may be without contradiction 2. He shall have Jurisdiction Cognisance and determination of all things done or committed on the Sea or Shoars of the same likewise of all Acts of Merchandising Fishing Freighting or letting to Freight Sales or breach of Ships of Contracts touching the matters aforesaid of Charter-parties of Sea-briefs and of all other things whatsoever happening upon the Sea or Shoars thereof as our Lieutenant alone and to all purposes in the places aforesaid which Jurisdiction Cognizance and Determination we have interdicted to all other Judges 3. He shall have Cognizance exclusive to all others of causes Civil and Criminal of those who are of the Dutch Towns of Esterlings English Scotch Portugals Spaniards and Strangers whether the cause of suit be betwixt Strangers only or betwixt Strangers and our own Subjects upon any occasion whatsoever He holdeth his principal Court at the Marble Table in the Palace of Paris and appointeth Judges as his Deputies in maritime Cities and Towns who hear and judge ordinary matters within their Circuits and if any business fall out worthy of greater consideration they refer it to the Admirals principal Court The Admiral of Denmark is called Riiks and hath the like power and authority the Admiral of France hath CHAP. IX Of the Admiral of Scotland COncerning the Admiral of Scotland we may I am confident very well believe Wellwood who was that Countrey-man and in his Proheme upon his conscience as a
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-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
made to appear for founding them upon then for the former which is but a quakemire CHAP. VII The Argument deduced from two Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued BUt to keep some method I must out of these things which Sir Edward Coke hath promiscuously urged against the Admirals cognizance of businesses done upon the Ports and Havens and of Contracts made upon the land for freight Mariners wages tackle furniture and ammunition and of things done beyond the seas c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the Ports and Havens and give some answer to them first and those are Praemunire's Prohibitions Book-cases and Authorities in Law and then come in the third book of this Treatise to those things which he hath urged against the Admirals cognizance of or concerning Contracts made upon the land for freight Mariners wages c. Two Praemunire's he instanceth in the one brought Mich. 38. H. 6. By John Cassy Esquire against Richard Beuchampe Thomas Paunce Esquires and others upon the Statute of 16 Rich. 2. cap. 5. for sueing in Curiâ Romanâ vel alibi of matters belonging to the Common Law for that the Defendants did sue the Plaintiffe in the Admiralty Court before Henry Duke of Excester that the said John Cassy did take and carry away certain Jewels super altum mare ubi idem Johannes Cassy bona illa apud Stratford Bow infra corpus comitatûs Middlesexiae non super altum mare cepit which saith he is so evident and of so dangerous consequence as no application shall be made thereof but I must under favour take leave to make some application and some answer likewise hereunto and shew that the urging â—oth of this and the other which he instanceth in which is a Premunire brought 9 H. 7. for a Suit in the Admiralty Court before John Earl of Oxford for taking and carrying away quandam naviculam apud Horton Key at South-Lyn c. supposing the same to be super altum mare where it was infra corpus comitatûs is no way consequent or concludent to prove the Ports and Havens to be within the bodies of Counties For the first of these it is plainly affirmed that John Cassy did take away the goods he was sued for in the Admiralty Court at Stratford Bow being a Town or Parish plainly within the body of the County of Middlesex and no Haven or Haven-Town This suggestion being proved the Admiral had no colour at all to take cognizance of this cause For the taking and carrying away of the little Ship little Barque or Boat for navicula signifieth either of the three at Horton Key at South-Lynne it concludeth nothing against the Admirals Jurisdiction upon the Haven or Port taken for the water beneath the first Bridge for a Key is often taken for the Wharfe or place whereon goods are usually landed but strictly it is taken for the very separation of the land from the water by wood or stone or both in such places as goods are usually landed at and these are the keys that lock those dores that Sir Edward Coke would have stand wide open placed by God himself to no purpose so farre within the Seas Now At Horton Key may be as well on the dry side of the Key as on the wet as well upon the land as upon the water and little Ships little Barques or Boats are oftentimes drawn up at the Keys where they arrive to be caulked and repaired and might be from thence taken and carried away perhaps from the water their accustomed Element to the fire wherewith for the most part when they escape drowning they are at last consumed when they are become unserviceable Again these two Premunire's are said only to have been brought and nothing said of the event or what was determined thereon so that here is nothing but the opinion of those that brought them and no resolution of the Judges and so these two Praemunire's conclude nothing at all But grant two suppositions neither to be granted nor supposed unless proved viz. that these two severals Acts were done or committed upon Ports and Havens and that the determination and resolution of the Judges was against the Defendants yet he that will but look may see the two foundations whereon these determinations or resolutions were or should have been built from whence this land Argument is raised to have been laid upon the sea sands too slippery a place for them to stand on the one is that before mentioned groundless supposition of the Ports and Havens being within the bodies of Counties for which no proof is offered but that some against all reason and they know not wherefore have taken them so to be The other is the Statute upon which these Praemunire's were brought which he affirmeth to be the Statute 16 Rich. 2. for suing in Curiâ Romanâ vel alibi of matters belonging to the Common Law This Statute consisteth of a Petition made by the Commons unto the King and the King's Answer thereunto as all ancient Statutes of those dayes do In the Petition is first set forth that the King and all his liege People ought of right and of old time were wont to sue in the Kings Court to recover their presentments to Churches Prebends and other Benefices of holy Church to which they had right to present c. And when Judgement was given in the same Court upon such a Plea and Presentment the Archbishops Bishops and other Spiritual persons which had the Institutions unto such Benefices within their Jurisdiction were bound and did make execution of such Judgements by the Kings Commandments of all the time aforesaid without interuption c. And in the next place they do complain that of late divers Processes had then been made by the Bishop of Rome and Censures of Excommunication upon certain Bishops of England because they had made execution of such commandments to the open desherison of the Crown c. And further complaining that also it was said and a common clamour was made that the said Bishops of Rome had then ordained and purposed to translate some Prelates of the same Realm some out of the Realm without the Kings assent and knowledge and some out of one Bishoprick into another within the same Realme without the Kings assent and knowledge and without the assent of the Prelates so to be translated which Prelates were much profitable and necessary to the King and his Realme by which the Statutes of the Realm would become defeated c. And nothing more is contained in the said Petition but what concerneth the premisses The King in his Answer doth ordain That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elswhere any such Translations Processes and Sentences of Excommunication Bulls Instruments
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
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
