alwayes that if any Merchant stranger or other finde himself grieved or damnified by negligent keeping of his Wares or Merchandises or by long delaying or protracting of time in making of the Voyage by the said Owner his Master or any of the Mariners of the said Ship otherwise than shall be agreed in or by the said Charter-party not having been leâ—ten by wind or weather he shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owners or Masters who shall or may summarily and without delay take such order therein as shall be thought to their discretions most convenient and according to right and justice in that behalf It is true that the Cases exprest are for the Merchants to recover satisfaction for delay or damage done to their goods according to the Charter-party from the Owners and the Masters of Ships and it were very unreasonable if the Master or Owner having dâ—ely performed their Voyage might not seek the like remedy before the same Judge against the Merchants not observing the Charter-party either in not Lading their goods within the time appointed or not paying the Freight according to agreement in the same contained and exprest the causes being hinc inde reciprocal and it being sometimes held an absurdity Illud quod in uno eodemque judicio terminari potest apud diversos Iudices ventilari The Statute of the 43 of Elizabeth Chap. 12. declares That whereas differences growing upon Policies of Assurance had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those Causes until that of late years divers persons did withdraw themselves from that arbitrary course and have sought to draw the parties assured to seek their monies of every several assurers by Sules commenced in her Majesties Courts to their great charges and delay thereupon it was enacted that a Commission should be granted giving power to certain Commissioners the first whereof is the Judge of the Admiralty to order and decree such Causes in a brief and summary course without formalities of pleadings and proceedings Malines affirms that he amongst others was one who upon experience of the great inconveniences which followed upon the drawing of those Causes to the Courts of Common Law solicited the Parliament to pass that Act. The Legal authorities which may be conceived to be intended to debar the Admiral from the Conusance of Contracts and writings made at Land touching things to be performed at Sea or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before the Courts of Common Law have admitted and held Pleas of Charter-parties of Policies of Assurance and declared something concerning Mariners wages Touching Charter-parties it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute of double damages by William Hore against Ieffery Unton who had sued the said Hore in the Admiralty for fourscore pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes imployed to go towards Island in regard Contractus ille apud novam Sarum infra corpus Comitatus non super altum mare factus junctus fuit whereupon damages were assessed against the Defendant to an hundred Marks and costs to 40 l. Again that in the 28 of Elizabeth in the Kings Bench upon a Charter-party by a Deed indented which was made at Thetford in the County of Norfolk Euangelist Constantine sued Hugh Glynn for the breach of Covenant in not staying at Muâ—trel in Spain so many dayes as were limited by the Covenant whereupon he was condemned in 500 l. and in arrest of Judgement it being shewed That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had and that therefore the trial was not sufficient Sir Christopher Wray and the whole Bench resolved that the Plaintiff should recover 500 l. besides the costs and damages because the Charter-party was made at Thetford within the Realm Concerning Policies of Assurance That in the 38 of Hen. 8. in a Case betwixt Crane and Beâ—l touching a promise made at Dartmouth That the Ship should pass without taking which was afterwards surprized by the Spaniard upon the high Sea it was held not determinable in the Admiralty for although the taking were upon the Sea yet the promise was upon the Land Again that in the 36 of Elizabeth an Action of the Case was brought in the Kings Bench upon an Assumpsit from a Policy of Assurance where it was undertaken That a Ship should sail safely from Melcomb Regis to Abbevil in France the Ship being arrested by the French King in the River of Somme in the Realm of France and the matter was there adjudged â—o which may be added what Sr Ed. Cook delivers for Law in Dowdales case Cum combein le contract comme le performance c. when as well the Contract as the performance of it is wholy done beyond the Sea and it so appears the Trial fails at the Common Law But here saith he the Assumpsit