those matters which belong unto him onely upon the Sea the other Cases of double Damages for ought appears to the contrary might be for matters of Trespass committed likewise by Force and Arms. Touching Praemunires brought for suing in the Admiralty Court Sir Edw. Cook saith That they being brought upon the Statute of the 16 of King Rich. 2. for suing in Curia Romana aut alibi are so evident and of so dangerous a consequence as no application shall be made thereof And for the dangerous consequence it is most true for that the penalty intended in that Statute extends to the imprisonment of the person during pleasure and the loss of all his goods and of the profits of his Lands during life and for the application which he forbears it may be conceived that his meaning was that the Admiral or his Judge might be made liable thereunto but for the Evidence that by Curia Romana aut alibi the Court of Admiralty should be understood under his favour it is not so clear nor if the Statute be well considered can it with any reason be maintained the word Alibi or elsewhere in that Statute was in truth intended of Avignion in France or some other place to which the Pope and his Court in those times did usually remove and that Statute being intended to exclude the forein authority of the Pope it might be thought necessary to debar the people of this Kingdome from having intercourse to the Popes Consistory whether at Rome or any where else and when the Popes authority and his Laws were in force in this Kingdome and no way depending upon the Crown the word Alibi or elsewhere was held to extend to Bishops Courts if they medled with temporal causes belonging to the Kings Courts especially if they took upon them to reverse or disparage Judgements given in the Courts of Common Law but how the word Alibi should be applied to the Kings Court of Admiralty never relating to any Forein power and proceeding onely by those Laws which are allowed by the King to be in force in that Court it is a mystery beyond any ordinary imagination It may be further noted that although it be said that the two Praemunires were brought upon such occasions yet it doth not appear that any Judgement was given upon either of them Lastly For confirmation and conclusion of this Point it may be added that before the King and his Councel it was likewise agreed unto by all the Judges That the Admiral may inquire of and redress all Annoyances and obstructions in Navigable Rivers beneath the first Bridges that are any impediment to Navigation and passage to and from the Sea and also try all personal Contracts and injuries done there which concern Navigation upon the Sea and that no Prohibition is to be granted in such Cases That the Admiral of England may hold Plea of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea TO maintain that the Court of Admiralty may hold Plea of Contracts and other things done beyond the Sea It is alleged First That by an Ordinance made by King Edward the first and his Lords at Hastings which is extant in the antient Book of Admiralty it was ordained that Charum Contract c. That every Contract made between Merchant and Merchant or betwixt Merchant and Mariner beyond the Sea or within the flood-mark shall be tried before the Admiral and no wayes elsewhere Secondly It may be taken into consideration That such businesses amongst Merchants and Seamen are to be determined according the Civil Law and equity thereof as also according to the customes and usages of the Sea Mr. Selden in his Notes upon Fortescue observes out of Bartolus Quod in Curia mercatorum debet judicari ex aequo bono omissis juris solennitatibus which the Admiralty Judges may and do observe but the Courts of Common Law hold they must do otherwise Malines relates an instance of a Merchant-stranger who having sold Commodities to three several Merchants of London took one Bond of them all for the payment of 300 l. and one of them breaking and being imprisoned he was contented to compound with him for the fifth part of his Debt or for 20 l. in lieu of a 100 l. conceiving him as a third party to be liable for no more and having received that summ gave him a release and afterwards the two other parties neglecting to pay him their parts he was advised to sue them at the Common Law where he was given to understand That if a man release one of his debtors who is bound with others by way of acquittance they are all released and acquitted thereby which was contrary to the rule of Equity and that simplicity and just dealing which is expected amongst Merchants which do not admit that a mans action should operate beyond his intention and that a favour yeelded to one in necessity should not extend further to his prejudice in respect of those which were in better condition Thirdly to the like purpose it is observed that in Contracts and Bargains betwixt such persons those solemnities are not required which are necessary in Deeds at the Common Law as of signing sealing and