they were so few ot so mean as that they deserved no decision or determination at all I cannot see then how it can be possible but that these Custodes must necessarily have then even in those so ancient times a complete Jurisdiction for the regulating all maritime and sea affairs and for the deciding of all maritime and sea differences by those most exact Sea-laws before those times so well known unto so many Forreign Nations and by them so gladly received and put in use and execution and doubtless not unknown here for the reasons before exprest together with the antient Statutes of the Admiralty and those Laws of Oleron which as it plainly appears were introduced by Richard the First CHAP. VII Of the Exercise of the Sea-laws by the Graecians Athethenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile FRom the example of these Rhodians have all or most Princes and Common-wealths in Europe obteined their Laws continually constituted and appointed chief Captains Commanders Governors or Admirals over all their Ships sea-faring-men and sea-affairs to order rule and govern them by those Laws and to put the same in due execution distinctly and apart from and in no wise mixt or intermingled with those Laws whereby they regulated their Land-men and Land-businesses The Graecians have had from antient times and still have their several special Judges for hearing and determining of all differences happening between Merchant and Merchant Mariner and Mariner and between Merchants and Mariners and between Merchants and Owners of Ships and Owners of Ships and Mariners and between them and all others that had to do with them in their sea-trading and sea affairs And these Governors of their Fleets are termed or called their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or chief Governors The Athenians have likewise antiently had the like for the same purpose which they termed or called their Thesmothetie And the Romans had antiently their Archigubernii praefecti classis vel maris for their principal Governor Commander of their Fleet and Shipping but because of their great employment sometime at Sea sometime at Land they had their Magisteriani or Judiciarii or as Freccia saith their Comes Commerciorum for the Judicature of all maritime causes And when they came to be divided into Kingdomes and Republiques the Kingdoms had their Admirals and the Republiques their Consuls who had the Judicature of Freight c. The Italians have their l'Aamiraglio or Amirante and under them their li Consoli del mare for the decision of all causes maritime Spain hath its Adelantado and divers Admirals some for Europe some for the Indies all of equal power Naples hath an Admiral of great power over all seafaring men and all such as get their living by the Sea or are employed in building and furnishing of Ships with what necessaries soever and over all such as make it their Trade to take fish in the Sea c. And his Court is called Magna Curia from which there lieth no appeal only to the supreme Council all which he hath exclusivè to all others both for matters Criminal and Civil The Admiral of Castile hath supreme Authority over all that use the Seas and hath other Judges in Port-Towns for the dispatch of all ordinary businesses concerning Freight Avaridge and all other maritime affairs CHAP. VIII Of the Admiralty of France and Denmark BUt to come nearer home the Kingdome of France hath from antient times had Admirals and so affirmeth that learned man Mr. Selden Seculis in vetustioribus apud Gallos fuêre quidem Admiralli seu rerum maritimarum praefecti ita tamen ut eorum scriptores de dignitatis initiis haud parum discrepent saith he they are so antient that their Writers cannot agree when that dignity began Sed id plerumque aiunt reperiri sub Carolo Magno Rotlandum maris Britannici Aremoricani praefectum quem ex Eginharto vitae Caroli scriptore contemporaneo petunt But saith he in Eginharto non maris Britannici sed tantum Britannici littoris praefectus expressè is nuncupatur he was not Admiral of the British Sea but of the British Sea-coasts or Shoar Quo nomine non qui mari ut provinciae praest sed qui littori dignitatis limiti designatur For he setteth forth plainly in the same chapter that the Kings of France had no Dominion over those Seas Reges vero ipsos nullum tunc habuisse in mare imperium disertè scribit Johannes Tilius Curiae Parisiensis actuarius And there sets down Tilius his own words at large together with divers of other proofs throughout the same chapter which fully manifests the same Yet in the beginning of the same chapter he doth allow the French Admiral or their praefectus maris copiarum navalium in mari quocunque nautarum regimen jurisdictionem in personas res mobiles quae sub judice veniant pour raison ou occasion de faict de la mer id est ob causam aliquam à re maritima ortam And in confirmation of this Power and Jurisdiction and for the more plain declaration thereof the Office of the Admiral by the Parliament at Paris is since thus ratified and declared in the Kings name 1. That in all Armies which shall be raised and set out to sea the Admiral shall be and continue chief and our Lieutenant General shall be obeyed in all maritime Towns or Places which are or may be without contradiction 2. He shall have Jurisdiction Cognisance and determination of all things done or committed on the Sea or Shoars of the same likewise of all Acts of Merchandising Fishing Freighting or letting to Freight Sales or breach of Ships of Contracts touching the matters aforesaid of Charter-parties of Sea-briefs and of all other things whatsoever happening upon the Sea or Shoars thereof as our Lieutenant alone and to all purposes in the places aforesaid which Jurisdiction Cognizance and Determination we have interdicted to all other Judges 3. He shall have Cognizance exclusive to all others of causes Civil and Criminal of those who are of the Dutch Towns of Esterlings English Scotch Portugals Spaniards and Strangers whether the cause of suit be betwixt Strangers only or betwixt Strangers and our own Subjects upon any occasion whatsoever He holdeth his principal Court at the Marble Table in the Palace of Paris and appointeth Judges as his Deputies in maritime Cities and Towns who hear and judge ordinary matters within their Circuits and if any business fall out worthy of greater consideration they refer it to the Admirals principal Court The Admiral of Denmark is called Riiks and hath the like power and authority the Admiral of France hath CHAP. IX Of the Admiral of Scotland COncerning the Admiral of Scotland we may I am confident very well believe Wellwood who was that Countrey-man and in his Proheme upon his conscience as a
Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued p. 73. Chap. 8. The Book-Cases and Authorities brought to prove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered p. 78. Chap. 9. That the Rhodian and other Maritime Laws were ordained as well for the decision of the differences happening upon the Ports and Havens as upon the high Seas p. 102. Chap. 10. That the Laws of Oleron and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening arising from things done upon the Ports and Havens as from things done upon the high Seas p. 111. Chap. 11. That by the ancient Statutes of the Admiralty settled before the last confirmation of the Laws of Oleron 12 Edw. 3. and Articles of Enquiry added thereunto it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas p. 115. Chap. 12. That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas p. 120. Chap. 13. That by the ancient Statutes of Enquiry translated out of French into Latine by Roughton the Admirals Jurisdiction is upon the Ports and Havens as well as over the high Seas p. 124 Chap. 14. That the Civil Law is used and practised in all or most Nations of Christendome p. 129. Chap. 15. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in Foreign Nations they have their distinct Judicatories guided by the distinct Laws and that though the Judicatories for Land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely neceâ—â—ary in the decision of all Maritime causes Sea differences p. 135. Chap. 16. That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the cognizance of the Admiralty Jurisdiction p. 147. Chap. 17. That by the Records of the Admiralty it appeareth that the Admiral had and hath power and Jurisdiction upon the Ports and Havens p. 157. Chap. 18. That by Writs de Procedendo out of the Chancery upon Supersedeas from thence granted the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens p. 166. Chap. 19. That by Consultations out of the Courts of Common Law upon Prohibitions thence granted it is clear the Admiral hath Jurisdiction upon the Ports and Havens p. 170. Chap. 20. That the Ports Havens and Harbours where Ships do lye or ride at Anchor are not within the bodies of Counties but that the Jurisdiction which the Admiralty hath anciently had thereon hath been by Act of Parliament reserved thereunto p. 175. The Chapters contained in the Third Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat all differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof page 180. Chap. 2. The Arguments deduced out of the Statute of the 13th of R. 2. cap. 5. to prove that Maritime Contracts made at land concerning Maritime affairs are not tryable in the Admiralty Court answered p. 188. Chap. 3. That by the ancient Statutes of the Admiralty and by the Laws of Oleron it appeareth that Contracts made at land of and concerning Maritime affairs were cognizable and tryable in the Admiralty both before and even in the time of Edward the Third whereunto the last mentioned Statute maketh reference p. 193. Chap. 4. That by the ancient Inquisition taken at Quinborough in Edward the Third's time it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court p. 202. Chap. 5. The Argument deduced out of the Statute of the 15th of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered p. 204. Chap. 6. The Argument deduced out of the Statute of the second of Henry the Fourth cap. 11. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty redargued p. 216. Chap. 7. That the Admiral by these Statutes was not barred the cognizance of Maritime Contracts though made at land made appear by the practice of those times proved out of ancient Records remaining in the Tower of London p. 220. Chap. 8. That by other Records out of the Chancery Contracts made at land concerning Maritime Affairs are cognoscible in the Admiralty Court p. 229. Chap. 9. That by Consultations granted from the Courts of Common Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted p. 234. Chap. 10. That divers and several of the Laws under the Titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other Titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at Land concerning matters to be done at Sea p. 256. ERRATA PAg. 7. lin 10. pro Jesemuch lege Gernemouth pag. ead pro Norfolcae Suffolcae lege Norfolciae Suffolciae p. 12. l. 2 5. 7. pro Prince lege Province p. 16. l. 3. pro the others lege others p. 18. l. 40. pro find lege I find p. ead l. ult pro ameâ—amuntis lege amertiamens p. 19. l. 25. pro praecepti lege percepti l. 29. pro percellas lege parcellas l. 32. pro hinc lege huic l. 41. pro quandam lege quondam p. 20. l. 37. pro our own lege their own p. 33. l. 11. pro Covent lege Covenant p. ead l. penult pro all wares lege ill wares p. 37. l. 26. pro Admiral lege Admiralty p. 38. l. 9. pro de tour lege de lour p. 40. l. 5. pro did lege dit l. 7. pro ia lege la p. 43. l. 32. pro in self lege in it self p. 46. l. 13. pro Admiral lege Admirals p. 49. l. pro fidelum lege fidelem p. 53. l. 19. pro saith lege he saith p. 54. l. 2. pro Marrii lege Martii p. ead l. 13. dele p. 72. l. 32. pro concluded lege concludent p. 93. l. 34. pro nostr lege nobis p. 94. l. 7. pro
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
be proceeded in according to the rules of the Civil Law and have their determination from the same or else be decided without testimony which is to judge blindfold or else to rest unadjudged and the wronged and injured party to be left remediless and unrelieved But it will be answered that in such cases they may have a Commission out of the Chancery for that purpose To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law or to the Civil and Maritime Law And then surely it must more properly belong unto that Law and that Court which can of it self without the assistance of any other Court make a compleat proceeding and tryall and give a direct judgement according to express rules of Justice in such causes then to that Court which without the assistance of another Court can do neither Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions neither hath it in as many causes any express rules to direct the Judicature thereof I shall here set down some few of those Laws which the Civil and Maritime Laws give in such Cases so farre forth onely as to shew that the Maritime Laws were ordained as well for the Ports and Havens as for the main Seas First then for the lading of a Ship which is always or commonly in a Port or Haven the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading as shall be put aboard the said Ship and who shall not sunt quidam in navibus qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diaetarii Si quis igitur ex his receperit puto in exercitorem dandam actionem quia is qui eos hujusmodi officio praeponit committi eis permittit quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant Sed si hoc non extet tamen de recepto navicularius tenebitur non debet per remigem aut mesonautam obligari sed per se vel navis magistrum This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship but likewise what things they are chargeable for and saith Quod cujusque salvum fore receperint hoc est quamcunque rem sive mercem receperint and least it might be thought that it is onely meant of Wares and Merchandizes and nothing else it explaineth it self yet further and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent veluti vestimenta quibus in nayibus uterentur cetera quae ad quotidianum usum habemus parvi referre res nostras an alienas intulimus si tamen nostra intersit salvas esse And assoon as such Merchandizes and other Commodities are put aboard the Ship whether she be upon Port Haven or any other part of the Seas he that is exercitor navis is chargeable therewith and if the same be there lost or purloined or sustain any damage hurt or loss whether in the Haven before or upon the Seas after the Ship be set forward on her voyage whether it be done by the Mariners or any other through their permission or negligence he that is exercitor navis is to make good the same For saith the Law recepit salvum fore utrum si in navim res missae ei assignatae sint an etsi non sint assignatae hoc tamen ipso quod in navim missae sint receptae videntur omnium recepit custodiam quae in navini illatae sunt Et factum non solum