was made at London which is the ground and foundation of the Action and therefore the Trial of necessity shall be there or otherwise it shall not be tryed at all and the Arrest which is in issue is not the ground of the Action but the Assumpsit c. Touching Mariners wages is that of the Book of 48 of Edw. 3. where it is said That if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded in that Court by the Common Law Nemy per ley Mariner To these Authorities it may be replied in general that all but the last are grounded upon the commonly received sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there where it is made or written with out any respect to the nature of the business and the occasion thereof from whence in truth it doth more properly arise And whereas other acts of Parliament have in some special points ordained and declared otherwise it may be hoped that it may not be held a crime unexcusable if a man should doubt of the reasonableness of those authorities Touching the particulars As First of the 31. of Henry 6. betwixt Hore and Unton wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party it is said that the Sute was upon a Charter-party of Freightment for four score pounds It doth not appear that it was for the freight of the Ship although it be most probable and if it were so why the Master of the Ship should not as well sue for his freight by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute might sue in the Admiralty for dammage done to his
to be performed either upon the Seas or beyond the Seas yet is the same to be tryed and determined by the ordinary course of the Common-Law and not in the Court of the Admiralty And therefore when that Court hath incroached upon the Common-Law in that case the Iudge of the Admiralty and Party suing there have been Prohibited and often times the party condemned in great and grievous dammages by the Laws of the Realm That the Clause of non obstante statuto which hath foundation in his Majesties Prerogative and is current in all other grants yet in the Lord Admirals Patent is said to be of no force to warrant the Determination of the Causes committed to him in his Lordships Patent and so rejected by the Judges of the Common-Law Without all question the Statutes of 13 R. 2. Cap. 3.15 R. 2. Cap. 5. 2 H. 4. Cap. 11. being Statutes declaring the Iurisdiction of the Court of the Admiral and wherein all the Subjects of the Realm have interest cannot be dispenc'd with by any Non obstante and therefore not worthy of any answer but by colour thereof the Court of the Admiralty hath contrary to those Acts of Parliament incroached upon the Iurisdiction of the Common-Law to the intolerable grievance of the Subjects which have oftentimes urged them to complain in your Majesties Courts of Ordinary Iustice at Westminster for their relief in that behalf To the end that the Admiral Jurisdiction may receive all manner of impeachment and interruption the Rivers beneath the first Bridges where it ebbeth and floweth and the Ports and Creeks are by the Judges of the Common Law affirmed to be no part of the Seas nor within the Admiral Jurisdiction and thereupon Prohibitions are usually awarded upon actions depending in that Court for Contracts and other things done in those places notwithstanding that by use and practice time out of mind the Admiral Court have had Jurisdiction within such Ports Creeks and Rivers The like answer as to the first and it is further added that for the Death of a man and of Mayhem in those two cases onely done in great Ships being and hovering in the main stream only beneath the points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other causes but in those two onely the Admiral hath cognisance But for all Contracts Pleas and Quereles made or done upon a River Haven or Creek within any County of this Realm the Admiral without question hath not any Iurisdiction for then he should hold plea of things done within the body of the County which are tryable by the verdict of Twelve men and meerly determinable by the Common-Law and not within the Court of Admiralty according to the Civil Law for that were to change and alter the Laws of the Realm in those cases and make those Contracts Pleas and Quereles tryable by the Common-Laws of the Realm to be drawn ad aliud examen and to be sentenced by the Iudge of the Admiralty according to the Civil Laws and how dangerous and penal it is for them to deal in these cases it appeareth by Iudicial Presidents of former ages See the answer to the first Article That the agreement made in Anno Dom. 