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
nostri Cantiae factis emergentibus graviter distrinxistis multipliciter inquietastis minus juste in ipsius Thomae dampnum non modicum gravamen ac contra statutum Domini Richardi nuper Regis Angliae post Conquestum secundi anno regni sui quinto decimo apud Westm editi Et eo praetextu dictus Thomas brevem nostrum de supersedendo datum apud Westm vicesimo septimo die Maii Anno Regni nostri tricesimo quinto vobis minus rite dirigi procuravit cujus quidem brevis nostri vigore vos in placito praedicto huc usque supersedistis in dispendium Ideo quibusdam certis de causis coram nobis in dicta Cancellaria nostra propositis nos in ea parte juste moventibus maxime pro eo quod dictum brevem nostrum de supersedendo ab eadem Curia Chancellariae nostrae improvide emanavit quia dictus Thomas pro rebus injuriis infra nostram Jurisdictionem Admiralitatis nostrae praedictae factis emergentlbus juste tractatus existit prout per quendam libellum coram vobis in dicta Curia nostra Admiralitatis nostrae praedictae oblatum responsiones dicti Thomae Lendsey ad positiones ejusdem ibidem virtute sui praestiti juramenti facti coram nobis in dictâ Cancellaria nostra ostensas plenius apparet Nos nolentes quòd per hujusmodl malitiam suggestionem cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur vobis mandamus quod in placito illo secundum legem consuetudinem dictae Curiae nostrae Admiralitatis nostrae Angliae praedictae procedatis partibus praedictis justitiae complementum in ea parte haberi ministrari faciatis cum effectu dicto brevi nostro aut aliqua alia prohibitione vobis inde in contrarium direct in aliquo non obstanti T. meipso apud Westm xix die Februarii Anno regni nostri tricesimo sexto Southwel Now it is plain this was an Action brought in the Admiralty for or concerning certain things and injuries done unto the Agent within the Jurisdiction of the Admiralty and the place which is here said to be within the Jurisdiction of the Admiralty is a Port or Haven set down in express words viz. the publick River of Thames within the ebbing and flowing of the Sea beyond London Bridge towards the Sea infra Jurisdictionem Admiralitatis Angliae super publico flumine Rivi Thamisiae infra fluxum et refluxum maris ultra pontem Civitatis London versus mare c. And this Action is likewise there said to be brought according to due form of law and custome of the Admiralty Court secundam debitam legis formam et consuetudinem Curiae nostrae Admiralitatis praedictae coram vobis in eâdem Curiâ implacitaverit And Lindsey for suggesting these injuries done upon the River of Thames to be done in the body of the County of Kent is said to have endeavoured fraudulently and maliciously to decline the cognizance of the Court of the Admiralty and unjustly to hinder the due course of Law there Cognitionem ejusdem Curiae nostrae Admiralitatis in eâ parte fraudulenter et malitiosè satagens declinare et debitum legis praecessum ibidem minus justè impedire And he is said unlawfully to have procured that Writ of Supersedeas to be directed to that Court breve nostrum de supersedendo vobis minus ritè dirigi procuravit And that Writ of Supersedeas is said to have gone out rashly and unadvisedly improvide emanavit because Lindsey was justly sued there for things and injuries done and arising within the Jurisdiction of the Admiralty pro rebus injuiis infra nostram jurisdictionem Admiralitatis nostrae praedictae factis et emergentibus juste tractatus extitit And it is there declared that the Cognizance of the Admiralty Court shall not by such malice and suggestion be wronged Nolentes quod per hujusmodi militiam et suggestionem cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur And the Court commanded to proceed according to law c. notwithstanding the Supersedeas or any other Prohibition directed to the contrary So by these Writs de procedendo out of the Chancery the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens and many more of the same nature might be instanced in which for brevity sake I omit CHAP. XIX 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 AS it is manifest by Writs de procedendo out of the Chancery upon Writs of Supersedeas thence granted that the Admiral hath jurisdiction upon the Ports and Havens so it is likewise evident by consultations out of the Common Law Courts at Westminster upon Prohibitions from thence upon false suggestions granted that the Admirals power and authority doth extend unto the cognizance of such causes as do from thence arise some of which I shall instance in Patrick Landy of Broheda in Ireland sued Richard Prideaux in the Admiralty Court pro quâ—â—quaginta les dicars pellium salsorum libelling that the said Richaâ—d Prideaux had infra fluxum refluxum maris received and taken into his hands and possession the Goods and Merchandises aforesaid and kept the same or otherwise had de eitfully alienated them or disposed of them ipsum Richardum Prideaux bona res merces c. in manus et possessionem sui ipsius Richardi infra fluxum et refluxum maris accepissâ— et sumpsisse eademq tunc penes se habâ—â—sse seu saltem eadem dolo malo alienasse Prideaux suggesteth that these fifty Dickers of Hides being in certain Warehouses at Padstow in the County of Cornwall infra corpus ejusdem Câ—nutâ—ûs were by George Syddenham and George Francis there sold and delivered unto him and by him received and kept and convetted to his own use and that he was unjustly vexed and sued in the Admiralty Court for the same contrary to the Statutes of 13 and 15 of R 2. and obtained a Prohibition But the matter being argued in Court and the Goods and Merchandises being found to have been in the possession of the said Prideaux within the Jurisdiction of the Admiralty viz. within the ebbing and flowing of the Sea 19 die Junii 38 Eliz. a Consultation was awarded which saith Quia tamen Justiciariis nostris apud Westmon per debitam Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impediriseu retardari non debeat The Consultation I shall here set down at large whereby both the Libel Suggestion Prohibition and Consultation will appear Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. venerabili viro Julio Caesari legum Doctori supremae Curiae Admiralitatis
Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat at quod praedictus Patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat Ideo vobis mandamus quod praedictus Patricius in causa sua praedicta in praedicta Curia nostra Admiralitatis praedictae licitè procedere facere valeat quod ad praedictam Curiam nostram Admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti T. E. Anderson apud Westmon decimo nono die Junii Anno regni nostri tricesimo octavo Culwicke Scott Shortly after the granting of this Consultation by the Lord Chief Justice Anderson and before the cause could come to hearing or to be fully determined in the Admiralty Court Prideaux upon the same Suggestion procureth another Prohibition from the Lord Chief Justice Popham and thereby again stayed the proceedings in the Admiralty Court untill the 41th year of the Queen But in that year vicesimo septimo die Junii upon reexamination of the poynt another Consulation was awarded agreeable with the former and the Admiralty Court was then a second time set free to determine the Cause in these more express words Ideo vobis mandamus quod praedictus Patricius in causa praedicta quoad omnes hujusmodi res contractus praedict super altum mare vel super ejus necessaria dependentia Ita quod vos vel praedictus Patricius de aliquibus rebus contractibus infra corpus alicujus Comitatus regni nostri Angliae factis ne intromittatis c. in Curia Admiralitatis praedictae coram vobis seu aliquo vestrum licite procedere facere valeat c. Now here doth this Consultation put a plain distinction between the bodies of Counties and the Ports and Havens here called necessaria dependentia alti maris and indeed they are such necessary dependants of the Sea that they may very well nay they must be called mare the Sea though not altum mare the high Sea otherwise needless and altogether in vain was this distinction of mare altum mare of the Sea and