nautarum praestare debet sed vectorum And in these cases two several Maritime Actions do lie whereof the Agent hath his choice Dicendum duas proponi actiones exercitorias una est de recepto in simplum quae dicitur in factum altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur Et haec est in duplum sed in eam non venit factum vectorum So that the very lading of goods aboard the Ship chargeth him that is exercitor navis therewith which the Common Law doth not for he is lyable for whatsoever his Mariners shall do aboard the Ship be she in Port Haven or upon the high Seas but he is not lyable for what they shall do being at land and not aboard the Ship so that the Ship maketh distinction of Actions but maketh no distinction at all between her being upon the high Seas or upon Port or Haven Debet Exercitor omnium nautarum suorum sive liberi sint sive servi factum praestare nec immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam in ipsa nave damnum datum sit caeterum si extra navim licet a nautis non praestabit But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda and shall lose them or suffer them to be stoln from him before they shall be laden aboard the said Ship he shall be lyable to make satisfaction Idem ait etiam si nondum sint res in navim receptae sed in littore perierint quas semel recepit periculum ad eum pertinere If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship and transported in case they there perish or be otherwise damnified much more shall he be answerable for such goods and merchandizes as he shall receive or shall be laden aboard his Ship if the same perish or be damnified in or upon the Port or Haven Those Laws of the Rhodes which we find inserted into the body of the Civil Law which are the ancientest Sea-laws extant do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship and the remainder of goods and of the Avaridge payable out of the same whether the Ship be in such stress of weather upon the Ports or Havens or upon the high Seas and the rules there set down do serve as well for the one place as the other These Laws and Rules being general and not restrained to the high Seas do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved And such danger doth not alwayes fall out upon the high Seas but oftentimes upon the Ports and Havens But least this shall be thought not sufficient but that notwithstanding the generality of the Sea Laws which have provided directions sufficient for what is to be done in such cases
in an other manner then the same would have been by such Mercatorian or Nautical Judges and that the Subject of this Nation thereby hath gained that Justice and Right at home which might otherwise perhaps have been hazarded abroad But I intend not to stuffe or fill up this short Treatise which I intended should have been farre shorter when I first took it in hand with Packets of Letters received from several Forraign Judicatures and the answers thereunto returned which will hardly or not at all be understood by such as are not already convinced of that which they should be here set down to prove Nor will I here set forth how farre those Mercatorian Courts though assisted by Civilians through their over-powering of their said Assistants have fallen short of those which have been and are wholly regulated and governed by Civilians as well in point of proceedings as in point of the distribution of Justice But I will here take occasion to set forth some inconveniences not a little destructive only to Trade Traffique and Commerce and so to the Merchant himself but also to Shipping and Navigation it self which might and doubtless would happen if the dicision and determination of Maritime Causes should be left unto or settled upon Merchants and Owners of Ships to judge according to their own skill and observations without that Jus scriptum that written Law which passeth is allowed and practised in all Admiralties of Europe wherein they cannot be so well verst as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof I shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same Law in all Nations in Maritime Causes for one Nation 's rendring of the same Justice to another that it doth from thence receive which is the chiefest thing that maintaineth the Community of Traffique and Commerce which cannot possibly be done if the same should be rendred by the various fancies of men in no wise guided by any certain forme or rule but by that thing then which nothing can be more uncertain which men call opinion tot capita tot sententiae And then I will further say that for the reason before set down in this Chapter the Mariner who cometh in with one good wind and goeth out with another and must opportunè vela ventis applicare upon any controversie or difference arising upon or about the payment of his wages cannot have so sodain and quick dispatch or determination thereof by such Mercatorian or Nauticall Judges who have other affairs and businessss to attend as by those who make the decision and determination of Maritime Causes their whole work and attend wholly upon the same every day of the week both Terme and Vacation Again it is considerable what justice the poor Mariner could expect or should be like to have if the determination and adjudication of their wages should be left unto Merchants and Owners of Ships as some men would have it out of whose freight the same ought to be paid and would be as it were parties in all Causes of that nature and if the Cause should not at one time be their own yet must it and would it assuredly be at another and so at all times would it be their own case though not their own cause and very seldome would it be that it should not be their own cause there being so many Merchants that are Owners of Ships and so many Owners of every Ship of any burthen considerable and every Part-owner of one Ship for the most part Owner or Part-owner of more if not of very many so that for the most part some or other of the Judges themselves would be absolutely concerned in the matter of difference depending before them and the poor Mariner left to their good will and pleasure for his wages and recompence for his pains impended and his time spent in their service which would be a means to dishearten and discourage all Mariners for serving in English Bottoms whensoever imployment should be offered them elsewhere Again in the commixture and joynt Trade of Merchants one with another having their complices copartners in all or most of their trading and merchandizing affairs and such their trading and dealing each for other and in each others name that it might and oftentimes would fall out that when a man conceived that he had commenced a Suit against his adversary and whom he had dealt and traded with he should in conclusion find that he had commenced the same against one or more of his Judges that were to judge and determine his Cause or rather the same might fall out so to be and not be at all discovered Much more I could say to this purpose but I hasten to return to that which I principally intended to set forth in this Chapter namely to shew by some few Authors of very many that much of the Civil Law it self is of use and in force in all Admiralty Courts as well as any other Maritime Laws And as I last instanced in Vinius I shall in the next place instance in the Authors by him mentioned namely Benvenutus Straccha who writeth de mercaturâ sive mercatore de contractibus mercatorum de mandatis de sponsionibus de nautis navibus navigatione de navibus iterum iterumque de navigatione de conturbatoribus sive decoctoribus quomodo in causis mercatorum procedendum sit de adjecto Of Merchandizes and Merchants and of their Contracts Mandates Warrants and Bargains or promises of Mariners Ships and Navigation joyntly of Ships severally and of Navigation by it self of Bankrupts and failing Merchants in what manner Merchants Causes are to be proceeded in and of Factors or Substitutes c. which Book was printed and set forth within this last Century of years And I do earnestly desire those that hold the Civil Law useless in these affairs and in the Courts designed for determination of differences happening therein but to look into the before mentioned Book together with Grotius de jure Belli Pacis Gentilis Loccenius who are latter Writers being all easily to be had and they shall find the very Text of the Civil Law and Commentators thereon not only out of these before mentioned selected Titles but out of divers others cited and quoted for authority in all the several points the said Authors do handle or treat of which I hope will be sufficient to convince any judicious man and sufficiently perswade him that the Civil Law it self is of most exquisite use in all Admiralty Courts CHAP. XVI That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the Cognizance of the Admiralty
c. in which Titles these particulars are defined what they are what maketh them so to be and what maketh them not to be so and are likewise distinguished into several sorts each of which is terminated and limited unto its proper bounds as when this Nauticum foenus is distinguished into Heteroplum and Amphoteroplum as some Authors terme it Heteroplum cum commeatus tantum periculum foenerator suscepit Amphoteroplum cum commeatus remeatus periculum suscepit the one when he undertaketh the danger of the Ship only outward bound or only homeward bound the other when he undergoeth the danger both of the outward and homeward Voyage and many other of the like nature of which the Common Law hath not one word that ever I could hear of much less any rule to guide the professors thereof in the Judgment of such things In Bills of sale of Ships c. though made at land the parties to whom the same are made cannot if withstood obtain the possession thereof but by the Civil and Maritime Law and power of the Admiralty Court And every Ship that is built may have many part Owners and most commonly she hath and before she can be compleatly built tackled victualled fitted and prepared to put to sea a great number of several Tradesmen must necessarily have been imployed therein and been assisting thereunto which cannot with any possibility every of them repair to every Owner some possibly being or inhabiting beyond the Seas other some in this Nation if all in this Nation yet oftentimes some in one place some in another farre remote each from other and from the place of such her building tackling c. to make his particular contract with him for his materials workmanship victual or other furniture and necessaries so that necessarily some one of the Owners which commonly hath not above an eighth sixteenth or two and thirtieth part and sometimes one that hath no part at all is by the rest made Mr. of her and contracteth with all these several Tradesmen who regard not his ability by reason the Ship it self is by the Maritime Laws lyable for the payment of every mans particular debt which Law must necessarily take place or else few or no Ships be built and employed for trade for at the Common Law I conceive they can have only their several Actions against the Master with whom they contracted who for the most part is not able to make satisfaction to one third part of them and many times not to one particular man If one Ship shall do damage to another either at the main Sea or upon any Creek Port or Haven the damage must be sued for in the Admiralty Court and Judgment given according to the Maritime Laws which prescribeth every Ship her rule how to steer her course both going out to sea or coming in from sea or riding at sea which plainly demonstrateth which Ship was in fault by which the Judgement must be regulated And no Action can be so properly commenced at the Common Law for these damages for that the Owners damnified can very hardly arrest all the Owners of the other Ship which did the damage nor indeed can any of those Owners by that Law be lyable to such arrest but the Master who if solvent will not come on shore but take his imployment in some other Ship outward bound so that the remedy lyeth properly against the Ship by the Maritime Laws as hath been already said If a contract be made beyond the seas concerning any Maritime businesses by bill or otherwise the same is not cognizable at the Common Law by their own books neither indeed if it were could it receive the same Judgment it shall by the Civil and Maritime Law for a verbal Contract is not made by Assumsit there as here it is nor in a Contract made in writing is any thing more required or thought necessary then the signing or subscribing of a Bill for performance c. and sometimes the sealing but never the delivery nor is there any such ceremony there used or known without which by the Common-Law as I have heard it is nothing so that the English Merchants or other seafaring mans Bill here signed sealed and deliveted according to the formalities of this Nation in that case required shall being sued in any Court beyond the seas prove good against him without due examinations of half the said formalities whereas the Foreigners Bill which is according to the customes and usages of those parts from which they will not by auy means depart sometimes only signed sometimes sealed sometimes both but never delivered shall for want of this one formality of delivery at the Common Law prove voyd and of none effect and so the English man become undone by formalities of the English Laws so far different from those of foreign Nations especially the Laws Maritime which are for the most part if not altogether agreeable in most places if not in all Many more reasons might be given why all contracts of this nature wheresoever made should and ought to be tryed in the Admiralty Court by the Civil and Maritime Laws and not by the Municipal Laws of this Nation and many instances more might be given wherein the Civil and Maritime Laws which are Common to all Nations do differ from the Municipal Laws of this and so would vary the Judgments in Causes of the self same nature But that is too large a task to undertake here and but a needless one when some few instances may satisfy a wise man that intendeth not to quarrel I shall endeavour here in a word to satisfie but one doubt by the way and so proceed according to the best of my judgment to the answering the Arguments brought against the Admirals cognizace of these Contracts It is objected that other Nations have their several Municipal Laws as well as England and that therefore these Contracts may as well be tried by the Municipal Laws of this Nation as by any Municipal Law of another I answer that they have in several Nations several different Municipal Laws whereby they are governed within themselves as we are here yet are those Municipal Laws all grounded upon the Civil Law and are no more different one from another then one and the same lesson playd upon several Instruments in several strains nor do otherwise differ then as the several Interpretations of several men upon them have differed as in many doctrinal points in Divinity various constructions have been rendred even upon the very text of the Divine Law according to several apprehensions and opinions of several men For upon all their decisions and determinations they quote the Civil Law and the Authentique Writers and Commentators thereon as is already said li. 2. c. And as the controversies happening and arising between one Nation and another are not to be decided by either of their Municipal Laws that being a way to raise a new controversie by which