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain execution of Admiral Jurisdiction is not observed as it ought to be The supposed agreement mentioned in this Article hath not as yet been delivered unto us but having heard the same read over before his Majesty out of a paper not subscribed with the hand of any Iudge we answer that for so much thereof as differeth from these Answers it is against the Laws and Statutes of this Realm and therefore the Iudges of the Kings Bench never assented thereunto as is pretended neither doth the Phrase thereof agree with the Termes of the Laws of the Realm Many other Grievances there are which in discussing of these former will easily appear worthy also of Reformation This Article is so General as no particular answer can be made thereunto onely it appeareth by that which hath been said That the Lord Admiral his Officers and Ministers principally by colour of the said void non obstante and for want of Learned advice have unjustly incroached upon the Common Laws of this Realm whereof the marvail is the lesse for that the Lord Admiral his Lieutenants Officers and Ministers have without all colour encroached and intruded upon a Right and Prerogative due to the Crown in that they have seized and converted to their own uses Goods and Chattels of infinite value taken by Pyrats at Sea and other Goods and Chattels which in no sort appertain unto his Lordship by his Letters Patents wherein the said non obstante is contained and for which he and his Officers remain accountable to his Majesty And they now wanting in this Blessed time of Peace causes appertaining to their natural Iurisdiction they now incroach upon the Iurisdiction of the Common-Law lest they should sit idle and reap no profit and if a greater number of Prohibitions as they affirm have been granted since the great benefit of this happy Peace than before in time of hostility it moveth from their own encroachments upon the Iurisdiction of the Common Law so that they do not onely unjustly incroach but complain also of the Iudges of the Realm for doing of Iustice in these cases The particular Authorities promiscuously alleged by Sr. Edward Coke are distinctly inserted in the Chapters following in such places as they seem to concern THE JURISDICTION of the Admiralty of England Asserted That in all places where Navigation and Trade by Sea have been in use and esteem and particularly in England special Lawes have been provided for Regulating the same LA Mer a ses loix comme la terre The Sea saith Godfrey a learned Author hath its lawes as well as the Land And it is certain that Navigation was no sooner invented and men had experience of the commodity proceeding from Negotiation by Sea but they established lawes for the maintaining and regulating the same So much may bee confirmed by what is observable from the use and practice First of those Nations and States which border on the Mediterranean Seas and secondly of those which confine on the Western Ocean and the Seas Northward Touching the first Amongst the Grecians the Inhabitants of the â—sle of Rhodes have been most eminent for their policy in the affaires of the Sea Cicero saith Rhodiorum usque ad nostram memoriam Discipliplina navalis gloria remansit And Constantinus Harmenopulus a famous Judge at Thesolonica and Conservatour of the law there gives that credit to their Lawes that he affirmes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. All businesse concerning Navigation and all causes concerning things done at Sea are decided by the Rhodian Lawes
recited in the Solemn form of the Admiralls Commission by Mr. Selden as sufficient to his purpose and then saith he follow many things declaring that most ample power and Jurisdiction amongst which is expressed in Civil Causes that to him it is granted Ad cognoscendum de placitis c. To hold Conusance of Pleas Debts Bills of Exchange Policies of Assurance Accounts Charter-parties Contractions Bills of Lading and all other Contracts which may any wayes concern Moneys due for freight of Ships hired and let to hire moneys lent to be paid beyond the Seas at the hazzard of the lender and also of any Cause Businesse or Injury whatsoever had or done in or upon or through the Seas or publique Rivers or fresh Waters Streams Havens and places subject to overflowing whatsoever within the flowing and ebbing of the Sea upon the Shoares or Banks whatsoever adjoyning to them or either of them from any the said first Bridges whatsoever towards the Sea throughout our Kingdoms of England and Ireland or our Dominions aforesaid or else where beyond the Seas or in any Ports beyond the Seas whatsoever with divers other Clauses containing power of coercion for the maintenance of that Jurisdiction By the Commission of Oyer and Terminer granted likewise under the Great Seal according to the Statute of the 28th of Henry the 8. chap. 15. and other Statutes for the punishing