delivering to make their Bills and Obligations of force and the bearers of such Bills according to the course of Merchants shall be admitted to demand and recover without Letters of Attorney Fourthly It is considerable that Instruments made beyond the Sea have usually Clauses relating to the Civil Law and to the Law of the Sea Malines shews That when two or three take up money at interest and all binde themselves as Principals generally according to the Civil Law and custome of Merchants every person is bound but for his own part and therefore where it is intended that for the better security every man should be bound in solidum in the instrument of the Contract ther is a declaration and renunciation made of all privileges and especially of those which are called Exceptio divisionis ordinis excussiones and beneficii Epistolae divi Adriani In Wests Presidents concerning Merchants affairs there are the like forms as where a man obligat se haeredes Executores suos omnia bona mobilia immobilia praesentia futura tam ultra quam citra mare ubicunque existentia renuncians omnibus singulis exceptionibus c. and amongst the rest he declares the form of a gneral procuration to sue for Debts in a Forein Country wherein it is specified that power is given ad Libelles Petitiones c. articulos dandum datisque respondendum ad Lites contestandum de calumnia vitandâ— juramentum in animam constituentium praestandum all which are as strange to the Law of this Land as the places from whence they proceed Fifthly For that as Fortescue affirms Contracts and Bargains made amongst strangers in another Realm must be proved otherwayes than in the Courts
THE JURISDICTION OF THE ADMIRALTY Of England Asserted AGAINST Sr. EDWARD COKE'S Articuli Admiralitatis In XXII Chapter of his Jurisdiction Of COURTS By RICHARD ZOUCH Doctor of the Civil Law and late Judge of the High Court of ADMIRALTY LONDON Printed for Francis Tyton and Thomas Dring and are to be sold at their Shops in Fleetstreet 1663. Thomas Foley of Great Witley Court in the County of Worcester Esqr. TO THE READER I Do certifie and attest that the Treatise Entituled The Jurisdiction of the High Court of Admiralty asserted c. by Dr. ZOUCH was delivered into my hands by the Author himself to be Printed and which he intended to have Dedicated to his Royal Highness JAMES Duke of YORK Lord High Admiral of England Drs Commons Febr. 25. 1663. Tim. Baldwyn ASSERTIONS Concerning the JURISDICTION of the ADMIRALTY OF ENGLAND 1. THat in all places where Navigation and Trade by Sea have been in Use and Esteem and particularly in England Special Laws have been provided for regulating the same 2. That in all places where Laws have been provided for businesses concerning the Sea as also in England special Judges have been appointed to determine differences and to redresse offences concerning the same 3. That in all places where special Judges have been appointed for Sea affairs as also in England certain Causes viz. all such as have relation to Navigation and Negotiation by Sea have been held proper for their Conusance 4. That the Jurisdiction of the Lord High Admiral of England as it is granted by the King and usually exercised in the Court of Admiralty may consist with the Laws and Statutes of the Realm 5. That the Lord Admiral of England may hold Conusance of Contracts and Writings made at Land touching businesses of Navigation and Trade by Sea 6. That the Admiral of England may hold Conusance of things done in Ports and Navigable Rivers as touching damage done to Persons Ships and Goods Annoyances of free Passage and unlawfull Fishing 7. That the Lord Admiral of England may hold Pleas of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea 8. That the Courts and Judges of the Common-Law do intermeddle with and interrupt the Court of Admiralty in Causes properly belonging to that Court 9. That the Tryal of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Kingdome and the Subjects thereof than in the Courts of Common-Law Sir EDWARD COKE'S Jurisdiction of COURTS CAP. XXII The Court of the Admiralty proceeding According to the Civil LAW THe Complaint of the Lord Admiral of England to the Kings most Excellent Maiesty against the Iudges of the Realm concerning Prohibitions granted to the Court of the Admiralty 11 Febr. penultimo die Termini Hillarii Anno 8. Jac. Regis the Effect of which complaint was after by his Majesties Commandment set down in Articles by Dr. Dun Iudge of the Admiralty which are as followeth with answers to the same by the Iudges of the Realm which they afterwards confirmed by three kinds of authorities in Law 1. by Acts of Parliament 2. by Iudgements and Iudicial proceedings and lastly by Book cases Certain grievances whereof the Lord Admiral and his Officers of the Admiralty do especially complain and desire redresse THat whereas the Conusance of all Contracts and other things done upon the Sea belongeth to the Admiral Jurisdiction the same are made tryable at the