the high Sea and main Sea if the Ports Creeks and Havens were not mare Sea and those parts of the Sea further remote from the land altum mare the high or main Sea And then let us consider that though upon every suggestion whereon a Prohibition is in such cases awarded upon the Statute of the 13th of Richard the second the words sur le meer in the same be in the Prohibition translated super altum mare yet will not those words sur le meer nor any other words in that Statute bear any such construction as by the said Statute if lookt into will appear which Statute shall be hereafter set down at large according to the Parliament Roll in the Tower And then is there nothing at all contained in that Statute which can so much as seem to limit the Admiral to the high Seas or exclude his Jurisdiction from extending to the Ports Creeks and Havens which are sea though not high sea And so the very foundation whereon all the Arguments which tend to the deprivation of the Admiral of his Jurisdiction upon the Ports and Havens are grounded is clearly taken away Patrick Landy likewise sued John Prideaux of Padstow pro tribus millibus centenis sepi libellando eundem Johannem Prideaux bona res merces praedicta ac alia bona res merces in manus possessionem sui ipsius Johannis infra fluxum refluxum maris accepisse sumpsisse eademque tunc penes se habuisse seu saltem eadem dolo alienasse c. Prideaux upon suggestion that those Goods and Merchandises were per quendam Georgium Sydenham nuper Capitaneum navis Anglicanae vocat the Black Boat apud Villam de Padstow in Comitatu Cornubiae infra corpus ejusdem Comitatus non super altum mare vendita deliberata per ipsum Johannem ibi recepta habita tenta ad vsum suum proprium conversa c. And obtained a Prohibition 12. Feb. 37 Elizab. A Consultation is awarded in the same words with the other The same Patrick Landy sued Digorius Halman in the Admiralty pro quinquaginta dycariis pellium Hibernicorum libellando quod idem Digorius praedictas quinquagintas dycarias pellium sub nomine bonorum rerum mercium in manus possessionem suas infra fluxum refluxum maris accepisset sumpissset easdemque tunc penes se habuisset saltem easdem dolo alienasset c. Digorius Halman upon suggestion that Gremfield Halse Nicholas Halse and John Hoyell alias Howele at Plymoth in the County of Devon infra corpus ejusdem Comitatus Devoniae non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium c. pro certâ denariorum summa barganizarunt vendiderunt eidem Digario Halman ac quibusdam Johanni Martin Thomae Crane praedictas quinquaginta Dicarias pellium c. And obtained a Prohibition Vicesimo sex to Maii 40 Eliz. a Consultation was awarded T. Edvardo Anderson And as before so here in this same cause and upon the same suggestion a new Prohibition was awarded by the Lord Chief Justice Popham But 26 Maii 41 Eliz. a Consultation was again awarded as in the before mentioned cause and many more I might likewise instance in and set forth both the Prohibitions and Consultations at large but that I should thereby too much enlarge this Treatise Now as by the Writs de procedendo awarded out of the high Court of Chancery upon Supersedeas in the former Chapter set down so by the Consultations upon Prohibitions awarded out the Courts of Common Law here set forth I hope it is evident enough that the Admirals Jurisdiction extendeth to the Ports and Havens and to all things done thereon Vide etiam quae sunt in cap. 9. libri tertu specificata CHAP. XX. That the Ports Havens and Harbours where Ships do lie 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 NOw seeing that the Ports and Havens whereon Ships and other Vessels do ride and lie at Anchor are not only of a different nature from the land but are absolutely consisting of the same nature with the Sea and are sometimes more drawn in and sometimes again further stretched out and are from antiquity both by antient Authors and ancient Records termed and called the Armes of the Sea as indeed most properly they still are I cannot easily be induced to think that these Ports or Havens by being only incompassed on both sides with
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
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
Maritime affairs wheresoever made were then duly used in the Admiralty Court and did properly thereunto belong CHAP. III. That by the ancient Statutes of the Admiralty and by the Laws of Oleron it appeareth that Contracts made at land of and concerning Maritime affairs were cognizable and tryable in the Admiralty both before and even in the time of Edward the Third whereunto the last mentioned Statute maketh reference IF Contracts and Covenants of and concerning Maritime businesses made at land were cognizable in the Admiralty in Edward the Third's time then doth the last before mentioned limitation of the Statute of the 13th of Rich. 2. 5. continue them tryable there still taking the construction of the Statute to be with relation to the Petition or without But before that I go about to shew that they were then cognizable there I shall make it first appear that they were there triable long before his time and so come to the cognizance of them in his time In the beginning of that antient authentique book called the black Book of the Admiralty whereof I have formerly made mention in which all things therein comprehended are ingrossed in Vellam in an antient character which hath been from time to time kept in the Registry of that Court for the use of the Judges of the Admiralty successively and is as free from suspition of being corrupted or falsified as the Records of any Court whatsoever are set down the ancient Statutes of the Admiralty with directions how in what manner and of what things every Admiral shall enquire at every Port and Haven after his being made high Admiral Where amongst other things I find an Ordinance made by Edward the First at Hastings as is plain by the Ordinance it self whereby all Stewards and Bayliffs of Mannours upon the Sea-coasts are forbidden to meddle with any plea or try any cause whatsoever touching or concerning any Merchant or Mariner whether by deed or charter party of Ships or other things amounting to the summe of 20 or 40 Shillings The words are these Item ordonne estoit a Hastings par le Roy Edward le primer ses seigneurs que coment divers seigneurs avoient diverses franchises de trier plees ou Ports que leur seneschaulx ne Baliffs ne tendroient nul plee sil touch Merchant ou Mariner tant par fait come par chartre de nefs Obligations autres faitz comment la somme amont que a xx s ou a xl s saucun est endite quil a faite le contrare de ce soit convict il avera mesme le Judgement come desus est dit They that shall do to the contrary and shall be thereof convict they shall have the same Judgement as is aforesaid which is a years imprisonment set forth in the next preceding Article for a Mariners breaking an arrest made upon him for to serve the King in any Ship And the same Ordinance concludeth this Item chūn contract fait entre Marchant Marchant ou Marchant ou Mariner outre la mer ou dedens le Flod markes sera trie devant l' Admirall nemient ailleurs par lordonannce dudit Roy Edward ses seigneurs Also every Contract of a thing done between Merchant and Merchant Merchant or Mariner beyond the Seas or beneath the Flood mark shall be tryed before the Admiral and nowhere else by the Ordinance of the said King Edward and his Nobles And in another thick covered Book with great Brass Bosses kept in the Registry of the said Court wherein are set down some things of Antiquity and likewise some things of latter times I find this very Ordinance set down in express words agreeing both with the former part and with the Addition thereunto Wherein I likewise find an Article of Enquiry in Latine containing the whole substance of this very Ordinance in these words Item inquiratur de hiis seneschallis ballivis quorumcunque Dominorum per costera maris Dominia habentium qui tenent vel tenere usurpent aliquod placitum mercatorum vel marinarum concernens excedens summum quadraginta solidorum paena qui inde presentati fuerint super hoc convicti paenam quinque librarum judicium