alwayes that if any Merchant stranger or other finde himself grieved or damnified by negligent keeping of his Wares or Merchandises or by long delaying or protracting of time in making of the Voyage by the said Owner his Master or any of the Mariners of the said Ship otherwise than shall be agreed in or by the said Charter-party not having been leâ—ten by wind or weather he shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owners or Masters who shall or may summarily and without delay take such order therein as shall be thought to their discretions most convenient and according to right and justice in that behalf It is true that the Cases exprest are for the Merchants to recover satisfaction for delay or damage done to their goods according to the Charter-party from the Owners and the Masters of Ships and it were very unreasonable if the Master or Owner having dâ—ely performed their Voyage might not seek the like remedy before the same Judge against the Merchants not observing the Charter-party either in not Lading their goods within the time appointed or not paying the Freight according to agreement in the same contained and exprest the causes being hinc inde reciprocal and it being sometimes held an absurdity Illud quod in uno eodemque judicio terminari potest apud diversos Iudices ventilari The Statute of the 43 of Elizabeth Chap. 12. declares That whereas differences growing upon Policies of Assurance had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those Causes until that of late years divers persons did withdraw themselves from that arbitrary course and have sought to draw the parties assured to seek their monies of every several assurers by Sules commenced in her Majesties Courts to their great charges and delay thereupon it was enacted that a Commission should be granted giving power to certain Commissioners the first whereof is the Judge of the Admiralty to order and decree such Causes in a brief and summary course without formalities of pleadings and proceedings Malines affirms that he amongst others was one who upon experience of the great inconveniences which followed upon the drawing of those Causes to the Courts of Common Law solicited the Parliament to pass that Act. The Legal authorities which may be conceived to be intended to debar the Admiral from the Conusance of Contracts and writings made at Land touching things to be performed at Sea or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before the Courts of Common Law have admitted and held Pleas of Charter-parties of Policies of Assurance and declared something concerning Mariners wages Touching Charter-parties it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute of double damages by William Hore against Ieffery Unton who had sued the said Hore in the Admiralty for fourscore pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes imployed to go towards Island in regard Contractus ille apud novam Sarum infra corpus Comitatus non super altum mare factus junctus fuit whereupon damages were assessed against the Defendant to an hundred Marks and costs to 40 l. Again that in the 28 of Elizabeth in the Kings Bench upon a Charter-party by a Deed indented which was made at Thetford in the County of Norfolk Euangelist Constantine sued Hugh Glynn for the breach of Covenant in not staying at Muâ—trel in Spain so many dayes as were limited by the Covenant whereupon he was condemned in 500 l. and in arrest of Judgement it being shewed That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had and that therefore the trial was not sufficient Sir Christopher Wray and the whole Bench resolved that the Plaintiff should recover 500 l. besides the costs and damages because the Charter-party was made at Thetford within the Realm Concerning Policies of Assurance That in the 38 of Hen. 8. in a Case betwixt Crane and Beâ—l touching a promise made at Dartmouth That the Ship should pass without taking which was afterwards surprized by the Spaniard upon the high Sea it was held not determinable in the Admiralty for although the taking were upon the Sea yet the promise was upon the Land Again that in the 36 of Elizabeth an Action of the Case was brought in the Kings Bench upon an Assumpsit from a Policy of Assurance where it was undertaken That a Ship should sail safely from Melcomb Regis to Abbevil in France the Ship being arrested by the French King in the River of Somme in the Realm of France and the matter was there adjudged â—o which may be added what Sr Ed. Cook delivers for Law in Dowdales case Cum combein le contract comme le performance c. when as well the Contract as the performance of it is wholy done beyond the Sea and it so appears the Trial fails at the Common Law But here saith he the Assumpsit was made at London which is the ground and foundation of the Action and therefore the Trial of necessity shall be there or otherwise it shall not be tryed at all and the Arrest which is in issue is not the ground of the Action but the Assumpsit c. Touching Mariners wages is that of the Book of 48 of Edw. 3. where it is said That if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded in that Court by the Common Law Nemy per ley Mariner To these Authorities it may be replied in general that all but the last are grounded upon the commonly received sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there where it is made or written with out any respect to the nature of the business and the occasion thereof from whence in truth it doth more properly arise And whereas other acts of Parliament have in some special points ordained and declared otherwise it may be hoped that it may not be held a crime unexcusable if a man should doubt of the reasonableness of those authorities Touching the particulars As First of the 31. of Henry 6. betwixt Hore and Unton wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party it is said that the Sute was upon a Charter-party of Freightment for four score pounds It doth not appear that it was for the freight of the Ship although it be most probable and if it were so why the Master of the Ship should not as well sue for his freight by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute might sue in the Admiralty for dammage done to his
