le dit Monsieur Remeyr soit condempne distreint a faire due satisfaction a touts les dits damages seavant come il purra suffire en sa defalte son dit Seignior le Roy de France per que il estoit deputey al dit office que apres dewe satisfaction faitz as dits damages le did Monsieur Reymer soit si duement punis par le blemissement de la dite alliance que ia punission de luy soit as autres example par temps a venir Item in alio Rotulo annexo Item A la fin que venes consideres les formes des proces les letters ordenees per les consaillers le Aiel nostre Seignior le Roy c. especialment a retinir maintenir la souveraign que ses dits ancesters Roys d'Englitere loloyent avoir en la dite mier d'Englitere quant al amendment declaration interpretation des loix per eux faites a governer touts maneres des gents passants per la dite mier Et Primerement a son Admiral as Maisters Mariners des niefs de Cync ports d'Englitere des autres terres annexes a la corone d'Englitere emendant asa armee en la dite mir pur retinir maintenir la garde des lois avantditz la punission de touts faitz al encountre en la mier susdite Libri primi finis THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE SECOND BOOK CHAP. I. That the Sea Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependance each upon the other ALthough the exact time of the beginning or first settlement of the Jurisdiction of the Admiralty Court here in England be not by me in the preceding book so clearly set forth as some might have expected yet is some foundation thereof deduced from such hight of Antiquity as that I cannot but hope that the Jurisdiction it self will for that cause and what shall be shewed in this ensuing Treatise deserve a continuance to posterity And although in the precited antient Records we find not the same title of that Office observed and kept yet may we very well perceive the same Office to have been preserved exercised and executed though under several titles And we find that in Edward the First 's time as plainly appears by the before quoted Libel and other before cited Records the same was exercised under the title of the Admiral And doubtless that title was long before that time known to belong unto the chief Captain Commander or Keeper of the Fleets Ports and Seas and hath been so used by many other Nations in Europe However the diversity of names neither extinguisheth the nature of the Office nor doth so much as make any distinction between the one and the other person so diversly named whilst they both bear one and the same signification But here I shall proceed next to distinguish this Jurisdiction from the Land Jurisdiction and shew that the Land Jurisdiction and Sea Jurisdiction are and must necessarily so be two absolute different and distinct Jurisdictions having no dependency one upon the other And first these two Jurisdictions are absolutely different and distinct in respect of the parties which exercise them the one being exercised in the active and directive part by the Admirals Captains and Governors of the Seas Sea-coasts Ports and Shipping which have all or most of them from antient times been Equites Aurati descended from Royal Bloud Noble-men or descended from Nobility as Sir Henry Spelman saith The judicial part by the Judges of the High-Court of the Admiralty and Vice-Admirals Courts learned and well verst in the Civil and Maritime Laws juxta illud venerabilis ejusdem Spelmanni verb. Admirallo Gollico pag. 16. Nos enim c. de quo vide supra cap. 2. lib. 1. sub fine The other exercised by the learned Judges of the Land in the Courts at Westminster and within the Bodies of the several Counties of the Nation in their several Circuits the Judges of one Circuit having no authority or power over the other nor having any thing to do to intermeddle with the other in their Circuits Secondly the Court of the Admiralty hath from antient times been styled Suprema Curia suae Majestatis Admiralitatis Angliae so that the same hath antiently been styled the Kings Court as well as his Courts at Westminster But from the one Jurisdiction there lyeth an immediate appeal unto the supreme authority in Chancery which Court appointeth Judges Delegates by Commission under the Great Seal upon the apprehension of an illegal sentence who are assigned and appointed Judges for further hearing deciding and adjudging of the said sentence and cause of appeal according to the rules of the Civil Law In the other there lies a Writ of Error from the Common-Pleas to the Kings-Bench and from that Bench to the Judges of all the three Benches in the Exchequer Chamber The Appeal from the Admiralty is for the rectifying of the Sentence as well as of the proceedings which appeal the Forraigner must be allowed otherwise he will complain at home of injustice done here and so proceed to the course of obtaining Letters of Reprisal for his satisfaction whether the first sentenc was good or not upon this ground only that he had not the due course of Law allowed him for the tryal of that Sentence which was first given against him The Writ of Error reverseth the Judgement though never so just if an error be found in the proceedings but reverseth not the Judgement though the same seem never so erroneous to him against whom it was given if no error be found in the proceedings Thirdly they are absolutely different and distinct in regard of the different and distinct subjects the Judges of them do handle and are busied about they of the one being busied and occupied in the ordering and disposing of all businesses upon the Coasts and Havens of the Seas tending to the preservation of this Nation from forraign Invasion and keeping thereof in safety and quiet and in the building repairing tackling and furnishing or causing the building repairing tackling and furnishing of all manner or sorts of Ships Boats or Vessels whatsoever for that purpose and keeping the dominion over the British Seas and in the otherwise ordering and directing of all manner of Ships and Shipping and seafaring Men and all manner of Trading Merchandising Traffique and Commerce thereby or therewith and in hearing deciding and adjudging all differences debates and controversies arising from things done or to be done at Sea or in any Port Harbour or Creek thereof either between the King or the Lord High-Admiral and any party or between party and party Forraigner or others whether Criminal or Civil Those of the other Jurisdiction being employed in ordering of all things for the good peace and quiet of this Kingdome within self and in the hearing
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
quà m missarum custagiorum ad septuaginta libras per juratores praedictos superius assess in duplum per Statutum c. Quae damna in duplo se extendunt ad mille 400 l. Et idem Barthol poenam decem librarum erga Dom. Regem nunc per statutum incurrat capiatur c. querens remittit 400 l. And he saith that it appeareth by the Record that this being the first Case that can yet be found that received judgement in the Court of Common-pleas upon the said Statutes and that the same depended in advisement and deliberation eight Terms whereby it plainly appears the time being computed from the making of the said Statutes whereon this Action was grounded to the time of the Judgement 6 Hen. 6. that the Courts of Common-law had not for above 20 years after the making of these Statutes ever medled with causes of this nature Nor can it I am confident be found that cases of this nature were any of those cases wherein the Admirals had encroached upon the Common-law before the making of the said Statutes and what ground these Statutes then gave them for this Judgement I could wish he had reported with the Judgement it self The Statutes I have endeavoured to the utmost of my weak skil to examine one by one but cannot find that in such cases as this the Admiralty was by them in any wise prohibited to proceed of which Examition of mine I shall hereafter render the best Accompt I can more especially when I come to treat of Contracts made at land of and concerning maritime and sea affairs but I must here in the first place examine the observations by Sir Edward Coke himself gathered out of this Judgement From the whole he gathereth these four observations 1. That it is contemporannea expositio being made within 20 years of the making of one of the said Statutes and he saith that contemporanea expositio est optima 2. That albeit the said three Ships with the Prisoners and Merchandizes in them lay in the Haven inter fluxum refluxum aquae and infra primos pontes yet that the Haven is infra corpus Comitatûs and that for taking of the Ships with the Prisoners and Merchandizes in the same no Suit ought to be had in the Admiralty Court but at the Common Law 3. That the Court of Admiralty hath no Jurisdiction but super altum mare which is not within any County for the Record saith as he averreth that the said three Ships with the Prisoners and Merchandizes in the same did lie infra Comitat. Bristoliae non super altum mare as the Plaintiffe in the Admiralty Court supposed the same to be 4. That this Judgement so solemnly and with such advisement given if it were alone were sufficient to give full satisfaction in this point for saith he Judicium est tanquam juris dictum judicium pro veritate accipitur I conceive that by two of these four observations the first and the last he endeavoureth to prove that this Judgement is a good Judgement which ought to be observed ever after for Law which if he hath thereby proved the two other the second and third may be deduced into some conclusion otherwise not He then that will examine the argument comprehended in these two observations must deduce it thus or else he shall find no argument therein at all viz. a Judgement given per contemporaneam expositionem of a Statute or Statutes made within twenty years after the making of one of them and that solemnly upon two years advisement given is a good Judgement which ought ever after to be observed for Law But this Judgement was given by a contemporary exposition of the said Statutes made within twenty years after the making of one of them and that solemnly with advisement by the space of two years therefore this Judgement is to be observed for Law ever after then will the other two observations be easily deduced into a conclusion otherwise not But I must crave leave that without offence I may call into question the truth of the premisses out of which this conclusion is deduced First then whether a Judgement given per contemporaneam expositionem of a Statute made within the space of twenty years next before such interpretation or exposition though solemnly advised on by the space of eight Terms which is two whole years must necessarily be ever after observed for law is that which first cometh in question Under correction I conceive that neither the time of such interpretation or exposition-making nor the deliberate advisement thereupon conclude this necessity that the Judgement thence proceeding must be ever after observed nay I conceive it ought not ever after or at all to be observed unless such exposition be grounded upon both law and reason or at least one of them This is said to be the first and leading Case and so the first exposition of those three before mentioned Statutes made to this purpose and therefore the law and reason whereupon such exposition had its ground and foundation might very well have been expected to have been there by him set down where the Judgement it self is urged but finding neither I have according to my weak abilities endeavoured to search both or either of them out But indeed am so thick-sighted that I can find out neither the one nor the other to warrant the same The Statute of the 5 Eliz. 5. before mentioned and urged for the proof of this assertion might had it been made before this exposition of the other three have set some colour thereon but no more then a colour for there is nothing therein contained substantial that could have afforded this interpretation of the other three but coming after this interpretation this interpretation hath lost that colour and is left upon the Statutes themselves wherein I for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation The first of them is that of the 13 Rich. 2. 5. which Statute hath relation unto a Petition upon which the interpretation thereof ought to be grounded according to the manner of making Acts in those dayes which Petition in other Acts is inserted as a preamble to the Act it self but in this is premised only in part and that not truly rendred by the Translation as shall appear when we come to treat of Contracts made at land for sea affairs the Statute it self runneth thus Le Roy voit que les Admiralls lour deputees ne sic mellent de sore ana vant de nul chose fait deins le Roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre sâ—r ' le Roy quorust The Kings pleasure is that the Admirals and their Deputies shall not from henceforth so meddle viz. as is complained of in the Petition of
Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat at quod praedictus Patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat Ideo vobis mandamus quod praedictus Patricius in causa sua praedicta in praedicta Curia nostra Admiralitatis praedictae licitè procedere facere valeat quod ad praedictam Curiam nostram Admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti T. E. Anderson apud Westmon decimo nono die Junii Anno regni nostri tricesimo octavo Culwicke Scott Shortly after the granting of this Consultation by the Lord Chief Justice Anderson and before the cause could come to hearing or to be fully determined in the Admiralty Court Prideaux upon the same Suggestion procureth another Prohibition from the Lord Chief Justice Popham and thereby again stayed the proceedings in the Admiralty Court untill the 41th year of the Queen But in that year vicesimo septimo die Junii upon reexamination of the poynt another Consulation was awarded agreeable with the former and the Admiralty Court was then a second time set free to determine the Cause in these more express words Ideo vobis mandamus quod praedictus Patricius in causa praedicta quoad omnes hujusmodi res contractus praedict super altum mare vel super ejus necessaria dependentia Ita quod vos vel praedictus Patricius de aliquibus rebus contractibus infra corpus alicujus Comitatus regni nostri Angliae factis ne intromittatis c. in Curia Admiralitatis praedictae coram vobis seu aliquo vestrum licite procedere facere valeat c. Now here doth this Consultation put a plain distinction between the bodies of Counties and the Ports and Havens here called necessaria dependentia alti maris and indeed they are such necessary dependants of the Sea that they may very well nay they must be called mare the Sea though not altum mare the high Sea otherwise needless and altogether in vain was this distinction of mare altum mare of the Sea and the high Sea and main Sea if the Ports Creeks and Havens were not mare Sea and those parts of the Sea further remote from the land altum mare the high or main Sea And then let us consider that though upon every suggestion whereon a Prohibition is in such cases awarded upon the Statute of the 13th of Richard the second the words sur le meer in the same be in the Prohibition translated super altum mare yet will not those words sur le meer nor any other words in that Statute bear any such construction as by the said Statute if lookt into will appear which Statute shall be hereafter set down at large according to the Parliament Roll in the Tower And then is there nothing at all contained in that Statute which can so much as seem to limit the Admiral to the high Seas or exclude his Jurisdiction from extending to the Ports Creeks and Havens which are sea though not high sea And so the very foundation whereon all the Arguments which tend to the deprivation of the Admiral of his Jurisdiction upon the Ports and Havens are grounded is clearly taken away Patrick Landy likewise sued John Prideaux of Padstow pro tribus millibus centenis sepi libellando eundem Johannem Prideaux bona res merces praedicta ac alia bona res merces in manus possessionem sui ipsius Johannis infra fluxum refluxum maris accepisse sumpsisse eademque tunc penes se habuisse seu saltem eadem dolo alienasse c. Prideaux upon suggestion that those