subibunt haec est Ordinatio Edwardi primi apud Hastings regni sui Anno secundo Item quod quilibet contractus initus factus inter Calcatorem Mercatorem Marinarium aut alies ultra mare sive intra fluxum maris vel refluxum vulgariter dictum Fludd marke erit triatus terminatus coram Admirallo non alibi per Ordinationem praedictam And by an Inquisition long since translated out of an ancient French Copy into Latine by one Roughton and Ingrossed in the said black Book I find this whole Article in the self same words save that instead of these words paenam quinque librarum judicium subibunt the words are these Eandem paenam ut super judicium subibunt which agreeth with the Ordinance it self which referreth to the punishment in the preceding Article thereunto which punishment is as is set forth before a whole years Imprisonment Now that this Ordinance and this Article onely forbiddeth Stewards and Bayliffs of Mannours for medling with such Maritime Contracts and Causes it is because that at that time there were no other Courts that could encroach upon the Admiralty for the Kings-Bench was not setled in any constant place but followed the King wheresoever he went and the Justices in Aire and Justices of Assize being Itinerantes and sometimes at home and sometimes in their Circuits and somerimes in one place sometimes in another and so in no certain place and least of all in any Ports or Haven Towns never did nor could take Cognizance of Maritime Contracts or Causes which always required a most sudain dispatch and could not expect their uncertain coming nor was the Court of Common Pleas then settled for it was resolved to be settled in some constant place but in the 9th year of Hen. the 3. all which will appear by what I have formerly set down Now that these Contracts and Covenants concerning Maritime affairs though made at Land were continued cognoscible in the Admiralty Court in Edward the 3. time as well as before will likewise plainly appear thus The Laws of Oleron which were brought into this Kingdom by Richard the 1. were absolutely and compleatly settled and established in this Nation by Edward the 3. in the 12 year of his raign as will plainly appear by that ancient Record of the Tower Intituled De Articulis super quibus c. Anno Regni Regis Edward 3. 12. which is already set down which I will here repeat because I will not turn you back to the other place being there made use of to another purpose Item ad finem quod resumatur continuetur ad subditorum prosecutionem forma procedendi quondam ordinata inchoata per avum
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
shall afterwards appear which I with much diligence in my reading expected but could find nothing more then what as I hope hath in its due place received an answer And if we examine the original Statutes and Poulton's Translation of this part of this Statute they will plainly shew what Statute and what Common Law shall be holden against them I shall therefore here set down the Statute according to the original and likewise Poulton's Translation thereof and the original is by way of petition and answer in these words Parl. 2. Hen. 4. mem 75. It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient tenuz firment gardez que ladmiral ses lieutenantz ne teinont null mannor de plèe deinz la Court d'admirall en contre la forme Ordinance des dits estatutz sils fount a contre en courgent la peine xx l. paiant la moite au Roy lautre moite a perte greve R. soit lestatute ent fait tenuz gardez outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute la come ley tenuz denez eux que rely que loy sente quereue en contre la forme de le dit estatute eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la Court d'admiraltie recover ' ses dammages denums mesme le pursueant au double encourge mesme le pursuant la peine de x l. en â—i le Roy pur sa pursuit ensi faitz sil soit attemte Which Statute is by Poulton rendred thus Item Whereas in the Statute made at Westminster the 13 year of the said King Richard amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from hence forth of any thing done within the Realm but only of a thing done upon the Sea according as it hath been duely used in the time of the Noble King Edward Grandfather to the said King Richard our said Lord the King willeth and granteth that the said Statute be firmly holden and kept and put in due execution and moreover the same our Lord the King by the advice and ascent of the Lords Spiritual and Temporal and at the Prayer of the said Commons hath ordained and stablished That as touching a pain to be set upon the Admirall as his Lieutenant that the Statute and the Common Law be holden against them and that he that feeleth himself grieved against the form of the said Statute shall have his action by Writ grounded upon the Case against him that doth so pursue in the Admiralty Court and recover his double damages against the pursuant and the same pursuant shall incurre the pain of ten pounds to the King for the pursuit so made if he be attainted Now it plainly appeareth by the Original which I have here verbatim set down that this Statute is onely in confirmation of the former Statute as originally enacted according to the true construction thereof which taken together with that exposition of the 15th of Richard the 2. hath truely rendred of that and the same being taken with relation to the Petition as I conceive it ought to be and by Sir Edward Coke and Poultons Translations here it is in affirmance of the first of them onely as Poulton himself hath in his Translation thereof rendred it so that neither of these two Translations agree with the Original saving in this that he that shall find himself aggrieved against the form thereof shall recover double damages against the pursuant Now what may be called Damages that shall be recovered double by this Statute is a great question If a man do sue in the Admiralty Court and there recover and is paid a just and due debt of 100 l. which he ought to have sued for in the Common Law and might have there surely recovered the question whether the other party can be said to be damniâ—â—ed that 100 l. over and above his expences and trouble I cannot imagine any reasonable man will say he was What shall be thought then of the leading case Hil. 6. H. 6. in the Common Pleas cited by Sir Edward Coke for the first that received Judgement in that Court upon this Statute of double damages who saith that Bartholomew Putt sued John Burton in the Admiralty for that he by force of arms three Ships of the said Bartholomews with his Prisoners and Merchandizes to the value of 960 marks odd money being in the said Ships did take and carry away supposing the taking to be super altum mare whereas it was in the Haven of Bristow whereupon the said Burton sued the said Putt upon the Statutes and a verdict was found for the said Burton against the said Putt and damages assessed unto 700 l. and Judgement given double for 1400 l. In this place I shall set aside the Question whether this case was proper to the Admiralty Court or the Common Law having spoken to that purpose already in a place more proper and here onely examine the question concerning the damages and them doubled It doth not appear by any thing is said by Sir Edward Coke that Putt had either received from or so much as recovered of the said Burton the said 900 marks or any part thereof and yet the said Burton is found thereto be damnified the said 900 marks besides 100 l. more for his expence and trouble all which is double by the Judgement so that by this Judgement he was barred and hindred any tryal for his 900 marks or whatsoever else he should prove himself to be damnified which no man can or could then say he was not to have recovered in one of the said Courts but was condemned to pay 1400 l. damages to Burton who was damnified nothing more then his expence and some trouble in a wrong Court as is pretended for what he had unjustly done for ought ever appeared or was ever attempted to be made appear and he hereby acquitted of that Act how unjust soever If it might have been granted which may not be that the Admiral had no jurisdiction nor cognizance of this Cause yet surely that Court which had might first have examined whether Burtons act complained of was an unjust act or not and whether Putt should not there have recovered 900 marks as well as in the Admiralty Court and certainly if he should then cannot I conceive how Burton can be said to be damnified that 900 marks which might elsewhere have been recovered and obtained against him nor can I judge that he being sued for 900 marks which neither were or could there or elsewhere have been obtained against him was thereby damnified 900 marks I shall therefore leave it here to be considered whether such a Judgement once given at the Common Law is to be held firme and continued for law ever after or
