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
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
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
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
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
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
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
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
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