Whitehall Aug. 13. 1664. Let this Book be Printed HENRY BENNET THE Maritime Dicaeologie OR SEA-JURISDICTION OF ENGLAND Set forth in Three several Books The first setting forth the Antiquity of the Admiralty in England The second setting forth the Ports Havens and Creeks of the Sea to be within the Jurisdiction of the Admiralty The third shewing that all Contracts concerning all Maritime Affairs are within the Jurisdiction of the Admiralty and there cogniscible By JOHN EXTON Doctor of Laws and Judge of his Majesties High Court of Admiralty LONDON Printed by Richard Hodgkinson Printer to the Kings most Excellent Majesty 1664. TO HIS ROYAL HIGHNES JAMES Duke of York and Albany Earl of Vlster Lord High Admiral of England and Ireland c. Constable of Dover Castle Lord Warden of the Cinque-Ports Governor of Portsmouth c. YOur Royal Highness having been graciously pleased to constitute me Judge or President of the High Court of Admiralty I held it my duty according to my poor ability to assert the just Jurisdiction thereof against those undue encroachments and usurpations whereby the power of the Lord High Admiral hath been heretofore and is at this present straightned in decision of matters relating to Maritime affairs wherefore having some time since in those sad and distracted times bestowed some labour in searching and perusing such of the Records of our own as well as Forreign Nations as I could meet with wherein the just extent of the Admirals Jurisdiction is sufficiently and undeniably evidenced together with the necessity of deciding all controversies about Maritime affairs according to the ancient Sea customes and the reason and directions of the Civil and Maritime Laws I held it no less my duty to recollect the said Papers and reduce them into some method for the clearing those objections which hitherto have been and still are made use of either against the antiquity or extent of the Lord High Admiral his Jurisdiction in Maritime causes or against the decision of them by the ancient Sea customes and the rules of the Civil Law And as I have observed this Nation hath happily flourished a long time under that happy Government of all Land affairs by its municipal Laws practiced in the Common Law Courts so hath it no less prospered and been enriched in its Navies Trade and Commerce under that exact Government which hath ordered and guided all Maritime businesses and Sea affairs by the Civil and Maritime Laws and Customes corresponding agreeing and according with the Laws of Forreign Nations being suitable to the nature and negotiations of the people that are subject to them exercised and practised in the High Court of Admiralty The design therefore that I propound to my self in the publishing this Treatise is to shew how necessary and fitting it is that the power and jurisdiction of this Court should be no longer subject to such interruptions and how expedient it now is that the rights and privileges of the same should be observed and kept and the Laws and ancient Customes thereof whereby all Commerce and Navigation is upheld should be precisely and strictly preserved and maintained That all which may appear I have set forth the antiquity of the Lord Admirals Jurisdiction here in England by ancient Records of the Tower Next the Jurisdiction it self and the extent thereof as also the necessity and necessary use of it in divers respects In all which I have endeavonred neither to eclipse the honour power or least right of the Muncipall Laws of this Kingdome nor in any sort to detract from the renown of the Reverend and Learned Professors thereof but hope I have manifested that the upholding of both Jurisdictions and restraining each of them to its proper limits and confines will be more advantagious to this Kingdome and the Inhabitants thereof then the suffering eitber of them to swallow up or devour the other Be pleased therefore to receive this unpolished work from the hand of your Servant as the same is dedicated unto the protection of your Royal Self THE CONTENTS The Chapters contained in the First Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THe Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Thirds time to whose time the Statute of the 13 of Ric. 2. referreth argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times and from their Grants and Patents Page 1. Chap. 2. That these High-Officers or Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governours of Land-Provinces had over them and had their Maritime Laws for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs page 10. Chapt. 3. The beginning of Sea Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued p. 13. Chap. 4. Of the Laws of Oleron and the Antiquity of the Admiralty argued and inferred from the introduction of them into England p. 16. Chap. 5. The ancient Introduction of the Sea Laws argued and inferred from the King of Englands Dominion over the British Seas p. 21. Chap. 6. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Coâ—rts in deciding of Maritime Causes in those antient times p. 25. Chap. 7. Of the Exercise of the Sea Laws by the Grecians Athenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile p. 29. Chap. 8. Of the Admiral of France and Denmark p. 30. Chap. 9. Of the Admiral of Scotland p. 32. Chap. 10. From the common acceptance of the Sea Laws in other Nations is inferred the acceptance of them in England p. 34. The Chapters contained in the Second Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat the Sea-Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependancie each upon the other Chap. 2. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-tradingmen p. 41. Chap. 3. That the Ports and Havens and Creeks of the Sea are within the Jurisdiction of the Admiralty p. 52. Chap. 4. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiraltie redargued p. 57. Chap. 5. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued p. 62. Chap. 6. That from the two other Actions instanced in to be brought against the Parties suing in the Admiralty Court for a business done upon the Ports no concludent Argument is deduced p. 72. Chap. 7. The Argument deduced from two
judicandis quam in classe Regiâ gubernandâ insignitur And further saith that we had the name of this Magistracy viz. Custos Maris Marinae Maritimarum partium from the Romans as may be gathered from Cicero in Epistol ad Attic. ubi ait vult me Pompeius esse quem tota haec maritima ora habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. speculatorem custodem CHAP. III. The Beginning of Sea-Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued DIonysius ascribeth the first making of Sea-laws to the Phenicians Pliny to the Carthaginians but according to the observation of most Authors out of most ancient Monuments our Sea-laws have had their beginning and original from the Island Rhode Rhodiae leges navalium commerciorum sunt ab Insula Rhodiae cognominatae in qua antiquitùs mercatorum usus fuit an Island scituate in the Carpath Sea part of the Mediterranean which being but a small Island but yet very populous the Inhabitants yea the very Indwellers thereof chose rather to live by water then by the aire and to seek their subsistence and provide for their sustenance by constant sayling and continued navigation by which means they encreased their strength and augmented their power at Sea to the terrour of all their Enemies the hinderers of their Traffique and quelling of all Pirats the disturbers of their peace They multiplyed their riches with an infinite increase and advanced their wealth to the very height And these principal ground-works being laid and chief foundation settled that which makes principally to the purpose in hand they grew so exquisite in their Navigation so skilfull and cunning in their Traffique and so expert in the discipline of both that as time now required they framed Edicts to be instituted decreed and published to be established and observed for Laws for the guidance of all men according to the most exact rules of equity in all manner of Sea-businesses insomuch that all Cities and Nations near unto them therein sought knowledge of them and to the further encrease of their riches by a ready and willing Tribute still exchanged wealth for wisedom and thought not that they paid any what too dear for the gain of such knowledge and to be directed in the rules of such Discipline and Laws as might settle such a constant determination of every mans just right at all times in all manner of Traffique Trading and Employment upon and by the seas as the Islanders had which Laws and Discipline did afterwards spread to further Nations and the very Emperours of Rome did successively referre all seafaring Debates and Controversies to the Decrees Determinations and Judgements of the Rhodian Law Leges nauticas dicimus quas Rhodii condiderunt quorum disciplinam navalem ut Strabo ait 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admirabilem omnes populi libenter etiam Romanus sequebatur And Eudaemon Nicomediensis making his complaint to Antoninus thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Domine Imperator Antonine naufragium in Italiâ facientes direpti sumus à Publicanis Cyclades Insulas habitantibus Antoninus answereth thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego quidem mundi dominus Lex autem maris Lege id Rhodiâ quae de rebus nauticis praescripta est judicetur c. Hoc idem quoque Divus Augustus judicavit Yet be there severall other titles in the body of the Civil Law which set forth several Decrees and Laws particular to the Seas and sea-faring matters to be observed And Vlpian a Father of the Law having set down some of them gives his reason why they should be precisely kept and observed Quia saith he ad summam rem-publicam navium exercitio pertinet These Rhodian Laws what of them are left and inserted in the Pandects and their defects being supplyed by the Code and novell Constitutions and their Rents repaired by the fair Applications and candid Expositions of the old Roman Lawyers and other authentique Authors which have since wrote of matters of that nature still give the rule and guidance to all seafaring business of what nature soever throughout all or well nigh all Europe and have never been opposed obstructed or interrupted but by such as least understood them And these severally had their original from that Island of sea-faring men though they have been by successive observations collected and gathered together as most just and equal for the determination of every mans just due and right in all their Maritime affairs whether they concerned complaints offences Criminal or Civil Sales or Assecurations of Ships Accounts Covenants or Contracts by Charter-party or otherwise Exchanges Freights Hyres or Money lent upon casualty or hazard at sea Causes of Reprizals Letters of Marque or concerning lading or unâ—ading and whatsoever other things else among seafaring men either of one or several Islands or Nations done or to be done either on or at the sea concerning Sea-trade Now who shall be imagined to have the supreme governance and power over these seafaring men and the cognizance of their Maritime causes to judge them according to these Sea-laws established amongst them and duly to put them in execution Certainly these Laws were hatcht of order and could not be bred up to disorder Seamen surely had amongst them a supreme Governor one or some that swayed and ruled the rest in the composure of them and so must they necessarily have in the dispensing of them and administring justice according to them Now I hope it will not be said that the maritime and seafaring men contrived and made Laws amongst themselves which concerned themselves their Traffique and Trade and when they had done gave them over into the Land men hands which could not possibly understand the grounds and depth of them with a power to put them in execution and so give others a power over themselves which before had nothing to do with them If they would so have done which no man will judge yet it is not to be believed that in this Island of Rhodes they could which consisted generally of seafaring men Who should then be fit to be chiefest in managing these Laws but such a one as had chiefly a hand and was most dexterous in making of them so that I doubt not but that we may boldly say and conclude that as these Laws were composed gathered and collected by maritime and seafaring men so were they put in execution by the principal Governor and Ruler of them and so had they both birth and growth under the jurisdiction rule and governance of the chief Captain Commander and Governor over all these seafaring men and shipping And as Causes encreased and multiplyed so did the Laws according to the nature of the Causes and as the Causes varied so did the Laws untill they required the constant and continuall study of such as were to judge by them CHAP. IIII. Of the Laws of Oleron and the Antiquity of the Admiralty argued