Common-Law by supposing the same to have been done in Cheapside or such places By the Laws of this Realm the Court of the Admiral hath no Conusance power or Iurisdiction of any manner of Contract Plea or Querele within any County of the Realm either upon the Land or Water but every such Contract Plea or Querele and all other things rising within any County of the Realm either upon the Land or Water and also Wreck of the Sea ought to be tryed determined discussed and remedied by the Laws of the Land and not before or by the Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the water infra fluxum refluxum aquae but whether it be upon any water within any County Wherefore we acknowledge that of Contracts Pleas and Quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had by Twelve men the Admiral hath and ought to have Iurisdiction And no President can be shewed that any Prohibition hath been granted for any Contract Plea or Querele concerning any marine cause made or done upon the Sea taking that only to be the Sea wherein the Admiral hath Iurisdiction which is before by Law described to be out of any County See more of this matter in the answer to the sixth Article When Actions are brought in the Admiralty upon Bargains or Contracts made beyond the Seas wherein the Commom-Law cannot administer Justice yet in these causes Prohibitions are awarded against the Admiral Court Bargains or Contracts made beyond the Seas wherein the Common-Law cannot administer Iustice which is the effect of this Article do belong to the Constable and Marshal for the Iurisdiction of the Admiral is wholly consined to the Sea which is out of any County But if any Indenture Bond or other Specialty or any Contract be made beyond Sea for doing of any Act or Payment of any money within this Realm or otherwise wherein the Common-Law can administer justice and give ordinary remedy in these cases neither the Constable and Marshal nor the Court of the Admiralty hath any Iurisdiction And therefore when this Court of the Admiralty hath dealt therewith in derogation of the Common-Law we find that Prohibitions have been granted as by Law they ought Whereas time out of mind the Admiral Court hath used to take Stipulation for appearance and performance of the Acts and Judgments of the same Court It is now affirmed by the Judges of the Common-Law that the Admiral Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter over-throw of that Jurisdiction The Court of the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognisance as a Court of Record may do And for taking of Recognisances against the Laws of the Realm we find that Prohibitions have been granted as by Law they ought and if an Erroneous sentence be given in that Court no Writ of Error but an Appeal to certain Delegates does lye as it appeareth by the Statute of 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record That Charter-parties made only to be performed upon the Seas are daily withdrawn from that Court by Prohibitions If the Charter-party be made within any City Port Town or County of this Realm although it be
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
may soon swallow up the other not onely to the prejudice of the subjects for whose good the diversity of Courts were erected but also the wrong of the Prince from whom those Jurisdictions are derived Sir Thomas Rydlye in his view of the Civil Laws further shews how injurious to the Admiralty and unreasonable this practice is in regard that in Law no Fiction ought to be admitted but such as is both possible and equitable First That it ought to be Possible because otherwise it were to admit that by way of supposition which nature will not alow and therefore although one that is dead to some constructions of Law may be feigned to be alive if at that time any of his equals in age be still living yet one who dyed two hundred years since cannot to any purpose be supposed to be living all of the same age being long before dead Secondly The Fiction ought to be Equitable because if there be no reason for it it is altogether unnecessary and useless and therefore although the Law may admit a Fiction or supposition that a childe in the mothers womb is already born for its benefit in regard that otherwise it might be deprived of its filial portion or some other right in equity belonging to it yet where there is no such reason or equity it ought not to be admitted as vain and ridiculous but for the fiction of a ship to arrive in wardo de cheap where there is no water to bear or carry is of a thing utterly impossible and it is wholy void of equity because a Trial of any business thereupon cannot obtain any just and fait remedy thereby at the Common Law which might not have been had in the Court of Admiralty which is a more competent and proper Court for the trial of such things than any Court of the Common Law Secondly Concerning Actions of Trespass the Admiral in his ordinary capacity claiming no Jurisdiction of