goods aboard a Ship contrary to the Charter-party without any respect to the place where it was made if no reason can be shewed that Judgment may be thought not to have been grounded so much upon reason as it was upon the common received opinion of the meaning of that Statute as it is therein related quia contractus ille apud novam Sarum factus junctus fuit Touching that of the 28. of Elizabeth whereby Glynn was condemned to Constantine for breach of Covenant in a Charter-party in the summ of 500. l. it seems a Case far more reasonable though something grievous because it is not denied but that a sute upon a Charter-party may be commenced at the Common Law upon a penalty as it seems that was for breach of Covenant in not staying at Madrill so many dayes as were limitted by the Charter-party Only that is thought no concluding argument against a sute in the Admiralty for freight grounded on a Charter-party But whereas when in the Arrest of judgment it was alleged that the Trial was not sufficient because the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had Sir Edw. Cook sayes that Sir Christopher Wray and the whole bench resolved That the Plaintiff should recover cost and dammages because the Charter-party was made at Thetford in Norfolk within the Realm it is as much as if Sir Edw. Cook had said that whether the suggestion in the issue were true or false tryed by a competent or incompetent Jury yet if the sute were brought upon a Charter-party the Conusance thereof did belong to the Common Law and whether the former Judges had proceeded well or not was not material so that what is premised formerly touching Judgments and judicial Acts in the First Chap. may from this case be excused And as touching the infinite prohibitions granted upon sutes commenced in the Admiralty concerning Charter-parties there may be something declared and made appear reasonable hereafter in an other place As to the instances of Policies of assurance held tryable at the Common Law although by the Statute of the 43. of Elizabeth it hath been shewed that the proceedings in those causes at the Common Law were altogether inconvenient to the Kingdome yet in regard Sir Edward Cooks reasons in Dowdales case for the maintaining of proceedings in such businesses may be applyed to other matters to the prejudice of the Admiralty Jurisdiction something may be observed concerning the same in Sir Edward Cooks reasons as first That the Assumpsit is the ground and foundation of the Action and that the Arrest or Imbargo in that case had been no ground of an Action if there had been no Assumpsit neither could the Assumpsit have produc'd an Action if there had not been an Arrest But what was the nearest and immediate ground of the Action without doubt the Arrest And what was chiefly in question not the Assumpsit for it was taken for granted that that was done in London but it was the Arrest which as it was declared was in issue And it is likely that the Common Law which intended a Trial of the Vicinage intended it of the thing or matter which was in issue to be tried But he further argues That the Trial must be of necessity where the Assumpsit is made for otherwise there could have been no Trial at the Common Law which might have savour'd of some reason If possibly there could have been no Trial in any other Court but the Cause being Maritime and amongst Merchants it might more properly have been tried in the Admiralty or in the Assurance Court without a Jury or Trial of Twelve men by witnesses as Fortescue acknowledgeth Thirdly touching that of the Book of 48. of Edward the 3. where it is said That if a Mariner make Covenant only to serve in a Ship on the Sea yet if the wages be not paid they shall be demanded in that Court by the Common Law not by the Law Mariner the occasion was that an action of debt being bâ—ought at the Common Law upon an Obligation dated at Harflet in Kent whereas in truth it was made in Normandy and the consideration was Service done in Warr in France thereupon one of the Judges said That the summ demanded growing due for Service done in Warr the Cause ought to be tryed in the Constable and Marshals Court Another as it seems willing to retain the cause said tâ—at he hired a man to go in a message to Rome although the service were done in another Realm yet what was due by covenant might be recovered in that Court Another said if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded by the Common Law c. So that it is plain it was not a Resolution of the Court but a fuit dic as they say and one mans opinion by way of argument to another purpose And the ground thereof might be that if it were in issue whether such a Covenant were made it might be tryed at the Common Law but it doth not conclude but that if the Question were whether the service in the Ship were performed on the Sea it might more properly be tryed in the Admiralty Court For confirmation on this point First To the 4. Request of the Judge of the Admiralty to the Lord Chief Justice of the Kings Bench 12. May 1575. viz. That the Judge of the Admiralty may have and enjoy the knowledge of the breach of Charter-parties made between Masters of Ships and Merchants for voyages to be made to the parts beyond the Sea according as it hath been accustomed time out of mind and according to the good meaning of the Statute of 32. Hen. 8. chap. 14. though the same Charter-parties be made with in the Realm The answer is This is agreed upon for things to be performed upon or beyond the Seas though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. chap. 14. Secondly it was agreed unto by all the Judges and Attorney General before the King and his Counsel That if a Sute be before the Admiral for Freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Sea although the Charter-parties happen to be made with in the Realm and although the money be payable within the Realm so as the penalty be not demanded a Prohibition is not to be granted But if the Sute be for the penalty or if the Question be made whether the Charter-party were made or not or whether the party did release it is to be tryed by the Kings Court at Westminster So that at first it be denied upon Oath that a Charter-party was made or a denial upon Oath tendred to which it may be added that it was there further agreed That if Sute shall be made in the Court of Admiralty for building
but which is wholly distinct from the same In the first case he confesseth that it is necessary to allege the cause of Action to arise within the new created Jurisdiction because prima facie nay de Iure the Courts of Common Law have general Jurisdiction of those things but in the later case as of the Admiralty if the cause be Maritime there is no need to averr it to have been done upon the Sea out of any respect to the Courts of Common Law for that it doth not tend to the diminution of any of those Courts and for Confirmation thereof he affirms that the Jurisdiction of the Marshalsey stands partly upon the Statute Articuli super Chartas and the words of that Statute are as restrictive as any words of the Statutes touching the Admiralty and by the books of the Common Laws the Marshal cannot hold Plea in some cases unless both parties be of the Kings Houshold nor in any case unless one of the parties be so yet it is resolved that the Declaration is good although it be not averred therein that any of the parties be of the houshold and therefore a Fortiori it is not necessary in the Admiralty to specifie in the Libel the thing to have been done super alto mari the Admiralty Jurisdiction being more distinct from the Common Law than that of the Court of Marshalsey That the trial of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Subjects and Kingdome of England than in the Courts of Common Law HOw much the maintenance and advancement of Navigation and trade by Sea concerns the Kingdome and Subjects thereof Sir Edward Cook delivers who saith That Trade and Trafique is the lively-hood of a Merchant and the life of the Common-wealth wherein the Kingdome and every Subject hath interest For the Merchant is the good Bailiff of the Realm to Export and Vent the Native Commodities