direction of his Demeasnes and Receipts and the administration of Common Justice continued still in that high Court of Justice and Equity which did then and a long time after as well as before the Conquest follow the King himself and for proof thereof he quoteth Gervasius Tilburiensis who wrote many observations upon the Exchequer which he dedicated to King Henry the second and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there But because as Mr. Lambard saith some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas for all Subjects whatsoever and that for the maintenance of their assertion they do alledge the title of Mr. Glanvil's Book in part thus Et illas solùm leges continet consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium lest others should hereby be misled and for this reason think so too and so be brought to conceive that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco that the Exchequer might have the cognizance of all Causes between party and party as well maritime belonging to the Sea and Sea-affairs and from thence arising as terrene belonging to the Land and Land-affairs and from thence growing I shall here set down Mr. Lambards answer to that which is alledged for the proof and maintenance of this assertion who confidently affirmeth that the aforementioned words are not the words of Glanvil himself but of the Publisher of his Book in print which appeareth by what precedeth the words alledged in the Title viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo which saith he doth plainly shew and bewray that the Publisher spake of Glanvile as another man and which also lived not then but at another time And herein he must needs say very truly for never was there any Author of any credit that ever gave himself this or the like title or being living would say that he was juris regni antiquarum consuetudinum eo tempore peritissimus And again they have not taken in all the words of that title which do follow but have left out these viz. Et coram judiciariis ubicunque fuerint which being so the Kings Bench or Court which then followed the King must needs be herein comprehended and included and the whole title being collected thus Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo eas solùm leges continet consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium coram Justiciariis ubicunque fuerint Then doth this title make no argument for the proof of their assertion And so I shall leave the Exchequer then only to govern and rule the Kings Revenues Demeasnes and Receipts and such matters as belong only thereunto and next cast only a glance upon the Justices in Eyre and their Jurisdiction The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes but by Bracton are called itinerantes For King Henry the Second in the 32th year of his reign divided the Realm into six parts from which the Circuits which our Judges do now ride do not much differ and to every of those parts appointed three Justices who at their appointed times kept Circuits in their several parts to them limited and held plea as well of Criminal as of Civil Causes But Justices of Assises being likewise appointed whose first office was to take Assises of Mort d'ancester and Novel Desseisins according to the customes of Normandy where it is called la Novellette and gaining a further power of taking Attaints Juries and Certificates and delivery of Gaols These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre who about that time did surcease and take leave Now could neither of these Justices the Justices in Eyre not coming every year into the Country nor the other Justices being sometimes at home sometimes in their Circuit and in their Circuit sometimes in one place and sometimes in another take cognizance or have the hearing and determining of maritime causes seafaring matters or any thing them concerning For such causes did and do require a more speedy dispatch and determination than these Justices could afford them Nam breviter summariè tales sunt examinandae causae nec ad plenissimas Judiciorum formulas recurrere oportet sed suceinctè de plano sine strepitu judiciorum solenni figurâ immo velo levato in eis procedendum est ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem transfretationem properant judicium sic properat ad navigandum transfretandum festinatio Merchants Mariners and Seamen whose business and affairs are ordered here ventulated at sea and agitated beyond the seas must have a quick and sudden dispatch of Justice that as they come in with one good wind so they may go out with another the Mariners cause admitteth no delay but must have a judge and a settled place of Judicature at all times in readiness for his dispatch for whilest his cause is pleading for his right his Ship is preparing for his Voyage to which I may well apply the verse in Virgil Interea classem velis aptare jubebat For his ditty is alwayes the same with another verse of the same Authors Rursus agam pelago ventis dare vela jubebo Neither for the very same reason if there had been no other could the Court of Common-Pleas when it was settled take cognizance of maritime causes or seafaring matters nor did the settling thereof dissettle the Marina which had at and before that time been committed unto the care and charge of several persons as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited for the Court of Common-pleas 't is plaine began not to be settled untill the ninth year of the same King if so soon for it was but that year determined that it should be so settled but the power thereof rested in the King himself and his supreme Court which constantly followed him whithersoever he removed and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place by these words Communia placita non sequantur curiam nostram sed teneantur in certo aliquo loco Now although differences and controversies of what nature soever were then perhaps neither so many nor did so frequently arise as now nor were of so great consequence and concernment as since they have been yet cannot I or any man else as I conceive think that
undeservedly honoured yet though my encounter be upon this disadvantage I doubt not but to give satisfaction to a Judge indifferent between both Jurisdictions and Professions as well in this point as in some other things by him asserted For the proof of this point he first asserteth the Statute of the fifth of Elizabeth cap. 5. which saith he describeth particularly the limits of the Lord Admirals Jurisdiction in these words All and every such of the said offences before mentioned as hereafter shall be done on the main Sea or coasts of the Sea being no part of the body of any County of this Nation and without the Precinct Jurisdiction and Liberty of the Cinque-ports or without any Haven or Pear shall be tryed and determined before the Lord Admiral c. So as saith he by the judgement of the whole Parliament the Jurisdiction of the Lord Admiral is wholly confined to the main Sea or Coasts of the Sea being no parcel of the body of any County of this Nation In answer hereunto I do deny that these words in this Statute do prescribe particularly the limits of the Lord Admirals Jurisdiction if he mean his whole Jurisdiction in general but I will confess they do prescribe him certain limits quoad the increase of his Jurisdiction by making the particular acts before mentioned in the Statute to be offences and punishable and do declare that his and the Warden of the Cinque-ports Jurisdiction upon the main Sea shall be increased by having granted unto them the cognizance of such of the before mentioned offences as should be committed thereupon and do restrain his Jurisdiction within the Ports and Havens to what formerly it had without having any increase thereof by the Cognizance of such the before mentioned offences as should be committed thereupon and this appeareth plainly out of the words by himself recited viz. All and every such of the said offences before mentioned shall be triable thus and thus not having any relation unto any offences or causes triable either before the Admiral or cognoscible by any other Judge And indeed if we look backward to those offences before mentioned in the Statute which can be committed in or about the Havens or Ports we shall find that they are not of the nature of such Civil and Maritime causes or offences as are subject unto that Jurisdiction of the Admiralty The particulars are these 1. That any Subject may carry Sea-fish forth of the Realm in any of the Queens Subjects Ships without paying Custome Now we know very well that the paying of Custome in every Port Town belongeth to a peculiar Office for that purpose and the Admiral neither doth nor did for many years meddle therewith 2. That no person in any Port City Town Market or other place shall set price make restraint take or demand Toll or Tax of any Sea-fish to be brought into this Nation being taken and brought in in Subjects Ships Here Port is taken for the Port-town or Haven-town for the prising taxing and tolling of Commodities is done upon the land after the goods are unladen and not whilest they are aboard the Ship or Vessel and therein so stowed as that they can neither be numbred weighed nor viewed And the Port Town is here only collectively named with other Cities Towns Markets and Places as appeareth plainly by the words of the Statute as they run together to include all sorts of Towns nor doth or ever did the Admiral any more meddle with the prising taxing or tolling of Commodities within any such Towns more then he doth or did with the Customes thereof 3. That no Pourveyors should take any Sea-fish brought in such Ships under the forfeiture of the double value 4. That no man shall buy of any Stranger or out of any Strangers Bottom any Herring or other Sea-fish not salted packed or casked under pain of the forfeiture of the fish so bought or the value thereof 5. That no Wares may be carried from any Port of this Realm to another 6. That all Codd and Lings be brought into this Realm loose and not in barrels 7. That no Wine be brought forth of France nor any Wood brought into England but in English bottoms all under pain of forfeiture And being so they are by this Statute become to be of the nature of prohibited Commodities for discovery whereof there be in all Ports certain Searchers appointed which bring the same under forfeiture and the Admiral deals not therewith but only with such prohibited Commodities as are prohibited to be transported beyond the seas and are de facto so transported having escaped the Searchers hands And in such cases the Admiralty hath the power of punishing such as have so offended for that the fact cannot be made appear but by examination thereof by way of Commission out of the Admiralty in the place where the said goods were unladen and landed The restraint therefore upon the Admiral and Warden of the Cinque-ports by this Statute in these cases is lest they having Jurisdiction as well upon the Havens and Ports of the sea being parts and members thereof as upon the main sea should ampliare jurisdictionem and take the cognizance of these things to their Courts and abridge the Customers and searchers of that power which belongeth unto their offices and places And indeed this restraint in this Statute upon the Lord Admiral the Judge of the Admiralty Court and their Surrogates and upon the Lord Warden of the Cinque-ports and his Lieutenants is a strong argument that in other matters they have full power governance and cognizance upon the Ports and Havens as well as upon the main sea otherwise needed not these particular offences to have been excepted from their power and cognizance there and this exception of these particulars from their cognizance there concludeth other things in general there done to belong thereunto For quicquid accipitur in particulari praesumitur esse in generali The Admirals cognizance upon the Ports and Havens is by this Statute excepted from these particular offences there done and is therefore presumed to be full in other general offences thereupon committed and not otherwise excepted therefrom And other rules there be that confirme this Argument as that Id à quo fit exceptio fit universale ut possit distribui These particular offences are excepted from the Admirals cognizance upon the Ports and Havens and therefore his cognizance there must be universal so that from that universal cognizance there these particulars may be excepted and divided And Id quod excipitur seu subjectum exceptum debet contineri sub excipiente seu eo à quo excipitur and again Quod excipitur debet esse angustius eo à quo excipitur And further the restraining of the Admirals Jurisdiction from medling with these particulars upon the Ports and Havens doth not restrain his power from medling with other matters or offences done and committed thereon for the barring of his cognizance
Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
and such as do destroy the Fry of Fish and of such Mariners as do violence to the Owner of the Ship contrary to the Laws of the Sea and Statutes of Oleron such Mariners as disobey the lawfull commands of their Master such Masters as keep not their Mariners in order and peace according to the Laws of Oleron and likewise of Loads-men and Loads-manage And here particularly is to be enquired of such as do claim propriety in any Port or Haven which belongeth unto the King without Charter or Prescription to the disinheritance of the King Item soit enquis se aucun clame properte en port ou commers qui attient a â—â—stre sur le Roy ne la my par chartre ou praescription en disheritance du Roy. And in this respect as well as others is the Admiral called Custos portuum Custos maritimarum partium c. Here again as by the former Articles are Forestallers and Regraters as is before mentioned to be enquired of and so are Weights and Measures and the abuses of water Officers By another Article here are Fishermen to be enquired of which take Salmons out of season in any Arme of the Sea as Thames Trent c. specifying some particular Arms of the Sea and concluding withall in general so that by Arms of the Sea in these Laws exprest Ports and Havens must needs be meant the same things which Sir Edward Coke under the same notion would have to be within the Bodies of Counties and out of the Jurisdiction of the Admiralty which we see plainly did thereunto belong in far more ancient times then any of his proofs and authorities are of to the contrary and these are the words of the Article Item soit enquis de poissonners que prennent saulmons bors de saison aux bras de mer cestassavoir Thames Trent Deve Derwent Agre Reme Humbre autres riviers q'l conq's ou destroint fry de saulmont en aucun temps de lau For any one to remove an Anchor of any Ship or Vessel without warning given to the Master or some of his Company by which means the Ship doth perish or any man is slain or cut the Boy from the Boy-rope so that the Anchor is lost are offences against the Laws of Oleron presentable before the Admiral or his Lieutenant and punishable according to those Laws Here likewise is an Article agreeable with the former amongst those adjoyned unto the old Statutes concerning Shipwrights wages Divers other Articles there be which concern other matters belonging to the Jurisdiction of the Admiralty some of which might have been likewise deduced into proof for the Admirals Jurisdiction upon the Ports but I conceive these will be sufficient to convince any indifferent man that he had Jurisdiction there in Edward the Thirds time and by those that are adjoyned to the ancient Statutes of the Admiralty and introduction of the Laws of Oleron it will appear that he had Jurisdiction there long before Unto these Articles are joyned several Admonitions drawn into several Articles for the due observance of these Articles and putting them in Execution And next unto them is set forth the manner of proceeding according to the Maritime Laws both in causes Civil and Criminal CHAP. XIII That by the aucient Statutes of Enquiry translated out of French into Latine by Rowghton the Admirals Jurisdiction is upon the Ports and Havens aswell as over the high Seas WElwood in his Proeme to his Abridgement of the Sea Laws maketh mention of the Inquisition taken by 18 most famous persons for skill in seafaring matters assembled at Quinborough and the Articles there agreed on out of which I have cited some in the foregoing