Goods and Merchandises were per quendam Georgium Sydenham nuper Capitaneum navis Anglicanae vocat the Black Boat apud Villam de Padstow in Comitatu Cornubiae infra corpus ejusdem Comitatus non super altum mare vendita deliberata per ipsum Johannem ibi recepta habita tenta ad vsum suum proprium conversa c. And obtained a Prohibition 12. Feb. 37 Elizab. A Consultation is awarded in the same words with the other The same Patrick Landy sued Digorius Halman in the Admiralty pro quinquaginta dycariis pellium Hibernicorum libellando quod idem Digorius praedictas quinquagintas dycarias pellium sub nomine bonorum rerum mercium in manus possessionem suas infra fluxum refluxum maris accepisset sumpissset easdemque tunc penes se habuisset saltem easdem dolo alienasset c. Digorius Halman upon suggestion that Gremfield Halse Nicholas Halse and John Hoyell alias Howele at Plymoth in the County of Devon infra corpus ejusdem Comitatus Devoniae non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium c. pro certâ denariorum summa barganizarunt vendiderunt eidem Digario Halman ac quibusdam Johanni Martin Thomae Crane praedictas quinquaginta Dicarias pellium c. And obtained a Prohibition Vicesimo sex to Maii 40 Eliz. a Consultation was awarded T. Edvardo Anderson And as before so here in this same cause and upon the same suggestion a new Prohibition was awarded by the Lord Chief Justice Popham But 26 Maii 41 Eliz. a Consultation was again awarded as in the before mentioned cause and many more I might likewise instance in and set forth both the Prohibitions and Consultations at large but that I should thereby too much enlarge this Treatise Now as by the Writs de procedendo awarded out of the high Court of Chancery upon Supersedeas in the former Chapter set down so by the Consultations upon Prohibitions awarded out the Courts of Common Law here set forth I hope it is evident enough that the Admirals Jurisdiction extendeth to the Ports and Havens and to all things done thereon Vide etiam quae sunt in cap. 9. libri tertu specificata CHAP. XX. That the Ports Havens and Harbours where Ships do lie 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 NOw seeing that the Ports and Havens whereon Ships and other Vessels do ride and lie at Anchor are not only of a different nature from the land but are absolutely consisting of the same nature with the Sea and are sometimes more drawn in and sometimes again further stretched out and are from antiquity both by antient Authors and ancient Records termed and called the Armes of the Sea as indeed most properly they still are I cannot easily be induced to think that these Ports or Havens by being only incompassed on both sides with
not But I must not pass over a main objection which might have been or may hereafter be raised out of this Statute as the same is by Poulton rendered which is this The Statute as he rendereth it saith that whereas in the Statute made at Westminster the thirteenth year of King Richard the second amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from henceforth of any thing done within the Realm but only of a thing done upon the sea c. so that hereby it may seem and be very well urged that this Statute doth clearly confirme the Statute of the 13th of Richard the second as the same is both by Poulton and Sir Edward Coke rendered and translated without any relation to the Petition but if this very Statute be duly considered it will plainly appear that Poulton hath here thrust in a repetition of the former Statute according to his own former rendering thereof to make the same good which the original before inserted in this very chapter being consulted withall will not allow him for there is not one word of this repetition mentioned either in the Petition or Answer quod vide for the Petition is that the Statutes made in the time of Richard the second touching the Jurisdiction of the Admiralty comprehending the one as well as the other as well the latter which rendreth the true construction of the former according unto the true meaning thereof taken with relation to the Petition as I cannot conceive but that it ought to be as the former of the 13th of Richard the second may be held and firmly kept and that the Admirals and their Lieutenants may not hold any manner of plea in the Court of the Admiralty contrary to the form and ordinance of the saiâ— Statutes which by the Answer is granted in generall without repeating any part either of the one of them or of the other So then these former Statutes being onely considered with relation to the Petitions whereunto they are answers I conceive this Statute affordeth no Argument at all against the Admirals Jurisdiction or cognizance of Contracts made at Land concerning Maritime affairs more then what the other afforded and so I hasten to what I promised in the Chapter preceding this CHAP. VII 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 THe Judgment given in the Case of Burton and Putt by Sir Edward Coke said to be the first that can be found that was given upon the Statutes against the Admiral 's having Jurisdiction any where but upon the high Seas and by him said to be within 20 years of the making of the Statutes and so contemporanea expositio the time being duely computed as I have said before will be found to have been given full 27 years after the last of them For the Parliament wherein the last of them viz. the Statute 2. H. 4. was made was begun and holden at Westminster in the utas of St. Hillarie Anno Domini 1400 and in Hillary Term 1427 being 6. H. 6. was this Judgement given so that the largest part of four in this computation is abated to bring this Judgement within the compass of a contemporary exposition but indeed this Judgement must be grounded as well upon the two former as this latter and principally upon the first of them and then is this Judgement 37 years and more after the making of that Statute the same being made in Anno 1389. this Statute therefore having not born this construction or exposition from the time of the making of it until 37 years after and upwards this being the first Judgement thereupon as is confest and that given by the Judges not without a great deal of doubting for the space of eight Terms before they could agree or would adventure to give that construction or such exposition thereof though tending ad suam jurisdictonem ampliandam I cannot apprehend that this was contemporanea or optima expositio nor do I find by all the particulars cited by Sir Edward Coke concerning this matter that this Judgement was ever pursued as a president or example by the same or other succeeding Judges Indeed two Actions he instanceth in brought upon the same ground one by Cupper against Rayner and the other by Wydewell against Rayner brought both in the Court of the Common Pleas about six years after this Judgement viz. Paschae 12. H. 6. But he speaketh not of any Judgement given therein which if there had he would not willingly have omitted to have inserted the same which maketh me verily conceive that no Judgement was given upon either of them nor indeed can I think that the former Judgement by him cyted ever took any effect or was ever put in execution If Sir Coke's rule be true that contemporanea expositio est optima a contemporary exposition is best then is not this exposition made by this Judgement the best though it may be magis contemporanea more contemporary then the other Judgements or expositions given longer after viz. Paschae 28 Eliz. which he instanceth in That Evangelist Constantine having covenanted with Hugh Gynn that his Ship should sail with Merchandizes of the said Gynn to Muttrellâ—in â—in Spain and should there remain for certain days upon breach of which Covenant Gynn brought an Action of Debt of 500 l. in regard the Charter party was made at Thetford in the County of Northfolk and had Judgement in the Kings Bench And that Mich. 30. and 31. Eliz. of an Action of case brought upon a policy of ensurance so that the former may be said to be melior expositio a better exposition then those latter because it seemeth to be the foundation whereon they are grounded and therefore more authentique But if I shall shew that within a farre shorter compass of time after the making of the said Statutes then any of those Judgements were given which he hath instanced in no such exposition was made of the said Statutes but that the Admirâ—â—ty was held to be the proper Court for such causes and the Civil Law fittest to Judge them by then will mine be multo magis contemporanea expositio a farre more contemporary exposition then his and by his own rule si non optima multo tamen suis melior If not the best yet farre better then his I shall therefore instance in an Action brought in the Admiralty within three years after the making of the first of these Statutes and in August next after the making of the second of them and in the same year that this last Statute was made as will appear by the Record it self which I shall in this chapter set down at large The Action was brought in the Admiralty of the West before Nicholas Clifton then Lieutenant to the Earl of
Huntingdon Admiral of the Western parts by Peter Draper and Robert Ancleyn of Sherburne Merchants against William Stillard Mariner in a cause of contract and letting to freight a ship of the said William Stillard called the Lethenard of Haniel to sail thence to the Isle of Ree for Salt there to be had and carried or brought back from thence to Weymouth or Southampton at the choyce of the said Merchants as by the Charter-party of contract and affreightment of the said Ship indented and between the said parties made evidently appeared and this Action there sometime depended and was proceeded in unto sentence without any interruption or being any wayes hindered by any manner of objecting either of the said two Statutes against the proceedings in the said Cause and sentence was given for the said Stillard from which the said Draper and Ancleyne appealed unto the King in Chancery and a Commission was from thence by the Lord Chancellor awarded unto five other Civilians or to any four three or two of them giving them full power and authority to take the said cause of appeal into their cognizance to be proceeded heard and discussed in due forme of law and the same to determine according to law All which will appear by the Commission it self upon record in the Tower which I will here set down verbatim R. dilectis fidelibus suis Johanni Cobbam Magistro Johanni Bennet Magistro Johanni Runhale Magistro Thomae Southam Magistro Johanni Combe salutem Sciatis cum nuper notâ lite seu controversiâ in Curiâ nostrâ Admiralitatis Angliae in partibus Occidentalibus coram dilecto fideli nostro Nicholao Cliffton tunc locum tenente clarissimi fratris nostri Comitis Huntindon Admiralli nostri in partibus praedictis inter Petrum Draper Robertum Ancleyne de Sherbourn Mercatores partem actricem ex una parte 〈◊〉 Willielmum Stillard Marinarium partem ream ex altera occasione affrectationis conductionis sive locationis cujusdam navis praedicti Willielmi Lethenard de Hainnel nuncupat ad veland ad partes de la Ray pro sale ibidem habendum praedict inde carcandum deinde apud Weymouth vel Southampton ad electionem mercatorum reducend ut occasione conventionum contractuum affrectationem conductionem navis praedictae concernen de quibus per chartas indictatas inter personas suprascriptas evidenter apparet aliquandiae vertebatur praedictus locum tenens perperam in causa praedicta procedens parti Williemi plus debito favens sententiam contra eos Petrum Robertum pro parte dicti Willielmi tulit diffinitivam iniquam invalidam sive nullam ad instantiam ad procurationem dicti Willielmi subdolas injustas minus justè ut asseritur in ipsorum Petri Roberti praejudicium non modicum gravamen a qua quidem sententia diffinitiva caeteris gravaminibus praetensis fuisset sic per praedictum Petrum no'ie suo procuratorio no'ie dicti Roberti ad nos nostram audientiam legitimè ut praetenditur appellatum quam quidem appellationem idem Petrus intendit ut asserit pro se dicto Roberto prosequi cum effectu ac nobis supplicavit ut sibi praefato Roberto super appellationem praedictam certos judices dare seu assignare dignaremur nos supplicatione hujusmodi tanquam juri consona annuentes vobis quatuor tribus vel duobus vestrum in solid de quorum fidelitate industria fiduciam gerimus specialem committimus vices nostras ac plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa seu causis appellationis hujus nec non in causa in hac parte principali prout dictaverit ordo Juris ipsam ipsas cum suis emergentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend sine debito terminand ideo vobis cuilibet vestrum mandamus quod vocetis coram vobis quatuor tribus vel duobus vestrum partibus praedictis ac aliis in hac parte quos de jure fore viderit evocand auditisque in dicta appellationis caâ unâ cum principal eorum rationibus allegationibus circa praemissa diligenter intendatis as faciatis exequamini in forma praedicta Damus autem praefato Admirallo nostro ac ejus locum tenenti nec non universis singulis Officiariis Ministris Ligeis Subditis ac aliis fidelibus nostris quorum interest tenore praesentium firmiter in mandatis quod vobis quatuor tribus duobus vestrum in forma dicti mandati nostri prout ad ipsos pertinet intendentes sint respondentes consulentes auxiliantes vestris mandatis obedientes prout decet In cujus c. 4. apud Westm 3. Augusti And in the 17th year of the sam◠Kings Reign John Coppin Matiner and Owner of the Ship the Gabriel of Sancta Osicha of Burdugall sued William Snoke and Thomas Saxtingham Merchants for freight of that Ship first at the Common Law where the Action lay not and so failed and then in the Admiralty but before sentence appealed to the High Constables Court where his Appeal lay not and was therefore from thence dismissed and condemned in Expences who then appealed to the King in Chancery and had a Commission from thence directed unto Richard Stury Knight Mr. John Bennet Official of the Court of Canterbury and Mr. Michael Sergeaux Dean of the Arches London to hear and discusse the said cause in due form of law and to determine the same according to the rules of the Civil Law they being all three Civilians All which likewise appeareth by the Commission it self upon Record in the Tower which followeth in these words Rex dilectis fidelibus suis Richardo Stury militi Magistro Johanni Bennet Officiali Curiae Cant. Magistro Michaeli Sergeaux Decano de Archubus London salutem Sciatis quod cum Willielmus Snoke Thomas Saxtingham Mercatores quandam navem vocatam le Gabriel de Sancta Ossica apud Burdegal in quodam loco vocato le Umbier cum decem septem doliis una pipa vini caricassent cum quodam Johanne Coppin marinario de Comitatu Essex Magistro navis praedictae conventionassent quod ipsa vina praedicta usque Gadenasse in partibus Essex ' salvo duceret solvendo sibi pro quolibet dolio viginti solidos pro una pipa decem solidos ut accepimus licet idem Johannes conventionem suam bene fideliter compleverit praedicti tamen Willielmus Thomas in hâc parte debitè requisiti praefato Johanni in parte vel in toto juxta conventionem suam praedictam satisfacere non curarunt prout idem Johannes conqueritur super quo idem asserens se versus praedictos Willielmum Thomam tam per Communem legem regni nostri Angliae quam in Curia Admiralli nostri versus partes Boreales diu sequutum