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
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
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
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
Court and hinder the just and due proceedings thereof suggested before the Kings Justices at Westminster that he and one William Cowick his Proctor were by the Officers of that Court cited to appear in the said Court in the said cause pretending the same to be a cause cognoscible before the said Justices and not in the Admiralty Court and obtained a Prohibition after which the Libel in the said cause being exhibited before the said Justices as likewise appeareth by the said Consultation and it being thereby plain that the same was for a Contract made concerning Sea business it is said that the Prohibition issued out unadvisedly praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram Justiciariis apud Westm improvidè emanavit and concludeth with a nolumus quod per hujusmodi malitiam suggest cognitio in praefata Curia nostra Admirallitatis taliter derogetur That the cognizance of that Court shall not be hindred by such malice or suggestion and so the cause is thither remitted by consultation bearing date the 11th of July in the 24th year of the said Henry the eighth T. R. Norwich apud Westm which Consultation was directed to Henry Duke of Richmond and Sommerset and Earl of Nottingham high Admiral of England Ireland Gascoine Normain and Aquitaine and to Arthur Plantaginet Knight Viscount Lisle the said Dukes Vice-Admiral or his Lieutenant and also to John Tregonwell Dr. of Laws Official Commissary or Judge of the High Court of the Admiralty and to Thomas Bagard Doctor of Laws his Surrogate in the said Court See the Consultation it self as it follows Henricus Octavus Dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae dilecto fideli nostro Henrico Duci Richmond Somerset Comiti Nottingham magno Admirallo Angliae Walliae Hiberniae Gasconiae Normaniae Aquitaniae Nec non Arthuro Plantaginet Militi Vicecom Lisle praedicti Ducis Vice-Admirallo sive ejus locum tenenti ac etiam Magistro Johanni Tregon-well legum Dostori in Curiâ principali Admiralitatis Angliae Officiali sive Commissario Magistro Thomae Bagard legum Doctori dicti venerabilis viri Johannis in dicta Curia Admiralitatis Surrogato sufficienter legitimè Deputato eorumque cuilibet salutem Ex parte vestra nobis est intimatum quod cum quidam Robertus Baker nuper de London Vintner in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Johannem Maynard de super quodam contractu de re facta super mare quidam tamen Johannes Gilbert Armiger in hac parte cognitionem vestram fraudulenter malitiosè satagens declinare debitum legis processum in eadem Curia nostra in parte illa impedire ac suggerens in Curia nostra coram Justiciariis nostris apud Westm ipsum Johannem Gilbert ac quendam Willielmum Cowicke procuratorem suum per vos in praedicto Curia Admirallitatis Coram vobis super praedicto placito praetenseundem Johannem Gilbert per inordinatam fatigationem in eadem Curia Admirallitatis coram vobis in dies trahi in placitum per ministros vestros ea occasione citari coram vobis comparere adinde respondere faciendum totis viribus sententiam versus ipsos Johannem Gilbert Willielmum Cowicke pro praemissis fulminare proponend placitum quod inde per legem terrae in praedicta Curia nostra coram Justiticiariis nostris apud Westm non coram vobis in dicta Curia nostra Admirallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ipsius Johannis Gilbert grave dampnum ac nostri contempt coronaeque nostrae Regiae exhaeredationis periculum ac contra legem cons regni nostri Angliae Breve nostrum de prohibitione minus rite vobis dirigi procuravit cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae Curiae nostrae Admirallitatis laesionem quia praedictum Breve nostrum de prohibitione à dicta Curia nostra coram Justiciariis nostris apud Westm nuper inde improvide emanavit prout per quendam libellum in dicta Curia nostra coram Justiciariis nostris apud Westm post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ac quia nolumus quod per hujusmodi malitiam suggestionem cognitio in praefata Curia nostra Admirallitatis taliter derogetur ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant T. R. Norwich apud Westm xi die Julii Anno Regni nostri vicesimo quarto One Richard Bell likewise sued one John Crayne in the Admiralty Court for that the said John did at Dartmouth within the Maritime Jurisdiction of the Admiralty promise and bind himself to exonerate and keep indemnifyed the said Richard for taking or restoring of a certain Ship called the Mary Fortune and the apparel of the same and the Goods and Merchandizes in her at the time of the taking of her and that he the said Richard at the time of the taking of the said Ship together with John Bell and others was present against one John Destyron and other Spaniards affirming themselves to be the Masters and Owners thereof And the said John Crane not setting forth what this Contract made at Dartmouth was for but barely suggesting that he was sued upon a Contract made at Dartmouth within the body of the County of Devon and not within the Jurisdiction of the Admiralty obtained a Prohibition But upon complaint of the said Bell setting forth from whence the Contract arose and for what the same was it was held to be within the Maritime Jurisdiction of the Admiralty and a Consultation was awarded by which it is said to be in ipsius Richardi Bell grave damnum legis libertatisque Admiralli laesionem manifestam to the grievous damage of the said Richard and manifest wrong of the law and liberty of the Admiral and further saith Et quia cognitionem Jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus vobis jam significamus c. And because we will not have the Cognizance and Jurisdiction of the Admiralty in Maritime caues to be hindered by such crafty assertions we therefore c. as in the former Consulattion I shall likewise set down this Consultation which was in the time of Henry the Eighth and so come to shew you some of those which were in the time of Queen Elizabeth Henricus octavus Dei gratiâ Angliae Franciae Hiberniae Rex fidei defensor in terra Ecclesiae Anglicanae Hiberniae supremum caput Nobili prae potenti viro Domino Johanni Vicecomiti Lysle Baroni de Malpas Somerey praeclari ordinis Garteri Militi Domino Basset Tyasse Magno Admirallo Angliae Hiberniae Walliae Villae