chapter and he saith that Thomas Roughton afterwards turned them into Latine and entitled them Articles De officio Admiralitatis Angliae But I do not find that the Articles which Roughton translated out of French into Latine were the Articles agreed on at Quinborough for the Articles of Quinborough set not down the penalties upon the breach of every particular Article but referre the punishment to the former ancient Statutes and Articles of the Admiralty and the Laws of Oleron whereas those translated by Roughton do besides at the Inquision of Quinborough there were by those exquisite skilfull men in Maritime businesses both at home and abroad several Sea Laws or Statutes agreed on and by the King confirmed which I find not translated by Roughton where he averreth such his translation of Articles out of the French tongue into the Latine and calleth them Statutes in regard the penalty of all or most of them are therein determined and appointed which his averrement is in these words at the end thereof Haec statuta fuerunt translata per me Thomam Roughton à linguâ Gallicanâ in Latinam signum meum manuale in testimonium ejusdem hic apponendo Now in this averrement there is no mention of the Articles of Quinborough besides those and these agree not in method nor in number Nor are these the translation of those ancient Articles adjoyned unto the ancient Statutes of the Admiralty which have the penalty upon the breach of every of them set down in them as these have for they have neither the same method nor the same division these being divided into 50 Articles those but into 38. Yet are not these Articles in any one particular contrariant or repugnant one unto another but so agreeable in matter of substance that that agreement amongst them may stand for a true confirmation and a strong corroboration both of the justice equity and authority they carry along with them and also of the credit that is to be given to them They all so agreeing as I have said these must needs prove the same thing that the others have done namely the Admirals Jurisdiction to be upon the Ports and Havens I shall set down some few of these in their own language to shew this agreement and so pass to a yet further proof of this particular But I shall first observe that as heretofore I have shewed that the Admirals anciently have had joyned unto their Patents for that place whereof they were Admirals a special Precept to all Sheriffs Mayors Bayliffs Constables Headboroughs c. commanding them to be obedient unto the Admiral and his Lieutenants and to be aiding and assisting unto them when they should be thereunto required so by the front of these Articles or Statutes the Admiral is directed to grant his Warrant to the Bayliffs of the Port if it be a liberty as well as to his Marshall for the summoning of a Jury to make enquiry according to these Articles of all such offences as are committed contrary thereunto which Articles are there said to concern the Maritime Law and these are the words of that direction Inprimis cum veneris ad portum per costeras maris si sit in
Admirallo ad valentiam bonorum hujusmodi Si tamen naves cum hujusmodi merchandizis sive victualibus vento contrario reluctante impeditae ventum expectent faventem emptores hujusmodi rerum sive victualium ab omni impeditione in hac parte erunt immunes nichil domino Regi aut Admirallo perdent nec amittent Many Articles more there are which do enquire of offences committed and punishments proper for them which are such penalties and punishments as are not used at the Common Law I shall but only name the chiefest of them There be Articles against Stealing cutting off or carrying away the buoys fixed to an Anchor whereby the Ship doth perish or is made worse which is punished by the Law of the Sea with a punishment different from that of the Common Law Against Carpenters and other Artificers imployed about making or repairing of Ships for taking excessive wages Against such as cast Sand Ballast or any other thing into the Channel of a Port or Haven Against a Loadsman that undertaketh to bring a Ship safe through the Haven to the Key or place of discharge and through his ignorance idleness negligence or other fault suffereth the Ship or Merchandises to perish the punishment is such as is not used at the Common Law Against such as that strike wound draw blood make any fray or kill any man within the Jurisdiction of the Admiralty they are to be punished according to the quantity and quality of the offence Against Regraters such as use false weights and false measures in their Ships for buying and selling by in the Ports and Havens Against such as take extraordinary Portage in any Haven and the Article setteth down what Portage is to be paid by Ships of such a burthen c. Against Port-keepers and Water-bayliffs that raise new Customes and excessive Fees within the Port or Haven c. Against Ships and Men appointed to serve the King and avoid the service Against such as shall cut any Cables c. Against Felonies done in Foreigners Ships and other Ships upon the Sea-Ports and Havens and against such as shall remove any Anchor Against notorious Malefactors either upon the Sea or Ports Against such as have taken and concealed any Deodand upon the Sea Port or Haven To conclude the Admiralty is so farre from being limited to the cognizance of things done upon the high Seas that it is not so much as limited to things done upon Sea and Sea-Ports but the power and authority thereof is and of ancient times hath been extended to all such things as do belong unto the Seas Ports Havens and Salt-waters as will appear by the 34th Article which is this Item inquiratur de his qui colligunt in sossat aquam salsam faciunt sibi piscarias scituantes de novo facientes incipientes gurgites aut alia sibi ncciÌ„a immobilia percipientes exitus proficua eorundem ad eorum opus proprium quae in aquâ salsa omnibus debent esse communia poena si indictati fuerint vel impetiti poenam ordinationis Regis Johannis apud Hastings subituri sunt c. And this Article further sheweth that such things as these which concern or belong to Ports or Havens did in King Johns time belong to the Cognizance of the Admiralty And now I shall proceed unto such proofs as I have gathered from the Civil â—aw in confirmation of what I have gathered from other Aâ—tiquity But I must first shew that that Law is used and practised in other Nations being a thing by some strongly denyed CHAP. XIV That the Civil Law is used and practised in all or most Nations of Christendome I Have heard but am unwilling to believe it that some have strangely dreamt and as strangely fancied that dream to be true that the Civil Law is not received nor of any use at all in forreign Nations but the same hath been 1200 years since abolished but I doubt not but that when their judgements are awaked and better informed they will find the same to be but a dream and will easily be perswaded not to persist in such an error unreformed which I will more willingly term to be but a mistake for that the same may in part be understood to be true and the other part from thence miscollected for the City of Rome was no sooner built then it had Civil Laws and Sanctiones ordained constituted and appointed for the government thereof which in many hundred years were and in many more several Emperours Reigns by them altered augmented and encreased which were by warres and turmoyls about the time before mentioned and long before Justinians reduction of them into method and order and compiling them into a body much distracted and perplexed or rather laid aside and as it were destroyed and lost which makes Justinian himself in his Edict of confirmation of his digests say Post bella Parthica aeterna pace sopita postque Vandalicam gentem ereptam Carthaginem imo magis omnem Lybiam Romano Imperio iterum sociatam leges antiquas jam senio praegravatas per nostram vigilantiam praebuit in novam pulchritudinem moderatum pervenire compendium so that it seemeth these old Civil Laws with their age and perplexities of warres which do silence Laws were praegravatae even suppressed or crushed down which some perhaps may terme an utter abolition and not without cause when as Justinian himself in the same place speaking of this reduction of them Quod nemo antea hoc superavit neque humano ingenio possible esse penitus existimavit that no man before he saw it done did ever hope for or humane reason seriously think it possible For that it was marvellous that the Roman Law which began with the City it self which had by the intestine warres there for almost fourteen hundred years been staggered and shaken and that extending unto the Imperial constitution they could be reduced unto one consonancy or agreement Erat enim mirabile Romanam sancionem ab urbe conditâ usque ad nostri imperii tempora quae pene in mille quâ—dringentos annos concurrunt intestinis praeliis vacillantem hocque in imperiales constitutiones extendentem in unam reducere consonantiam And from this suppression or laying aside of these ancient Roman Laws some it seemeth have miscollected and unduly concluded that the same hath never since been received or made use of in any forreign Nation at all But this new moulding reducing and with so much pains labour and care digesting of those ancient Laws into method form and order and compiling them into a body plainly sheweth the contrary unless we will believe all this was done to no purpose And if it shall be said that these Laws thus digested and brought into forme and method have since such their reduction which was after the time of the twelve
hundred years before mentioned for their being abolished been again suppressed born down or abolished and not received in any forraign Nation to this day What shall we say of the printing and so often reprinting of this large body of the Law since printing was first invented which was but 190 odd years agone Next what shall we say of the so late reprinting this large body with the gloss and case and other notes upon the same with the large Index thereunto in all consisting of six large Volumns in folio some printed in one Country and some in another some printted within these thirty years some within a shorter time Or what shall we say of the several Authors of most if not of all the several Nations of Christendome which have in all the several Centuries of years since the compiling of this body even unto this time wrote and commented upon the same some on one part some on another and of all those other Authors of all or most several Nations which have wrote several Tractates of Decisions and other Law-books which do ground and raise their authority from this body of the Law and quote the same for proof of whatsoever they determine Shall we say that all this from time to time continued study industry labour and pains hath been taken and all this cost charge and vast expence laid out to no end for no use or purpose or shall we say all this is done only to mock the world Certainly he that shall say either will but mock himself and such as will believe him but he can never deceive any one that hath but once seen the inside of a Civilian's study either at home or abroad for both are the same and furnished with books of the same nature and kind and all Lawyers or practisers in the Laws in all parts of Christendome are Civilians and do study and take their degrees in the Civil Law as the Civilians do here and do proceed in all causes for the most part according to the course and directions set down in the Civil Law and are regulated and guided in all their determinations and judgements by that Law saving that in several Nations they have several municipal Laws Acts or Edicts published and declared amongst themselves for the regulating their own particular Government which are binding unto no others nor observable in any other Nation then that wherein they were constituted and ordained and that in land businesses and not in maritime and sea affairs wherein several Nations by reason of their Trade and Traffique eath with other are concerned and must have their differences which happen between them determined by one and the same Law which is principally the Civil Law though some other Maritime Laws which receive their ground and foundation from the same are therewith practised by which all differences likewise happening and arising between Nation and Nation are to be regulated and determined it being now generally received as the Law of Nations although at the time of its being compiled into a body Justinian himself distinguished it both from that Law of Nations and from the Law of Nature And for other municipal Laws one Nation will not subject it self unto a municipal Law framed and constituted by an other they being in some sort different each from other though both derived from one and the same principal Law and are neither so many as the Statute Laws of this Land nor so much different from the Civil Law it self as our Statute Laws are from our ancient fundamental Common Laws For indeed the body of the Civil Law being so ample large perfect and compleat in it self for decision of all controversies of what nature soever arising between persons of what quality or condition soever The several municipall Laws of those several Countries are only some wayes confirmatory or explanatory thereof or sometimes extending or sometimes limiting the same but seldome or never contrariant or repugnant thereunto or much differing therefrom unless it be in the manner of punishment or the like and sometimes and in some places they are no other then the very same abreviated or shortned and made in affirmance of them and have their ground from them as some of our Statutes here have from the Common Law Nay those very proceedings and determinations of Controversies in the Parliament of France which many have thought most to differ from the proceedings and determinations of the Civil Law are notwithstanding plainly agreeable thereunto and grounded thereon nay the very name Constitution and Authority thereof are all derived from the Civil Law as doth plainly appear by that which Johannes Montanus concerning the Authority of that great Councel hath wrote as likewise by the additions made thereunto by Boerius that Country-man not much above 100 years since where it appeareth that the very name Parliament whereby this great Councel is called is derived from the Civil Law Bartol an ancient Commentatour upon that Law being there cited upon three several places thereof for having or using the word Parliamentum in the same sence the same is used in France and where likewise divers other Civil Law Authors are cited to the same purpose And Bartol is likewise cited for that he alloweth no Prince to hold a Parliament that acknowledgeth a Superiour Princeps non potest habere Parliamentum si superiorem recognoscat And likewise Boerius proceedeth to the setting forth the use of this Parliament namely for the profit of the people ubi super aliquo oportet provideri pro utilitate totius provinciae praeses debet facere congregare generale concilium seu Parliamentum ut super dubio proposito sanum utile concilium exhibeatur And it is there compared to the Roman assembly much mentioned in the Civil Laws Et Parliamentum potest dici coetus cujus nomen tractum est ex more Romano taking rise and example from that glorious Assembly of the Palace of Rome mentioned in the Code of the Civil Law Id ab omnibus antea proceribus nostri palatii quam gloriosissimo coetu nostro c. It is likewise called the Parliament of Paris and it is there said to be called Parliamentum Parisiense quasi Parium lamentum quia Pares Franciae qui sunt de numero ipsius querelas planctus audiunt de quo mentionem facit Paul de Castr in Consil 334. vol. antiq And it is there likewise said to be called Curia suprema or curia judicum maximorum juxta Authen de Consulibus Sect. si autem mediocre tunc dicitur curia secundum eum id est cura vel cultura juris so that it is said to be the very sollicitude care or study of the Civil Law or the very tilling dressing or trimming thereof And this great Court at first constituted by King Pipin consisted ex quatuor viginti consiliariis computatis praesidentibus eisd per conclavia quae cameras