juste in ipsius Edmundi dispendium non modicum gravamen unde per partem praedicti Edmundi sentientis se ex praemissis sententiis expensarum condemnatione indebite pergravari ab eisdem sententia expensarum condemnatione ad nos nostram audientiam est appellatum sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum plenius poterit apparere idem Edmundus nobis supplicavit ut in dicta causa appellationis suis procedere sibi justitiam in hac parte facere digneremur Nos supplicationi praedictae annuentes vobis c. quorum alterum vestrum vos praefatum Episcopum Thomam Field c. I shall instance only in one more one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston as Master and Owner of half of the said Vessel and the said Cause was proceeded in before Henry Bole Lieutenant-General of the Admiralty Court which Cause was from him appealed unto the King in Chancery and a Commission in the eleaventh year of Henry the fourth being but nine years after the making the said Statute and the Cause in the first instance must needs have been begun some good space of time before that The Commission of Appeal runneth thus Rex dilectis fidelibus suis Richardo Rochefort Chivaler ' Magistro Henrico Ware Magistro Richardo Brinkley Magistro Thomae Field salutem Sciatis quod â—um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti quinque librarum praeâ—â—â—â—â—ffrectamenti medietatis cujusdam navis vocat ' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom possessorem ejusdem medietatis aliis pertinen partem actricem prosequentem ex parte una Thomam Jonesson Thomam Rafin de villa praedicta partem ream defendentem ex parte altera quae coram Henrico Bole locum tenen general curiae Admirallitatis Angliae c. Now for the three Records instanced in by Sir Edward Coke and brought out of the Courts of the Common Law against the Admirals Jurisdiction upon the Ports and Havens and in matters of contracts upon businesses to be agitated at sea I have shewed four out of the Chancery which was then as by his own setting forth appeareth the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law for thus he saith Sundry Towns of the West part praying remedy against the Officers of the Admiralty for holding plea of matters determinable by the Common Law which they pray may be revoked the Kings Answer was The Chancellor by the advice of the Justices upon hearing of the matter shall remit the matter to the Common Law and grant a Prohibition And as these Records are of farre greater antiquity then those by him instanced in so are they farre more contemporary with the said Statutes and therefore by his own rule of farre greater authority Besides these three Records by him instanced in do but de facto set forth what was done and that but as those three several times in those Courts sed quo jure non arguitur But it may be very well apprehended that in 27 years after the making of the last of those Statutes and 37 after the making of the first of them the Petitions upon which those Statutes were grounded and from whence they must receive a right construction began to be forgotten but after the same were revived and brought again into remembrance and Admiralty Court had no more such interruptions but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former when the said Petitions whereunto the Answers have or ought to have reference were as it were again quite out of remembrance For if from the time of the making of those Statutes untill the time of the last of the Judgments instanced in all the particular Actions that have been brought and â—â—â—tences that have been given in the Admiralty for things done upon the Ports and Havens against the cognizance of which causes one of these Judgements is brought and all the Actions brought and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea against which the other two Judgments are brought should be set forth I might boldly say there would be many hundreds for one and I might very well and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong nay by those Records of the Admiralty and the constant the continued and the general practice and usage of taking cognizance of Causes of this nature it plainly appeareth that the Jurisdiction thereof anciently did and still doth belong unto that Court for in land businesses whose land or soil shall we judge that to be but his who hath generally continuedly and constantly reapt the Crop and not his who hath at some times come by and taken up a a Shock or two and so done as much as he which reapt where he never sowed which he must needs do which is neither verst nor skilled in jure scripto in that Law which is positively set down for that purpose but shall judge thereof at randam and will so do because others have done so before him nor under correction can it be held to be any good rule of Justice to judge by president for if one man or more have judged unjustly and not according to law I would not have it said that he which knoweth the law is notwithstanding bound to judge as the other did because he hath a president for it But I shall pass them presidents over and as I have in the second book of this Treatise shewed you that even by Records out of the Chancery and Common Law things done upon Ports and Havens are cognizable in the Admiralty Court so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated or to be agitated at sea CHAP. VIII That by other Records out of the Chancery Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court ONe Lodowick Sutton sued John Pettite of Abville in Picardy Merchant Andrew Lord and Daniel Lancel in the Admiralty Court upon several Maritime Contracts made between them in the City of London the said Pettite Lord and Lancel upon their complaint made in Chancery that they were sued in the Admiralty
Court and hinder the just and due proceedings thereof suggested before the Kings Justices at Westminster that he and one William Cowick his Proctor were by the Officers of that Court cited to appear in the said Court in the said cause pretending the same to be a cause cognoscible before the said Justices and not in the Admiralty Court and obtained a Prohibition after which the Libel in the said cause being exhibited before the said Justices as likewise appeareth by the said Consultation and it being thereby plain that the same was for a Contract made concerning Sea business it is said that the Prohibition issued out unadvisedly praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram Justiciariis apud Westm improvidè emanavit and concludeth with a nolumus quod per hujusmodi malitiam suggest cognitio in praefata Curia nostra Admirallitatis taliter derogetur That the cognizance of that Court shall not be hindred by such malice or suggestion and so the cause is thither remitted by consultation bearing date the 11th of July in the 24th year of the said Henry the eighth T. R. Norwich apud Westm which Consultation was directed to Henry Duke of Richmond and Sommerset and Earl of Nottingham high Admiral of England Ireland Gascoine Normain and Aquitaine and to Arthur Plantaginet Knight Viscount Lisle the said Dukes Vice-Admiral or his Lieutenant and also to John Tregonwell Dr. of Laws Official Commissary or Judge of the High Court of the Admiralty and to Thomas Bagard Doctor of Laws his Surrogate in the said Court See the Consultation it self as it follows Henricus Octavus Dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae dilecto fideli nostro Henrico Duci Richmond Somerset Comiti Nottingham magno Admirallo Angliae Walliae Hiberniae Gasconiae Normaniae Aquitaniae Nec non Arthuro Plantaginet Militi Vicecom Lisle praedicti Ducis Vice-Admirallo sive ejus locum tenenti ac etiam Magistro Johanni Tregon-well legum Dostori in Curiâ principali Admiralitatis Angliae Officiali sive Commissario Magistro Thomae Bagard legum Doctori dicti venerabilis viri Johannis in dicta Curia Admiralitatis Surrogato sufficienter legitimè Deputato eorumque cuilibet salutem Ex parte vestra nobis est intimatum quod cum quidam Robertus Baker nuper de London Vintner in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Johannem Maynard de super quodam contractu de re facta super mare quidam tamen Johannes Gilbert Armiger in hac parte cognitionem vestram fraudulenter malitiosè satagens declinare debitum legis processum in eadem Curia nostra in parte illa impedire ac suggerens in Curia nostra coram Justiciariis nostris apud Westm ipsum Johannem Gilbert ac quendam Willielmum Cowicke procuratorem suum per vos in praedicto Curia Admirallitatis Coram vobis super praedicto placito praetenseundem Johannem Gilbert per inordinatam fatigationem in eadem Curia Admirallitatis coram vobis in dies trahi in placitum per ministros vestros ea occasione citari coram vobis comparere adinde respondere faciendum totis viribus sententiam versus ipsos Johannem Gilbert Willielmum Cowicke pro praemissis fulminare proponend placitum quod inde per legem terrae in praedicta Curia nostra coram Justiticiariis nostris apud Westm non coram vobis in dicta Curia nostra Admirallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ipsius Johannis Gilbert grave dampnum ac nostri contempt coronaeque nostrae Regiae exhaeredationis periculum ac contra legem cons regni nostri Angliae Breve nostrum de prohibitione minus rite vobis dirigi procuravit cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae Curiae nostrae Admirallitatis laesionem quia praedictum Breve nostrum de prohibitione à dicta Curia nostra coram Justiciariis nostris apud Westm nuper inde improvide emanavit prout per quendam libellum in dicta Curia nostra coram Justiciariis nostris apud Westm post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ac quia nolumus quod per hujusmodi malitiam suggestionem cognitio in praefata Curia nostra Admirallitatis taliter derogetur ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant T. R. Norwich apud Westm xi die Julii Anno Regni nostri vicesimo quarto One Richard Bell likewise sued one John Crayne in the Admiralty Court for that the said John did at Dartmouth within the Maritime Jurisdiction of the Admiralty promise and bind himself to exonerate and keep indemnifyed the said Richard for taking or restoring of a certain Ship called the Mary Fortune and the apparel of the same and the Goods and Merchandizes in her at the time of the taking of her and that he the said Richard at the time of the taking of the said Ship together with John Bell and others was present against one John Destyron and other Spaniards affirming themselves to be the Masters and Owners thereof And the said John Crane not setting forth what this Contract made at Dartmouth was for but barely suggesting that he was sued upon a Contract made at Dartmouth within the body of the County of Devon and not within the Jurisdiction of the Admiralty obtained a Prohibition But upon complaint of the said Bell setting forth from whence the Contract arose and for what the same was it was held to be within the Maritime Jurisdiction of the Admiralty and a Consultation was awarded by which it is said to be in ipsius Richardi Bell grave damnum legis libertatisque Admiralli laesionem manifestam to the grievous damage of the said Richard and manifest wrong of the law and liberty of the Admiral and further saith Et quia cognitionem Jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus vobis jam significamus c. And because we will not have the Cognizance and Jurisdiction of the Admiralty in Maritime caues to be hindered by such crafty assertions we therefore c. as in the former Consulattion I shall likewise set down this Consultation which was in the time of Henry the Eighth and so come to shew you some of those which were in the time of Queen Elizabeth Henricus octavus Dei gratiâ Angliae Franciae Hiberniae Rex fidei defensor in terra Ecclesiae Anglicanae Hiberniae supremum caput Nobili prae potenti viro Domino Johanni Vicecomiti Lysle Baroni de Malpas Somerey praeclari ordinis Garteri Militi Domino Basset Tyasse Magno Admirallo Angliae Hiberniae Walliae Villae
that plea upon the said Libel only depended in the High Court of the Admiralty by way of the Appeal aforesaid by him the said Thomas Sympson in form aforesaid prosecuted and otherwise he prayed a Prohibition from the said Court of Kings-Bench and procured the same to be directed unto to the said High Court of the Admiralty whereupon the said Court desisted But in Trinity Terme following the said Court of Kings Bench being informed of the whole matter deduced and set forth in the original Libel a Consultation was awarded which in its own phrase and in all things agreeable to what I have here set forth repeateth the tenor effect and substance of the said Libel with a prout per libellum ipsius Christopheri plenius liquet as by the Libel of the said Christopher in that behalf doth more plainly appear and concludeth that notwithstanding the Prohibition for the causes before exprest and for other the said defects in the said Thomas Sympsons Suggestion contained and in the said Court depending them moving with an Ac similiter nolentes per hujusmodi falsas callidas assertiones placita in Curia Admirallitatis praedicta pendent diutius impedire where nolentes signifieth an absolute forbidding or checking rather then unwilling that the said Pleas in the Court of Admiralty depending should any longer be hindred by such false and crafty assertions and therefore signified that the said Court of the Admiralty might lawfully proceed in the said Cause between the said parties and do and performe all other things on that behalf which the said Court did know did belong thereunto c. Take here this Consultation more in its own language at large and I shall set forth but some few more and those as briefly as I can This runneth in these words Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. venerabili egregio viro magistro Julio Caesari legum Doctori praenobilis praepotentis viri Car. Domini Howard Baronis de Effingham praeclari ordinis Garteri Militis magni Admiralli Angliae Hiberniae Walliae Dominiorum Insularum earundem villae Calis Merchiarum ejusdem Normaniae Gasconiae Aquitaniae Classisque marinorum dictorum regnorum Angliae Hiberniae praefecti generalis locum tenenti Generali ac supremae Curiae Angliae Admirallitatis Judici Praefidenti ejusve Surrogato cuicunque salutem Cum Christopherus Turner nuper in Curia Admirallitatis coram Matthaeo Dodsworth in legibus Baccalaureo Commissario Curiae Admirallitatis in partibus Borealibus Angliae ac Judice Vice-Admirallitatis Com. Eboracen implitasset articulat fuit versus quendam Thomam Sympson nuper de Beverley in Com. Eborum super quodam contractu inter ipsos Christopherum Thomam ante tum fact super inde in eadem Curia posuit articulat quod in mensibus Aprilis Maii Anno Domini millesimo quingentesimo octogâ—simo sexto iidem Christopherus Thomas habuerunt Colloquium inter eos de quibusdam quarteriis tritici siliginis ad numerum sexaginta novem vel eo circiter videlicet quadraginta unius quarteriorum tritici vigint ' octo quarteriorum siliginis unde pars accipiendum fuisset in quandam navem vocatam The George of Beverley ad quendam locum vocatum Emotland super Rivulum de Hull à lias dictum Hull Water alia pars inde accipiend fuisset in eandem navem ad quendam locum vocatum The Good Alehouse adjungentem eidem rivulo ab inde abcariari conveiari in eadem navi per aquam usque Civitatem Eborum ibidem deliberari super le shipboard apud quendam locum vocat The Queens Stath infra eandem Civitatem ulterius habuissent Colloquium de salario pretio solvend pro carriagio dictorum quarteriorum granorum praedictorum ulterius quod ipsi iidem Christopherus Thomas convenissent agreassent concernen praedictum carriagium transportationem granorum praedictorum in eadem nave vocat The George infra sequen videlicet quod praedictus Thomas Sympson caperet reciperet in praedictam navem praedicta quadraginta unum quarteria tritici viginti octo quartera siliginis ad praedictum locum vocat Emot-lands ad praedictum alium locum vocatum The Good Ale-house ab inde transportaret carriaret eadem cum convenien celeritate ad le Queens Stathe praedict stantem existentem infra primum pontem rivuli de Owre versus mare ibidem eadem deliberaret super le Shipboard quod in consideratione inde praedictus Christopherus Turner convenisset consensisset ad cum praefato Thoma Sympson pro transportatione cujuslibet quarterii granorum praedictorum solvere summam decem denariorum legalis monetae Angliae ulterius quod idem Christopherus Turner in consideratione quod grana illa magis salvo secur transportari carriari potuissent quà m alia grana sua antebà c fuissent quod eadem non essent calefacta vel malefacta vel aliter pejorat Anglicè Impaired prout ante tempus illud alia grana ipsius Christopheri fuissent in aliis minoribus vasibus ipsiûs Thomae Sympson promisisset convenisset ad cum eodem Thoma quod si dictus Christopherus non deliberaret in praedictam navem vocat The George sexaginta quarteria granorum nichilominus pro eo quod eadem navis fuit navis majoris oneris quà m aliae naves dicti Thomae Sympson fuissent ipse idem Christopherus solveret praefato Thomae Sympson vel assignatis suis plenum stipendium Anglicè The whole freight pro sexaginta quarteriis granorum juxta ratam decem denariorum pro quolibet qurterio granorum praedictorum si plura forent quà m sexaginta quarteria granorum praedictorum quod tunc idem Christopherus Turner solveret pro quolibet quarterio ultera numerum sexaginta quarteriorum juxta dictam ratam decem denariorum pro quolibet quarterio inde quod idem Thomas in considerane inde promississet convenisset ad cum dicto Christophero Turner quod grana sive bona nulla aliorum hominum acciperentur in eandem navem viagio praedicto quod praedicta navis sufficient viritat esculat esset Anglicè manned and victualled Ita quod ratione inde grana dicti Christopheri Turner salva transportari carriari potuissent sine calefatione malefactione vel alias pejoratione Anglice Impairing c. prout per libellum ipsius Christopheri inde plenius liquet quod quidem placitum postea à praedicta Curia Admirallitatis in partibus Borealibus per viam appellationis per praefatum Thomam Sympson in ea parte factae coram vobis remot fuit ad huc in supremâ Curiâ Admirallitatis Angliae coram vobis jam pendet indecis Cumque praefatus Thomas Sympson postea sc termino Sancti Hillarii ultimo praeterito venisset in