and to Import and bring in the necessary Commodities for the defence and benefit of the Realm So much is confirmed by several Acts of Parliament fram'd by common consent of the Kingdome The Statute of the 32. of Henry the 8. chap. 24. sets forth That it is notoriously known that the Realm of England for the most part is invironed with the Seas so that the Subjects cannot convey and transport their Wares Merchandizes and Commodities by Land but only by Ships and that the Navy and multitude of Ships of the Realm is very commodious and necessary as well for the intercourse and concourse of Merchants conveying and transporting their Wares and Merchandizes and a great defence and security to this Realm as well to offend and defend as also for the maintenance of many Masters Mariners and Seamen and also hath been the chief maintenance and supportation of Cities Towns Havens and Creeks near adjoyning unto the Sea-coasts Likewise that of the 43. of Elizabeth chap. 12. declares That it hath alwayes been the Policy of this Realm by all good means to comfort and encourage the Merchant thereby to advance the general Wealth of this Realm the Kings Customs and Strength of Shipping c. It hath been formerly observed That for the encouragement of those who maintain trade by Sea in all Nations and States there have been special Judges appointed to hear and determine causes concerning Trade and affairs of the Sea and it may be further noted that such Judges have been directed to proceed at such times and in such manner as might best consist with the opportunities of Trade and least hinder or detain men from their Imployments Amongst the Graecians as at Athens it was provided That all sutes betwixt Sea-men and Merchants should be determined in those vacations when the Seas were barred or in those Moneths when Navigation was restrained So much is confirmed by Salmatius Eo tempore quo oritur Arcturus navigationes suas ut plurimum desinebant mercatores domumque redibant Boedromion quippe mensis qui septembri respondet quo tempore ferè Arcturus oritur terminus erat navigationum Atticarum ideo ab eo mense Munichiâ—nem usque quo mense iterum se mari committebant ac vela dabunt Mercatores Athenienses in urbe desidebant lites suas disceptabant ut videre est apud Demosthenem adversus Apaturium Amongst the Romans likewise for the better dispatch of causes concerning Sea-businesses the Judges were ordered to proceed Levato velo and de plano without that Solemnity and formality which was used in ordinary Courts and Causes So in Italy Spain and France the Judges proceed in causes concerning the Sea Summarily and in a more compendious way than other Judges use And the like as Sir Iohn Davies relates hath seemed to the wisdome of this Kingdome Our Parliaments saith He have not only made extraordinary provisions for a more speedy recovery of debts due unto Merchants for their Merchandizes than is provided by our Common Law as appears by the Statute of Acton Burnel made the 11. of Edward 1. and the Statute De Mercatoribus made the 13. of Edward 1. but also hath allowed a Court of Proceedings in cases of Merchants different from the course of our Common Law For by the Statute of the 27. of Edw. 3. cap. 2. it is declared That the proceedings in causes of Merchants shall be from day to day and from hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament That all Merchants coming to the Staple shall be ruled by Law-merchant touching all things coming to the Staple and not by the Common Law of the Land and by another Article That neither any of the Benches nor any of the Iudges of the Common Law shall have any Iurisdiction in those cases To which may be added the Statute of 32 of Hen. 8. Chap. 15. and of the 43 of Elizabeth Chap. 12. which direct That such causes betwixt Seamen and Merchants shall be ordered summarily and without delay and as in discretion shall seem most convenient All which was and may be observed in the Court of the Admiralty which in many causes proceed at any time and in all causes summarily and according to Equity but neither is nor can be observed in Courts of Common Law which are open onely in Term times and proceed in an ordinary and strict way Secondly For the advantage of those who use Navigation and Trade by Sea The Law-merchant and Laws of the Sea admit of divers things not agreeable to the Common Law of the Realm which may be better insisted on in the Court of Admiralty than in the Courts of the Common Law So much is likewise declared by Sir Iohn Davyes relating several instances to that purpose 1. If two Merchants saith he be joynt Owners or Partners of Merchandizes which they have acquired by a joynt Contract the one shall have an Action of
account against the other Secundum Legem Mercatoriam but by the Rule of the Common Law if two men be joyntly seized of other goods the one shall not call the other to account for the same 2. If two Merchants have a joynt interest in Merchandizes if one dye the surviver shall not have all but the Executor of the party deceased shall by the Law-Merchant call the surviver to an account for the Moity whereas by the Rule of the Common Law if their be two joynt Tenants of other goods the surviver Perjus accrescendi shall have all 3. In an Action of Debt upon a simple Contract which is without a Deed in Writing the Defendant by the Common Law may wage his Law That is he may barr the Plaintiff from his Action by taking an Oath that he doth not owe the Debt but when one John Cumpton Merchant brought an Action of debt Secundum Legem Mercatoriam against another Merchant upon a Contract without Deed and the Defendant would have waged his Law he was not permitted so to do and the Judgement was given for the Plaintiff It is not hereby intended that the Courts of Common Law cannot or do not take notice of the Law-Merchant in Merchants cases but that other things likewise considered it might be thought reasonable if they so desire to allow them the choice of that Court where the Law-Merchant is more respected than to confine them to other Courts where another Law is more predominant Besides there may be danger of doubt thereof because those things are not approved for proofs at the Common Law which are held sufficient in the Admiralty amongst the Merchants for as Sir Iohn Davies further observes At the Common Law no mans Writing can be pleaded against him as his Act and Deed unless the same be sealed and delivered But in sutes between Merchants Bills of Lading and Bills of Exchange being but ticquets without Seals Letters of advice and Credence Policies of assurance Assignations of Debts all which are of no force at the Common Law are of good credit and force by the Law-Merchant To which may be added what Malines observes That the bearer of such Bills by the course amongst Merchants shall be admitted to demand and recover the Contracts without Letters of Atturney which is not admitted in the Common Law It is moreover considerable That the Law of the Sea looks one way when the Common Law looks another As for instance A Ship is Freighted or hired for a Voyage to the Indies at 20 l. per moneth by Charter-party it appeareth that having been eight Moneths in the Imployment of the