themselves perswaded and would perswade others to be of that opinion but it is apparent that it is not the place only but the nature of the Case happening within such a place that makes the Jurisdiction and therefore if a Contract of Marriage or a Testament be made at Sea the Admirall claimes no conusance thereof which he might do if the place alone were sufficient to give the Jurisdiction and so Godfry in his Comment upon the Customes of Normandy saith that the Iurisdiction of the Marshal of France and of the Admirall are limited to certain Causes and matters whereupon it followeth that they cannot Iudge but of things of which the Conusance belongs unto them for their Iurisdictions are not regulated onely by the Territory or place but also by the Causes and matters over which a competent power is granted unto them And so Justice Reeves in an Argument in Communi Banco delivered that he differed in opinion from the Lord Hobard and affirmed that the Cause as well as the place gave Jurisdiction for if a man upon the Sea do seal a Lease or an Obligation the Common Law shall have the Jurisdiction and not the Admiralty because the Cause is not Maritime and this he sayes agrees with the Lord Hobard himself in Bridgemans Case and Sergeant Callis in his Readings doth acknowledge That the King rules on the Sea by the Laws Imperial and the Roll of Oleron and others But that is saith he in the Causes of Shipping and of Merchants and Mariners And whereas the Sergeant sayth well and I suppose no man will deny but the Civil or Imperial Laws the Roll of Oleron and others by which I suppose may be understood the Articles of the Inquisition of Quinborough are of force in the Admiralty of England For further Illustration that there are certain Causes properly belonging to the Conusance and Jurisdiction of the Admiralty Court of England It may be more particularly deduced and shewed from these several and respective authorities And first as touching the particular Causes which may be deduced from the Civil Laws some things have been allready shewed out of what the Romans derived from the Rhodian Laws and if any will be further satisfied he may find it perspicuously declared in a Tract De Iure judicio Maritimo wherein the particular Causes not only Civil but also Criminal concerning Navigation Negotiation by Sea are summarily set down with Relation to the Text of the Civil Laws And touching the Laws of Oleron which are lesse obvious it may be observed that the particular Cases therein are as first Touching Ships hired for Sea-voyages and their proceedings in the same 1 How Masters and Mariners are to be satisfied when the Merchant provides not his goods ready to be laden at the time agreed upon 2 How the Master ought to consult with his Company before he put out of the Harbour and proceed with their advice and what he is lyable unto if he do otherwise 3 How the Master ought to make satisfaction when the Merchant is prejudiced by his stay in any place and is not proceeding in the voyage 4 How the Master in case his Ship be disabled by some misfortune may repair it or hire another or if the Merchant refuse what fraight may be demanded Secondly Touching the safe keeping and delivering of goods received into the Ships 1 How the Merchant shall be satisfied if his goods be damnified in the Ship by evill stowing or other bad usage and how the Master and Company may clear themselves 2 How the Master and Company are lyable unto the Merchant if any goods brought into the port of discharge miscarry in the unlading by occasion of the Tackling or Cordage which are found unfit Thirdly Touching the Engaging of Ships or goods in case of necessity 1 First Whether the Master wanting means to proceed in his Voyage may sell or dispose of the Ship without Commission from the Owners and how and in what case he may Engage some tackle or furniture of the Ship 2 How far in case of necessity the Master may intermeddle with the Merchants goods and if he dispose of any how he is to make accompt and give satisfaction Fourthly Touching Contributions to be made for loss upon occasion of Common danger 1 First How the Master with advice of those in the Ship or otherwise in extremity of tempest may cast out some mens goods to save themselves and the rest and how average or Contribution is to be made 2 How the Master in the tempest cuting down his Mast and casting it over Board to save the Ship and goods ought to have satisfaction from those whose goods were saved Fifthly Touching damages done by or betwixt several Ships First How and in what manner the Damage is to be born when a Ship sailing into a Port bruizes or brâ—aks another Ship riding there at Anchor Secondly How if two Ships riding at Anchor in a Haven and the water being low the Master of the one observing some danger from the Anchor of the other may give notice thereof to the Master of that ship and if he neglect to remove it may cause it to be done by his own Company and if he be hindred therein and damage done what reparation may be recovered Sixthly Touching