Curia nostra suggerens quod praedictus Christopherus in Curia Admirallitatis coram vobis Libellasset quod contractus ille fuit quod una pars granorum praedictorum per contract illum recipiend fuisset in navem praedictam ad quendam locum vocat Emot-land super rivolum de Humer aliàs Hull-water ubi reverà idem Christopherus libellavit in praedicta Curia Admirallitatis coram praefat Matthaeo Dodsworth in partibus Borealibus quod contractus ille fuit quod grana praedicta accipienda fuissent in eandem navem ad praedicta loca vocat Emot-land Good Alehouse super praedictum rivolum de Hull aliàs Hull-water non super rivolum de Humber aliàs Hull-water ubi revera placitum illud super eodem libello coram vobis per viam appellationis praedictae per praefat Thomam Sympson in forma praedicta protegunt tantummodo pendebat non aliter quandam prohibitionem nostram in eadem Curia nostra coram nobis impetravit vobis dirigi procuravit cujus quidem prohibitionis nostrae praetextu vos in causa praedicta distulistis adhuc differtis prout decet Nos tamen ob causas praedictas superius expressas alias defectiones in suggestione ipsius Thomae Sympson praedict coram nobis penden contend nos movend Ac simiciter nolentes per hujusmodi falsas callidas assertiones placita in curia Admirallitatis praedicta coram vobis penden diutius impediri vobis significamus quod in causa praedicta inter partes praedictas licitè procedere poteritis ac omnia alia facere peragere in ea parte quae ad forum Admirallitatis noveritis pertinere brevi nostro de prohibitione inde praedict vobis prius in contrarium in ea parte direct in aliquo non obstant T. C. Wray upud Westm primo die Junii Anno nostri regni tricesimo secundo Rooper Rooper And in the same Queens Reign John Buckhurst infra fluxum refluxum maris within the ebbing and flowing of the Sea upon the River of Thames arrested the Ship the Spark alias the Michael and John of Plymouth as belonging unto George Ascoth and citeth him in specie and all others in genere and libelleth that in the Moneths of August September c. 1597. the said George Ascoth was Owner of the said Ship and had an intent to make a voyage unto the parts beyond the Seas and to the effect of expediting the Voyage bought of him the said Buckhurst or his servant certain necessaries for his Voyage to the value of 72 l and received them and had them into the Jurisdiction of the Admiralty c. Zacharias Ashton put in Bayl to answer the Action and had the Ship released and afterwards upon suggestion that upon the tenth of March 39 Eliz. for the space of two Months before George Ascoth was in the Parish of St. Mary le Bow in the Ward le Cheap London lawfully possessed of this Ship Tackle and Furniture and that upon the eleventh of March he sold her unto him for 400 l. and that the Ship belonged unto him and thereupon obtained a Prohibition The Prohibition alledgeth the Statutes of the 13th of Richard the second the 15th of Richard the second and the 1. of Henry the fourth quodque post edictionem Statutorum praedictorum scilicet decimo Martii anno c. apud London in parochia beatae Mariae de Arcubus in Warda de Cheap London ac per spatium duorum mensium ad tunc praeantea praedictus Georgius Ascogh legitimè possessionatus fuisset de nave praedicta vocat The Spark alias The Michael and John portus de Plymouth ac apparat accession ornament ad eandem navem tunc spectan ad valentiam trecentarum librarum monetae Angliae ut de bonis catallis suis propriis sic inde possessionatus existen Idem Georgius postea scilicet undecimo die Martii anno superdicto apud London praedict in Parochia Warda praedictis pro summa quadringent librarum legalis monetae Angliae eidem Georgio per praefatum Zachariam ad tunc solveret c. contraxisset vendidisset praefato Zachariae navem praedictam ac praedict apparatus c. Quodque praedictus Johannes Buckhurst inde non ignarus machinans cognitionem placitorum quae ad c. quandam prohibitionem in Curia nostra coram nobis ne c. prosequit fuerit c. But no proof being made by the said Ashton that he had so bought the said Ship or that she was his and not the said Ascogh's and the said Court of Kings-Bench being informed that the effect and substance of the said Libel was as is before expressed and the Cause being held and adjudged cognoscible in the Admiralty Court a Consultation was awarded which saith that the Prohibition was in Johannis Buckhurst grave damnum libertatis Curiae Admirallitatis laesionem manifestam to the grievous damage of the said Buckhurst and manifest wrong of the liberty of the Admiralty Court and therefore concluded as the former did with a Nolentes cognitionem quae ad Curiam Admirallitatis pertinet in hac parte per hujusmodi falsas callidas assertiones diutius impediri c. In the Body of which Consultation the effect and substance of the Libel is thus exprest Inprimis videlicet quod mensibus Augusti Septembris c. Anno Domini millesimo quingentesimo nonagesimo septimo jam curren eorumvè mensium quolibet pluribus uno sive aliquo praefatus Georgius Ascogh fuit erat nec non tempore aresti ab hac Curia interposit ac in praesenti est Dom. Proprietarius legitimus possessor navis vocat The Spark alias The Michael John portus Plymothiae ejusque apparatus ornamentorum seu saltem mediatatis seu alicujus partis dictae navis proque tali ut talis fuit erat cōmuniter dictus tentus habitus nominatus reputatus Item quod annis mensibus praedictis eorumve uno sive aliquo praefatus Georgius Ascogh intentionem habuit profectionem faciendi in partes ultra marinas ad effectum expediendi viagium sive profectionem praedictam paulo ante decessum ejusdem pro necessariis quibusdam suis in itinere sive viaagio praedicto ab antedicto Johanne Buckhurst aut ejus famulo ad usum ejusdem Georgii nonnulla bona ad valentiam septuaginta duarum librarum legalis monetae Angliae c. In the same manner John Fox arrested the same Ship upon the River of Thames as belonging unto the said George Ascogh and libelled against the said Aschogh in the same manner for certain necessaries sold unto him to the value of 50 l. which he received and had into his possession within the Jurisdiction of the Admiralty and the said Zachary Ashton put in Bayl to the said Action in such manner as in the other Cause and afterwards upon the like suggestion made unto the said
Court of the Kings-Bench as he had there made in the said former Cause he likewise obtained a Prohibition in this Cause as in the other but the said Court being likewise by the Libel in this Cause informed of the nature of the Cause a Consultation was awarded in this Cause as in the other and concludeth in like manner as the other did that the said Prohibition was in grave damnum Johannis Fox libertatis Curiae Admirallitatis laesionem manifestam and with a Nolentes c. as in the former and both the suggestion and substance and effect of the said Libel are inserted in the body of the Consultation upon the File in the Registry of the Admiralty with the others as it and they came directed from the said Court of Kings Bench thither under seal 42 Elizab. William Rolfe of Woolwich in the County of Kent did contract and agree with Thomas Freeman Shipwright upon a certain rate for day-wages for himself and his Servants and for certain other materials or necessaries for and towards the building of a certain Ship or Pinnace for him the said William Rolfe according to which agreement the said Freeman and one Arthur Argill and others as his Servants did afterwards in the Moneth of April in that year at Woolwich in the County of Kent for divers dayes labor in performance of the said work in their Art about the structure or building of a small Ship or Pinnace for the said William and built a great part of the same and the said Ship or Pinnace being built she was named or called by the said William The Anne and Francis and the said William being in possession of her as his own proper Vessel and standing so possest he afterwards to wit upon the eighth day of March in the 43 year of the said Queen at Woolwich aforesaid in the County of Kent for a certain summe of money unto him then and there paid by one Hugh Lydyard sold and delivered the said Ship unto him the said Hugh by which means the said Hugh upon the said eighth of March in the year aforesaid became possessed of the said Ship or Vessel as his proper Ship or Vessel and the said Thomas Freeman caused the said Ship or Vessel being upon the River of Thames to be arrested by which means the said Hugh Lydyard was constrained to appear in the Admiralty Court and to answer unto the said Tho. Freeman after upon a Contract of or concerning the retaining or hyring him the said Thomas being the Shipwright to make build the said Ship and of and concerning several promises and undertakings of the said Hugh and William made unto the said Thomas in the Moneths of March April c. in the year c. concerning the payment of divers summes of money to be paid unto the said Thomas for his Wages and Salary for his work about the structure and building of the said Ship or Vessel and for meat and drink of other Workmen that wrought upon the said work and for other necessaries for the fitting of the said Ship bought and bestowed thereon by the said Thomas The said Hugh Lydyard alleaging the Statutes of the 13 and 15 of Richard the second and the 2d of Henry the fourth unto the Court of Common-pleas and there suggesting the same fact and further suggesting the same to be done and the said Contracts to be made within the body of the County of Kent and not within the Jurisdiction of the Admiralty that therefore the Action was brought contrary to the form of the said Statutes and procured a Prohibition to the Court of the Admiralty but upon consideration of the whole matter the said Court upon the last day of January in the 45th year of the said Queens Reign awarded a Consultation and remitted the said Cause to the Admiralty Court And now in regard that the fact in this case was agreed on both sides and therefore no repetition made of the Libel in the Body of the Consultation the right of jurisdiction and power of the cognizance of the cause being only in question and in regard this Prohibition and Consultation issued out of the Court of Common-pleas and the former mentioned out of the Kings's-Bench take this Consultation at large as it came to and remaineth in the Registry of the Admiralty Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. Dilecto sibi Julio Caesari Legum Doctori à libellis supplicum nostrorum Magistrorum uni Curiae nostrae Admiralitatis Angliae Judici sive praesiden ac locum tenen ejusdem legitime constitut aut c. salutem Cum Hugo Lydyard Gen. in Curiâ nostrâ coram Justiciariis nostris apud West suggerit quod cum per quendam actum in Parliamento Domini Richardi nuper Regis Angliae secundi post conquestum apud Westm anno Regni sui tertio decimo tent edita inter alia inactitata sub authoritate ejusdem Parlimenti quod Admiralli et eorum Deputati se ex tunc de aliqua refacta infra regnum Angliae nisi solumodo de rebus factis super altum mare prout tempore Domini Edvardi Regis avi praedicti quondam Regis Richardi secundi usum fuisset nullatenus intromittant cumque etiam per quendum alium actum in Parliamento praedicti quondam Regis Richardi secundi anno regni sui quinto decimo tent edit inter caetera declarat ordinat stabilat suisset authoritate ejusdem Parliamenti quod de omnibus contractis placitis querelis ac de omnibus aliis rebus factis sive emergentibus infra corpus Comitatus tà m per terram quà m per aquam ac etiam de wrecco maris Curia Admirallitatis nullam habeat cognitionem potestatem nec jurisdictionem sed quod essent omnia hujusmodis contract placita querelae ac omnia alia emergentia infra corpora Comitat. tam per terram quà m per aquam ut praedictum est ac etiam wreccum maris triat terminat discuss remediat per leges terrae non coram Admirallo nec per Admirallum nec ejus locum tenentem quodque post edictionem statutorum praedictorum sc primo die Aprilis Anno regni nostri quadragesimo secundo Quidam Willielmus Rolfe apud Woolwich in Comitatu Cantiae infra corpus ejusdem Comitatus non super altum mare nec infra jurisdictionem Admirallitatis retinuisset quendam Thomam Freeman tunc naupegum existen ad quandam naviculam vocat a Pinnace pro eodem Willielmo construend fabricand vel saltem in structurâ fabricatione hujusmodi naviculae ad laborand operam navand per se servien suos in arte suâ pro merced per diem eidem Thomae per praefatum Willielmum solvend virtute cujus retentionis idem Thomas quidam Arthurus Argill alii ut servien sui postea scilicet sexto die ejusdem mensis Aprilis apud
the value of twenty pounds the money not being paid Husbands arresteth this sixteenth part of the said Ship with Tackle and Furniture thereunto belonging and citeth Bonner specially and all others in general to answer unto him in the Admiralty Court for the said Debt Bonner dieth Rachel his Wife taketh Administration and the Suit proceeds against her Richard Dove Owner of the other parts or residue of the said Ship became Bayl for the said Bonners sixteenth part And afterwards upon suggestion in the Kings Bench that the Debt was for cloth and other things bought by the said Bonner of the said Husbands in Cheapside London and that the said Ship being freighted and laden in the Parish of St. Mary Bow in the Ward of Cheap London with Provision of the Queens to go for Ireland was there arrested by the said Husbands and alleaging that the said Action was brought in the Admiralty Court by the said Husbands against the said Bonner contrary to the three before mentioned Statutes c. And thereupon obtained a Prohibition But upon due information made unto the said Court setting forth the effect and contents of the Libel a Consultation was npon the 25th of April in the third year of King James awarded and the cause returned unto the said Court of the Admiralty there to be duly proceeded in The Consultation plainly expressing that the matter contained in the Suggestion was no wayes sufficient to maintain the Prohibition The Consultation runneth thus Jacobus Dei gratiâ Angliae c venerabili egregio viro Julio Caesari Monstravit nobis Richardus Husbands de London Draper quod cum ipse idem Richardus in Curia nostra coram vobis per processum extra dictam Curiam Admirallitatis praedictae debito modo confect ' emanan arrestari procurasset decimam sextam partem cujusdam navis vocat ' The Advantage of London ac apparatuum c. Et ulterius citari procurasset quendum Adamum Bonner Dom. c. in specie ac omnes alios quoscunque jus titulum interesse haben in genere vel haberi praetenden c. praefato Richardo Husbands de pro quol ' debito viginti librarum eidem Richardo Husbands c. per quend ' contract ' c. infra jurisdictionem Admirallitatis Angliae factum debite responsur ' postea pendente secla illa praedictus Adamus Bonner obiit intestat post mortem Administratio c. Quidam Richardus Dove suggerens in Curia nostra coram vobis quòd cum in statuto in Parliamento Dom. Richardi nuper Regis Angliae secundi c. setting forth the three before metioned Statutes Quodque vicesimo die Novembris anno regni Dominae Elizabethae Reginae Angliae quadragesimo tertio apud London videlicet in Parochia Beatae Mariae de Arcubus in Warda