Merchant who Freighted her before she makes any Port with her Lading she perisheth in the Sea in this case by the Common Law as it hath been averred the Owner of the Ship ought to have Freight for eight Moneths but by the Law of the Sea which hath alwayes been allowed The Merchant losing his goods the Owner loseth his Freight Again if the Owner loseth his Freight the Mariner although he escape loseth his Wages for the time he served which happily would not be thought so if he sued at the Guild-Hall for the same Thirdly for encouragement and advantage of those who use Navigation and Trade by Sea it is considerable That in the Court of Admiralty one and the same Action may be brought against diverse and several persons undertaking the same business as when many joyn in subscription to a Policy of assurance but if a sute be brought at the Common Law every man must be sued severally which the Parliament in the Act concerning assurances held inconvenient and in the like manner divers and several Persons may joyn in the same sute as Mariners for wages at a small charge to themselves with little prejudice to the Masters or Owners which are sued and obtain a Decree or Order all together whereas when they sue at the Guild-Hall every man sues severally to the great charge of every particular and to the excessive dammage of the Masters or Owners if Judgements be given against them Besides the inconvenience of which the Statute of the 28. of Hen. the 8. cap. 15. takes notice That if Mariners or Shippers which by reason of their often Voyages and Passages must depart without long tarrying and protracting of time be enforced to attend the ordinary terms of the Common Law Fourthly the Court of Admiralty for the conveniency and dispatch of Merchants and Sea-mens causes admits of proofs which the Courts of Common Law do not allow for in that Court according to the Civil Law the Plaintiff may be relieved by the Defendants answer upon Oath which in the ordinary Courts of the Common Law is not afforded Again whereas in those Courts the Evidence must be produced at the Barr before the Jury Sea-men and Mariners which are many times necessary witnesses for the reason before exprest cannot be present without great prejudice to themselves and the Trade of the Kingdome But in the Admiralty Court they may be produc'd at any time after the sute is begun and their Examinations being taken in Writing they have liberty to follow their own and the common occasions Moreover many times in causes concerning Navigation and Trade by Sea no proof can be made but by Witnesses remaining in Forein parts to which the Writs of the Common Law do not extend but those Witnesses by Commission out of the Admiralty Court are usually sworn and examined by Magistrates in those places and their examinations so taken are allowed for sufficient proof upon return Divers other instances might be given by which it would appear that the Court of Admiralty can give redress in Sutes concerning Navigation and Trade with more conveniency than the Courts of Common Law but these considered and how much it concerns the good of the Kingdome and those who sâ—pport Navigation and Trade may be sufficient to discover which Court may be best justified in proceeding in causes of that nature What inconvenience may follow both to the Private and Publick by the interposing of the Courts of Common Law and by obstructions made unto the Admiralty in such businesses may appear in one particular that is concerning Charter-parties and Freight due for imployment of shipping There is but one instance given of a Sute brought at the Common Law upon a Charter-party viz. the 28 of Elizabeth which was on the Merchants part for breach of Covenant viz. for not staying in a Port of discharge so many dayes as were agreed upon for which the Owner was condemned in 500 l. without any respect to the Loss or Damage which the Merchant had sustained And if it be considered how many clauses there are in Charter-parties and Covenants of things to be performed for which the Owners are bound under a general penalty if upon every breach advantage should be taken in extremity no man would have great comfort in hiring out Ships to the Sea And it may be observed that
there is no President that ever any man sued for Freight at the Common Law which argues much difficulty in that way as probably the performance of the Voyage being to be maintained by such proofs as cannot be produced in those Courts And whereas it is affirmed That infinite Prohibitions have been granted in causes commenced in the Admiralty upon Charter-parties it must follow that thereby was occasioned infinite loss to the Owners of the Shipping it being most probable by what hath been observed That the cause for Freight being stopped in the Admiralty there was no means to recover the same in the Courts of the Common Law For that is a certain Rule That that Merchant which declines that Court knows he is in no danger elsewhere and it falls out many times That for long Voyages great summs are due for Freight and Merchants not alwayes having good success are sometimes put to their shifts but how far it stands with the dignity of the High Courts to countenance or in truth afford protection to such shifts we leave them to consider but no man can conceive otherwise than that those courses must needs more weaken the Shipping of the Kingdome than divers Ordinances and Constitutions intended for the maintenance thereof can possibly advance the same Besides the decay of Shipping these things conduce to the impoverishing of Mariners who are the life of Shipping for Freight is said to be the mother of wages and the Owner losing his Freight the Mariner cannot so well obtain his wages and in consequence must betake himself to some other course of life The like inconvenience falls out in Trade and Commerce when Prohibitions are granted for Contracts or things done in partibus exteris transmarinis The Merchant if he can avoid the Admiralty where he must answer upon Oath and proof may be made by Commission thinks himself secure from any danger at the Common Law And although it may be supposed that remedy may be given in the Chancery yet howsoever it is possible it is not usual for that Court to send Commissions into Forein parts and the pretence is for the right of Jurisdiction in the Kings Courts of the Common Law without respect to the Chancery to which sir Ed. Cook seems to be no great friend FINIS Articuâ—i Admiralitatis The processe and proceedings in this Court are in the name of the Lord Admiral The Title of the Complaint Objâ—ct 1. Answer Object 2. Answer See hereafter in the proof by Judgements Judicial Presidents Object 3. Answer 8 Eliz. Cap. 5. Object 4. Answer Object 5. Answer 13 R. 2. Cap 3.15 R. 2. Cap. 5. 2 H. 4. Cap. 11. Object 6. Answer Object 7. Answer Object 8. Answer Assert 1 Commene sur les Cutumes de Normandy Te dâ— Vâ—â—ces Orat. pro Lege Mamlia Proâ—heioâ— l. 2. lâ— 11. L. Deprecatio D. de l. Rhod D Dominio Maris l. 1. c. 10. Orbis maritâ—â—i lib. 1 c. 30. Tract de Navigat et mercatura Dâ— Sulseudis Tâ—t de Officio Admâ—â—alli Praefat del Cont. solato de c. 44. Partid 5. et 9. Fontavon Les Edicts de Flance Tom. 3. Arâ—â—â— 19. Flores â—â—ar sae ad â—â—deprecatio A bridg of Sea Laws c. Part. 1. c. ad Sect. 3. c. 8. Sir Iohn Hayward in the life of Ed. 6. ad Sect. 3. c. 32. p. 39. Offic. 