the charge for hiring of Pilots and their duty 1 The Master being bound by Charter-party to pay Pilotage in what places and how far he is bound thereunto 2 How far the Pilot is liable to make â—atisfaction of the ships miscarriage under his charge and whether he be bound when he hath brought her into the Harbour if she miscarry by misplacing there There be many other Cases contained amongst these Judgements of Oleron but these may suffice for our purpose As the Roll of Oleron doth contain Judgements or Verdicts especially in Civil Causes which did belong to Maritime Judicature so in the Inquiâ—ition at Quinborough are presented matters Criminal and Offences concerning which antiently inquiry hath been made in the Admiralty Jurisdiction which may be reduced into these heads as First Offences against the King and Kingdome as 1 Of such as did furnish the Enemy with Victuals and Ammunition and of such as did Traffick with the Enemies without special Licence 2 Of Traytors goods detained in ships and concealed from the King 3 Of Pirats their Receivers Maintainers and Comforters 4 Of Murthers Man-slaughters Maymes and Pety-felonies committed in ships 5 Of ships arrested for the Kings service breaking the Arrest and of Sergeants of the Admiralty who for money discharge ships arrested for the Kings service and of Mariners who having taken pay run away from the Kings service Secondly Offences against the Publick good of the Kingdome as 1 Of ships transporting Gold and Silver 2 Of carrying Corn over Sea without special Licence 3 Of such as turn away Merchandizes or Victuals from the Kings Ports 4 Of Forestallers Regrators and of such as use false Measures Ballances
and Weights within the Jurisdiction of the Admiralty 5 Of such as make spoil of wrecks so that the Owners coming within a year and a day cannot have their goods 6 Of such as claim wrecks having neither Charter nor Prescription 7 Of Wears Riddles Blind-stakes Water-millsâ— c. whereby ships or men have been lost or endangered 8 Of removing Anchors and cutting of Buoy-Ropes 9 Of such as take Salmons at unseasonable times 10 Of such as spoyl the breed of Oisters or dreg for Oisters and Mussels at unseasonable times 11 Of such as fish with unlawfull Nets 12 Of taking Royal Fishes viz. Whales Sturgeons Purpoises c. and detaining the one half from the King Thirdly Offences against the Admiral the Navy and Discipline of the Sea 1 Of Judges entertaining Pleas of Causes belonging to the Admiral and of such as in Admiralty Causes sue in the Courts of Common Law and of such as hinder the Execution of the Admirals process 2 Of Masters and Mariners contemptuous to the Admiral 3 Of the Admirals shares of Weifs or Derelicts and of Deodands belonging to the Admiral 4 Of Fletson Jetson and Lagon belonging to the Admiral 5 Of such as Freight Strangers bottoms where Ships of the Land may be had at reasonable rates 6 Of Ship-wrights taking excessive wages 7 Of Masters and Mariners taking excessive wages 8 Of Pilots by whose ignorance ships have miscarried 9 Of Mariners forsaking their ships 10 Of Mariners Rebellious and dis obedient to their Masters In the same antient Book of the Admiralty there is a Copy of a more antient Enquiry touching Admiral Causes wherein some things relate to Constitutions made by King Richard the first at Grimesby viz. That ships arrested for the Kings service breaking arrest shall be confiscated to the King and by King Iohn at Hastings That no private man should appropriate to himself the benefit of any salt waters by Meers Ridles and the like and that the same should be pulled down And the fishing cryed common to all people was likewise ordered by King Iohn This may suffice to confirm that there were certain special Causes both Civil and Criminal which did antiently belong and properly to the Conusance of the Admiral and to shew that his Jurisdiction was not wholly confined onely to the Sea That the Iurisdiction of the Admiral of England as it is granted by the King and is usually exercised in the Admiralty Court may consist with the Statutes and Laws of this Realm FIrst it appears by antient Record of the time of King Edward the first De superioritate Maris That it was acknowledged by the Deputies of the Parliament of England and of divers other Nations That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas by prescribing Laws and Statutes for the preserving Peace and Justice and by exercising all kind of Authority in matters of Judicature and all other things which may concern his Soveraignty in the same which being granted his power to depute a Magistrate or Officer to those purposes with so much of his authority as he shall think fit cannot be denied Secondly That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral is agreeable to Commissions antiently granted and which have been passed from time to time by the Kings learned Counsel and by the Lord Chancellor or the Lord Keeper for the time being who have thereunto set the Great Seal and that the authority and Jurisdiction of the Constable and