offences against the Crown but onely on the Sea and of wrongs and injuries done in other places without force or violence to make such causes triable in the Kings Courts it is suggested that they were done vi armis which is the usual form of Endictments of Trespasses in the Kings Bench as of cutting of a purse although in truth there were no fear nor violence used in committing the same Touching the interrupting and obstructing the proceedings in the Court of Admiralty in causes properly belonging to the same concerning Stipulations and Libels although it may be presumed that what Sir Edward Cook affirms That where the principal matter is acknowledged to be of Ecclesiastical Cognisance the Temporal Iudges ought not to call in question the form of proceedings though they be against the reason of the Common Law because Cuilibet in sua arte merito credendum that the same should be allowed in the Admiral Court Yet in the third Objection of the Complaint 8 Iacob it is shewed That whereas time out of minde the Admiral Court hath used to take Stipulations for appearance and performance of the Acts and Judgements of the same Court It is now affirmed by the Iudges of the Common Law that the Amiralty Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter overthrow of that Court The answer whereunto is That the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognizances as a Court of Record may do and for taking of Recognizances against the Law of the Realm we finde that Prohibitions have been granted as by the Law they ought And if an erronious sentence be given in that Court no Writ of Errour but an appeal to certain Delegates doth lye as it is apparent by the Statute of the 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record Whereunto it may be replied That some things done by or before the Admiral are matters of Record may be maintained from an ancient Ordinance of King Richard the first with advice of the Lords at Grimsby viz. That when the King writes by his Letters Patents to the Admiral to arrest Ships more or less for his service and that the Admiral should write to his Lieutenant to see things put in execution accordingly forasmuch as the Admiral and his Lieutenants are of Record After the Admiral shall have written to the King or to the Chancellour of England the names of the Ships arrested together with the names of the Owners and Masters of them in that case neither the Owner of the Ship nor the Master shall be admitted to say that the Ship is not arrested but admitting that the Court of Admiralty is not a Court of Record in ordinary matters no more are the Stipulations taken there such Recognizances as are required to be taken in Courts of Record by the Common Law those Stipulations causing no privileged obligations before other bonds nor extending to any part of mens Lands which is otherwise in Recognizances taken in Courts of Records by the Common Law And it may seem strange thâ—◠〈◊〉 Edward Cook acknowledging and â—â—â—â—â—ing the proceedings of that 〈…〉 according to the Civil Laws 〈…〉 Stipulations or bayls for the 〈◊〉 appearance and the performances of Deâ—crees and Sentences in â—hat Court prâ—scribed by the Civil Law Ne judicia sint elusoria and unversally practised where judicial proceedings are according to that Law as likewise in this Kingdome in the Constable and Marshals Court and in the Courts of the Universities proceeding by the Civil Law the same should not be allowed in the Admiralty Court And the complaint in this point may seem the more considerable in regard that to the publique Notaries about the Exchange with out Exception or Controll it hath been allowed That Merchants appearing before them in a manner nearer to the Recognizances of the Common Law do acknowledge bonds and bind Se Executores bona tam immobilia quam mobilia praesentia in futura And sometimes themselves being absent the same things are done in their namâ—s by their servants or factors Exhibiting Procurations from them to that purpose And it may be noted that amongst Sir Edw. Cooks Authorities there cannot be discerned any Statute Judgement or Book-case to make good the Answer to that Objection in the Complaint Secondly concerning Libells in the Court of Admiralty The Lord Hobard in Audly and Iennings case affirms that if a Contract in truth were made at Sea and in the Admirals Court it be laid generally without saying super alto mari a Prohibition might lye for the Libel must warrant the sure in it self But Justice Reeves in his Argument Paschae 22. Garoli differs from him in opinion and distinguishes betwixt a particular Jurisdiction created in diminution of the general Courts of Common Law and a particular Jurisdiction over things that never did belong to the Courts of Common Law