of Offences and matters Criminal committed within the Jurisdiction of the Admirall Power is granted in the Kings name to hear and determine De omnibus singulis proditionibus c. of all and singular Treasons Robberies Murthers Felonies and Consederacies c. as well in and upon the Sea or any River Port or Fresh-water Creek or place whatsoever within the flowing of the Sea to the the full beneath the first Bridges towards the Sea as upon the shoar of the Sea or elsewhere within the Kings Maritime Iurisdiction of the Admiralty of the Realm of England and the Dominion of the same As well against the Peace and the Laws of the Land as against the Kings Laws Statutes and Ordinances of the Kings Court of Admiralty And also touching all and singular other matters which concern Merchants Owners and Proprietaries of Ships Masters Shipmen Mariners Shipwrights Fisher-men Workmen Labourers Saylours Servitours or any others That in all places where Iudges have been appointed for Sea businesses as also in England certain Causes viz. such as have Relation to Navigation and Negotiation by Sea have been held proper for their Conusance MAritime Laws saith Godeâ—ry concern persons or Dealings between Merchants and Sea-men which is agreeable to the subject matter of the several Laws mentioned in the first Chapter and what appeares to have belonged to the office of Maritime Judges Amongst the Grecians Causes happening betwixt Merchants and Sea-men were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes Concerconcerning Trade as Julius Pollux and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas testifies The Rhodian Lawes although as they are now extant are not ranked under distinct Heads or Titles yet they may be reduced to these particulars As first Concerning hiring freighting of Ships Secondly Concerning transporting Passingers and Goods Thirdly Touching the delivery ad discharging the things received in good Condition Fourthly Touching Contributions for Losses in Common danger and for salvage of Goods Fifthly For borrowing and trusting of money for Sea-voyages Sixthly Concerning Mariners duties their wages and the like The same were the matters taken into Cosideration when the Roman Senate entred into a Consultation to settle the businesse of the Sea For when Tiberius Claudius had signified to them that the Sea-men and Merchants trading by Sea had besought him that such businesses which were incident to the Sea might be reduced into some order Nero then a Senator advised that some might be sent to the Isle of Rhodes who should diligently enquire and take notice of what was there observed Concerning Mariners Sea-men Merchants and passengers Goods put on Board shipps Partner-ships Building Buying or Selling of Ships Entrusting Gold and Silver and divers other things All which was done accordingly as appeares by the titles of the Roman Civil Lawes into which the Rhodian Laws were inserted and by the Laws touching Sea affairs which afterwards the Greek Empire received from the Romans as in the Title De Nauticis Obligationibus c. Touching the obligations or duties of Mariners and all manner of actions which may be brought concerning Ships or those who sail in Ships Owners Masters or Passengers Moreover touching wrecks of Ships casting forth of Goods and Contributions and also Fisher-men and Fishing The same businesses also are regulated by the Constitutions of the Consolato del Mare in which are conteined the Statutes and Ordinances of Antient Authority provided for all Causes of Merchandising and Navigation as it is more fully signified in a Chapter of that Book Nello progresso di questo libro In the progresse of this book it is declared how the Masters of Ships ought to demean themselves towards Merchants Mariners Strangers and all other sorts of people which passe in their Ships and also how Merchants ought to perform with Masters of Ships and how Strangers and others ought to pay fraight for the transporting of their persons c. All which are made good in the particular Ordinances and Constitutions therein conteined The Sea-Lawes in the Spanish Partidaes have the same scope as it is in the Title We intend here to speak of shipping hired to undergoe the Adventure of tbe Sea and we will shew what things the Master of the Ship ought to observe towards the Merchants and how the dammage that shall happen to goods cast over board by occasion of storm ought to be divided and of the price due for the hire of Ships and of other matters with may concern the same affair So much is likewise signified in the Title of the Laws of Oleron which in the Edition annexed to the Customes of Normandy are called Ordonances Royaul touchant le fait de la Mere as also Judgments de la mere des nef des Mariners