Marshal is designed by St Edward Cook by referring to Grants of those Offices antiently made by many several Kings with exception onely to one irregular precedent in the time of King Edward the fourth Thirdly That Mr. Selden shews that all the Patents of the Office of the Lord Admiral from the beginning of Queen Mary's time to the time of King Charles have been conceived after one and the same form and tenor as of Edward Lord Clintâ—on afterwards Earl of Lincoln under King Philip and Queen Mary of Charles Howard Lord Effingham afterwards Earl of Nottingham under Queen Elizabeth of Charles Duke of York after King Charles under King Iames and of George Duke of Buckingham under King Iames and King Charles to which may be added the Patent of Algernon Earl of Northumberland under King Charles the first and of Iames the most Illustrious Duke of York under King Charles the Second Fourthly That the Lord Admiral and his Deputies proceeding according to his Commission is expresly allowed by King Philip and Queen Mary where they by a Statute restraining the exportation of Corn without Licence make a special provision That that Act shall not be prejudicial or hurtfull to the Lord Great Admiral of England for the time being or to the King and Queens Majesties Iurisdiction of the Admiralty but that the said Lord Admiral or his Deputies shall exercise use and execute all kinds of Iurisdiction belonging to the Sea according to his or their Commissions which provision although it seems to have been made in respect of that Statute yet it shews what respect the King and Queen intended to their Lord High Admiral their own Admiralty Jurisdiction in all matters belonging to the Sea and to the Commission by them granted Against the Jurisdiction of the Admiral as is granted by the King and as it is exercized in the Court it is pretended in general That it is not agreeable First To several Acts of Parliament Secondly To divers Judgments Book-Cases and Judicial proceedings to which may be added the Resolutions of the Judges upon the complaint of the Admiral in Sir Edward Cooks Articuli Admiralitatis All which more specially may be reduced to three heads First Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm Secondly Where he meddles with other things done within the Bodies of Counties and Thirdly With such things as are made or done beyond the Sea The Acts of Parliament are First The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm Secondly That of the 15. of the same King chap. 3. which declares that he hath no Jurisdiction within Bodies of Counties Thirdly That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourthly That of the 5 of Elizabeth which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers The First of these being more general may in this place be considered the rest being more particular may in discussing of some other particular points to which they are appliable be examined That of the 13 Rich. 2. chap. 5. ordains that the Admirals and their Deputies shall not meddle of any thing done within the Realm but only of things done upon the Sea as it hath been used in the time of King Edward the
Councell Garsias Mastrilli sayes he hath all Jurisdiction both Civil and Criminal in Maritime causes exclusive to all others The King of Spain hath divers other Admirals both in Europe and the Jndies of equal power Marinus Siculus sayeth of the Admirall of Castile that he is next unto the Constable and hath supreme Authority over all that use the Sea and is held to be Lord and chief Commander of the Sea as it is also largely described in the Partidos besides for the dispatch of ordinary Maritime businesse by the same Laws Judges are appointed to reside in Port Towns and other places on the Sea Coasts which are to hear the causes of Sea-men concerning Freight of Ships and Contributions for goods cast over-board or any other matter which Judges were to proceed plainly without solemnities and with all expedition c. In France by an Ordinance of Henry the third made upon a survey of all other former Ordinances ratifyed by the Parliament of Paris The Office of the Admirall in the Kings name is thus declared 1. That of all Armies which shall be raised and set to Sea the Admirall of France shall be chief and our Lieutenant General and shall be obeyed in all Maritime Towns and places which are or may be without contradiction Secondly He shall have Jurisdiction Conusance and determination of all things done or committed on the Sea or shoars of the Seas likewise of all acts of Merchandise fishing freighting or letting to freight or breach of ships of Contracts made touching the matters afore-said of Charter parties of Sea briefs and of all other things whatsoever happening upon the Sea or shoars thereof as our Lieutenant General alone and to all purposes in the places afore-said which Jurisdiction Cognizance and determination we have interdicted to all other our Judges He shall hold his principal Court at the marble Table in the Palace at Paris and shall appoint Judges Deputies in Maritime