Councell Garsias Mastrilli sayes he hath all Jurisdiction both Civil and Criminal in Maritime causes exclusive to all others The King of Spain hath divers other Admirals both in Europe and the Jndies of equal power Marinus Siculus sayeth of the Admirall of Castile that he is next unto the Constable and hath supreme Authority over all that use the Sea and is held to be Lord and chief Commander of the Sea as it is also largely described in the Partidos besides for the dispatch of ordinary Maritime businesse by the same Laws Judges are appointed to reside in Port Towns and other places on the Sea Coasts which are to hear the causes of Sea-men concerning Freight of Ships and Contributions for goods cast over-board or any other matter which Judges were to proceed plainly without solemnities and with all expedition c. In France by an Ordinance of Henry the third made upon a survey of all other former Ordinances ratifyed by the Parliament of Paris The Office of the Admirall in the Kings name is thus declared 1. That of all Armies which shall be raised and set to Sea the Admirall of France shall be chief and our Lieutenant General and shall be obeyed in all Maritime Towns and places which are or may be without contradiction Secondly He shall have Jurisdiction Conusance and determination of all things done or committed on the Sea or shoars of the Seas likewise of all acts of Merchandise fishing freighting or letting to freight or breach of ships of Contracts made touching the matters afore-said of Charter parties of Sea briefs and of all other things whatsoever happening upon the Sea or shoars thereof as our Lieutenant General alone and to all purposes in the places afore-said which Jurisdiction Cognizance and determination we have interdicted to all other our Judges He shall hold his principal Court at the marble Table in the Palace at Paris and shall appoint Judges Deputies in Maritime Cities and Towns who shall hear ordinary matters happening within their Circuits and if any businesse fall out worthy of greater consideration they shall referre the same to him In Denmark the third place of dignity in the Kingdom belongs to the Admirall who is commonly called Ryâ—ks Admirall and as Morisotus writes He hath the same Right and Power as the Admirall of France In Scotland as VVellwood a Scotish man writes the Admirall and Judge of the Admiralty hath power within the Sea-flood over all Sea-faring men and in all Sea-faring Causes and debates Civil and Criminal So that no other Judge of any degree may meddle therewith but only by way of Assistance as it was found in the Action brought by Anthony de la Tour against Christian Martens 6 Novemb. 1542. The Admirall of England as Mr. Selden observes hath another manner of Right and Jurisdiction than the Admirall of France or other ordinary Admiralls for that the Jurisdiction over the Seas of England and Ireland and the Dominions and Isles of the same as a Province are committed to his Custody and Tuition as to a President to defend the same as in the Dominion of the King by whom he is Authorized The bounds of which Jurisdiction are limited and determined in those Seas and besides as the French and other Admiralls he hath the power over the Navy and the Government over the Sea-men and Jurisdiction over the persons and moveable goods which come under his Judicature pour raison ou occasion del faie de la mer which Jurisdiction hath no bounds but extends to the Mediterranean African and Indian Seas or any other far remote What Mr. Selden delivers concerning the Admirall of Englands special Jurisdiction in the first respect is confirmed by an ancient Record in French in Archivis of the Tower of London set out at large by Sr. Edward Cook the effect and tenour whereof is That whereas during the Warrs between Philip King of France and Guy Earl of Flanders Reginerus Grimbaldus Admirall of the French Navy had spoiled the Merchants of divers Nations sailing towards Flanders in the English Seas and Commissioners being appointed by the two Kings to hear and redresse the Complaints concerning the same the Deputies of the Prelates Nobility and Commonalty of the Towns of England and of divers Maritime Countries as of Genua Catalonia Spain Germany Zeland Holland Friesland and Norway declare That the Kings of England by reason of that Realm time out of mind have been in peaceable possession of the Soveraign Dominion of the Sea of England and of the Islands therein situate by ordering and establishing Lawes Statutes and Counter-mands of Armes Vessels otherwise furnished than for Merchandising and by taking security and giving protection in all Causes needful by ordeining all other things requisite for the maintaining of Peace and Right amongst all other People as well of other Seignieuries as of their own passing through the same And all manner of Cognizance and Jurisdiction high and low touching those Laws Statutes Ordinances Countermands and all other Acts which may appertain to the Soveraign Dominion afore-said and that A. D. B. Admirall of the Sea deputed by the King of England and all other Admiralls appointed by him and his Ancestors heretofore Kings of England have been in peaceable Possession of