aussi des Merchants de tout leur estre and in the Edition set out by Peter Garrias La maniere comme les Maestres de Navire The manner how Masters of Ships Merchants and Mariners ought to regulate and govern themselves according to the Iudgements of the Roll of Oleron Notwithstanding these Examples of the usages of all other Nations some amongst us as take upon theÌ„ to determine that to the Jurisdiction of the Admiralls of England no special or certain Causes do belong so the Lord Hobard in Audly and Iennings Case affirms That their Jurisdiction is not in respect of any certain Causes as the Causes of Tithes and Testaments are in the Spiritual Court but only in respect of place and no doubt but Sir Edward Cook and others who talk so much of Altum Mare are
Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
whereas some of them speak of Altum Mare the Statute of the 13 of Rich. 2. hath no such Attribute but mentions simply the Sea 2 That the same Authorities granting that the Admiral hath jurisdiction on the Sea do not declare much less conclude that he hath no jurisdiction elsewhere And as to the particulars 1 The Authority of 2 Rich. 2. which affirms that the Irish were subject to the Admiral of England for a thing done on the Sea mentions not for what kinde of thing and happily it might be for some offence against the Crown or against the Peace in offering violence to the Kings Subjects or the subjects of his Allies and in such Cases it might be understood that he had Jurisdiction over the Irish as over the Subjects of England and other Nations onely extending to the high Sea but it cannot from thence be argued but that if it were a business concerning Navigation or Negotiation by Sea he might also have had Jurisdiction over the Irish as well as over other persons not onely super alto mari but also in other places elsewhere 2 The Plea to the Action of Trespass in the 7 Rich. the 2. might be good and allowed in two respects First In regard the thing was done where the Country could take no notice and therefore no Jury by twelve men could be had Secondly In regard the Ship and goods were taken from the Kings Enemies against whom no â—respass could be committed because that to offend them any wayes was lawfull and in that respect the Plea might have been allowed although the Ship and Merchandise had been taken in a Port or Navigable River 3. Whereas Fortescue sayes that things done upon the high Sea prosecuted before the Admiral ought to be determined according to the Proofs made by Witnesses and no more Sir Edward Cook affirms That it proves by express words that the Admiralty is confined to the high Sea Fortescue having given reason for Trials by Jury when the Neighbourhood of the Country could take notice of the business Grants that for things done in other places the Law of the Kingdome doth allow of proofs by Witnesses as in Causes commenced before the Admiral for things done on the high Sea and likewise before the Constable for things done beyond the Sea so that it is evident he doth no more expresly confine the Admirals Jurisdiction to the high Sea than he doth the Constables to places beyond the Sea it being notorious that his Jurisdiction extends to Deeds of War and Arms within the Land as it will be proved that the Admirals Jurisdiction likewise to matters of Navigation and Negotiation by Sea 4 Touching the Authority of Dyer that by Libel in the Admiralty Court the Case is surmised to commence Sur la haut mer c. It may be answered that the Libels in the Admiralty sometimes as the business falls out declare Super alto mari infra jurisdictionem Curiae but ordinarily Causes are laid onely intra fluxum refluxum Maris Iurisdictionem Curiae and generally the Causes are no otherwise described but A contra B. in causa civili Maritima That the Admiral of England may hold Conusance of Contracts and Writings made at Land touching business of Navigation and Trade by Sea BY an ancient Record in the Black book of the Admiralty of which Mr. Selden takes notice it appears that it was ordained by King Edward the first and his Lords at Hastings Que comment divâ—rs Seigneurs avoient francheses c. That although diâ—ers Lords had â—ivers Franchises to try Pleas in Ports yet that neither their Steward nor Bayliffs should hold any Plea if it concerned Mercâ—ant or Mariner as well for matter of Fact as of Ships Obligations and other Dâ—edâ— which although it extends onely to inferiour Lords yet it may be said that it was done in favour of the Admirals Jurisdiction in such matters Secondly by Commissions from time to time Granted by the Kings of England to the Admirals power is given Ad cognoscendum c. to hold the Conusance of Charter-parties Policies of Assurance Bills of Bottomry Bills of