appellant distributis And after other additions made thereunto by Charles the Great Son of the said King Pipin Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum domus regiae ut sic centenarum judicum numerum tenens illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent creavit There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House that it keeping the number of an hundred Judges it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth Nay the dignity the precedency and placing of the Counsellors of this great Councell is derived from the authority of the Civil Law as is plainly set forth in the said Montanus upon the Authority of the Parliament of France and Boerius his additions thereon who both quote the Civil Law for the same and so is likewise the very authority of the Councel from thence derived as by the said Authors doth likewise appear And shall we now say that this great Court or Councell and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law and say conceive or think that their judgements and determinations of Controversies c. there given and made are not according and agreeable to the same Law If I should here endeavour to set forth those several Authors and Writers upon the Civil Law which have as I said before in the several Nations of Christendome in all the several Ages and Centuries of years which have been ever since the Compiling that Body even unto this time written and commented thereon and those which have wrote the Decisions Determinations Judgements Objections and other Law books grounded upon the same and which cite them for their authority and proof of what they conclude I should extend this Chapter to a whole Book or Volumne and but shew the Civilian and such as have been verst in Law Libraries what they have seen already and but tell others of those things which they will neither search for nor endeavour to see And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty but before I can return to steer a right course thither it will be necessary first to shew that the Civil Law is likewise necessarily practised used and exercised in all Admiralty Courts and there binding and of authority to direct the Determinations Sentences and Judgements decisorie in Maritime and Sea affairs between party and patty be they forreigners or others and then to shew that by those Laws so exercised and practised in those Cours as well as by the other Laws already set forth it doth appear that the Ports and Havens and all things done thereou are within the Jurisdiction of the Admiralty CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely necessary in the decision of all Maritime and Sea differences SUch as were apt to believe that the Civil Law was and is abolished in all forreign Parts and no use made thereof in the rule and governance of land affairs would very hardly without the removal of that misapprehension have been perswaded that the same was of any use in their Admiraly Courts in sea businesses I must therefore in the next place shew that he which understandeth only the Rhodian Laws the Laws of Oleron and the Inquisitions and Statutes before mentioned which the Civilian must needs most perfectly do the first being a great part thereof inserted in the very body of the Civil Law and the other from thence derived cannot without much reading and knowledge in other parts of that Law be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party and between the supreme Authority and those that are employed by that authority and such as are in subjection to the same much less to judge and determine such causes therein according to law and justice For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome whereby men are made happy in possessing and enjoying their own and defending themselves against wrongs and injuries offered by others hath two wings duas volatiles habet alas she hath two wings wherewith she soars aloft and stretcheth her self unto and spreadeth her self over both sea and land she hath two Jurisdictions the one fitted with Laws most apt and proper for distributing of right in all land businesses the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs and yet how different and distinct soever these two Jurisdictions are each from other as I have set forth more at large in the first chapter of this second Book yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law and are from thence furnished and fitted with different and distinct Laws whereby they keep up and carry justice upright between them both and by the one extendeth her directions unto the business of the land and by the other reacheth forth her proceed and effects unto the affairs of the sea Which two wings if taken off Justice must needs fall flat to the ground and can by no other means so expand her self as to extend either her directions unto the one or reach forth such her effects unto the other Secundis alitibus procedere nequit she cannot go on prosperously or happily to execute or performe her own proper office either upon the one or upon the other Nay if either of these two wings should be taken off or but joynted implumed or bereaved of those feathers nature at first gave it though the other should be preserved and kept never so compleat and perfect yet could Justice by the perfection of that one wing but hover and heave her self upwards on one side whilst the defect in the other would pull her downwards and the one side falling to the ground the other must necessarily follow If the power and privileges of either of these Jurisdictions should be decayed or but impaired though the other should be left never so entire yet could not the effects of Justice in the one supply the defects in the other For the Laws of the Land are no more fit to regulate the Affairs of the Sea
knowledge of the Civil Law which guideth and directeth both the Proceedings and Judgments in all Admiralties of Europe as necessary and farre more requisite for him that will justifie to any other Nation or learned Civilian his due and legal proceedings and justify his Judgments and Determinations in Maritime causes though according to the Laws before mentioned For Vinius himself in his Epistle Dedicatory to the Consuls of Amsterdam to his said Work praefixed who I doubt not but in regard that which he then said in the behalf of the Civil Law he said not to any that I now write will be believed before me that may be thought to speak for my profession in mine own Country affirmeth that Peckius in his work intended to keep himself within the rules of the Civil or Roman Law yet he did by that work shew that he wanted not the perfection of Learning or solid and sound knowledge of Law and many other things Ac forâ—asse Peckius intra limites Juris Romani se continere voluit utcunque sit ostendit sane hoc in opere Peckius sibi non defuisse justam eruditionem solidamque juris multarum rerum scientiam And this I will further add that he that in the Civil Law only and without the learning and knowledge which other Authors afford hath justam eruditionem a iust perfect or grounded learning or skill and thereby this solidam juris multarum rerum scientiam this solid and sound knowledge of the Law and multiplicity of business or matters for which the same was composed and continued may be fit to judge and determine of these Maritime matters and controversies which happen concerning the same when as he which hath the learning and knowledge of these other Authors only and hath no perfection in the learning and knowledge of the Civil Law shall be very defective in the proceedings to the due or just judgment therein But herein I shall plainly agree with this my learned Author Vinius that these Authors are of very good use may conduce much to the perfection of him that is either to judge or determine of such Controversies or shall be practicant in the same and likewise in that he further addeth in the same place viz. that notwithstanding the most perfect knowledge and learning in the Civil Laws and these other Maritime Laws it is sometimes and in some things requisite to make use of and consult with such Merchants and Mariners as are expert and skilfull in Navagation and Commerce Equidem inficior in negotiis nauticis nonnunquam confugiendum esse ad expertes sive nautas sive Mercatores aliosve hujusmodi peritos Yet this is by no means used or ought to be done but where some such thing falleth out whereof there is nothing certain set down in the written Law or introduced by Custome so that I with my same Author affirme the same with that learned Civilian Benveautus Straccha in these words Caeterum nego id fieri solere aut debere nisi ut rectè monet prudentissimus Straccha tale quid occurrat de quo nihil certi aut scripto jure cautum aut conâ—uetudâ—ne introductum est Now seeing that these Marine controversies and differences are to be adjudged and determined by these Civil and Maritime Laws certainly then are none so fit to heare and decide the same as those that are well verst and skilled in these Laws which necessarily must be such as spend their whole time pains and labour in the study thereof and by that means do better understand the diversity of such Laws and gather more knowledge therein then such as are daily imployed in Forreign affairs and continually busied in multitudes of negotiations which bring home a golden Harvest which will not be left or at any time set apart to give way for the study of those Laws which bring in no such profit Such men will rather be found in their Sellars and Ware-houses amongst their rich and precious Commodities which are to be bartered and sold then in Studies amongst mustie Books that are to be kept and not parted with And will rather be seen upon an Exchange Mart or Meeting-place of Merchants then upon a Bench of Justice And in this my said Author Vinius agreeth with me who saith Caetera enim scire possunt etiam qui vitam umbratilem colunt hi si quid literis mandare volunt plura conquirere solent curiosiùs cuncta rimari quam aut pragmatici qui rarò relictâ messe aureâ quà m assidua rerum forensium affert tractatio literarum monumentis unde nullus praeventus est student aut quilibet alii quos nimia circumfusa obsidet opprimit negotiorum multitudo And now since I have thus farre deviated and digressed from the way that I was in give me leave here in so necessary a course or rather discourse to go a little further and afterwards get home again as well as I can Let me shew of what necessary use the Civilian is in these Admiralty Courts which have the decision of Maritime Controversies and how unfit other men not verst or skilled in that Law are for the undertaking thereof I know it will be objected unto me in the first place that some Admiralties in forraign parts are regulated and ruled by the Justice and Judicature of Merchants and other feafaring men well experienced in matters of that nature I must confess I am no Traveller and that in regard have not been amongst these Mercatorian and Nauticall Judges but yet have I in my study travelled through the decisions and determinations of many forraign Judicatures and by that means I believe do know their Laws somewhat better then they which have travelled through those Countries but not through those Courts And I do finde that where such Mercatorian and Nautical Judges are they are either Civilians themselves or at least farre better verst in the Civil Law then any of the Merchants or Mariners of our Nation do seem to be or else they are not only assisted but regulated and ruled by Civilians and moreover by certain Letters yet remaining in my Study which I have in that short time that I have been verst in the high Court of Admiralty in England received from such forraign Admiralty Courts and the Copies of Letters which were unto them returned in answer and their replyes thereunto I can shew that upon contest for the right of Jurisdiction in the cognizance of causes which have happened between Forraigners and English whether the Causes were to be decided by their Court or this that they have urged and quoted the Civil Law for the foundation of their Arguments for their right of Jurisdiction therein and have received satisfaction by answers framed out of the same Law unto their said Arguments If I should here set forth those Letters and Copies it would thereby appear that the Jâ—risdiction of the Admiralty Court of England hath been maintained and defended by Civilians