the said Soveraign Protection together with the Conusance and Jurisdiction and all things before mentioned thereunto appertaining except in case of Appeals to their Soveraign Kings of England for default of doing Right or giving wrong Judgment and especially in making Restraint doing Justice and taking security for the peace of all manner of People bearing Arms on the Sea or Ships sailing otherwise apparelled or furnished than belongs to Ships of Merchandise and in all other points in which a man may have reasonable Cause of Suspicion against them touching Robbery or other misdemeanours Besides the Jurisdiction Extraordinary of the Admirall of England concerning Protection against depredations in the English Seas as Mr. Selden writes his Ordinary Jurisdiction is over the persons and goods moveable which come under his judicature by occasion of businesses relating to the Sea is not only agreeable to the Jurisdiction of the French and other Admiralls but is also warranted by the Kings Commissions as it is apparent by antient and later Patents granted by the Kings of England in which the Admiralls of Englands Ahthority and Jurisdiction is expressely fully declared as followeth Damus Concedimus c. We give and grant to N. the Office of our great Admiral of England Ireland Wales c. And we make appoint and ordain him Governour General of our Navies and Seas of the Kingdoms afore-said And be it further known that we of our special Grace and certain knowledge do give and grant to the same our great Admirall and Governour of our Navies all and all manner of Iurisdictions Liberties Offices Fees Profits Preheminences and Privileges Whatsoever belonging or appertaining So far is
themselves perswaded and would perswade others to be of that opinion but it is apparent that it is not the place only but the nature of the Case happening within such a place that makes the Jurisdiction and therefore if a Contract of Marriage or a Testament be made at Sea the Admirall claimes no conusance thereof which he might do if the place alone were sufficient to give the Jurisdiction and so Godfry in his Comment upon the Customes of Normandy saith that the Iurisdiction of the Marshal of France and of the Admirall are limited to certain Causes and matters whereupon it followeth that they cannot Iudge but of things of which the Conusance belongs unto them for their Iurisdictions are not regulated onely by the Territory or place but also by the Causes and matters over which a competent power is granted unto them And so Justice Reeves in an Argument in Communi Banco delivered that he differed in opinion from the Lord Hobard and affirmed that the Cause as well as the place gave Jurisdiction for if a man upon the Sea do seal a Lease or an Obligation the Common Law shall have the Jurisdiction and not the Admiralty because the Cause is not Maritime and this he sayes agrees with the Lord Hobard himself in Bridgemans Case and Sergeant Callis in his Readings doth acknowledge That the King rules on the Sea by the Laws Imperial and the Roll of Oleron and others But that is saith he in the Causes of Shipping and of Merchants and Mariners And whereas the Sergeant sayth well and I suppose no man will deny but the Civil or Imperial Laws the Roll of Oleron and others by which I suppose may be understood the Articles of the Inquisition of Quinborough are of force in the Admiralty of England For further Illustration that there are certain Causes properly belonging to the Conusance and Jurisdiction of the Admiralty Court of England It may be more particularly deduced and shewed from these several and respective authorities And first as touching the particular Causes which may be deduced from the Civil Laws some things have been allready shewed out of what the Romans derived from the Rhodian Laws and if any will be further satisfied he may find it perspicuously declared in a Tract De Iure judicio Maritimo wherein the particular Causes not only Civil but also Criminal concerning Navigation Negotiation by Sea are summarily set down with Relation to the Text of the Civil Laws And touching the Laws of Oleron which are lesse obvious it may be observed that the particular Cases therein are as first Touching Ships hired for Sea-voyages and their proceedings in the same 1 How Masters and Mariners are to be satisfied when the Merchant provides not his goods ready to be laden at the time agreed upon 2 How the Master ought to consult with his Company before he put out of the Harbour and proceed with their advice and what he is lyable unto if he do otherwise 3 How the Master ought to make satisfaction when the Merchant is prejudiced by his stay in any place and is not proceeding in the voyage 4 How the Master in case his Ship be disabled by some misfortune may repair it or hire another or if the Merchant refuse what fraight may be demanded Secondly Touching the safe keeping and delivering of goods received into the Ships 1 How the Merchant shall be satisfied if