Lading and of Sale of Ships Thirdly The Causes and Sutes arising by occasion of businesses contained in such Writings have in all observable times and places been held to be Maritime and the Conusance of them hath been allowed to Martim Courts as it hath been before fully shewed and it may be further considered that such Contracts and Writings have their Original from ancient Maritim Laws are both in names and nature things forein to the Laws of this Realm And so much may be gathered from the order which Wesâ— observeth in his Book of Presidents where after the form of Deeds and Contracts proper to the Common Law he handles those which concern Merchandizing and Trade by Sea as things of a distinct and several nature Touching the particulars First Charter-parties seem to have been derived from the Rhodian Laws by which it was provided Si quis naâ—em conduxerit instrumenta consignata sunto If any man shall hire a ship let there be Writings drawn and sealed thereupon There is likewise mention of Charter-parties in the Role of Oleron and in the French later Ordinances made for the reglement of the Admiralty of France and it is supposed that no mention of them can be found in any Law or Statute of this Realm until the 32 of King Henry the 8. cap. 14. where the Conusance of them is referred to the Admiralty as it shall be hereafter shewed Moreover Malines confirms that anciently in Charter-parties it was exprest That the Contents thereof should be understood according to the Law of Oleron and at this time there are Clauses usually inserted into them enjoyning That the Merchants besides the payment of Freight shall make allowance for Primage Average and Pettelodmenage things no where occurring in the Books of Common Law and anciently determinable by the Law of Oleron Secondly Policies of Assurance are grounded upon the Civil Law which alloweth an Action for the undertaking a hazard which is doubtfull for reward or consideration first given which is commonly called a Praemio they are of later Civillians called Sponsiones Mercatoriae and Assecurationes which Malines affirms were taken up in this Kingdome from the Laws of Oleron practised on the Sea coasts of France but it is manifest that now they are likewise in use in Venice Naples Genua Ancona Spain and Portugal and in other places where the affairs of the Sea are regulated by the Civil Law the Consolato and Laws of Oleron Thirdly Bills of Bottomry when an Owner or Master of a Ship to furnish his Voyage takes up money upon extraordinary interest to be paid when the Ship arrives at the Port appointed and thereby engages his Ship for the performance of the same are grounded on the ancient Grecian and Roman Laws Iulius Pollux a learned Expositor of tearms or words used amongst
awarded Secondly if sute be before the Admiral for freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas though the Charter-party happen to be made within the Realm so as the Penalty be not demanded a Prohibition is not to be granted But if the sute be for penalty or if question be made whether the Charter-party be made or no or whether the Plaintiff did release or otherwise discharge the same within the Realm this is to be tried in the Kings Courts and not in the Admiralty Thirdly if sute be in the Admiralty for building amending saving or necessary Victualling of a Ship against the Ship it self and not against any party by name but such as for his interest makes himself a party no Prohibition is to be granted though this be done within the Realm Fourthly although of some causes arising upon the Thames beneath the Bridge and divers other Rivers beneath the first Bridge the Kings Courts have conusance yet the Admiral also hath Jurisdiction there in the point especially mentioned in the Statute of 15. of Richard 2. and also by Exposition and Equity thereof he may enquire of and redress all Annoyances and Obstructions that are or may be any Impediment to Navigation and passage to or from the Sea and also to try personal Contracts and Injuries done there which concern Navigation on the Sea and no Prohibition is to be granted in such cases Fifthly if any be imprisoned and upon habeas Corpus brought it be certified that any of these be the cause of his Imprisonment the party shall be remaunded Subscribed the 4. Feb. 1632. by all the Judges of both Benches Sir George Crooks Reports being published by Sir Harbotle Grimston are approved and allowed as for the Common benefit by the Judges then being viz. by Iohn Glynn Oliver St. Iohn Edward Atkins Robert Nicholas Matthew Hales Hugh Windham Peter Warburton and Iohn Parker It may be presumed that what so many persons Eminent both for their place and also for their knowledge of the Laws and Statutes of the Realm did