3. De Dom. Maris l. 2. c. 28. ad cap. 32. De Dom. Maris p. 254. Coment on Liltt Sect. 234. Part. 1. c. 17. Assert 2 Syntag. l. 47. c. 37. Petit de Legib. Atticis in Verrem 7. Decad. 3. l. 3. l. 46. ad Senatus Trebes l. Lib. 14. 1 ult C. de Commercijs cap. 20. Morisonis l. 2. c. 27. Sansovinus lib. 17. Chassan Catal. p. 9. cons. 26. Freeca de offic Admir Moris l. 2. c. 22. Edit per Fontan Tit. 2. c. 14. Abrigd c. 1 De Dem. Maris l. 2. c. 27. Iurisdictiones p. 142 Selden l. 2. c. 16. Assert 3 Tit. de Varlâ—t Gâ—omat verb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iac. Godefred Comment ad 1. Deprecatio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 33. Cap. 24. Partid 5. 9. Tit. de Vareos Lenthal alii contr D. Will. Russel alii Assert 4 Iurisd of Courts c. 6. F. 127. De Dom. Maris l. 18 c 17. â— 2 Phil. Mar. Iurisd of Courts p. 330. Gloss. â— Admiral Iurisd of Courts p. 142. Ibid. 144. Lib. 2. c. 16. Assert 5 Notes upon Fortâ—â—cue B 6. p 29. v. 557. Lex Mercat p. 1. cap. 21. P. 1 cap. 24 D. lib. tit 2. C. lib. 4. t. 33. D. Vsâ—ris cap 2. Comment in Littleton Sect. 43. Iurisdict of Courts p. 330. Artic. 49. De Vusuris c. 2. l. exigere D. de Iudiciis Donatio in Matrimonium Sect. 136. P. â— c. 24. Assert 6 l. 39. D. de verb. signif De Dominio Maris lib. 2. cap. 18. Iurisdict of Courts p. 283. lib. 2. de Eaux Forests art 1. cap. 1. cap. 32. p. 31. Lib. 2. c. â—4 p. 188. Assert 7 B. b. p. 3. p. 157. P. 1. c. 13. P. 1. c. 13. 8 Carol. Sir Christopher Wray L. chief Iustice Dr. Davy Lewis Iudge of the Admiralty 1 Request Answer 2 Request Answer 3 Request Answer 4 Request Answer 5 Request Answer Stat. 1. c. 2. Assert 8 Cook 4 Reports p 29.3 H 6 14 â— 1â— H. 7.9 E. â— p. 28. p. 15. Assert 9 Comment upon Magna Chart. Fol. 28. Sholes syntag 47. â—it 37. Petitus de Legibus Atticis l. 5. tit â— C. de Naufragiis l. 5. ibi Cujacius
to be performed either upon the Seas or beyond the Seas yet is the same to be tryed and determined by the ordinary course of the Common-Law and not in the Court of the Admiralty And therefore when that Court hath incroached upon the Common-Law in that case the Iudge of the Admiralty and Party suing there have been Prohibited and often times the party condemned in great and grievous dammages by the Laws of the Realm That the Clause of non obstante statuto which hath foundation in his Majesties Prerogative and is current in all other grants yet in the Lord Admirals Patent is said to be of no force to warrant the Determination of the Causes committed to him in his Lordships Patent and so rejected by the Judges of the Common-Law Without all question the Statutes of 13 R. 2. Cap. 3.15 R. 2. Cap. 5. 2 H. 4. Cap. 11. being Statutes declaring the Iurisdiction of the Court of the Admiral and wherein all the Subjects of the Realm have interest cannot be dispenc'd with by any Non obstante and therefore not worthy of any answer but by colour thereof the Court of the Admiralty hath contrary to those Acts of Parliament incroached upon the Iurisdiction of the Common-Law to the intolerable grievance of the Subjects which have oftentimes urged them to complain in your Majesties Courts of Ordinary Iustice at Westminster for their relief in that behalf To the end that the Admiral Jurisdiction may receive all manner of impeachment and interruption the Rivers beneath the first Bridges where it ebbeth and floweth and the Ports and Creeks are by the Judges of the Common Law affirmed to be no part of the Seas nor within the Admiral Jurisdiction and thereupon Prohibitions are usually awarded upon actions depending in that Court for Contracts and other things done in those places notwithstanding that by use and practice time out of mind the Admiral Court have had Jurisdiction within such Ports Creeks and Rivers The like answer as to the first and it is further added that for the Death of a man and of Mayhem in those two cases onely done in great Ships being and hovering in the main stream only beneath the points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other causes but in those two onely the Admiral hath cognisance But for all Contracts Pleas and Quereles made or done upon a River Haven or Creek within any County of this Realm the Admiral without question hath not any Iurisdiction for then he should hold plea of things done within the body of the County which are tryable by the verdict of Twelve men and meerly determinable by the Common-Law and not within the Court of Admiralty according to the Civil Law for that were to change and alter the Laws of the Realm in those cases and make those Contracts Pleas and Quereles tryable by the Common-Laws of the Realm to be drawn ad aliud examen and to be sentenced by the Iudge of the Admiralty according to the Civil Laws and how dangerous and penal it is for them to deal in these cases it appeareth by Iudicial Presidents of former ages See the answer to the first Article That the agreement made in Anno Dom. 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain execution of Admiral Jurisdiction is not observed as it ought to be The supposed agreement mentioned in this Article hath not as yet been delivered unto us but having heard the same read over before his Majesty out of a paper not subscribed with the hand of any Iudge we answer that for so much thereof as differeth from these Answers it is against the Laws and Statutes of this Realm and therefore the Iudges of the Kings Bench never assented thereunto as is pretended neither doth the Phrase thereof agree with the Termes of the Laws of the Realm Many other Grievances there are which in discussing of these former will easily appear worthy also of Reformation This Article is so General as no particular answer can be made thereunto onely it appeareth by that which hath been said That the Lord Admiral his Officers and Ministers principally by colour of the said void non obstante and for want of Learned advice have unjustly incroached upon the Common Laws of this Realm whereof the marvail is the lesse for that the Lord Admiral his Lieutenants Officers and Ministers have without all colour encroached and intruded upon a Right and Prerogative due to the Crown in that they have seized and converted to their own uses Goods and Chattels of infinite value taken by Pyrats at Sea and other Goods and Chattels which in no sort appertain unto his Lordship by his Letters Patents wherein the said non obstante is contained and for which he and his Officers remain accountable to his Majesty And they now wanting in this Blessed time of Peace causes appertaining to their natural Iurisdiction they now incroach upon the Iurisdiction of the Common-Law lest they should sit idle and reap no profit and if a greater number of Prohibitions as they affirm have been granted since the great benefit of this happy Peace than before in time of hostility it moveth from their own encroachments upon the Iurisdiction of the Common Law so that they do not onely unjustly incroach but complain also of the Iudges of the Realm for doing of Iustice in these cases The particular