Jurisdiction HAving now made it appear that there have been several Titles selected and gathered out of the body of the Civil Law for the dicision and determination of Maritime Causes and the same then and since very lately commented on for the better understanding thereof and the more perfect knowledge therein now it will remain to shew that by these Laws and divers others of the Civil Laws mentioned in the foregoing Chapters of this Book it will plainly appear that the Ports and Havens and all things had done or agitated thereon are within the power and cognizance of the Admiralty Jurisdiction And the first of those Titles so farre forth as it concerneth the Admiralty is Nautae Caupones c. ut recepta restituant And this Title consisteth of several Laws whereby Masters of Ships Mariners c. are compellable to restore such Goods Wares and Merchandizes as they shall have received aboard their Ships Now if the Jurisdiction of the Admiralty Courts had been restrained unto the high Seas where Masters of Ships and Mariners seldome or never receive in or deliver out their Merchants goods but upon some meer accidental occasion and had had no cognizance of Causes happening and falling out upon the Ports and Havens where usually they receive them in and deliver them out then certainly little reason had Peckius had to have made this Title to have been the first of those select Titles he gathered out of the body of the Civil Law for the decision of Marine Causes which belong to the Admiralty Courts and as little reason had Vinius had to have added so lately his additional Notes thereunto for that purpose The next Title so collected is de Exercitoriâ actione which concerneth Contracts and is to be made use of in its place The next is the Title ad legem Rhodiam de jactu which I have already instanced in to this purpose in the 9th 10th and 14th Chapter of this second Book and therefore shall pass it over in this place The next to this is the Title de incendio ruina naufragio rate nave expugnata of and concerning burning destruction and ruine of things ship-wrecks robbing or spoyling of Ships Now as under the first of these Titles Caupones Stabularii Victuallers and Inholders were comprehended as well as Nautae Mariners and yet is it by Peckius collected and commented on only for so much as concerned Marine and Nautical Affairs fit and proper for Admiralty Courts who saith that it is his purpose and intent in his Comment to explain those Laws only that belong thereunto and saith that the other are but things which have some affinity with or likeness unto the other or are things handled by such as handle things of another nature which he expresseth in these words Contestatum ante omnia haec volo te Lector non expositurum me hoc titulo nisi eas leges quae ad rem nauticam pertinent illud enim nostri est instituti caetera vel adfinia sunt vel ab aliis utcunque suis locis examinata So under this Title although burning ruine and destruction of things at land be comprehended as well as shipwreck c. yet doth Peckius his Comment extend only unto those Laws therein which concern Maritime affairs Now these Laws which concern offences committed in case of shipwreck and robbing and dispoiling of Ships or other Vessels comprehended under this Title do indistinctly handle the same whether they happen to be done upon the high Sea or upon any Port Creek or Haven where most of these things most commonly happen as by the particular Laws themselves it doth manifestly appear This Title setteth forth how and in what manner such persons shall be punished which when any Ship or other Vessel not being a derelict shall be wrecked stranded or otherwise distressed by robbery opposition quarrel spoil or otherwise with a deceiptfull intention to steal take carry away receive or damnifie any of the Goods Wares Merchandizes Tackle Furniture Ammunition Provision c. belonging thereunto though the same were cast out of the Ship and that indistinctly whether the said misfortune happened either upon the high Seas or upon the Ports Havens Creeks or Coasts of the Sea where Ships and other Vessels do ride lie at Anchor or have their station and indeed more proper is this Law for the Ports Havens Creeks and Coasts of the Sea then for the high Seas it rarely or never falling out that any persons are present to steal take carry away damnifie conceal or imbezle any of the goods belonging to any Ship or Vessel which shall be there wrecked nor the goods belonging to any Ship that shall be there robbed or in fight with an Enemy but such as are either the Pirats or Enemies themselves neither of which fall under the Judgment of this Law the one falling under that Judgment which is proper to Pirats the other under that which is proper to an Enemy and this being not appointed for the punishment of such as are either the Robbers Pirats or Enemies which set upon the Ship but of such as take the advantage whilst such strife and contestation is or when any wreck doth happen and when the Master and Mariners are in a distraction do take away the Goods belonging unto their Ship which must needs most commonly fall out when any such Ship or Vessel shall happen to be so wrecked robbed or dispoiled in a Port Haven Creek or Coast of the Sea where the Shoar is near and the Goods are either cast upon the same driven thereto or with Boats Engines or other Instruments fetched or brought thereon And by the two next Laws it more plainly appeareth that this Title principally aimeth at such as shall offend in this manner when a Ship is in her Port or Haven or upon any Creek or Coast of the Sea and there doth suffer any such distress or any such sad accident doth befall for that those Laws take care as well for the punishing such as shall take away any of the Goods from off the Shoar which shall be cast or driven thereon as the punishment of those that shall take them out of the Ship it self Item ait Praetor Si quid ex naufragio hic illud quaeritur utrum si quis eo tempore tulerit quo naufragium fit an vero etiam si alio tempore hoc est post naufragium Nam res ex naufragio etiam hae dicuntur quae in littore post naufragium jacent magis est ut eo tempore And the Third Law runneth in these words Qui autem in littore rem jacentem postea quam naufragium factum est abstulerit in eâ conditione est ut magis fur sit quam hoc edicto teneatur quemadmodum is qui quod de vehiculo exciderit tulit And many things more of the same nature are comprehended under the several paragraphes of
modis eos abigere And by the same Law all Ships and Vessels of what nature condition or quality soever they be and whosoever they be may be by the power and authority of the Admitalty seized on in any Port or Haven where they ride and be taken and employed upon any service of the King and are not to be excused One Title more of the Civil Law I shall instance in which treateth of things done upon the Ports and Havens and then return to some other Arguments out of our own Presidents at home and that is the Title of the Digests Nequid in flumine publico c. where the Praetor doth interdict Nequid in flumine publico ripáve ejus facias nequid in flumine publico ripáve ejus emittas quo statio itérve navigio deterius sit fiat The Praetor forbiddeth any thing to be done or to be cast forth into a publique River or upon the banks thereof which may either hinder the lying or riding of Ships there and this Edict extendeth directly to Rivers navigable and none other which are the Ports and Havens and those other parts of the same River through which Ships and other Vessels do sail to the place of their station or anchorage Hoc interdictum ad ea tantùm flumina publica pertinet quae sunt navigabilia ad caetera non pertinet Nor doth the Praetor here forbid any publique lawfull use of these publique Streams Ports or Havens but taketh a special care that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage anchorage and lying of Ships there Non autem omni quod in flumine publico ripáve fit coercet Praetor sed si quid fiat quo deterior statio navigatio fiat and the same Law setteth forth what is accounted to be a deteriorating or making worse of the said station anchorage riding or sailing of Ships Deterior statio item iter navigio fieri videtur si usus ejus corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur proinde sive derivetur aquâ ut exiguior facta minus sit navigabilis vel si dilatetur aut diffusa brevem aquam faciat vel contra sic coangustetur ut rapidius flumen faciat vel si quid aliud fiat quod navigationem incommodet difficiliorem faciat vel prorsus impediat interdicto locus erit The Station or Anchorage and also the passage for Ships doth seem to be deteriorated and made worse if the use thereof be corrupted or made more difficult less or more shallow and more seldome to be used or shall be wholly taken away Further or if the water shall be from thence drawn and so be made less and so less navigagable or if the banks shall be taken away and the River thereby made wider and caused to spread it self more in breadth whereby the water cometh to be made more shallow or on the contrary if it shall be encroached on and so streightned that the River passeth with more strength or violence or if any thing else be done which may disaccommodate Navigation or make the same more difficult or altogether hinder it this Edict shall take place against the same From which Law many Articles of the Inquisition taken at Quinborow and of the ancient French Articles translated into Latin by Roughton set forth to be inquirable in the Admiralty are plainly derived which Articles and likewise many Statutes which forbid the same offences were enacted to make the same more notorious to the people and are only in pursuance of this Law which is the fountain from whence they flow as their original Now lest some should still strive against the stream and offer to contend that this Edict of Nequid in flumine fiat c. that nothing shall be done in any navigable River or the Banks thereof which may hinder Navigation or the station or anchorage of Ships is meant only of the River which leadeth to the Port or Haven of discharge wherein Ships do oftentimes lye at Anchor before they can come further up to be discharged in the Port. I shall further clear this point by the Interdict mentioned by Labeo in the 17th Section of the same Law where the very word Port is used Nequid in mare inve littore quo portus statio iterve navigio deterius fiat After all this perhaps some may lauch further out into the deep and say that although these Laws collected out of the Civil Law are made use of in Maritime affairs beyond the Seas and do argue their Admiralties to have jurisdiction upon their Ports and Havens yet are they of no use here for the Admiralty of England is by the Common Law of England more restrained and extendeth not unto the Ports nor hath so large a power as forreign Admiralties have Since so many Nations as are named in the Libel subsequent unto the last Chapter of the first Book of this Maritime Dicaeologie have by the same so fully acknowledged the Regimen Government and Jurisdiction over the narrow Seas to belong to to the Admiralty of England and no other Admiralty as is plainly in the same set forth Let none of this Nation for shame say that the power and authority of this Court which extendeth as farre and further then the power of any other Admiralty Courts doth shall be nothing at or near home Nor let it for shame be said that our Admiralty to which they have not only ascribed but prescribed from so antient antiquity such superiority shall not afford unto Forreigners the same Justice other forreign Admiralties afford unto this Nation But for further satisfaction to such as will be further curious I shall proceed to make further proof of this point by Presidents out of our own Courts at home CHAP. XVII That by the Records of the Admiralty it appeareth that the Admiral had and hath power and jurisdiction upon the Ports and Havens THe Statute of the 28th of Hen. 8. cap. 15. directeth that the tryal of Traytors Pyrats Theeves Robbers Murderers and Confederaters upon the Sea or in any Haven River Creek or other place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction may by virtue of a Commission under the Great Seal directed unto the said Admiral or Admirals his or their Lieutenant or Lieutenants and three or four substantial persons be made and done according to the Common course of the Laws of the Land but taketh not away the Admirals power of tryal of the same offences by the course of the Civil Law as had been formerly used but leaveth him to proceed in causes of that nature either way as the proof the fact may be most fitly had or made And this Statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the Ports Havens and Creeks of the Sea
either be built or bought at such rates or prizes as they then were so that they cannot be let for the same freight they then were For the other clause of Forreigners transporting their Wares and Merchandises in English Bottoms to pay no more Custome then the English whether the Customers have disused the same and so made it obsolete or not I know not But in case they have so done I know no warrant or necessary cause they have for so doing but for the last mentioned clause That Masters and owners of Ships shall provide that all the Merchants Wares and Merchandises shall be in good order saved and kept and that the Merchant which shall thereby or by delay or protracting of the Voyage without just cause longer then the time agreed by the Charter-party find himself aggrieved shall and may have his remedy in the Admiralty This is only in affirmance of the Law of that Court and was both before the making of that Act and hath been ever since used and practised in that Court and cannot by the disuse of it at the Common Law where it is not by that Act at all to be used be made obsolete but is by the practice and use of it where it is appointed to be used held continued and preserved from being made obsolete there Now no man can say but that this saving and keeping of Merchants Goods and Merchandises honestly and in good order is clearly meant of such saving and keeping them honestly and in good order as well whilest the Ship or Vessel remaineth in the Port or Harbour as when she cometh at high Sea and the delaying and protracting of time in taking of the Voyage with the next good wind according to the time agreed on by the Charter-party is most certainly a wrong or injury done upon the Port or Haven and the Jurisdiction of the Admiralty in causes of this nature upon the Ports and Havens by this Statute affirmed and confirmed And moreover the very breach of the Charter-party though made at land is by this Act affirmed to be cognoscible in the Admiralty which bringeth me in the very next place upon that point and particular wherewith I shall begin the next Book THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE THIRD BOOK CHAP. I. That all Differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof HAving been thus long upon the Ports and Havens it is now full time to begin to think of the discharging of the Ship and the delivery out of her lading to the Merchants to whom the same belongeth and for to come to the Caulking fitting trimming preparing and furnishing of her with Victual Tackle Apparel and furniture c. and manning her with Seamen and Mariners for some voyage and taking in of her lading from the Merchants or their Factors to be transported in the same In the effecting of all which several men of several Occupations Trades and imployments are severally to be contracted with as well at Land as upon the Port and Haven The validity and invalidity of all which contracts Sir Edward Coke would have to be Cognoscible Tryable and determinable in the Common Law Courts according to the Course of the Common Law and not in the Admiralty Court or according to the Proceedings Rules and Grounds of the Civil and Maritime Laws But I must here likewise adventure another dispute with him upon this point And first I shall offer some reasons to the contrary and then endevour an answer unto his Arguments And after both I shall set forth what Laws have been made for the determination of such differences as shall arise upon such contracts by which Laws certainly