de Cheap praedictus Adamus Bonner indebitatus fuisset eidem Richardo Husbands pro panuclaneo aliis rebus ad tunc ibidem praefato Adamo per praefatum Richardum Husbands vendita deliberat in summa vigint librarum legalis monetae Angliae Quodque praefatus Adamus Bonner praedicto vicesimo die Novembris anno quadragesimo tertio superdicto apud London praedict in Parochia Warda praedicta fuisset Dom. proprietarius possessor legitimus praedictae decimae sextae partis navis vocat ' The Advantage of London ac apparatuum c. Ac quod praedictus Richardus Dove ad tunc ibidem similiter fuisset Dom. Proprietarius legitimus possessor totius resid praedictae navis c. Quodque etiam praefatus Richardus Husbands postea scilicet vicesimo die Novembris anno regni dictae Dominae Elizabethae nuper Reginae Angliae quadragesimo tertio superdict apud London praedict in Parochia Warda praedicta praedictam decimam sextam partem navis praedictae ad tunc ibidem onerat ' existent ' cum provisione dictae Dominae Elizabethae nuper Reginae Angliae ad navigandum pro regno Hiberniae ac praedictorum apparatuum c. pro dicto debito praefati Adami Bonner arrestari procurasset ac super inde praefatus Richardus Dove c. apud London praedict in Parochia Warda praedict fore fidejussorem pro praedicta nave compulsus coactus fuisset aliter c. quandam prohibitionem nostram c. Quia tamen videtur Curiae nostrae coram nobis quod suggestio praedicta praedicti Richardi Dove in Curia nostra coram nobis in hac parte exhibit ' materiaque in eadem contenta minus sufficien ' in lege existunt ad Breve nostrum de prohibitione in hac parte manutenend ' Et quia nolumus cognitionem quae ad Curiam Admirallitatis praedict spectat pertinet per hujusmodi insufficientes assertiones diutius impediri vobis significamus quod in causa praedicta c. T. J. Popham apud Westm vicesimo quinto die Aprilis anno Regni nostri Angliae Franciae Hiberniae tertio Scotiae tricesimo octavo 1. L. Rooper I shall instance only in one or two more of latter time and that very briefly Claos Cornelius Borss by Charter-party let to freight the Ship the Young Swan of Horne in Holland whereof he was Master and part-Owner unto George Rook and Robert Grove for a Voyage from London to several Ports and Places beyond the Seas and from thence to the Port of London Borss after the return of the said Ship sueth Rooks and Grove in the Admiralty Coutt for his freight due by the said Charter-party and likewise for demorage Rooks and Grove suggest in the Kings-Bench that the Charter-party was made in the Parish of St. Mary le Bow in the Ward le Cheap and alleadged the three before mentioned Statutes and that they had performed the Covenants of the said Charterparty and that the Action brought against them in the Admiralty was contrary to the said Statutes and obtained a Prohibition But the said Court being fully informed Termino Pascae nono Caroli a Consultation was awarded with a Nolentes c. as in the former And further quod in causa praedicta quatenus de non performatione conventionum praedictarum quoad naulum morationem coram vobis duntaxat agatur licitè procedere poteritis ulterius facere quod ad Curiam Admirallitatis praedictae noveritis pertinere dicta prohibitione nostra non obstante T. T. Richardson apud Westm tertio die Junii Anno regni nostri nono Henley Whigswick In like manner David Guy of Disart in Scotland let to freight by Charter-party the Ship the Grace of God of Disart then lying at Anchor in the River of Thames to John Delabar and James Hope upon a Voyage upon which Guy sued the said Delâ—bar and Hope in the Admiralty Court for his freight thereby contracted for and unpaid Hope and Delabar setting forth in the Kings Bench that the Charter-party was made in St. Michael Cornhill and alleadging the three before mentioned Statutes and
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
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
the memory of man the sole rule and dominion of these Seas should not furnish this his maritimum regimen dominium with those antient maritime Laws before spoken of Certainly whosoever imagineth this concipit istud mare sine navibus vel naves sine naucleris navarchis fluctuantes concipit istas If furnished with Lawes then consequently with a Commander Admiral or Governor for the dispensing and ministring of Justice amongst Sea-Traders and seafaring-men according to those Laws else were these constituted and appointed to that use in vain But I may here rather from the forementioned Libel deduce a proof of the antient settlement of maritime Laws in England from the antient acknowledgement of an Admirals Jurisdiction then the settlement of an Admiral and his Jurisdiction from a former Introduction of the maritime Laws into this Kingdome for an Admiral of England and an Admirals Jurisdiction are both acknowledged by all the therein mentioned Nations to have been from that time which was anno 30 Ed. primi beyond the memory of man If then the Admiral had so antiently a Jurisdiction I must necessarily inferre from thence that so antiently if not somewhat before the Laws of the Sea must be settled for his rule and guidance For they do not say there was an Admiral for so there might have been and he have ruled by Arbitrary power but they say as before is said ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectaret Jurisdictionem ex imperio ejusmodi excercendam And in their Petition as is before exprest they desire ut à custodiâ liberati qui carceri traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae subirent Now as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus so jurisdictio is juris dicendi potestas And as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 likewise from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lex so Juris consultus est is qui jus consuluit sive studuit and so juridicus quod secundùm jus est as juridicus dies quô ritè jus dici potest and juridica actio quae secundùm jus est dicitur etiam juridicus qui jus dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. At cui jus ignotum est ignota jurisdicendi potestas cui jus non est jus non consuluit ubi jus non est ibi jus dici nequit No man can have a Jurisdiction or power of declaring the Law or judging by the Law to whom the Law is not known more especially where there is no known Law to declare or judge by Therefore seeing the Admiral by common consent and by so common a judicial acknowledgement so antiently had a Jurisdiction necessarily he must so antiently have had certain known and settled Laws to declare and judge by I do observe likewise that all the Patents granted unto Admirals from the 35th of Edward the Third upwards unto the 34th of Edward the First do conclude in binding them to the execution of their office prout justum fuerit fieri consuevit And as this prout fieri consuevit led me to the more antient Patents wherein the Officers bear not the title of Admiral and taught me to understand that the variation of the title did not differ or alter the property in the Office or the quality of the Officer so this prout justum fuerit shews me as well as the Jurisdiction in the Libel before spoken of did that the Admirals had then and prout hactenus shews me they had so before a Law to rule and judge by For though a private man which is vir bonus a good man which deals uprightly and punctually with all men is usually said to be vir justus and not improperly when we speak of a private man in his private dealings And vir probus sanctus which observeth the Divine Law is very properly called vir justus when we speak or discourse of matters of Religion c. But if we speak of a man set and put in place and authority over others in Sea-affairs we say he is vir justus qui jus observat à jure non discedit for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth justus doth as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do come from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the same word signifieth legitimè jure justè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifieth jus the Law it self CHAP. VI. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Courts in deciding of Maritime Causes in those antient times THat in those antient times the Custodes marinae maritimarum partium c. to whose care and trust these marinae and maritimae partes the Seas the Coasts and Ports of the Seas were committed had a great power and grand authority over all those maritime parts whereunto they were limited and over all Ships and Shipping and over all things thereunto belonging and over all persons whatsoever who were therein concern'd within the said limits and had powet and authority of hearing and determining of all differences and controversies which did or might arise concerning the same may be very well concluded upon this further ground that no other Court in those dayes presumed ever to take cognizance of any such matters or affairs which I am confident of for the reasons ensuing I hope no man will say that maritime causes were tried in the Heal-gemote now called the Court Baron nor in the Hundresmote now called the Hundred-Court and is of the same nature with the County-Court nor yet in the Scyedgemote now called the Sheriffs Turne which were the Courts then in use and had been long before the Conquest and do yet continue and never did nor do assume nay not so much as challenge any right at all to any such power Nor did the Kings Court of Exchequer which was the first Court was settled after the Conquest ever undertake to deal in causes of that nature but as Mr. Lambard determineth this point very well was only setled and appointed for causes concerning the Kings Demeasnes and Receipts And he saith that after the Conqueror had suppressed the Forces of those that made head against him here he settled this Court for his Revenues and called it his Exchequer after the name of his Exchequer in Normandy but saith he it differed not a little from that for the Exchequer of Normandy had not only the Government of the Revenues of the Duke there but was also the Soveraign Court for the administration of Justice amongst his Subjects until Lewis the Twelfth King of France anno 1499. converted it into a Parliament consisting of a President and Councellors and established it at Roan in Normandy where it still continueth But saith he this Exchequer in England had only the
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
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-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
made to appear for founding them upon then for the former which is but a quakemire CHAP. VII The Argument deduced from two Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued BUt to keep some method I must out of these things which Sir Edward Coke hath promiscuously urged against the Admirals cognizance of businesses done upon the Ports and Havens and of Contracts made upon the land for freight Mariners wages tackle furniture and ammunition and of things done beyond the seas c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the Ports and Havens and give some answer to them first and those are Praemunire's Prohibitions Book-cases and Authorities in Law and then come in the third book of this Treatise to those things which he hath urged against the Admirals cognizance of or concerning Contracts made upon the land for freight Mariners wages c. Two Praemunire's he instanceth in the one brought Mich. 38. H. 6. By John Cassy Esquire against Richard Beuchampe Thomas Paunce Esquires and others upon the Statute of 16 Rich. 2. cap. 5. for sueing in Curiâ Romanâ vel alibi of matters belonging to the Common Law for that the Defendants did sue the Plaintiffe in the Admiralty Court before Henry Duke of Excester that the said John Cassy did take and carry away certain Jewels super altum mare ubi idem Johannes Cassy bona illa apud Stratford Bow infra corpus comitatûs Middlesexiae non super altum mare cepit which saith he is so evident and of so dangerous consequence as no application shall be made thereof but I must under favour take leave to make some application and some answer likewise hereunto and shew that the urging â—oth of this and the other which he instanceth in which is a Premunire brought 9 H. 7. for a Suit in the Admiralty Court before John Earl of Oxford for taking and carrying away quandam naviculam apud Horton Key at South-Lyn c. supposing the same to be super altum mare where it was infra corpus comitatûs is no way consequent or concludent to prove the Ports and Havens to be within the bodies of Counties For the first of these it is plainly affirmed that John Cassy did take away the goods he was sued for in the Admiralty Court at Stratford Bow being a Town or Parish plainly within the body of the County of Middlesex and no Haven or Haven-Town This suggestion being proved the Admiral had no colour at all to take cognizance of this cause For the taking and carrying away of the little Ship little Barque or Boat for navicula signifieth either of the three at Horton Key at South-Lynne it concludeth nothing against the Admirals Jurisdiction upon the Haven or Port taken for the water beneath the first Bridge for a Key is often taken for the Wharfe or place whereon goods are usually landed but strictly it is taken for the very separation of the land from the water by wood or stone or both in such places as goods are usually landed at and these are the keys that lock those dores that Sir Edward Coke would have stand wide open placed by God himself to no purpose so farre within the Seas Now At Horton Key may be as well on the dry side of the Key as on the wet as well upon the land as upon the water and little Ships little Barques or Boats are oftentimes drawn up at the Keys where they arrive to be caulked and repaired and might be from thence taken and carried away perhaps from the water their accustomed Element to the fire wherewith for the most part when they escape drowning they are at last consumed when they are become unserviceable Again these two Premunire's are said only to have been brought and nothing said of the event or what was determined thereon so that here is nothing but the opinion of those that brought them and no resolution of the Judges and so these two Praemunire's conclude nothing at all But grant two suppositions neither to be granted nor supposed unless proved viz. that these two severals Acts were done or committed upon Ports and Havens and that the determination and resolution of the Judges was against the Defendants yet he that will but look may see the two foundations whereon these determinations or resolutions were or should have been built from whence this land Argument is raised to have been laid upon the sea sands too slippery a place for them to stand on the one is that before mentioned groundless supposition of the Ports and Havens being within the bodies of Counties for which no proof is offered but that some against all reason and they know not wherefore have taken them so to be The other is the Statute upon which these Praemunire's were brought which he affirmeth to be the Statute 16 Rich. 2. for suing in Curiâ Romanâ vel alibi of matters belonging to the Common Law This Statute consisteth of a Petition made by the Commons unto the King and the King's Answer thereunto as all ancient Statutes of those dayes do In the Petition is first set forth that the King and all his liege People ought of right and of old time were wont to sue in the Kings Court to recover their presentments to Churches Prebends and other Benefices of holy Church to which they had right to present c. And when Judgement was given in the same Court upon such a Plea and Presentment the Archbishops Bishops and other Spiritual persons which had the Institutions unto such Benefices within their Jurisdiction were bound and did make execution of such Judgements by the Kings Commandments of all the time aforesaid without interuption c. And in the next place they do complain that of late divers Processes had then been made by the Bishop of Rome and Censures of Excommunication upon certain Bishops of England because they had made execution of such commandments to the open desherison of the Crown c. And further complaining that also it was said and a common clamour was made that the said Bishops of Rome had then ordained and purposed to translate some Prelates of the same Realm some out of the Realm without the Kings assent and knowledge and some out of one Bishoprick into another within the same Realme without the Kings assent and knowledge and without the assent of the Prelates so to be translated which Prelates were much profitable and necessary to the King and his Realme by which the Statutes of the Realm would become defeated c. And nothing more is contained in the said Petition but what concerneth the premisses The King in his Answer doth ordain That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elswhere any such Translations Processes and Sentences of Excommunication Bulls Instruments