so deliberately and cautiously resolve upon and others of like quality have countenanced ought to be received and respected as sufficient Authorities as to those points whereof they did declare their Resolutions notwithstanding the confident opinions of any others either private or singular persons to the contrary And that the Kings Majesty and his Councels approbation being added thereunto should be of force enough to settle all doubts and differences concerning the same the rather for that antiently as before is shewed the Kings of England with their Councel only have made Constitutions concerning the Admiralty and that in point of Jurisdiction and it is apparent by the ancient Record cited both by Mr. Selden and Sir Edward Cook That the most famous Prince King Edward the 3. in whose time the Admiralty received its chief establishment in the 12. year of his Reign did consult and advise with his Councel and his Judges concerning the same And it may seem strange that whereas by the Statute of the 13. of Richard the 2. whose Acts are insisted upon as the greatest obstructions to the Admirals Jurisdiction the Kings Councel alone are enabled to decide what belongs to the Constables and Marshals Jurisdiction the King himself with his Councel and Judges should not have as much power to determine what belongs to the Jurisdictions of his Admiral That the Courts and Iudges of the Common Law do intermeddle and interrupt the Courts of Admiralty in causes properly belonging to the same HItherto it hath been Endeavour'd to be made appear That the proceedings in the Courts of Admiralty in the chief points in difference with the Courts of Common Law may consist with the Laws and Statutes of the Realm It may now be taken into Conâ—ideration how far the proceedings of the Courts and Judges of the Common Law in intermedling with causes properly belonging to the Admiralty and in obstructing the proceedings of that Court may be justified By the former is intended their drawing of such causes by actions of Trover and of Trespass to their Conusance by the later their disparaging of Stipulations and prescribing the forms of libells in such causes The former may the rather be insisted upon in regard Sir Edward Cook doth so often and so earnestly in general inveigh against the encroaching of the Court of Admiralty upon the businesses belonging to the Courts of Common Law and in particular where he chargeth That in the blessed time of peace those who belong to that Court wanting businesses proper to that Jurisdiction do encroach upon matters belonging to the Kings Courts lest they should sit idle and have nothing to do the like practice of encroaching being far more unexcusable in those who belong to the Kings Courts which do alwayes abound with businesses sufficient for the same Concerning the Actions of Trover Amongst the grievances complained of by the Admiral 8 Iacob It is presented in the first place That whereas the Conusance of all Contract and other things done on the Sea belongeth to the Admirals Jurisdiction the same are made triable at the Common Law by supposing the same to have been done in Cheap-side or such places And under favour the answer thereunto is neither clear nor direct nor to the purpose For the ground of that answer being laid That the Admiral hath no Conusance of any thing done within any County it is said That it is not material whether the place be upon the Water Infra fluxum Aquae but whether it be upon any water within the County wherefore it is acknowledged That of things done upon the Sea out of any County the Admiral ought to have Jurisdiction and that no presidents can be shewed that any Prohibition hath been granted for any Contract Plea or Quarrel for any Maritine cause done upon the Sea In this Answer it is confest That the Admiral ought to have Jurisdiction of things done on the Sea and that no Prohibitions have been granted for any such causes but whether by the supposal or fiction of a ships arriving in Cheap-side the Courts of Common Law do hold Plea of things done on the Sea it is nether confessed nor denied much less is there any reason given for the same Where it is said It is not material whether the place be upon the water infra fluxum refluxum Aquae but whether it be upon any water within the County That may be true in respect that it is supposed that all things done in the County belongs to the Conusance of the Common Law but when the place where a thing is done belongs apparently to anothe Jurisdiction which pretends as well to the right of the place as to the right of the cause the place of the action can in no wayes be suppressed and another suggested in the room thereof for if that be permitted the one Jurisdiction being the greater a more potent