his goods be damnified in the Ship by evill stowing or other bad usage and how the Master and Company may clear themselves 2 How the Master and Company are lyable unto the Merchant if any goods brought into the port of discharge miscarry in the unlading by occasion of the Tackling or Cordage which are found unfit Thirdly Touching the Engaging of Ships or goods in case of necessity 1 First Whether the Master wanting means to proceed in his Voyage may sell or dispose of the Ship without Commission from the Owners and how and in what case he may Engage some tackle or furniture of the Ship 2 How far in case of necessity the Master may intermeddle with the Merchants goods and if he dispose of any how he is to make accompt and give satisfaction Fourthly Touching Contributions to be made for loss upon occasion of Common danger 1 First How the Master with advice of those in the Ship or otherwise in extremity of tempest may cast out some mens goods to save themselves and the rest and how average or Contribution is to be made 2 How the Master in the tempest cuting down his Mast and casting it over Board to save the Ship and goods ought to have satisfaction from those whose goods were saved Fifthly Touching damages done by or betwixt several Ships First How and in what manner the Damage is to be born when a Ship sailing into a Port bruizes or brâ—aks another Ship riding there at Anchor Secondly How if two Ships riding at Anchor in a Haven and the water being low the Master of the one observing some danger from the Anchor of the other may give notice thereof to the Master of that ship and if he neglect to remove it may cause it to be done by his own Company and if he be hindred therein and damage done what reparation may be recovered Sixthly Touching the charge for hiring of Pilots and their duty 1 The Master being bound by Charter-party to pay Pilotage in what places and how far he is bound thereunto 2 How far the Pilot is liable to make â—atisfaction of the ships miscarriage under his charge and whether he be bound when he hath brought her into the Harbour if she miscarry by misplacing there There be many other Cases contained amongst these Judgements of Oleron but these may suffice for our purpose As the Roll of Oleron doth contain Judgements or Verdicts especially in Civil Causes which did belong to Maritime Judicature so in the Inquiâ—ition at Quinborough are presented matters Criminal and Offences concerning which antiently inquiry hath been made in the Admiralty Jurisdiction which may be reduced into these heads as First Offences against the King and Kingdome as 1 Of such as did furnish the Enemy with Victuals and Ammunition and of such as did Traffick with the Enemies without special Licence 2 Of Traytors goods detained in ships and concealed from the King 3 Of Pirats their Receivers Maintainers and Comforters 4 Of Murthers Man-slaughters Maymes and Pety-felonies committed in ships 5 Of ships arrested for the Kings service breaking the Arrest and of Sergeants of the Admiralty who for money discharge ships arrested for the Kings service and of Mariners who having taken pay run away from the Kings service Secondly Offences against the Publick good of the Kingdome as 1 Of ships transporting Gold and Silver 2 Of carrying Corn over Sea without special Licence 3 Of such as turn away Merchandizes or Victuals from the Kings Ports 4 Of Forestallers Regrators and of such as use false Measures Ballances
and Weights within the Jurisdiction of the Admiralty 5 Of such as make spoil of wrecks so that the Owners coming within a year and a day cannot have their goods 6 Of such as claim wrecks having neither Charter nor Prescription 7 Of Wears Riddles Blind-stakes Water-millsâ— c. whereby ships or men have been lost or endangered 8 Of removing Anchors and cutting of Buoy-Ropes 9 Of such as take Salmons at unseasonable times 10 Of such as spoyl the breed of Oisters or dreg for Oisters and Mussels at unseasonable times 11 Of such as fish with unlawfull Nets 12 Of taking Royal Fishes viz. Whales Sturgeons Purpoises c. and detaining the one half from the King Thirdly Offences against the Admiral the Navy and Discipline of the Sea 1 Of Judges entertaining Pleas of Causes belonging to the Admiral and of such as in Admiralty Causes sue in the Courts of Common Law and of such as hinder the Execution of the Admirals process 2 Of Masters and Mariners contemptuous to the Admiral 3 Of the Admirals shares of Weifs or Derelicts and of Deodands belonging to the Admiral 4 Of Fletson Jetson and Lagon belonging to the Admiral 5 Of such as Freight Strangers bottoms where Ships of the Land may be had at reasonable rates 6 Of Ship-wrights taking excessive wages 7 Of Masters and Mariners taking excessive wages 8 Of Pilots by whose ignorance ships have miscarried 9 Of Mariners forsaking their ships 10 Of Mariners Rebellious and dis obedient to their Masters In the same antient Book of the Admiralty there is a Copy of a more antient Enquiry