Authorities promiscuously alleged by Sr. Edward Coke are distinctly inserted in the Chapters following in such places as they seem to concern THE JURISDICTION of the Admiralty of England Asserted That in all places where Navigation and Trade by Sea have been in use and esteem and particularly in England special Lawes have been provided for Regulating the same LA Mer a ses loix comme la terre The Sea saith Godfrey a learned Author hath its lawes as well as the Land And it is certain that Navigation was no sooner invented and men had experience of the commodity proceeding from Negotiation by Sea but they established lawes for the maintaining and regulating the same So much may bee confirmed by what is observable from the use and practice First of those Nations and States which border on the Mediterranean Seas and secondly of those which confine on the Western Ocean and the Seas Northward Touching the first Amongst the Grecians the Inhabitants of the â—sle of Rhodes have been most eminent for their policy in the affaires of the Sea Cicero saith Rhodiorum usque ad nostram memoriam Discipliplina navalis gloria remansit And Constantinus Harmenopulus a famous Judge at Thesolonica and Conservatour of the law there gives that credit to their Lawes that he affirmes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. All businesse concerning Navigation and all causes concerning things done at Sea are decided by the Rhodian Lawes
recited in the Solemn form of the Admiralls Commission by Mr. Selden as sufficient to his purpose and then saith he follow many things declaring that most ample power and Jurisdiction amongst which is expressed in Civil Causes that to him it is granted Ad cognoscendum de placitis c. To hold Conusance of Pleas Debts Bills of Exchange Policies of Assurance Accounts Charter-parties Contractions Bills of Lading and all other Contracts which may any wayes concern Moneys due for freight of Ships hired and let to hire moneys lent to be paid beyond the Seas at the hazzard of the lender and also of any Cause Businesse or Injury whatsoever had or done in or upon or through the Seas or publique Rivers or fresh Waters Streams Havens and places subject to overflowing whatsoever within the flowing and ebbing of the Sea upon the Shoares or Banks whatsoever adjoyning to them or either of them from any the said first Bridges whatsoever towards the Sea throughout our Kingdoms of England and Ireland or our Dominions aforesaid or else where beyond the Seas or in any Ports beyond the Seas whatsoever with divers other Clauses containing power of coercion for the maintenance of that Jurisdiction By the Commission of Oyer and Terminer granted likewise under the Great Seal according to the Statute of the 28th of Henry the 8. chap. 15. and other Statutes for the punishing of Offences and matters Criminal committed within the Jurisdiction of the Admirall Power is granted in the Kings name to hear and determine De omnibus singulis proditionibus c. of all and singular Treasons Robberies Murthers Felonies and Consederacies c. as well in and upon the Sea or any River Port or Fresh-water Creek or place whatsoever within the flowing of the Sea to the the full beneath the first Bridges towards the Sea as upon the shoar of the Sea or elsewhere within the Kings Maritime Iurisdiction of the Admiralty of the Realm of England and the Dominion of the same As well against the Peace and the Laws of the Land as against the Kings Laws Statutes and Ordinances of the Kings Court of Admiralty And also touching all and singular other matters which concern Merchants Owners and Proprietaries of Ships Masters Shipmen Mariners Shipwrights Fisher-men Workmen Labourers Saylours Servitours or any others That in all places where Iudges have been appointed for Sea businesses as also in England certain Causes viz. such as have Relation to Navigation and Negotiation by Sea have been held proper for their Conusance MAritime Laws saith Godeâ—ry concern persons or Dealings between Merchants and Sea-men which is agreeable to the subject matter of the several Laws mentioned in the first Chapter and what appeares to have belonged to the office of Maritime Judges Amongst the Grecians Causes happening betwixt Merchants and Sea-men were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes Concerconcerning Trade as Julius Pollux and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas testifies The Rhodian Lawes although as they are now extant are not ranked under distinct Heads or Titles yet they may be reduced to these particulars As first Concerning hiring freighting of Ships Secondly Concerning transporting Passingers and Goods Thirdly Touching the delivery ad discharging the things received in good Condition Fourthly Touching Contributions for Losses in Common danger and for salvage of Goods Fifthly For borrowing and trusting of money for Sea-voyages Sixthly Concerning Mariners duties their wages and the like The same were the matters taken into Cosideration when the Roman Senate entred into a Consultation to settle the businesse of the Sea For when Tiberius Claudius had signified to them that the Sea-men and Merchants trading by Sea had besought him that such businesses which were incident to the Sea might be reduced into some order Nero then a Senator advised that some might be sent to the Isle of Rhodes who should diligently enquire and take notice of what was there observed Concerning Mariners Sea-men Merchants and passengers Goods put on Board shipps Partner-ships Building Buying or Selling of Ships Entrusting Gold and Silver and divers other things All which was done accordingly as appeares by the titles of the Roman Civil Lawes into which the Rhodian Laws were inserted and by the Laws touching Sea affairs which afterwards the Greek Empire received from the Romans as in the Title De Nauticis Obligationibus c. Touching the obligations or duties of Mariners and all manner of actions which may be brought concerning Ships or those who sail in Ships Owners Masters or Passengers Moreover touching wrecks of Ships casting forth of Goods and Contributions and also Fisher-men and Fishing The same businesses also are regulated by the Constitutions of the Consolato del Mare in which are conteined the Statutes and Ordinances of Antient Authority provided for all Causes of Merchandising and Navigation as it is more fully signified in a Chapter of that Book Nello progresso di questo libro In the progresse of this book it is declared how the Masters of Ships ought to demean themselves towards Merchants Mariners Strangers and all other sorts of people which passe in their Ships and also how Merchants ought to perform with Masters of Ships and how Strangers and others ought to pay fraight for the transporting of their persons c. All which are made good in the particular Ordinances and Constitutions therein conteined The Sea-Lawes in the Spanish Partidaes have the same scope as it is in the Title We intend here to speak of shipping hired to undergoe the Adventure of tbe Sea and we will shew what things the Master of the Ship ought to observe towards the Merchants and how the dammage that shall happen to goods cast over board by occasion of storm ought