for certain Judgement thereof is given for the Mariners Berry chief Justice of the Common-pleas The King willeth that the Peace be as well kept on the Sea as on the Land and we find that you are come hither by due-process and therefore ruled him to answer Out of which the Author observeth four things 1. That it is called the Sea which is not within any County from whence a Jury may come 2. That the Sea being not within any County is not within the Jurisdiction of the Court of Common-pleas but belongs to the Admirals Jurisdiction 3. That when the Ship came within the River then it is confessed to be within the County of Northumberland 4. That when a taking is partly on the Sea and partly in a River the Common Law shall have Jurisdiction For the first Observation which is that that is called Sea which is not in any County from whence a Jury may come I may very well grant it and he yet never the nearer the proof of that he aimeth at viz. that a Port or Haven is within any County out of which a Jury may come which is absolutely denied the reason whereof as before so shall be hereafter shewed For his second observation that the Sea not being in any County is not within the Jurisdiction of the Court of Common-pleas shall not be denyed him but I must crave leave to observe with him That notwithstanding this Ship was taken upon the Seas where there was neither Town nor Place from whence a Jury could be taken yet Berry the chief Justice took cognizance of this Cause and caused Mutford to answer And this might have served him for as good an Argument to have proved the Seas to be within the Jurisdiction of the Common Law as any that he hath used to prove the Ports and Havens to be within the bodies of Counties and out of the jurisdiction of the Admiralty For his third Observation which is that when the Ship came within the River it is confest to be within the County of Northumberland I conceive if Mutford might at the Common Law have pleaded two Pleas which in many cases is necessary and allowable by the Civil Law he would as well have denyed that ever he carried the Ship into the County of Northumberland as he did averre that he took her upon the Seas and silence is not a consent or confession where a man is tyed to one plea and hath divers to plead This therefore is neither confessed by Mutford or any else but by the Author himself and such as are of his party for Berry neither affirmeth nor determineth any such thing or causeth him to answer upon any such ground but upon this ground that the King willeth the peace to be kept as well on the sea as on the land And indeed the grounds are both kept alike to sound the cognizance of this Cause in the Court of Common-pleas whereas the King that willeth the peace to be kept as well on the seas as on the land hath provided instituted and appointed from antient and farre past times distinct Judges Justices and Officers for the keeping thereof on the one hand and on the other The Admiral his Deputies and other Justices with him appointed for the keeping thereof upon the Seas and the Judges of the Land and other Justices with them appointed for the keeping thereof upon the Land and neither have to do with the others Jurisdictions So that I cannot conceive nor can I grant chief Justice Berrys ground whereon he founded this Replevin and the taking this Cause into cognizance to be Terra firma And as for that which Sir Edward Coke would have to be the ground of this Replevin and cognition of this Cause namely because after she was taken at Sea she was carried into a Port or Haven which he accounteth to be within the body of a County If this should be allowed for a good ground then must all Reprizals taken at Sea by Letters of Marque and brought into the Port and Haven be exempted from their condemnation in the Admiralty Court for lawfull prize and may be set free by a Replevin granted from the Common Law and whatsoever fact done upon the Seas either by ship or man the ship or man repairing to Port or Haven Justice must be had against them from the Common Law So that by this construction the Admiral shall have no cognizance of piracy robberies c. committed at Sea either by the course of the Civil Law or by the course of the Law of the Land upon the before mentioned Statute of Hen. 8. but if the Pyrats or Robbers c. shall escape and bring that which they have stoln or by violence taken away c. into any Port or Haven or to land this pyracy robbery c. shall be tryed at the Common Law And as well may it be said that if they shall be taken upon the Sea and afterwards be brought into any Port or Haven or to land that then the Admirals Jurisdiction ceaseth and the tryal belongs to the Common Law So that the Admiral must go set up his Tribunal upon the high Seas as Sir Ed. Coke distinguisheth them if he will have any Jurisdiction at all And whatsoever injury shall happen to be done at Sea by one Ship unto another the Ship which did the injury by repairing to her Port or Haven shall free her self from the judgment of the Admiralty Court c. and the Common Law shall free the Judge of the Admiralty and all the Officers belonging to that Court from any further attendance there which doubtless was the aim of the Author as will plainly appear when I shall come to sum up all he would have And I wish it be not the aim of a great many still whose aim for their own ends must necessarily be destructive to a general good as shall be likewise hereafter shewn For the Fourth Observation which is that when a taking is partly on the Sea and partly in a River the Common Law shall have the jurisdiction For this partly taking on the Sea and partly on the River I must confess I know not how it can be for a Ship is either taken or not taken when she is taken at Sea or taken or not taken when she is taken upon the River unless we can say that one part of the Ship was upon the Sea and the other part of her upon the River at the very instant time of her taking But if the jurisdiction of the Admiralty may have its right we shall have no need of a Mathematitian to strike a line between the Sea and the River to make the distinction for indeed this distinction will be altogether needless But this Observation having relation to the matter of fact from whence it is drawn this meaning of taking partly on the Sea and partly on the River must be that a Ship is so taken when she is first taken at Sea and
the interest of all other parties for that had been to have judged the cause inaudita nec vocatâ parte interesse habente For the controversie was then whether the Judges of the Common Law or the Major c. had the cognizance of that cause and they having dismissed it from their cognizance could grant it no otherwise to the Major and Bailiffs of Hull but insomuch or for that it belonged not unto their cognizance so that after the dismission this controversie was no longer between the Judges of the Common Law and the Major of Hull but now the difference concerning the Jurisdiction of and over this cause must rest between the Admiral and the Major and Bailiffs of Hull for that the Admiral being no party in fudicio the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull then that they should have it for ought that Court in which the Action of Trespass was brought had to do therewith or to hold plea thereof which could not barre the Admiral of his claim of Jurisdiction who was no party in judgement And then this only resteth as an Authority quoted that such an Action was brought at the Common Law and as it appeareth that the same was never there determined so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors might very well conceive that the Action being there brought the same was rather tryable before them by virtue of that clause in their Charter which was urged then by the Judges of the Common Law and the Cause being dismissed as it appeareth not that the Major and Bailiffs determined it no more doth it any ways appear that they did yet by virtue of this Dismission or Grant as Sir Edward Coke termeth it take upon them so much as the cognizance thereof or if they did that the Admiral ever had notice thereof But if the Admirall did or if he did not yet if he had taken to his Court the cognizance of this Cause I am confident that the Major and Bailiffs could no ways by virtue of that clause or upon any other ground have taken it out of his hand unless they have Admiralty Jurisdiction granted unto them as the Town of Ipswich hath the substance of whose Patent concerning the same I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports Henricus Dei gratia c. octavus c. Cumque praedictus avus noster per chartam suuam praedictam quam ut praefertur confirmavimus concesserit Ballivis Burgensibus Villae praedictae successoribus suis inter alia libertates Franches privilegia immunitates in eadem chartâ contenta specificata authoritatem potestatem faciendi exequendi infra eandem villam Gypewici ac libertatem praecinctum ejusdem omnia singula quae Admirallo seu ad officium Admiralli pertinent Cumque portus villae praedictae aqua currens recurrens prout casus exigerit ab eodem portu per fluxum refluxum maris versus le Southeast ad quendam locum vocat Polleshened alias dict Polished nec non tota terra folum quae per hujusmodi fluxum refluxum maris aliquo tempore aqua fuerit superundat sive coâ—pert infra libertatem villae praedictae extiterint Et quod iidem Ballivi Burgenses Communitas successores sui habeant gaudeant eis successoribus suis omnia singula libertates Franches authoritates privilegia jurisdictiones immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum quas nos per litteras nostras praedictas de confirmatione acceptavimus ratificavimus confirmavimus contenta specificata tam in dictâ aquâ sive in cursu aquae ac praedictâ terrâ solo per fluxum sive refluxum maris aquâ quandoque superundat sive coopert quam in omnibus singulis aliis locis quibuscunque infra villam praecinctum suburbum libertates Franches praedict juxta formam chartarum concessionum praedictarum prout ea ante tempora usi fuerunt gavisi Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi Burgenses Communitas successores sui securius liberius absque ambiguitate questione vel dubio habeant officium Admiralli nostri haeredum nostrorum infra libertatem praecinct Franchesc praedict omnia quae ad officium Admiralli tam super mare littus maris quà m alibi infra libertatem Franchisc praecinct praedict pertinent concedimus nunc Ballivis Burgensibus ac communitati villae praedictae eorum successoribus per praesentes quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri haeredum nostrorum per infra totam villam praecinctum suburbia aquam cursum aquae ac dict terram solum per fluxum refluxum maris quandoque aquâ superundat vel coopert seu in posterum superundand vel cooperend Ac omnia singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare littus maris quà m alibi infra libertatem praecinctum limites supra specificat faciant exequantur in tam amplis modo forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit facere debuit quoquo modo c. Et insuper nos de gra nostra ampliori ad relevamen incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr successoribus nostris annuatim ut praemittitur solvend damus concedimus per praesentes pro nobis haeredibus nostris eisdem Ballivis Burgensibus Communitati successoribus suis wrecum maris ac omnia bona catalla quae dicuntur Wreck Flotson Getson omnia alia bona catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent aut poterint infra dict portum aquam ac terram solum praedict per fluxum refluxum maris ac omnia bona per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend qualitercunque contingent vel ibidem in mari aut super littus maris invent seu inveniend etiam omnia singula bona catalla felonum de se nec non bona catalla quae dicuntur deodanda infra libertatem Franchesc praecinctum villae praedictae ac in infra
which undoubtedly they had and have as hath been shewed before And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port or any Port or Chambers of a foreign Prince other then the Ports and Chambers of that Prince against whose Subjects the same were granted And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce that such a fact was done super alto mari hoc est quoad Portus suos but in other cases for Maritime businesses done either upon the Port or contracted for upon the land it is sufficient in the first to lay in the libel that they were done infra fluxum refluxum maris and in the last infra jurisdictionem Admirallitatis as hath been already said and shall hereafter be more fully shewed For that which followeth in the next place out of Stamford I joyned it with that of the 8 Ed. 2. and have already spoken thereto Next it is said 4 5 Ph. Mar. Dyer 159. 6. by the libel in the Admiralty the cause is supposed to commence sur le haut mere infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs non super altum mare whereby saith Sir Edward Coke it also appeareth that the Lord Admirals Power is confined to the high-sea This Conclusion can no wayes be deduced out of the premisses for though by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere infra Jurisdictionem de l'Admiralty and perhaps falsly so suggested because the thing was done in some Town within the body of a County for the instance is ubi revera facta fuit in tali loco infra corpus Comitatûs which locus may be any in-land Town within any County and non super altum mare as it deduced in the libel For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs If by the Libel the cause had been supposed to have commenced in vel super tali Portu infra fluxum refluxum maris then the words of the Authority might have run thus ubi revera facta fuit in tali loco infra corpus Comitatûs non super talem portum vel infra fluxum refluxum maris aswell as non super altum mare for the words non super altum mare are onely in affirmance of the contrary to what is layed in the Libel and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel specifying and designing that very place where such a particular act was not done if so be in the Libel it had been laid that this act had been done about the mid-way between Dover and Callis and the Authority had said ubi revera facta fuit in tali loco infra corpus comitatus and not in or about the mid-way between Dover and Callis I hope no man will say that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis so that it is plain this conclusion cannot be drawn out of the authority The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea and of things done or contracted beyond the seas which I shall deferre to their proper places There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas and not to be upon the Ports and Havens which are not cited amongst his Book-cases and Authorities of Books but are cited before them one amongst the Praemunire's by him cited which I have spoken to already and the other cited amongst the Prohibitions by him cited which concern Contracts and are referred to their proper places These two I shall here insert before I proceed to the next chapter The first of them is urged out of the book of Entries fol. 23. tit Admiralty where it appeareth saith he that the taking of a Ship called the Trinity of London lying upon the River of E. in the County of Kent is not super altum mare but infra corpus comitatus Cantiae and therefore a Suit for the taking of that Ship lying there in the Admiralty Court before John Earl of Huntingdon Admiral of England appeareth to be against the said Statutes and yet no question that was infra fluxum refluxum maris infra primos pontes Here he saith that the taking of that Ship in that place appeareth to be against the said Statutes but mentioneth not what Statutes having quoted divers before If there had been a Judgement in the case he certainly would have added this proof to the Judgement of Burton and Putts Case and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited and the Statutes next before mentioned are the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's which must be the Statutes against which this taking must be said to appear to be by reason he saith it appeareth to be against the said Statutes which must be meant of the next mentioned preceding Statutes If then it appeareth there to be against the Statute of premunire I hope it hath already received an answer If against that of the 32 of Hen. 8. c. 14. it cannot be so as shall be shewed when we come to treat of freight and contracts where we shall have occasion to mention that Statute against his tenents The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. The River of Thames at Billinsgate saith he is not within the Jurisdiction of the Admiralty but infra corpus comitatus This followeth next after the premunires and precedeth next before the prohibitions by him quoted that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty by this Record it must appear thereby not so to be either by a premunire brought or by a prohibition granted as I conceive being inserted in that place and must have some relation either to what precedeth or what followeth If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought I can say no more to it then I have already said If by a prohibition granted onely it proveth nothing for many a prohibition hath been granted and consultations have been awarded without denial of the suggestions And oftentimes prohibitions have been granted upon such suggestions as could not be maintained but deserved consultations upon the debate thereof and sometimes the parties have come