touching Admiral Causes wherein some things relate to Constitutions made by King Richard the first at Grimesby viz. That ships arrested for the Kings service breaking arrest shall be confiscated to the King and by King Iohn at Hastings That no private man should appropriate to himself the benefit of any salt waters by Meers Ridles and the like and that the same should be pulled down And the fishing cryed common to all people was likewise ordered by King Iohn This may suffice to confirm that there were certain special Causes both Civil and Criminal which did antiently belong and properly to the Conusance of the Admiral and to shew that his Jurisdiction was not wholly confined onely to the Sea That the Iurisdiction of the Admiral of England as it is granted by the King and is usually exercised in the Admiralty Court may consist with the Statutes and Laws of this Realm FIrst it appears by antient Record of the time of King Edward the first De superioritate Maris That it was acknowledged by the Deputies of the Parliament of England and of divers other Nations That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas by prescribing Laws and Statutes for the preserving Peace and Justice and by exercising all kind of Authority in matters of Judicature and all other things which may concern his Soveraignty in the same which being granted his power to depute a Magistrate or Officer to those purposes with so much of his authority as he shall think fit cannot be denied Secondly That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral is agreeable to Commissions antiently granted and which have been passed from time to time by the Kings learned Counsel and by the Lord Chancellor or the Lord Keeper for the time being who have thereunto set the Great Seal and that the authority and Jurisdiction of the Constable and Marshal is designed by St Edward Cook by referring to Grants of those Offices antiently made by many several Kings with exception onely to one irregular precedent in the time of King Edward the fourth Thirdly That Mr. Selden shews that all the Patents of the Office of the Lord Admiral from the beginning of Queen Mary's time to the time of King Charles have been conceived after one and the same form and tenor as of Edward Lord Clintâ—on afterwards Earl of Lincoln under King Philip and Queen Mary of Charles Howard Lord Effingham afterwards Earl of Nottingham under Queen Elizabeth of Charles Duke of York after King Charles under King Iames and of George Duke of Buckingham under King Iames and King Charles to which may be added the Patent of Algernon Earl of Northumberland under King Charles the first and of Iames the most Illustrious Duke of York under King Charles the Second Fourthly That the Lord Admiral and his Deputies proceeding according to his Commission is expresly allowed by King Philip and Queen Mary where they by a Statute restraining the exportation of Corn without Licence make a special provision That that Act shall not be prejudicial or hurtfull to the Lord Great Admiral of England for the time being or to the King and Queens Majesties Iurisdiction of the Admiralty but that the said Lord Admiral or his Deputies shall exercise use and execute all kinds of Iurisdiction belonging to the Sea according to his or their Commissions which provision although it seems to have been made in respect of that Statute yet it shews what respect the King and Queen intended to their Lord High Admiral their own Admiralty Jurisdiction in all matters belonging to the Sea and to the Commission by them granted Against the Jurisdiction of the Admiral as is granted by the King and as it is exercized in the Court it is pretended in general That it is not agreeable First To several Acts of Parliament Secondly To divers Judgments Book-Cases and Judicial proceedings to which may be added the Resolutions of the Judges upon the complaint of the Admiral in Sir Edward Cooks Articuli Admiralitatis All which more specially may be reduced to three heads First Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm Secondly Where he meddles with other things done within the Bodies of Counties and Thirdly With such things as are made or done beyond the Sea The Acts of Parliament are First The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm Secondly That of the 15. of the same King chap. 3. which declares that he hath no Jurisdiction within Bodies of Counties Thirdly That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourthly That of the 5 of Elizabeth which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers The First of these being more general may in this place be considered the rest being more particular may in discussing of some other particular points to which they are appliable be examined That of the 13 Rich. 2. chap. 5. ordains that the Admirals and their Deputies shall not meddle of any thing done within the Realm but only of things done upon the Sea as it hath been used in the time of King Edward the