Merchiarum Calisiae Normanniae Gasconiae Aquitaniae sen ejus Deputato in Curia nostra Admirallitatis salutem Monstravit nobis in Curia nostra coram nobis Richar. Bell Com. Sussex quod cum idem Richardus nuper in Curia Admirallitatis coram vobis implîtasset Johannem Crane de eo quod idem Johannes ad certum tempus jam retroactum infra jurisdictionem maritimam promisisset se extrinxisset ad exonerand indemnem conservand ipsum Richardum ab omni obligatione juris vinculo pro captione seu restitutione cujusdam navis vocat the Mary Fortune apparatus ejusdem ac bonorum mercimoniorum in illa tempore capturae ejusdem pro eo quod idem Richardus tempore capturae hujusmodi navis una cum quodam Johanne Bell aliis interfuisset erga quosdam Johannem Desticon alios Hispanos asserent se dominos proprietarios praemissorum fuisse Idemque Johannes Crane nobis suggerendo dixerit quod hujusmodi contractus factus fuit apud Dartmouth infra corpus Comitatus nostri Devon inter partes praedictas non infra jurisdictonem maritimam vobisque superinde ad suggestionem ipsius Johannis Crane quoddam Breve nostrum de prohibitione in causa praedicta quod non procederetis porrexerimus cujus praetextu vos in causa illa huc usque procedere distulistis adhuc differtis in ipsius Richardi Bell grave damnum legis libertatisque Admiralli nostri laesionem manifest Et quia cognitionem jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impediri nolumus vobis jam significamus quod in causa praedicta jam coram vobis inter partes illas pendenti dummodo de causa maritima infra jurisdictionem Admiralli nostri juxta jura legis nostrae Angliae terminan agat licite procedatis ac procedere poteritis in causa illa quantum ad jurisdictionem Admirallitatis nostrae pertinet brevi nostro de prohibitione vobis prius inde in contrarium directo in aliquo non obstant T. R. Lyster apud Westm decimo quarto die Julii anno nostri Regni tricesimo octavo per Dominum Capitalem Justic Rooper In the time of Queen Elizabeth Christopher Turner sued Thomas Simpson of Beverly in the County of York before Matthew Bodsworth Batchelor of Laws Commissary of the Court of the Admiralty in the Northern parts of England and Judge of the Vice-Admiralty of York upon a contract before that time made between them the said Christopher and Thomas and thereupon layd and articled in the said Court that in the Moneths of April and May 1586. they the said Christopher and Thomas had speech or talk between them concerning certain quarters of Wheat and Rye to the number of 69 or thereabouts namely forty and one quarters of Wheat and twenty and eight quarters of Rye whereof part was to be taken into a certain Ship called the George of Beverley at a certain place called Emot-land upon the River of Hull alias Hull Water and the other part thereof to be taken into the said Ship at a certain place called the Good Alehouse adjoyning to the said River to be from thence carryed and conveyed in the said Ship by water unto the City of York and there to be delivered on Shipboard at a certain place called the Queen 's Stathe at the said City and further had talk of the freight or price to be paid for the carriage of the said quarters of Grain and that they the said Christopher and Thomas bargained and agreed concerning the said carriage and transportation of the said Grain in the said Ship the George in forme following viz. that the said Thomas Sympson should take and receive into the said Ship the said forty one quarters of Wheat and twenty one quarters of Rye at the said place called Emots-lands and the said other place called the Good Alehouse and should from thence transport and carry the same with all convenient speed to the Queens Stath aforesaid being beneath the first Bridge of the River of Owre towards the sea and there deliver the same on Shipboard and that in consideration thereof the said Christopher Turner did agree to and with the said Thomas Sympson for the transportation of every quarter of the said Grain to pay the summe of ten pence of lawfull money of England and further that the said Christopher Turner in consideration that the said Grain might be more safely and securely transported and carried then other his Grain before that time had been and that the same might not be heated wetted or otherwise impaired as before that time other his the said Christophers Grain had been in other lesser Vessels of his the said Thomas Sympson promised and agreed to and with the said Christopher that if the said Christopher should not deliver into the said Ship called the George sixty quarters of Grain nevertheless in regard that Ship was of a greater burthen then other Ships of the said Thomas Sympsons were he the said Christopher would pay to the said Thomas Sympson or his Assignes the whole freight for sixty quarters of Grain according to the rate of ten pence for every quarter of the aforesaid Grain and if there should be more then sixty quarters of the said Grain that then the said Christopher Turner should pay for every quarter above the number of sixty quarters according to the said rate of ten pence for every quarter thereof And that the said Thomas in consideration thereof promised and convenanted to and with the said Christopher Turner that no Grain or Goods of other men should be received into the said Ship in the said Voyage and that the said Ship should be sufficiently manned and victualled so that by reason thereof the said Christopher Turners Grain might be safely transported and carried without any heating wetting or other impairing c. Which cause was afterwards removed from the said Court of the Admiralty in the Northern parts by way of appeal made by the said Thomas Sympson on his part unto the supreme Court of the Admiralty of England and there in the end of the 31 year of the said Queens Reign depended undecided And the said Thomas Sympson in Hillary Terme following suggested in the Kings Bench that the said Christopher had libelled in the high Court of the Admiralty that the said Contract was made at Beverley within the Body of the County of York and that the said Contract was that one part of the said Grain was to be received into the said Ship at a certain place called Emot-land upon the River of Hull-water whereas indeed the said Christopher had libelled in the Court of Admiralty before the said Matthew Dodsworth in the Northern parts that that Contract was that the said Grain should be received into the said Ship at the said places called Emot-land and Good Alehouse upon the River of Hull-Water and not upon the River of Hull-Water And whereas
that plea upon the said Libel only depended in the High Court of the Admiralty by way of the Appeal aforesaid by him the said Thomas Sympson in form aforesaid prosecuted and otherwise he prayed a Prohibition from the said Court of Kings-Bench and procured the same to be directed unto to the said High Court of the Admiralty whereupon the said Court desisted But in Trinity Terme following the said Court of Kings Bench being informed of the whole matter deduced and set forth in the original Libel a Consultation was awarded which in its own phrase and in all things agreeable to what I have here set forth repeateth the tenor effect and substance of the said Libel with a prout per libellum ipsius Christopheri plenius liquet as by the Libel of the said Christopher in that behalf doth more plainly appear and concludeth that notwithstanding the Prohibition for the causes before exprest and for other the said defects in the said Thomas Sympsons Suggestion contained and in the said Court depending them moving with an Ac similiter nolentes per hujusmodi falsas callidas assertiones placita in Curia Admirallitatis praedicta pendent diutius impedire where nolentes signifieth an absolute forbidding or checking rather then unwilling that the said Pleas in the Court of Admiralty depending should any longer be hindred by such false and crafty assertions and therefore signified that the said Court of the Admiralty might lawfully proceed in the said Cause between the said parties and do and performe all other things on that behalf which the said Court did know did belong thereunto c. Take here this Consultation more in its own language at large and I shall set forth but some few more and those as briefly as I can This runneth in these words Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. venerabili egregio viro magistro Julio Caesari legum Doctori praenobilis praepotentis viri Car. Domini Howard Baronis de Effingham praeclari ordinis Garteri Militis magni Admiralli Angliae Hiberniae Walliae Dominiorum Insularum earundem villae Calis Merchiarum ejusdem Normaniae Gasconiae Aquitaniae Classisque marinorum dictorum regnorum Angliae Hiberniae praefecti generalis locum tenenti Generali ac supremae Curiae Angliae Admirallitatis Judici Praefidenti ejusve Surrogato cuicunque salutem Cum Christopherus Turner nuper in Curia Admirallitatis coram Matthaeo Dodsworth in legibus Baccalaureo Commissario Curiae Admirallitatis in partibus Borealibus Angliae ac Judice Vice-Admirallitatis Com. Eboracen implitasset articulat fuit versus quendam Thomam Sympson nuper de Beverley in Com. Eborum super quodam