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
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
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
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
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
made the Grant far larger then the request which must not be but must be reduced thereunto and receive a Construction with a due relation to it It being complained of in Parliament that the Admirals and their Deputies had encroacht as is before set forth It is desired by the Petition that they and their Deputies may not meddle with Contracts Covenants or Regraters c. tryable before the other Judges It is answered that henceforth they shall not of a thing done within the Realm but of a thing done upon the Sea The Construction of the Answer with relation to the Petition which as I humbly conceive must not be separated by any Logician will plainly be this The Admirals and their Deputies shall not henceforth meddle with any Contracts Covenants c. of or concerning any thing done within the Realm but onely of Contracts Covenants c. of or concerning things done upon the Sea So that we plainly see an Answer to a Question or Petition turned into a positive Thesis without relation to the thing whereof it is an answer is easily turned into another sence never intended And this answer to a Petition translated alone without the Petition and put positively as the translation of the Statute putteth it doth seem clearly to take away from the Admiral the Cognizance of all Contracts and Covenants whatsoever made within the Realm whereas taken with the relation to the Petition it as clearly confirms the Cognizance of Contracts of or concerning things done at Sea unto him For as the answer to the Petition doth grant that the Admiral shall not meddle with Contracts of things done within the Realm so doth it reserve the Contracts and Covenants of things done upon the Seas unto him And the words as I said before can imply no other thing to the best of my understanding For the following words Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust Poulton having thus translated the Answer without mention of any one word of the substance of the Petition rendreth barely thus as it hath been used in the time of the noble Prince King Edward Granfather of our Lord the King that now is As if this positive Thesis by him extracted out of that which was the King's Answer to a Petition and had onely a relation thereto had been so used in Edward the thirds time whereas the words are a restriction to the answer and bindeth up the Law to what was used in the Kings time for Solonc which in true French is Seloon signifieth secundum or juxta according or agreeable so that if the Answer could be taken positively without relation to the Petition which as I conceive it cannot be yet these words Solonc ceque ad estre dument use c. had restrained and limited it not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in Edward the thirds time So that under correction by that strained construction and interpretation that is made of the former part thereof the Admiral is not barred the Cognizance either of Contracts Covenants or any thing else which he had Cognizance of in that Kings raign Take that part of the Petition wholly and the King wholly grants it but no more By the Petition it is desired that the Admirals may not meddle nor encroach upon the Cognizance of Contracts Covenants Regraters c. cognizable before the other Judges the King granteth it putting a difference between the Contracts c. of things done at Land and of things done at Sea and by this restriction referreth to what Covenants Contracts Regraters c. were duly used and tryed in the Admiralty in Edward the thirds time and those he thereunto reserveth the Cognizance of but no other And now it cometh to be mainly considered whether Contracts and Covenants of and concerning Maritime businesses though made at Land were cognizable in the Admiralty Court or at the Common Law in Edward the thirds time And it seemeth plaine unto me that in Edward the thirds time the Admiral had the Cognizance of all Maritime Causes by the words of their Patents I will give but one instance of the Patent of Robert Herle already cited in which you shall finde these words Dante 's ei plenam tenore praefentium potestatem querelas omnium singulâ—rum de his quae offieium Admiralli tangunt cognoscendi in causis maritimis justitiam faciendi c. Now if Bills of Botomery whereby Ships only are lyable to the payment of the debt contracted upon them though contracted for at land or if freight for the service of Ships at sea or Mariners wages for their service at sea likewise for which either the Ships or Contracters are lyable at the parties Agents choice though the said Contracts were made at land and the like businesses which have their first rise from somewhat done at sea are not maritime causes I would gladly know what causes can be called maritime for sure I am that maritimus is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that which is on the Sea coast or nearest the Sea which the French render ou demeure aupres ou sur le bord de la mer and the Spaniard cerca de la mar Or it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 belonging to the sea take which signification of the word you will and the before mentioned causes will be causae maritimae if for on the Sea-coast or near the Sea then the Contracts in such causes though they he made at land are made on the Sea-coast in the Sea Town or near the Sea If for belonging unto the Sea then these Contracts wheresoever they are made are made for things to be agitated and done at sea and for things that cannot be done without the sea and such Contracts they are that if the sea was not would never have been made and therefore these Contracts must necessarily belong unto the sea and so must those causes which arise from them and must as necessarily be those causae maritimae which the Admiral is to take cognizance of And I am confident that it cannot be shewed that the Common Law had any cognizance of these or the like causes in Edward the Thirds time or that these or such like causes were the causes wherein the Admirals are said then or after to have encroacht upon the Kings Courts Nor that the Common Law had then nor hath yet any positive Laws rules or grounds for the decision of causes of this nature And clear enough it is that even in Edward the Thirds Reign to which this Statute hath reference many Laws and rules were confirmed and many made for direction of the Admiral in the decision of Causes of this nature as by several antient Records shall hereafter appear by which I doubt not but that it will evidently appear that the cognizace of these Contracts concerning
of Edward the Third and so did all Contracts and Covenants between Merchants and Masters and Owners of Ships for freight or the like A Master of a Ship lets a Ship to freight to one Merchant or more and they covenant and agree that they shall so lade that the Ship may be ready to depart by a certain day and they fail and have not fully laden by that time so that the Master loseth his time and oft-times his weathering this is a Contract or Covenant made at land yet hath the Common Law no law or rule that ever I could learn to judge the same by 1. Whether in this place the Master may contract with any other Merchant for a new freight or not 2. What lading boarded firmeth the Contract and holdeth it on and what freeth it 3. In case the Contract be held firme how many dayes after the terme is expired bring the Merchants within the compass of the Law to make satisfaction 4. What satisfaction is to be made and in what manner 5. How such satisfaction being made the same is to be divided between the Master and the Mariners And 6. How such an accident firmeth or altereth the Contract made between the Master and the Mariners If therefore in Sea affairs there were not Sea Laws and Rules to limit and regulate such general Contracts but that they should be held broken for defect of performance of every particular circumstance at the Common Law very many and great inconveniences would follow in cases of this nature because as the land is more firme then the sea so are not land businesses so subject unto various events as the sea affairs are but are at a farre more certainty for the performance of particular circumstances then the sea affairs possibly can be and yet it will not be denyed but that some Contracts made at land concerning Land businesses are against the Law some void by Law and some must be regulated by Law much more must such as concern Maritime affairs be regulated by such Laws as are most proper for them which are the Maritime Laws and if these Laws shall not be observed and followed in this Land and Nation as well as in all others the English Merchants and the Enhlish Mariner and Owners of Ships will be tyed to such inconveniences as the Merchants Mariners and Owners of Ships of no other Nation are to their extraordinary disadvantage but this is but a digression which hath been spoken of more at large elsewhere and therefore we will return to the matter As the 20th Judgement of Oleron is set down for a guide and direction of the Admiral and Judges of the Admiralty in the particular Contracts before mentioned therein between Masters of Ships and Mariners so doth the 22. Judgement set down a rule to guide and direct them in the Judgement of Contracts and Covenants made between Merchants and Mariners and Owners of Ships in the case above specified which is in some particulars of that case plain enough yet in all it cannot be perfectly understood but by such Civilians as are very well verst in other both ancienter and subsequent Authors who have wrote of the Maritime Laws the words of this Judgement I shall here set down Vng Mastre frette sa nef a ung Merchant est devise entre eux im's ung terme pour chargier la nef les Mariners par le space de xv jours ou de plus oultre aucune foiz en pert le Maistre son fret sa mession par default dung Merchant le Marchant est tenu alamender in celle amende que sera faitte les Mariners auront le quart le Maistre les trois parties par la raison quil trouve les costes cest le Judgement en ce cas This Judgement is without question a plain direction to the Admiral and Judges of the Admiralty what to determine in some of the particulars above mentioned upon a Contract made at Land for freight of a Ship which serveth sufficiently for my purpose to prove that the Admiral and Judges of the Admiralty had both before and in Edward the 3. time who in the twelfth year of his raign established these Laws Cognizance of Contracts made at Land between Merchants and Mariners and Owners of Ships for freight And to this Judgement which sheweth what is to be determined in case of freight where the Merchant is in fault or delay I shall adde and here set down one Judgement more which sheweth what is to be determined when the Mariner or any of the Owners are in default or delay As if a Merchant do take to freight by Contract or Covenant any Ship lying in any Port or Haven and it falleth out that the Ship is stopped or stayed through deâ—ault of the Mariner or any of his Owners and how and in what manner this Contract or Covenant holdeth or holdeth not and these are the words of the Judgement Item ordonne est estably pour loy custume de la mer que se ung merchant a frette une nef eu quelque Port que se soit a viengne que le nef soit empeschee pour default du maistre ou du Seigneur a celliu a qui la nef est le merchant qui avoit frette la nef puet requirra le maistre entelle maniere je te requier que tu mettes mes biens ou mes denrrees en la nef le maistre dit que la nef est empeschee de par aucun Seigneur le Merchant qui avoit frette la nef se puet partir du covenant affrettment du dit maistre affretter a son choys ailleurs sans ce que soit tenu audit maistre de rien a mender se le Merchant ne trouve frett il puet bien demander au Maistre ses dommages pour la raison quil la mye tenuz ses Convenants affrement dessus ditz le Maistre lui doit amender cest le Judgement en ce cas Several other Judgements there be which when a Ship is so taken to freight by any Merchant do set forth several duties to be performed both on the Merchants part and likewise on the Masters and Mariners parts which I shall not here set down because it is not my drift or purpose to shew what the Laws of the Seas are but onely to shew that by the Laws of Oleron established in Edward the 3. time Contracts for freight of Ships and Mariners wages were cognoscible in the Admiralty Court and these Laws are left as guides and rules for the Admirals and Judges of the Admiralty to determine such causes by Hence it is plain to my understanding that the Statute of Richard the 2. though taken in the most generall construction without reference or relation to the Petition which I cannot by any means be drawn or perswaded to allow yet being restrain'd with this restriction Solonc