they are still to be determined And first I say that by Ships and Shipping this Nation is secured and preserved from foraign Invasions and by Trade and Commerce with foraign Nations not a little enriched and neither Shipping nor Trade can be upheld without the welfare of Merchants Owners of Ships Fitters Furnishers of them Mariners c. And this welfare of the Merchant Owner Fitter Furnisher and Mariner cannot be maintained without a settled Jurisdiction of Admiralty regulated according to the Civil and Maritime Laws setled amongst and known unto all Maritime Nations Because as it is well known all of them have dealings with such foraign Nations abroad and such foraign Nations with them at home who both expect and will have the same Justice meted to them that they measure unto others else will they both forbear to Trade with that Nation which shall deny them that Justice and likewise deny that Nation to Trade with them Now it is most certain that the municipal Laws of this Kingdom are so different from the Civil and Maritime Laws that if Maritime Causes be they either for freight wages damages done to Merchants Goods Building Tackling and furnishing of Ships c. should be here determined by the municipal Laws of this Nation and beyond the Seas by the Civil and Maritime Laws they must necessarily receive many of them a different many of them a clean contrary Judgment To instance briefly in some few of many If Mariners be hired to serve in a Ship for so much by the Moneth and serve divers Moneths in her and the Ship dieth at Sea and never maketh port here the Judgement of these two Laws will be clean contrary Likewise if a Ship be let to freight at a certain rate by the Moneth from Port to Port and so home again and the Ship in some of those Ports shall be imbarqued for some moneths here the Judgements of the two Laws both for freight and wages for those moneths will be contrary and upon other emergent causes from hence arising the Judgements will likewise be in some farre different and in other some clean contrary If the Merchants Wines Oyls c. be leaked out end for end the Judgements upon Action for the freight will be different if not contrary If the Merchants Goods shall be damnified by ill stowage or careless looking to or shall be purloyned or stoln the party not known or if known not able to make satisfaction here upon Action brought by the Owner for his freight and by the Mariner for his Wages the Judgements will differ very much If in a storm at Sea or in any Port or Haven the Ship and her lading be in danger and some Goods be cast over board for preservation of the rest by the Maritime Laws the remaining Goods are to be cast into an Avaridge to make satisfaction for the Goods cast over-board by which Law certain Rules as well concerning the danger the nature of the several Goods and the casting them over board as concerning the Avaridge it self to be made are prescribed which Rules are not known or owned by the municipal Laws of this Nation and therefore cannot that Law take cognizance thereof and consequently upon Action brought by the owners for freight
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
that they should altogether and without delay forbear all manner of cognizance in Civil and Maritime causes contracted in the parts beyond the seas upon the high Sea or in any place where his Admiral of England had jurisdiction or from thence proceeding against the said John Bates by what names soever called by whomsoever or in what manner soever begun or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid in like manner as before remitting the parties if they would sue to the Court of the Admiralty of England for justice to be to them there administred in that behalf The words of the Supersedeas are these Rex c. Majori Vicecomitibus Civitatis nostrae Ebor. salutem Vobis cuilibet vestrum praecipimus quatenus ab omni cognitione in causis civilibus maritimis in partibus ultramarimis vel super alto mari aut alibi ubi magnus Admirallus noster Angliae habet jurisdictionem contractus originem contrahentibus versus Johannem Bates Mercatorem cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis deliberatis per quoscunque vel qualitercunque motis seu movendis omnino indilate supersedeatis partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes Teste meipso apud Westm decimo quarto die Aprilis Anno Regni nostri trice simo primo Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas and out of these words apud Civitatem Burdugaliae venditioni expositis That though by the course of the Common Law if a man do deliver certain Goods unto another man and doth intrust him with the keeping of them for his the Owners use or to be by him disposed of in one manner and he either selleth them or disposeth of them in another I do conceive he that so intrusted the other may recover of him such damage as he hath sustained by such the others sale or disposal Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas for his own use or for the use of any other particular man to whom the same are by him consigned or doth intrust him to dispose of them in any particular manner whatsoever yet he may in many cases upon certain exigencies happening sometimes sell the same sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them and no damage shall be by the course of the Civil and Maritime Laws recovered of him and herein those Laws have very many nice and curious distinctions and for this Cause when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all he presently flyeth to the Common Law where he knoweth he shall recover damage against the Master who was in no fault at all in such manner as mutinous and disobedient Mariners who have either through their misdemeanors by the Civil and Maritime Laws forfeited their wages or some part thereof or having received due correction from the Master at sea do fly to the Common Law either for recovery of their wages upon their Contract which they have no wayes deserved or do there bring their Actions of Battery against the Master when as he hath only given them such due correction as the Civil and Maritime Laws do allow that being a thing done at sea where complaint cannot be presently made or remedy had before a Magistrate as may be at land and therefore the like at land not to be allowed in both which cases they oftentimes recover and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas which cannot oftentimes be possibly done but by Commission out of the Admiralty Court which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships which if not remedied will be the utter destruction of Navigation And another thing I shall observe in general from both the two preceding Supersedeas's That all Contracts of and concerning Maritime affairs made between Merchant and Merchant Masters and Owners of Ships and Mariners or between them or any other person whatsoever and in what manner soever to be agitated or performed by sea upon the seas beyond the seas or elsewhere within the Jurisdiction of the Admiralty or taking their rise or original from thence or do in any manner of wise touch or concern the same were not permitted in those times to be examined or adjudged in any Court but the Admiralty And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes viz. that Contracts of this nature though made at land which do maris per transitum sive viagium aut negotia maritima quoquo modo respicere vel qualitercunque tangere concernere and so do arise from things done or to be done at sea and not from things done or to be done within the body of a County do de jure belong unto the Cognizance of the Admiralty and are in no wise by the said two Statutes taken from the same and if by them not taken from thence then doth not the penalty of the other praementioned Statute of Henry the fourth run upon those that do sue in the Admiralty Court in causes of this nature but only upon such as shall there sue upon Contracts made at land of or concerning things done or to be done or performed at land and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued CHAP. IX That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted I Shall here proceed to shew that the Maritime Contracts whereof I have hitherto treated in this third Book of this Treatise and particularly exprest in the Title of this Chapter have been by Consultations out of the Courts of Common-Law at Westminster after Prohibitions from thence obtained determined and adjudged to belong unto the Admiralty One Robert Baker of the City of London Vintner sued one John Maynard in the Admiralty Court upon a Contract made at land of and concerning a thing done upon the Sea as by the Consultation it self doth appear But one John Gilbert Esquire being Bail for the said Maynard endeavouring to decline the cognizance of that
reciteth the said three before mentioned Statutes Praedictus tamen Thomas praemissorum non ignarus sed machinans non solum ipsum Philippum contra debitam legis hujus regni Angliae formam et contra formam et effectum statutorum c. traxit in placitum falsè caute et subdolè libellando in Curia Admirallitatis c. cujus quidem suggestionis praetextu c. That upon the 3. of April 7 Jacobi within the body of the County of London viz. in the Parish of St. Mary de Bow in the Ward le Cheap and not upon the high Sea nor within the Jurisdiction of the Admiralty Court of England he by his certain Bill obligatory sealed with his seal as his deed then and there delivered unto one Thomas Alport bearing date the same day and year did bind himself his Heirs c. to pay unto the said Thomas his Heirs c. at any time upon demand the summe of 275 l. and 6 s. of lawfull mony of England and alleadgeth the three before mentioned Statutes and that notwithstanding the said Thomas not being ignorant thereof c. had brought his Suit in the Admiralty Court for the recovery of the said debt upon the said Bill obligatory contrary to the form of the Law of England and contrary to the form of the said Statutes and thereupon obtained a Prohibition But upon the 20th day of June in the tenth year of King James it being made appear by the Libell and Bill obligatory that the same was made beyond the seas in respect of a Maritime business had and done at sea the said Prohibition was released by consultation which concludeth that the Prohibition was to the grievous damage of the said Thomas Alport and manifest wrong of the Court of the Admiralty and saith the proceedings in that cause in the said Admiralty Court ought not to be delayed Et quia videtur praefatis Judiciariis pro certis caeusis ipsos specialiter moventibus quod processus in praedicta Curia Admirallitatis in praedicta causa ad prosecutionem praedicti Thomae ulterius retardari non debet Ideo vobis c. T. E. Coke apud Westm xx die Junii Anno Domini nostri Angliae Franciae Hiberniae decimo Scotiae quadragesimo quinto Crompton But it may be said that many more Prohibitions have been granted out of both the said Courts at Westminster as well in causes of this nature as in causes for things done upon Ports and Havens upon which Consultations have not been had and I doubt not but in latter times there have but it hath for the most part been when the parties have agreed and the cause compounded and so no Consultation prayed or sought for if otherwise let no man brag of that which hath been done which ought not to be done But another cause may be given and that is this that the Civilian not being suffered there to plead the right of Jurisdiction belonging to the Admiralty the same hath not been undertaken by any practicers in those Courts and if undertaken yet pleaded but coldly against the Jurisdiction of their own Courts Howsoever I do conceive that the Procedendoes out of the Chancery and the Consultations out of the Kings Bench and Common Pleas which I have in this and the second Book of this Treatise set forth though I might have instanced in very many more will be sufficient to determine the right of Jurisdiction as well in causes of the one nature as of the other against the said several Courts from whence such Supersedeases and Prohibitions were granted I will not say but that the Admiralty Court may sometime have intermedled with Contracts made at land arising from businesses done or to be done or performed at land which is here in England as it were to take Cattle from a Pasture and put into the sea to feed And in such cases I doubt not but a Prohibition may lye which shall not be dissolved by Consultation But by Prohibitions to take businesses of the Ports and Havens or Contracts made at land concerning Maritime affairs from the Admiralty to be determined by the Common-Law of the land is to take fish out of the sea to be kept alive and fed upon pasture or in some Forrest or Park at land For I shall in the next Chapter out of many shew you some few of those exact rules the Civil Law hath to proceed by in causes of this nature besides the Laws I have before mentioned which the Common-Law hath not CHAP. X. That divers and severall of the Laws under the titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at land concerning matters to be done at sea NOw concerning this matter I may rather referre the Reader unto Peckius himself Vinius and other Authors writing thereon then to spend any great labour about it but whilest he hath this book in his hand let him cast his eye upon some few of a great number of such Contracts made at land concerning businesses to be done at sea which are exactly determined by these Laws and are used and held absolutely necessary in all forreign Maritime Judicatories and not by any the rules of their Municipal Laws which as they are little or nothing different in their proceedings from the proceedings of the Civil Law so are they farre less different in their determinations from the determinations of that Law then our Municipal Laws be As in the first of these Titles If Mariners before they receive goods on board do contract with the Loader ut recepta restituant Quaeritur utrum Nauta an Exercitor navis pro restitutione conveniatur Quaeritur etiam an Exercitor Magister aut Nà uta ex contractu teneatur de rebus non ostensis Ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione Quaeritur etiam utrum nautae ex sola emissione teneantur Ac etiam an nautae de facto vectorum teneantur Quaeritur etiam quae quando actio detur subsidiaria protestatio an requirat consensum adversarii Ac an in scriptis fieri debet Quaenamque sit vis protestationis Cum quolibet nautarum sit contractum an detur actio in exercitorem Ac quid si nauta per Magistrum navis conductus in nave deliquerit an in exercitorem detur actio Magister navis per exercitorem conductus an alium substituere potest Mutuum dans in navis usum an caeteris creditoribus praefertur quando quare an quando navis per aversionem conducitur Dominus an quando quare invitus ignorans de peculio teneatur Merces an pro naulo contracto cum magistro sint obligatae Quaeritur etiam quando argumentum Ã