Cities and Towns who shall hear ordinary matters happening within their Circuits and if any businesse fall out worthy of greater consideration they shall referre the same to him In Denmark the third place of dignity in the Kingdom belongs to the Admirall who is commonly called Ryâ—ks Admirall and as Morisotus writes He hath the same Right and Power as the Admirall of France In Scotland as VVellwood a Scotish man writes the Admirall and Judge of the Admiralty hath power within the Sea-flood over all Sea-faring men and in all Sea-faring Causes and debates Civil and Criminal So that no other Judge of any degree may meddle therewith but only by way of Assistance as it was found in the Action brought by Anthony de la Tour against Christian Martens 6 Novemb. 1542. The Admirall of England as Mr. Selden observes hath another manner of Right and Jurisdiction than the Admirall of France or other ordinary Admiralls for that the Jurisdiction over the Seas of England and Ireland and the Dominions and Isles of the same as a Province are committed to his Custody and Tuition as to a President to defend the same as in the Dominion of the King by whom he is Authorized The bounds of which Jurisdiction are limited and determined in those Seas and besides as the French and other Admiralls he hath the power over the Navy and the Government over the Sea-men and Jurisdiction over the persons and moveable goods which come under his Judicature pour raison ou occasion del faie de la mer which Jurisdiction hath no bounds but extends to the Mediterranean African and Indian Seas or any other far remote What Mr. Selden delivers concerning the Admirall of Englands special Jurisdiction in the first respect is confirmed by an ancient Record in French in Archivis of the Tower of London set out at large by Sr. Edward Cook the effect and tenour whereof is That whereas during the Warrs between Philip King of France and Guy Earl of Flanders Reginerus Grimbaldus Admirall of the French Navy had spoiled the Merchants of divers Nations sailing towards Flanders in the English Seas and Commissioners being appointed by the two Kings to hear and redresse the Complaints concerning the same the Deputies of the Prelates Nobility and Commonalty of the Towns of England and of divers Maritime Countries as of Genua Catalonia Spain Germany Zeland Holland Friesland and Norway declare That the Kings of England by reason of that Realm time out of mind have been in peaceable possession of the Soveraign Dominion of the Sea of England and of the Islands therein situate by ordering and establishing Lawes Statutes and Counter-mands of Armes Vessels otherwise furnished than for Merchandising and by taking security and giving protection in all Causes needful by ordeining all other things requisite for the maintaining of Peace and Right amongst all other People as well of other Seignieuries as of their own passing through the same And all manner of Cognizance and Jurisdiction high and low touching those Laws Statutes Ordinances Countermands and all other Acts which may appertain to the Soveraign Dominion afore-said and that A. D. B. Admirall of the Sea deputed by the King of England and all other Admiralls appointed by him and his Ancestors heretofore Kings of England have been in peaceable Possession of the said Soveraign Protection together with the Conusance and Jurisdiction and all things before mentioned thereunto appertaining except in case of Appeals to their Soveraign Kings of England for default of doing Right or giving wrong Judgment and especially in making Restraint doing Justice and taking security for the peace of all manner of People bearing Arms on the Sea or Ships sailing otherwise apparelled or furnished than belongs to Ships of Merchandise and in all other points in which a man may have reasonable Cause of Suspicion against them touching Robbery or other misdemeanours Besides the Jurisdiction Extraordinary of the Admirall of England concerning Protection against depredations in the English Seas as Mr. Selden writes his Ordinary Jurisdiction is over the persons and goods moveable which come under his judicature by occasion of businesses relating to the Sea is not only agreeable to the Jurisdiction of the French and other Admiralls but is also warranted by the Kings Commissions as it is apparent by antient and later Patents granted by the Kings of England in which the Admiralls of Englands Ahthority and Jurisdiction is expressely fully declared as followeth Damus Concedimus c. We give and grant to N. the Office of our great Admiral of England Ireland Wales c. And we make appoint and ordain him Governour General of our Navies and Seas of the Kingdoms afore-said And be it further known that we of our special Grace and certain knowledge do give and grant to the same our great Admirall and Governour of our Navies all and all manner of Iurisdictions Liberties Offices Fees Profits Preheminences and Privileges Whatsoever belonging or appertaining So far is