to be divided and of the price due for the hire of Ships and of other matters with may concern the same affair So much is likewise signified in the Title of the Laws of Oleron which in the Edition annexed to the Customes of Normandy are called Ordonances Royaul touchant le fait de la Mere as also Judgments de la mere des nef des Mariners aussi des Merchants de tout leur estre and in the Edition set out by Peter Garrias La maniere comme les Maestres de Navire The manner how Masters of Ships Merchants and Mariners ought to regulate and govern themselves according to the Iudgements of the Roll of Oleron Notwithstanding these Examples of the usages of all other Nations some amongst us as take upon theÌ„ to determine that to the Jurisdiction of the Admiralls of England no special or certain Causes do belong so the Lord Hobard in Audly and Iennings Case affirms That their Jurisdiction is not in respect of any certain Causes as the Causes of Tithes and Testaments are in the Spiritual Court but only in respect of place and no doubt but Sir Edward Cook and others who talk so much of Altum Mare are
Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
forth That the Agreement made in anno Domini 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain Execution of Admiral Jurisdiction was not observed to which Sir Edward Cook answers that that supposed agreement had not been delivered unto them but having heard the same read before his Majesty out of a Paper not subscribed with the hand of any Judge they answer that for so much thereof as differs from their present Answers it was against the Laws and Statutes of the Realm and therefore the Judges of the Kings Bench never assented thereunto as it is pretended neither doth the phrase thereof agree with the Terms of the Laws of the Realm It is not probable that Dr. Dunn then Judge of the Admiralty would have produced such an Agreement to the Judges before the King but that he had some ground for the same which being supposed it may as well inferr that those Concessions were agreeable to the Laws and Statutes of the Realm because those Judges did assent unto them as that they did not assent because they were not agreeable to the same And it may as well be doubted whether those things wherein those Answers at that time did differ from the Resolutions of all the Judges in the 8. of King Charls were agreeable to the Laws and Statutes of the Realm as it is confidently affirm'd that wherein those Concessions did differ from those Answers were against the same wherein the phrase of the Requests and Answers is not agreeable to the terms of the Common Law is not so much considerable as how the matters therein contained may consist both with Law and Equity and to that end it may not be amiss to recite them as they are extant in several Manuscripts in which are collected things of those times remarkable both concerning the Ecclesiastical Courts and the Court of Admiralty as followeth 12. Of May 1575. The Requests of the Judge of the Admiralty to the Lord chief Justice of her Majesties Bench and his Collegues with their Answers to the same That after Judgement or Sentence given in the Court of Admiralty in any cause or Appeal made from the same to the high Court of Chancery it may please them to forbear the granting of any Writ of Prohibition either to the Judge of the said Court or to her Majesties Delegates at the sute of him by whom such Appeal shall be made seeing by choice of Remedy in that way in reason he ought to be contented therewith and not to be relieved any other way It is agreed by the Lord chief Justice and his Collegues that after Sentence given in the Delegates no Prohibition shall be granted And if there be no Sentence if a Prohibition be not sued for within the next term following Sentence in the Admiralty Court or within two terms after at the farthest no Prohibition shall pass to the Delegates That Prohibitions hereafter be not granted upon bare Suggestions or Surmises without summary Examination and Proof made thereof wherein it may be lawfull to the Judge of the Admiralty and the party defendant to have Counsel and to plead for the stay thereof if there shall appear cause They have agreed that the Judge of the Admiralty and the party defendant shall have Counsel in Court and to plead to stay if there may appear evident cause That the Judge of the Admiralty according to such an antient Order as hath been taken by King Edward the first and his Councel and according to the Letters Patents of the Lord Admiral for the time being and allowed by other Kings of the Land ever since and by custom time out of Memory of man may have and enjoy cognition of all Contracts and other things rising as well beyond as upon the Sea without let or Prohibition This is agreed upon by the said Lord Chief Justice and his Collegues That the said Judges may have and enjoy the knowledge of the breach of Charter-parties made betwixt Masters of Ships and Merchants for Voyages to be made to the parts beyond the Sea and to be performed upon and beyond the Sea according as it hath been accustomed time out of mind and according to the goodâ— meaning of the Statute of 32. of Henry 8. chap. 14. though the same Charter-parties be made within the Realm This is likewise agreed upon for things to be performed either upon or beyond the Sea though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. cap. 14. That Writs of Corpus cum Causa be not directed to the said Judge in causes of the nature afore-said and if any happen to be directed that it may please them to accept of the Return thereof with the Cause and not the Body as it hath alwayes been accustomed If any Writ of this nature be directed in the causes before specified they are content to return the Bodies again to the Lord Admirals Gaol upon Certificate of the cause to be such or if it be for contempt or disobedience to the Court in any such cause Touching the Resolutions of all the Judges 8. Caroli it may be considered That in the presence of the Kings Majesty and twenty three Lords and others of his Majesties Councel they were subscribed unto by all the Judges viz. Thomas Richardson Robert Heath Humphrey Dawenport Iohn Denham Richard Hutton William Iones George Crook Thomas Trevor Iames Weston Robert Barkley Francis Crawly and also by Henry Martin Judge of the Admiralty and William Noy the Attorney general and the Transcript thereof was ordered to be Entred in the Register of the Councel causes and the original to remain in the Councel chest 18. Feb. 1632. Sir Edward Cook concerning the answers and resolutions of the Judges to those things which he calls Articuli Cleri 3 Iacob saith That although they were not enacted by the authority of Parliament as the â—tatute of Articuli Cleri in the 9. of Edwaâ—â— 2. was yet being resolved unanimously by all the Judges of England and the Barons of the Exchequer they are for matters of Law of highest authority next unto the Court of Parliament And it may be thought that these resolutions of all the Judges touching the Jurisdiction of the Admiralty ought to be of no lower esteem the rather for that the unanimity of all the Judges to the former must be taken upon the credit alone of Sir Edward Cook but as to the latter the Evidence thereof doth appear by the joynt subscriptions of all before named which is likewise attested by Sir George Crook who was one of them who in his reports of Hillary term 8 Caroli under the title of Resolutions upon causes of Admiral Jurisdiction writes that it was agreed as followeth First if sute should be commenced in the Court of Admiralty for Contracts or other things personally done beyond the Sea no Prohibition is to be