contractu inter ipsos Christopherum Thomam ante tum fact super inde in eadem Curia posuit articulat quod in mensibus Aprilis Maii Anno Domini millesimo quingentesimo octogâ—simo sexto iidem Christopherus Thomas habuerunt Colloquium inter eos de quibusdam quarteriis tritici siliginis ad numerum sexaginta novem vel eo circiter videlicet quadraginta unius quarteriorum tritici vigint ' octo quarteriorum siliginis unde pars accipiendum fuisset in quandam navem vocatam The George of Beverley ad quendam locum vocatum Emotland super Rivulum de Hull à lias dictum Hull Water alia pars inde accipiend fuisset in eandem navem ad quendam locum vocatum The Good Alehouse adjungentem eidem rivulo ab inde abcariari conveiari in eadem navi per aquam usque Civitatem Eborum ibidem deliberari super le shipboard apud quendam locum vocat The Queens Stath infra eandem Civitatem ulterius habuissent Colloquium de salario pretio solvend pro carriagio dictorum quarteriorum granorum praedictorum ulterius quod ipsi iidem Christopherus Thomas convenissent agreassent concernen praedictum carriagium transportationem granorum praedictorum in eadem nave vocat The George infra sequen videlicet quod praedictus Thomas Sympson caperet reciperet in praedictam navem praedicta quadraginta unum quarteria tritici viginti octo quartera siliginis ad praedictum locum vocat Emot-lands ad praedictum alium locum vocatum The Good Ale-house ab inde transportaret carriaret eadem cum convenien celeritate ad le Queens Stathe praedict stantem existentem infra primum pontem rivuli de Owre versus mare ibidem eadem deliberaret super le Shipboard quod in consideratione inde praedictus Christopherus Turner convenisset consensisset ad cum praefato Thoma Sympson pro transportatione cujuslibet quarterii granorum praedictorum solvere summam decem denariorum legalis monetae Angliae ulterius quod idem Christopherus Turner in consideratione quod grana illa magis salvo secur transportari carriari potuissent quà m alia grana sua antebà c fuissent quod eadem non essent calefacta vel malefacta vel aliter pejorat Anglicè Impaired prout ante tempus illud alia grana ipsius Christopheri fuissent in aliis minoribus vasibus ipsiûs Thomae Sympson promisisset convenisset ad cum eodem Thoma quod si dictus Christopherus non deliberaret in praedictam navem vocat The George sexaginta quarteria granorum nichilominus pro eo quod eadem navis fuit navis majoris oneris quà m aliae naves dicti Thomae Sympson fuissent ipse idem Christopherus solveret praefato Thomae Sympson vel assignatis suis plenum stipendium Anglicè The whole freight pro sexaginta quarteriis granorum juxta ratam decem denariorum pro quolibet qurterio granorum praedictorum si plura forent quà m sexaginta quarteria granorum praedictorum quod tunc idem Christopherus Turner solveret pro quolibet quarterio ultera numerum sexaginta quarteriorum juxta dictam ratam decem denariorum pro quolibet quarterio inde quod idem Thomas in considerane inde promississet convenisset ad cum dicto Christophero Turner quod grana sive bona nulla aliorum hominum acciperentur in eandem navem viagio praedicto quod praedicta navis sufficient viritat esculat esset Anglicè manned and victualled Ita quod ratione inde grana dicti Christopheri Turner salva transportari carriari potuissent sine calefatione malefactione vel alias pejoratione Anglice Impairing c. prout per libellum ipsius Christopheri inde plenius liquet quod quidem placitum postea à praedicta Curia Admirallitatis in partibus Borealibus per viam appellationis per praefatum Thomam Sympson in ea parte factae coram vobis remot fuit ad huc in supremâ Curiâ Admirallitatis Angliae coram vobis jam pendet indecis Cumque praefatus Thomas Sympson postea sc termino Sancti Hillarii ultimo praeterito venisset in
the value of twenty pounds the money not being paid Husbands arresteth this sixteenth part of the said Ship with Tackle and Furniture thereunto belonging and citeth Bonner specially and all others in general to answer unto him in the Admiralty Court for the said Debt Bonner dieth Rachel his Wife taketh Administration and the Suit proceeds against her Richard Dove Owner of the other parts or residue of the said Ship became Bayl for the said Bonners sixteenth part And afterwards upon suggestion in the Kings Bench that the Debt was for cloth and other things bought by the said Bonner of the said Husbands in Cheapside London and that the said Ship being freighted and laden in the Parish of St. Mary Bow in the Ward of Cheap London with Provision of the Queens to go for Ireland was there arrested by the said Husbands and alleaging that the said Action was brought in the Admiralty Court by the said Husbands against the said Bonner contrary to the three before mentioned Statutes c. And thereupon obtained a Prohibition But upon due information made unto the said Court setting forth the effect and contents of the Libel a Consultation was npon the 25th of April in the third year of King James awarded and the cause returned unto the said Court of the Admiralty there to be duly proceeded in The Consultation plainly expressing that the matter contained in the Suggestion was no wayes sufficient to maintain the Prohibition The Consultation runneth thus Jacobus Dei gratiâ Angliae c venerabili egregio viro Julio Caesari Monstravit nobis Richardus Husbands de London Draper quod cum ipse idem Richardus in Curia nostra coram vobis per processum extra dictam Curiam Admirallitatis praedictae debito modo confect ' emanan arrestari procurasset decimam sextam partem cujusdam navis vocat ' The Advantage of London ac apparatuum c. Et ulterius citari procurasset quendum Adamum Bonner Dom. c. in specie ac omnes alios quoscunque jus titulum interesse haben in genere vel haberi praetenden c. praefato Richardo Husbands de pro quol ' debito viginti librarum eidem Richardo Husbands c. per quend ' contract ' c. infra jurisdictionem Admirallitatis Angliae factum debite responsur ' postea pendente secla illa praedictus Adamus Bonner obiit intestat post mortem Administratio c. Quidam Richardus Dove suggerens in Curia nostra coram vobis quòd cum in statuto in Parliamento Dom. Richardi nuper Regis Angliae secundi c. setting forth the three before metioned Statutes Quodque vicesimo die Novembris anno regni Dominae Elizabethae Reginae Angliae quadragesimo tertio apud London videlicet in Parochia Beatae Mariae de Arcubus in Warda de Cheap praedictus Adamus Bonner indebitatus fuisset eidem Richardo Husbands pro panuclaneo aliis rebus ad tunc ibidem praefato Adamo per praefatum Richardum Husbands vendita deliberat in summa vigint librarum legalis monetae Angliae Quodque praefatus Adamus Bonner praedicto vicesimo die Novembris anno quadragesimo tertio superdicto apud London praedict in Parochia Warda praedicta fuisset Dom. proprietarius possessor legitimus praedictae decimae sextae partis navis vocat ' The Advantage of London ac apparatuum c. Ac quod praedictus Richardus Dove ad tunc ibidem similiter fuisset Dom. Proprietarius legitimus possessor totius resid praedictae navis c. Quodque etiam praefatus Richardus Husbands postea scilicet vicesimo die Novembris anno regni dictae Dominae Elizabethae nuper Reginae Angliae quadragesimo tertio superdict apud London praedict in Parochia Warda praedicta praedictam decimam sextam partem navis praedictae ad tunc ibidem onerat ' existent ' cum provisione dictae Dominae Elizabethae nuper Reginae Angliae ad navigandum pro regno Hiberniae ac praedictorum apparatuum c. pro dicto debito praefati Adami Bonner arrestari procurasset ac super inde praefatus Richardus Dove c. apud London praedict in Parochia Warda praedict fore fidejussorem pro praedicta nave compulsus coactus fuisset aliter c. quandam prohibitionem nostram c. Quia tamen videtur Curiae nostrae coram nobis quod suggestio praedicta praedicti Richardi Dove in Curia nostra coram nobis in hac parte exhibit ' materiaque in eadem contenta minus sufficien ' in lege existunt ad Breve nostrum de prohibitione in hac parte manutenend ' Et quia nolumus cognitionem quae ad Curiam Admirallitatis praedict spectat pertinet per hujusmodi insufficientes assertiones diutius impediri vobis significamus quod in