the Admiralty according to the Statutes It is further confirmed by a manuscript Copy of the Statutes in French in the Library of Merton College in Oxford in which are these words Niene meyns de mort de omme de mayheme engrosses neifs estants oâ—erantâ—s a my le haut fio des grosses reviers tant seculament par-avali des pounts des mesmes les riviers L'n Admiral coâ—usance The second Statute that may be applied to this purpose is that of 5 Elizabeth Chap. 5. which relating to divers things made offences by that Statute ordains that all and every of the said offences done on the main Sea or Coasts of the Sea being no part of the bodies of any Counties of the Realm and without the Precinct Liberty and Iurisdiction of the Cinque Ports and out of any Haven or Pier shall be determined by the Lord Admiral Touching this Statute it may be observed That the end thereof was according to the Title for the maintenance of the Navy and as for a mean to that end for the imploying of English shipping especially for the bringing in of Fish for which purpose it provides That Wednesdayes should be held Fish-dayes That none shall demand toll of Fish brought in Subjects ships That no Herring unsalted should be bought out of strangers bottoms besides that no Wares should be carryed from Port to to Port and that no Wine nor Woad shall be brought in but in English ships of which businesses it might be more fit for the Officers of Corporate Sea-Towns to enquire than for the Admiral which the Parliament understanding might without prejudice to his Jurisdiction in other matters except from him touching offences of that kinde the enquiry within Havens and Piers. Besides whereas Sir Edw. Cook recites the words That all such Offences shall be tryed before the Admiral the words of the Staâ—ute are before the Lord Admiral of England or his Lieutenant or Deputy or Deputies and other Iustices of Oyer and Terminer according to the form of the Statute of the 28 Hen. 8. for Causes of Piracy So that it concerns not the Admiral in his ordinary capacity but as he is chief in that Commission And whereas Sir Edw. Cook from this concludes That by the Judgement of the whole Parliament the Jurisdiction of the Admiral is wholy confined to the Sea and Coasts of the Sea being no parcel of the County how strongly soever he conceives it under favour it is no good argument to infer from these new created offences of which he is to enquire in an extraordinary way that he hath no Jurisdiction in other matters which did formerly belong unto him especially touching Navigable Rivers of which in this Statute there is no mention nor exception Moreover whereas the Judgement of the Parliament in this Statute is so confidently urged for the limiting of the Admirals Jurisdiction it is deâ—â—red that to the points in question two other Statutes the one long subsequent to that of Rich. 2. the other not long preceding that of the 5 of Queen Elizabeth may be taken into consideration The first is that of 28 Hen. 8. Chap. 15. concerning the trial of Piracies and other crimes committed within the Admirals Jurisdiction wherein it is declared That all Treasons Felonies Murthers Robberies Confederacies committed in or upon the Sea or in any other Haven Creek or place where the Admiral or Admirals have or pretend to have Iurisdiction shall be enquired tried heard or adjudged by the Admiral and others appointed by the Kings Commission under the Great Seal in such shires and places of the Realm as shall be limited in the Commission as if any such offence had been committed upon the Land c. The end of this Statute was that whereas Piracies and other offences committed within the Jurisdiction of the Admiralty were formerly tryed according to the Civil Law and Offenders could be convicted onely by confession of the parties and proofs by Witnesses to reduce the Trial of the same to the course of the Common Law by a Jury of Twelve men by which Statute although the Manner of the trial of Offences were altered yet the Limits of the Admirals Jurisdiction are allowed to extend not onely to the Sea but to Havens Creeks and places where the Admiral or Admirals have or pretend to have Jurisdiction And in the Commission of Oyer and Terminer grounded on that Statute the places of Offences committed to be heard and determined before the Admiral and others are thus described Tam in aut super mari aut aliquo portu rivo Aqua dulci Creca seu loco quccunque infra fluxum maris ad plenitudinem a quibuscunque primis pontibus versus mare quam super littus maris alibi ubicunque infra jurisdictionem nostram Maritimam aut limites Admiralitatis Regni nostri Dominiorum nostrorum By which words not onely power is given to hear and determine offences in those places but it is likewise declared that those places do belong to his Majesties Maritime Jurisdiction and of his Admiralty The second Statute is that of the first of Elizabeth Chap. 17. made for the preservation of Spawn and fry of Fish and the remedies thereof being provided it is ordained That the Lord Admiral of England and the Lord Mayor of London for the time being and all and every