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
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