causa praedicta c. T. J. Popham apud Westm vicesimo quinto die Aprilis anno Regni nostri Angliae Franciae Hiberniae tertio Scotiae tricesimo octavo 1. L. Rooper I shall instance only in one or two more of latter time and that very briefly Claos Cornelius Borss by Charter-party let to freight the Ship the Young Swan of Horne in Holland whereof he was Master and part-Owner unto George Rook and Robert Grove for a Voyage from London to several Ports and Places beyond the Seas and from thence to the Port of London Borss after the return of the said Ship sueth Rooks and Grove in the Admiralty Coutt for his freight due by the said Charter-party and likewise for demorage Rooks and Grove suggest in the Kings-Bench that the Charter-party was made in the Parish of St. Mary le Bow in the Ward le Cheap and alleadged the three before mentioned Statutes and that they had performed the Covenants of the said Charterparty and that the Action brought against them in the Admiralty was contrary to the said Statutes and obtained a Prohibition But the said Court being fully informed Termino Pascae nono Caroli a Consultation was awarded with a Nolentes c. as in the former And further quod in causa praedicta quatenus de non performatione conventionum praedictarum quoad naulum morationem coram vobis duntaxat agatur licitè procedere poteritis ulterius facere quod ad Curiam Admirallitatis praedictae noveritis pertinere dicta prohibitione nostra non obstante T. T. Richardson apud Westm tertio die Junii Anno regni nostri nono Henley Whigswick In like manner David Guy of Disart in Scotland let to freight by Charter-party the Ship the Grace of God of Disart then lying at Anchor in the River of Thames to John Delabar and James Hope upon a Voyage upon which Guy sued the said Delâ—bar and Hope in the Admiralty Court for his freight thereby contracted for and unpaid Hope and Delabar setting forth in the Kings Bench that the Charter-party was made in St. Michael Cornhill and alleadging the three before mentioned Statutes and
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
Quaeritur etiam utrum literae cambii paratam habeant executionem quod etiam determinatur per nota per Jasonem in L. elegantur ff de conditionibus indebiti quod etiam per Bald. consil 60. lib. tertio et text in l. si ex cautiam C. de non numerat pecunia Matthaeus de afflict in constit causas promagistro Justiciario Col. 6. Multaeque aliae hac de re exsurgunt quaestiones quae per jus civile authores super eodem conscribentes deceptantur determinantur Si unus ex nautis mercator fuerit vel ut mercator cum magistro navis contraxerit in mercibus suis in nave oneratis damnum passus est utrum sibi tenebitur exercitor quod per dict Julium Ferret d. li. 1. n. 38. expeditur Mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit juxta L. hujus ff qui potiores in pignore habeantur Et postmodum mulier peperit in navi Quaeritur an teneatur pro partu solvere naulum quod per L. sed adde sect si quis mulierem ff locati per Bartol ibidem per L. haec mori ff qui potiores in pignore habeantur directe concluditur Quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur versute res resurripuit alienas Et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit quae per exactissimam Julii Feretti de re navali distinctionem juxta L. sed ipsi ff naut caup determinatur l. 1. n. 34. Et utrum cum plures competant actiones tentata sive electa una ad aliam redire poterit actor Et quid si ad diversa plures competant actiones quae per L. quod in haeredem ff de tributoria actione c. dijudicantur Per L. 3. ff Naut caup Stab Gloss ibidem de dolo lata levi levissima culpa tenentur exercitores sive magister navis inde quaeritur utrum idem sunt vel unus pro alio ponatur quod cum deciditur per L. 2. ad L. Rhod. de jactu L. primam § 2. naut caup ac etiam quid de illo statuendum qui stat in navi navigandi causa Et cum per praedict L. 3. naut caup determinatur quod in casu naufragii in casu Pyratarum incursu in casu fortuito non tenetur exercitor Quaeritur utrum furtum latrocinium sit inter casus fortuitos numerandum inter illos ponendum et computandum Et quinam alii numerent casus fortuiti quae dirimuntur per § sed istae Instit de action sect 1. Instit quibus recontrahitur obl L. 3. § Item si servus ff naut caup per Angelum de Aretio super D. Loc. Quaeritur ex d. illa L. 3. Naut caup utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor quod dirimitur per Bartol in d. L. 3. ff naut caup c. Per legem primam L. cum navarcarum C. de naviculariis li. 10. nauta cogatur navigare Quaeritur igitur an nauta teneatur ex jussu inimici navigare vel in sua navi recipere inimicum suum de jure quod ex Gloss super D. L. 1. ff nautae caup dirimitur Now have I not here rendred or set forth the determinations of these few questions which I have here nominated they being not considerable without the rest which taken altogether with their divisions distinctions decisions and determinations would make by themselves a whole Tract de jure Admirallitatis which would be a Book to little or no purpose nor receive any welcome unless this which is de ejus Jurisdictione may first receive some entertainment which how necessary and advantagious the same may redound unto this Kingdome I shall leave to the consideration of him that hath or shall throughly read this Maritime Dicaeologie THis small Treatise which I have written in Vindication of the Jurisdiction of the Lord High Admiral of England c. I doubt not but will receive this Addition of Advantage as to tend likewise to the vindication and clearing of the honour and reputation of those Reverend and Learned Judges of the Land the two Lords Chief Justices the Lord Chief Baron and the rest of the then Judges their Associates together with the Attorney General whose Judgements and Justice have been blemished and unworthily aspersed by some of their own Profession in saying those Reverend Judges were questioned in Parliament for setting their hands unto an Agreement made before his Majesty of Blessed Memory Charles the First between them his Judges of the Land and Sir Henry Martin Judge then of his High Court of Admiralty purporting in substance the matter of this Treatise It 's true I have heard that some of the Puisne Lawyers and young men of that Profession sitting in the Long Parliament would have attempted such an undiscreet and unparelleld act but by the gravity and wisdome of others more learned in that Profession then themselves were disswaded from it Yet if they had I doubt not but he that reads this Treatise will find sufficient reasons to justify their assent to that agreement and that it contained nothing but what they might and ought to do notwithstanding the Judgements of their Predecessours or Successours Others do not forbear or stick to say this Subscription to this Agreement was an extrajudiciall act and so takes not the effect of a Law either to bind them or their Successours as though the place and formality of sitting upon the Bench were of the essence of a true and just opinion and the Judges being called and convened by special summons before his Majesty that their Judgements and Opinions there delivered in matters propounded debated and argued were of less force and validity and more extraneous to reason then if they were judicially sitting Which is an opinion that I cannot conceive any man of sound judgement can adhere unto and therefore I shall conclude this Treatise with that judgement given by those twelve Learned and Reverend Judges of the Land with the consent of that famous Man Mr. Noy his Majesties Attorney General At Whitehall 18 February 1633. Present The KING' 's MOST EXCELLENT MAJESTY The Lord Keeper And 23 Lords of the Councel THis day his Majesty being present in Councel the Articles and Propositions for accomodating the differences concerning Prohibitions agreed unto and subsigned by all the Judges and his Majesties Attorney-General were Read and Ordered to be entred in the Register of Councel Causes and the Original to remain in the Conncel Chest If Suit shall be Commenced in the Court of Admiralty upon Contracts made or other things personally done beyond or upon the Seas no Prohibition