other which lawfully have or ought to have any conservation or preservation of any Rivers streams or waters shall have power to enquire according to that Act which plainly shews that the Parliament then conceived that the Admiral of England had power and Jurisdiction to some purposes in Rivers and Streams salt and fresh otherwise he had not been named in the first place amongst those who had right of conservation of the same The Jurisdiction of the Admiralty as to publick offences and causes criminal since the Statute of 15 Rich. 2. hath been so well settled by the Statute of 28 Hen. 8. that there can be little occasion of difference touching those matters betwixt the Courts of the common Law and the Court of the Admiralty yet Sir Edw. Cook having unnecessarily collected many other legal authorities which may be applied to maintain that by the Common Law the Admirals Jurisdiction did not extend to Ports and Navigable Rivers it may not be amiss to examine the grounds and weight of the chiefest of them which may be reduced to two heads First such as shew that Havens and Navigable Rivers are within the bodies of Counties and that the common Law hath held plea of things done in them Secondly That the Courts of common Law have punished such as have sued in the Admiralty Court for things done in Ports and Navigable Rivers Touching the first these Authorities might be intended First That in the time of Edw. the first a Replevin was brought for the taking of a ship on the coasts of Scarborough in the Sea and carrying her into the County of N. The
recited in the Solemn form of the Admiralls Commission by Mr. Selden as sufficient to his purpose and then saith he follow many things declaring that most ample power and Jurisdiction amongst which is expressed in Civil Causes that to him it is granted Ad cognoscendum de placitis c. To hold Conusance of Pleas Debts Bills of Exchange Policies of Assurance Accounts Charter-parties Contractions Bills of Lading and all other Contracts which may any wayes concern Moneys due for freight of Ships hired and let to hire moneys lent to be paid beyond the Seas at the hazzard of the lender and also of any Cause Businesse or Injury whatsoever had or done in or upon or through the Seas or publique Rivers or fresh Waters Streams Havens and places subject to overflowing whatsoever within the flowing and ebbing of the Sea upon the Shoares or Banks whatsoever adjoyning to them or either of them from any the said first Bridges whatsoever towards the Sea throughout our Kingdoms of England and Ireland or our Dominions aforesaid or else where beyond the Seas or in any Ports beyond the Seas whatsoever with divers other Clauses containing power of coercion for the maintenance of that Jurisdiction By the Commission of Oyer and Terminer granted likewise under the Great Seal according to the Statute of the 28th of Henry the 8. chap. 15. and other Statutes for the punishing of Offences and matters Criminal committed within the Jurisdiction of the Admirall Power is granted in the Kings name to hear and determine De omnibus singulis proditionibus c. of all and singular Treasons Robberies Murthers Felonies and Consederacies c. as well in and upon the Sea or any River Port or Fresh-water Creek or place whatsoever within the flowing of the Sea to the the full beneath the first Bridges towards the Sea as upon the shoar of the Sea or elsewhere within the Kings Maritime Iurisdiction of the Admiralty of the Realm of England and the Dominion of the same As well against the Peace and the Laws of the Land as against the Kings Laws Statutes and Ordinances of the Kings Court of Admiralty And also touching all and singular other matters which concern Merchants Owners and Proprietaries of Ships Masters Shipmen Mariners Shipwrights Fisher-men Workmen Labourers Saylours Servitours or any others That in all places where Iudges have been appointed for Sea businesses as also in England certain Causes viz. such as have Relation to Navigation and Negotiation by Sea have been held proper for their Conusance MAritime Laws saith Godeâ—ry concern persons or Dealings between Merchants and Sea-men which is agreeable to the subject matter of the several Laws mentioned in the first Chapter and what appeares to have belonged to the office of Maritime Judges Amongst the Grecians Causes happening betwixt Merchants and Sea-men were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes Concerconcerning Trade as Julius Pollux and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas testifies The Rhodian Lawes although as they are now extant are not ranked under distinct Heads or Titles yet they may be reduced to these particulars As first Concerning hiring freighting of Ships Secondly Concerning transporting Passingers and Goods Thirdly Touching the delivery ad discharging the things received in good Condition Fourthly Touching Contributions for Losses in Common danger and for salvage of Goods Fifthly For borrowing and trusting of money for Sea-voyages Sixthly Concerning Mariners duties their