awarded Secondly if sute be before the Admiral for freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas though the Charter-party happen to be made within the Realm so as the Penalty be not demanded a Prohibition is not to be granted But if the sute be for penalty or if question be made whether the Charter-party be made or no or whether the Plaintiff did release or otherwise discharge the same within the Realm this is to be tried in the Kings Courts and not in the Admiralty Thirdly if sute be in the Admiralty for building amending saving or necessary Victualling of a Ship against the Ship it self and not against any party by name but such as for his interest makes himself a party no Prohibition is to be granted though this be done within the Realm Fourthly although of some causes arising upon the Thames beneath the Bridge and divers other Rivers beneath the first Bridge the Kings Courts have conusance yet the Admiral also hath Jurisdiction there in the point especially mentioned in the Statute of 15. of Richard 2. and also by Exposition and Equity thereof he may enquire of and redress all Annoyances and Obstructions that are or may be any Impediment to Navigation and passage to or from the Sea and also to try personal Contracts and Injuries done there which concern Navigation on the Sea and no Prohibition is to be granted in such cases Fifthly if any be imprisoned and upon habeas Corpus brought it be certified that any of these be the cause of his Imprisonment the party shall be remaunded Subscribed the 4. Feb. 1632. by all the Judges of both Benches Sir George Crooks Reports being published by Sir Harbotle Grimston are approved and allowed as for the Common benefit by the Judges then being viz. by Iohn Glynn Oliver St. Iohn Edward Atkins Robert Nicholas Matthew Hales Hugh Windham Peter Warburton and Iohn Parker It may be presumed that what so many persons Eminent both for their place and also for their knowledge of the Laws and Statutes of the Realm did so deliberately and cautiously resolve upon and others of like quality have countenanced ought to be received and respected as sufficient Authorities as to those points whereof they did declare their Resolutions notwithstanding the confident opinions of any others either private or singular persons to the contrary And that the Kings Majesty and his Councels approbation being added thereunto should be of force enough to settle all doubts and differences concerning the same the rather for that antiently as before is shewed the Kings of England with their Councel only have made Constitutions concerning the Admiralty and that in point of Jurisdiction and it is apparent by the ancient Record cited both by Mr. Selden and Sir Edward Cook That the most famous Prince King Edward the 3. in whose time the Admiralty received its chief establishment in the 12. year of his Reign did consult and advise with his Councel and his Judges concerning the same And it may seem strange that whereas by the Statute of the 13. of Richard the 2. whose Acts are insisted upon as the greatest obstructions to the Admirals Jurisdiction the Kings Councel alone are enabled to decide what belongs to the Constables and Marshals Jurisdiction the King himself with his Councel and Judges should not have as much power to determine what belongs to the Jurisdictions of his Admiral That the Courts and Iudges of the Common Law do intermeddle and interrupt the Courts of Admiralty in causes properly belonging to the same HItherto it hath been Endeavour'd to be made appear That the proceedings in the Courts of Admiralty in the chief points in difference with the Courts of Common Law may consist with the Laws and Statutes of the Realm It may now be taken into Conâ—ideration how far the proceedings of the Courts and Judges of the Common Law in intermedling with causes properly belonging to the Admiralty and in obstructing the proceedings of that Court may be justified By the former is intended their drawing of such causes by actions of Trover and of Trespass to their Conusance by the later their disparaging of Stipulations and prescribing the forms of libells in such causes The former may the rather be insisted upon in regard Sir Edward Cook doth so often and so earnestly in general inveigh against the encroaching of the Court of Admiralty upon the businesses belonging to the Courts of Common Law and in particular where he chargeth That in the blessed time of peace those who belong to that Court wanting businesses proper to that Jurisdiction do encroach upon matters belonging to the Kings Courts lest they should sit idle and have nothing to do the like practice of encroaching being far more unexcusable in those who belong to the Kings Courts which do alwayes abound with businesses sufficient for the same Concerning the Actions of Trover Amongst the grievances complained of by the Admiral 8 Iacob It is presented in the first place That whereas the Conusance of all Contract and other things done on the Sea belongeth to the Admirals Jurisdiction the same are made triable at the Common Law by supposing the same to have been done in Cheap-side or such places And under favour the answer thereunto is neither clear nor direct nor to the purpose For the ground of that answer being laid That the Admiral hath no Conusance of any thing done within any County it is said That it is not material whether the place be upon the Water Infra fluxum Aquae but whether it be upon any water within the County wherefore it is acknowledged That of things done upon the Sea out of any County the Admiral ought to have Jurisdiction and that no presidents can be shewed that any Prohibition hath been granted for any Contract Plea or Quarrel for any Maritine cause done upon the Sea In this Answer it is confest That the Admiral ought to have Jurisdiction of things done on the Sea and that no Prohibitions have been granted for any such causes but whether by the supposal or fiction of a ships arriving in Cheap-side the Courts of Common Law do hold Plea of things done on the Sea it is nether confessed nor denied much less is there any reason given for the same Where it is said It is not material whether the place be upon the water infra fluxum refluxum Aquae but whether it be upon any water within the County That may be true in respect that it is supposed that all things done in the County belongs to the Conusance of the Common Law but when the place where a thing is done belongs apparently to anothe Jurisdiction which pretends as well to the right of the place as to the right of the cause the place of the action can in no wayes be suppressed and another suggested in the room thereof for if that be permitted the one Jurisdiction being the greater a more potent