wages and the like The same were the matters taken into Cosideration when the Roman Senate entred into a Consultation to settle the businesse of the Sea For when Tiberius Claudius had signified to them that the Sea-men and Merchants trading by Sea had besought him that such businesses which were incident to the Sea might be reduced into some order Nero then a Senator advised that some might be sent to the Isle of Rhodes who should diligently enquire and take notice of what was there observed Concerning Mariners Sea-men Merchants and passengers Goods put on Board shipps Partner-ships Building Buying or Selling of Ships Entrusting Gold and Silver and divers other things All which was done accordingly as appeares by the titles of the Roman Civil Lawes into which the Rhodian Laws were inserted and by the Laws touching Sea affairs which afterwards the Greek Empire received from the Romans as in the Title De Nauticis Obligationibus c. Touching the obligations or duties of Mariners and all manner of actions which may be brought concerning Ships or those who sail in Ships Owners Masters or Passengers Moreover touching wrecks of Ships casting forth of Goods and Contributions and also Fisher-men and Fishing The same businesses also are regulated by the Constitutions of the Consolato del Mare in which are conteined the Statutes and Ordinances of Antient Authority provided for all Causes of Merchandising and Navigation as it is more fully signified in a Chapter of that Book Nello progresso di questo libro In the progresse of this book it is declared how the Masters of Ships ought to demean themselves towards Merchants Mariners Strangers and all other sorts of people which passe in their Ships and also how Merchants ought to perform with Masters of Ships and how Strangers and others ought to pay fraight for the transporting of their persons c. All which are made good in the particular Ordinances and Constitutions therein conteined The Sea-Lawes in the Spanish Partidaes have the same scope as it is in the Title We intend here to speak of shipping hired to undergoe the Adventure of tbe Sea and we will shew what things the Master of the Ship ought to observe towards the Merchants and how the dammage that shall happen to goods cast over board by occasion of storm ought to be divided and of the price due for the hire of Ships and of other matters with may concern the same affair So much is likewise signified in the Title of the Laws of Oleron which in the Edition annexed to the Customes of Normandy are called Ordonances Royaul touchant le fait de la Mere as also Judgments de la mere des nef des Mariners aussi des Merchants de tout leur estre and in the Edition set out by Peter Garrias La maniere comme les Maestres de Navire The manner how Masters of Ships Merchants and Mariners ought to regulate and govern themselves according to the Iudgements of the Roll of Oleron Notwithstanding these Examples of the usages of all other Nations some amongst us as take upon theÌ„ to determine that to the Jurisdiction of the Admiralls of England no special or certain Causes do belong so the Lord Hobard in Audly and Iennings Case affirms That their Jurisdiction is not in respect of any certain Causes as the Causes of Tithes and Testaments are in the Spiritual Court but only in respect of place and no doubt but Sir Edward Cook and others who talk so much of Altum Mare are
Law and Statute Laws of England take notice of the Law Merchant and do leave the caâ—ses of Merchants to be decided by the Rules of that Law which Law Merchant he saith as it is part of the Law of Nature and Nations is universal and one and the same in all Countries of the World For as Cicero saith of that Law Non erit alia lex Romae alia Athenis alia nunc alia post haec sed et omnes gentes et omni tempore una eademque Lex obtinebit whereby it is manifest that the Causes concerning Merchants are not now to be decided by the peculiar and Ordinary Lawes of every Country but by the general Lawes of Nature and Nations He sayeth further that untill he understood the difference betwixt the Law Merchant and the Common Law of England he did not a little marvell that England entertaining traffique with all Nations of the World having so many Ports and so much good Shipping The King of England also being Lord of the Sea what should be the cause that in the Books of the Common Law of England there are to be found so few Cases concerning Merchants or Ships But now the reason thereof was apparent for that the Common Law of the Land did leave those cases to be ruled by another Law Namely the Law Merchant which is a branch of the Law of Nations The Law Mariner to which happily the answer to the French Agent mentioning Antient additions of the Realm related were such things as are contained and preserved in the Antient black Book of the Admiralty as certain Royal Ordinances made by Antient Kings of the Realm 2ly The Judgements or Resolutions of Oleron in the time of King Richard the first 3ly Certain verdicts given upon an Inquisition at Quinborough in the time of King Edward the third and some other matters touching the Admiralty of England Touching the black Book of the Admiralty Mr. Selden stiles it Vetusti Tribunalis maritimi Commentarii And Codex Manuscriptus de Admiralatu And in his notes upon Fortescue he saith that there are in it worthy of Observation Constitutions touching the Admiralty of Henry the first Richard the first King Iohn and Edward the first Touching the Judgements or Laws of Oleron and the use of them in the Admiralty Court Mr. Selden where he from them argues the Soveraignty of the Kings of England in regard King Richard the first did publish the Sea Lawes in the Island of Oleron which was then in his possession sayes that they are still in force And Sir Edward Cook likewise argues that the Jurisdiction of the Lord Admirall was long before the Reign of Edward the third from the Laws of Oleron So called because they were there made by King Richard the first The Inquisition at Quinborough was taken in the year 1376. in the 49. of King Edward the third by eighteen expert Sea-men before William Nevill Admirall of the North Philip Courtny Admirall of the West And the Lord Latimer Warden of the Cinque Ports And relates as by the Title appears to the usages of former times The verdicts there given were desired to be established by the Kings Letters Patents in the Cinque Ports and Towns adjoyning to the Thames to be observed by the owners Masters and Mariners of Ships under penalties c. And Malines writes That he had seen them enrolled amongst the Records of the Tower for the Government of the Admiralty That generally where Lawes have been provided for businesse concerning the Sea as also in England several Iudges have been appointed to determine differences and redresse offences concerning the same GRegorius Tholosanus sayes Iudicum diversorum ratio eo dirigitur ut lites facilius expediantur ne immortales sint sub judicibus mole negotiorum occupatis proinde cum commercia hominum sint maximae utilitatis placuit Negotiatoribus proponi proprios Iudices and accordingly First the Grecians had their special and proper Judges appointed for those businesses So Suidas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The Natodicae were Magistrates who did Iustice to Seamen and others who trade by Sea And the Athenians had an expresse Law to that purpose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That actions concerning Seamen and Merchants should be commenced before the Iudges called The smothetae according to their Instruments of Contracts and dealings Secondly Amongst the Romans there was antiently an Officer called Praefectus Classis by Tully and Livy and Iavolenus makes mention of Seius Saturninus Archigubernius Classis Britannicae and Tacitus of Praetor Classis which name imports a power of Judicature in latter times they had also a Magistrate who was called Comes Commerciorum whose Office was to over-see matters of Commerce or Negotiation Thirdly the Roman Empire being broken into several States the lesser as Republiques had their Consuls and the greater Kingdomes had their Admiralls to order and determine those businesses The office of the Consuls is described in the Consolato Del Mare Consoli determinano â—utti le controversie c. The Consuls determine all controversies which are for Fraights for Dammages done to goods on shipbord for parts of ships to be set to sale at an outcry for Commissions given to Masters and Mariners for Debts contracted by Masters for the necessary use of the Ship for things promised or undertaken betwixt Merchants and Mariners for goods taken up at Sea and generally for all other Contracts and businesses which are declared amongst the Customs of the Sea Fourthly The Venetian State being a Seigniory when any great War is expected or undertaken have their General or Supreme Commander of the Navy who is of as high an esteem as any Magistrate of the City having absolute power over all Officers aud others of the Navy at other times the Legatus classis or Vice-General hath the power of disposing of the Navy and over the Captains of the Gallies and other persons of the Navy They have besides four Consuls who Judge and determine all matters concerning Negotiation and Trade Fifthly Admirals in Europe had their beginning as most affirm in the time of Constantine the Emperour and that in Magna Graecia which is now the Kingdome of Naples where the dignity of Admirall is the third place to wit after the Vice Roy and Constable To whom belongeth the Building Repayring and keeping of the Ships Royal and setting out of the Fleets for Warre with the Kings consent He hath also Jurisdiction Civil and Criminal amongst Commanders Officers and others employed about the Navy and all others who get their lively-hood by the industry and art of the Sea which are held to be such which transport in Ships and adventure their Estates by Sea as also such that make it their Trade to take Fish or do build Ships This Court is called Magna Curia and from it there lyes an appeal only to the supreme