ce que ad estre duement use en temps du noble Roy ail nostre quorust doth no ways at all take away the Admirals or the Court of the Admiralties Cognizance of any thing whatsoever was cognoscible before them in Edward the 3s time and so consequently doth it not take away the Cognizance of Contracts for freight nor wages nor are they any of the encroachments complained of in the Petition whereunto that Statute is an answer And divers other Judgments there be amongst these Laws of Oleron which determine Contracts made between the Masters of Ships and Pilots or Loads-men whether the same be made at land or elsewhere for the conducting of Ships into Ports and Havens or from one Port or place to another I shall only quote some two or three of them and leave the rest Item se ung lodeman prent charge sur luy de amaner une nef en aucun port avient quen sa defaulte la nef soit perie c. marchandises endomagees c. Item estably est pour custume de mer que se une nef est perdue par la defaulte de une lodeman c. Vng bachellor est lodeman de une nef est love alamener jusquis au port ou len la doit discharger c. And some others there be of the same nature And the ancient Statutes of the Admiralty and Laws of Oleron before mentioned established by the said King Edward the Third in the 12 year of his Reign as is before declared having settled the cognizance of such Contracts and Maritime Causes in the Jurisdiction of the Admiralty he granteth the same to his Admirals by their Patents as appeareth by that Patent before mentioned granted unto Robert Herle in the 35 of his Reign But as it seemeth some in those times having opposed or at leastwise afterwards interrupted this settlement the same King caused an Inquisition to be made at Quinborough the second day of April in the 49th year of his Reign before William Latimer Chamberlain of England and Warden of the Cinque Ports and William Nevill his Admiral of the North by near twenty of the most able and best skilled seafaring men of several Port Towns of this Nation of and concerning the ancient customes of the Admiralty to be held firme and continued according to their Verdict as I have at large set forth in the twelfth chapter of the second book of this Treatise I shall therefore proceed to shew that by the said Inquisition it plainly appeareth that Contracts made at land of and concerning Maritime affairs were in Edward the Third's time cognoscible and tryable in the Admiralty Court CHAP. IIII. That by the Antient 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 IT hath been an antient Rule or Maxime amongst Merchants Owners of Ships Masters of Ships and all sorts of Mariners and Seamen that Freight is the Mother of Wages therefore are the Mariners wages to be paid out of the freight the Ship hath earned and the damages done to the Merchants goods by the Mariners or sustained through their negligence is to be paid out of the freight and what is so paid out of the freight is to be deducted out of their wages and by this rule all are necessarily cognoscible in one and the same Court or Judicature and the damage done at sea being cognoscible in the Admiralty and no where else that cause must necessarily carry the other two along with it both which are likewise there tryable both for this and divers other reasons in the first chapter of this third Book exprest But I am likewise here to shew that by the Inquisition taken at Quinborough in Edward the Thirds time for direction of the Admiralty Jurisdiction as is already set forth the same were both then and before cognoscible in the Admiralty Court By the 14th Article of that Inquisition if a Ship be let to freight for several prices or rates of affreightment the whole freight shall be cast up rateably and the Mariners paid out of the whole so that the Admiralty is to take cognizance of the several Contracts of affreightment made by the Merchants before the lading of their goods and to cause the Mariners to be paid their wages they had contracted for before their entring into their service on Shipboard according to the said agreements of affreightment the words of the Article are these Item se une nef soit affreta a divers pris de fretters lentier de tout laffret sera accompte ensemble les portages paiez aux mariners selon lafferaÌ„t du fret de chuÌ„n tonnel lun acompte coÌ„e dit est droittement avec quis lautre Divers rules there are in the Maritime Laws for direction whether and when Mariners are to have their wages contracted for when not when all when some part thereof and what part thereof which are guided by the rates of payment of freight I shall instance but in one more out of this Inquisition and that shall be out of the very next article to that before set down which followeth in these words Item une nef soit affrettee deurs quilque ' lien quae soit ait certain jour limite de paiement de son fret en endenture ou autrement les Mariners scront paiez de la moitie de lieurs louyers a la charge de la nef de lautre moitie quant mesme la nef sera venus en lien de sa discharge se le maistre ou le seigneur de la nef ny veult come dit est avoir la nef lostel de leure serout ilz paiez quant la moitie du dit fret est receu It being plain then that this Inquisition was in Edward the Third's time taken for the direction of the Judicature of the Admiralty it is as plain by these Articles that in his time the Admiral had cognizance of Contracts made for freight of Ships and Mariners wages wheresoever the said Contracts were made and then the Statute of Richard the Second cap. 13. being shut up with this clause of Solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre doth no wayes take away the cognizance thereof from the Admiralty which is a thing I cannot too often repeat Neither resteth this Inquisition here but what matters were cognoâ—cible and to be determined before the Admiral by the Laws which I have in the former chapter quoted out of the Laws of Oleron and by divers others of them as well as those there quoted and by divers other Articles in the foregoing part of this Inquisition being then fully settled and established It is towards the latter end of this said Inquisition provided and care is thereby taken that neither those matters nor
shall afterwards appear which I with much diligence in my reading expected but could find nothing more then what as I hope hath in its due place received an answer And if we examine the original Statutes and Poulton's Translation of this part of this Statute they will plainly shew what Statute and what Common Law shall be holden against them I shall therefore here set down the Statute according to the original and likewise Poulton's Translation thereof and the original is by way of petition and answer in these words Parl. 2. Hen. 4. mem 75. It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient tenuz firment gardez que ladmiral ses lieutenantz ne teinont null mannor de plèe deinz la Court d'admirall en contre la forme Ordinance des dits estatutz sils fount a contre en courgent la peine xx l. paiant la moite au Roy lautre moite a perte greve R. soit lestatute ent fait tenuz gardez outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute la come ley tenuz denez eux que rely que loy sente quereue en contre la forme de le dit estatute eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la Court d'admiraltie recover ' ses dammages denums mesme le pursueant au double encourge mesme le pursuant la peine de x l. en â—i le Roy pur sa pursuit ensi faitz sil soit attemte Which Statute is by Poulton rendred thus Item Whereas in the Statute made at Westminster the 13 year of the said King Richard amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from hence forth of any thing done within the Realm but only of a thing done upon the Sea according as it hath been duely used in the time of the Noble King Edward Grandfather to the said King Richard our said Lord the King willeth and granteth that the said Statute be firmly holden and kept and put in due execution and moreover the same our Lord the King by the advice and ascent of the Lords Spiritual and Temporal and at the Prayer of the said Commons hath ordained and stablished That as touching a pain to be set upon the Admirall as his Lieutenant that the Statute and the Common Law be holden against them and that he that feeleth himself grieved against the form of the said Statute shall have his action by Writ grounded upon the Case against him that doth so pursue in the Admiralty Court and recover his double damages against the pursuant and the same pursuant shall incurre the pain of ten pounds to the King for the pursuit so made if he be attainted Now it plainly appeareth by the Original which I have here verbatim set down that this Statute is onely in confirmation of the former Statute as originally enacted according to the true construction thereof which taken together with that exposition of the 15th of Richard the 2. hath truely rendred of that and the same being taken with relation to the Petition as I conceive it ought to be and by Sir Edward Coke and Poultons Translations here it is in affirmance of the first of them onely as Poulton himself hath in his Translation thereof rendred it so that neither of these two Translations agree with the Original saving in this that he that shall find himself aggrieved against the form thereof shall recover double damages against the pursuant Now what may be called Damages that shall be recovered double by this Statute is a great question If a man do sue in the Admiralty Court and there recover and is paid a just and due debt of 100 l. which he ought to have sued for in the Common Law and might have there surely recovered the question whether the other party can be said to be damniâ—â—ed that 100 l. over and above his expences and trouble I cannot imagine any reasonable man will say he was What shall be thought then of the leading case Hil. 6. H. 6. in the Common Pleas cited by Sir Edward Coke for the first that received Judgement in that Court upon this Statute of double damages who saith that Bartholomew Putt sued John Burton in the Admiralty for that he by force of arms three Ships of the said Bartholomews with his Prisoners and Merchandizes to the value of 960 marks odd money being in the said Ships did take and carry away supposing the taking to be super altum mare whereas it was in the Haven of Bristow whereupon the said Burton sued the said Putt upon the Statutes and a verdict was found for the said Burton against the said Putt and damages assessed unto 700 l. and Judgement given double for 1400 l. In this place I shall set aside the Question whether this case was proper to the Admiralty Court or the Common Law having spoken to that purpose already in a place more proper and here onely examine the question concerning the damages and them doubled It doth not appear by any thing is said by Sir Edward Coke that Putt had either received from or so much as recovered of the said Burton the said 900 marks or any part thereof and yet the said Burton is found thereto be damnified the said 900 marks besides 100 l. more for his expence and trouble all which is double by the Judgement so that by this Judgement he was barred and hindred any tryal for his 900 marks or whatsoever else he should prove himself to be damnified which no man can or could then say he was not to have recovered in one of the said Courts but was condemned to pay 1400 l. damages to Burton who was damnified nothing more then his expence and some trouble in a wrong Court as is pretended for what he had unjustly done for ought ever appeared or was ever attempted to be made appear and he hereby acquitted of that Act how unjust soever If it might have been granted which may not be that the Admiral had no jurisdiction nor cognizance of this Cause yet surely that Court which had might first have examined whether Burtons act complained of was an unjust act or not and whether Putt should not there have recovered 900 marks as well as in the Admiralty Court and certainly if he should then cannot I conceive how Burton can be said to be damnified that 900 marks which might elsewhere have been recovered and obtained against him nor can I judge that he being sued for 900 marks which neither were or could there or elsewhere have been obtained against him was thereby damnified 900 marks I shall therefore leave it here to be considered whether such a Judgement once given at the Common Law is to be held firme and continued for law ever after or
fuisse nullum remedium in hac parte habere potuisse dictos Willielmum Thomam in Curia Constabularii Marescalli Angliae ad respondendum sibi in causa praedicta summoneri venire fecit ac quendam libellum super actionem praedictam in eadem Curia coram dilectis fidelibus nostris Johanne Cheyne locum tenente Constabularii praedicti Willielmo Faringdon locum tenente dicti Marescalli nostri versus praedictos Willielmum Thomas adhibuit proposuit idemque Johannes Willielmus locum tenentes in causa praedicta minùs rite indebitè procedentes ac judicialiter affirmantes allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos Willielmum Snoke Thomam à cura praedicta de instantia praedicti Johannis Coppin sine causa rationabili quacunque dimiserunt deliberaverunt ipsum Johannem Coppin in quadam magna pecuniae summa argenti pro custibus ipsorum Willielmi Snokes Thomae in hac casu coram eis in eadem Curia factis per sententiam suam seu judicium condemnârunt dictos custus ad quandam summam nimis excessivam taxarunt limitarunt de quibus quidem sententia judicio condemnatione expensarum de taxatione earundem aliis gravaminibus praetensis praefato Johanni Copyn in hac parte illatis per partem dicti Johannis ad nos nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet qui quidem Johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu nobis supplicaverit ut sibi super appellatione sua praedicta certos Judices sive Commissarios dare assignare dignaremur nos supplicationi praedictae tanquam juri consonae annuentes vobis de quorum fidelitate industria fiduciam gerimus specialem commitimus vices nostras plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa sive causis appellationis hujus prout dictaverit ordo juris ipsamque ipsas cum suis emergentibus dependentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend debito fine terminand ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis coram vobis judicialiter producentes sine dolo vel fraude odio vel favore aut alià s injustè subtraxerint veritati testimonium perhibere compellandum Et mulctae alteriusque temporalis cohertionis cujuslibet potestate ideo vobis mandamus quod vocatis coram vobis partibus praedictis aliis quos in hac parte fore videretis evocand auditisque in hujus causis appellationis earum rationibus allegationibus circa praemissa diligenter intendatis ea faciatis exequamini prout justum fuerit consonum rationi volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis aliâ—s vel alii vestrum libere procedere valeat sive valeant in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus In cujus c. T. R. apud Westm xiiii die Novembris After this and after the making of the other Statute of the 2d of Henry the fourth one Edmund Brookes Mariner brought his Action in the Admiralty Court before John Sturmister Lieutenant General of Edmund Earl of Kent Admiral of England against John Birkyrne Richard Honesse John Walls and William Burton of Kingston upon Hull Merchants Partners in a Maritime Cause of contracting and taking to freight of a certain Ship called the Laurence of Gyppelwich and the same was there proceeded in unto sentenc and sentence was given for the said Edmund Brookes against the said John Byrkyrne and Company from which sentence the said Byrkyrne and Company appealed unto the King in Chancery and there obtained a Commission of Appeal from thence directed unto John Kington and others who by virtue thereof proceeded in the said Cause unto sentence and thereby reversed the former sentence and condemned the said Brookes in expences from which said sentence the said Brookes again appealed unto the King in Chancery and obtained a Commission of Review directed unto the then Bishop of London and six Civilians to review discusse and hear the said Cause in due course of Law and to determine the same according thereunto And this last Commission of Review was granted but eight years after the making of the said Statute of the 2d of Henry the fourth and therefore the Cause must needs be instituted and begun in the first instance some years before nearer unto the time of the making of the said Statute the same having been proceeded in even unto seentences in two several instances before the granting of this Commission all which appeareth by the Commission of Review it self which is upon Record in the Tower in these words following Rex venerabili in Christo patri R. Episcopo London ac dilectis ac fidelibus suis Thomae Beauford Thomae Eppingham Magistro Thomae Field Roberto Thorley Willielmo Senenocks Johanni Oxney salutem ex parte Edmundi Brookes marinarii nobis est ostensum quod licet Magister Johannes Sturmyster nuper locum tenens generalis Edmundi nuper Comitis Cantiae nuper Admiralli nostri Angliae in quadam causa maritima quae in Curia Admirallitatis occasione affectationis conductionis sive locationis cujusdem navis Laurence de Gippelwich coram praefato Johanne tunc Judice in ea parte competenti inter praefatum Edmundum partem actricem ex una parte Johannem Birkyrne Richardum Hornesse Johannem Walas Willielmum Burton socios ut dicitur in causa praedicta Mercatores de villa de Kingston super Hull partem ream ex altera vertebatur quandam sententiam pro parte dicti Edmundi contra partem praedictorum Johannis Birkyrne c. rite legitime tulerit definitivam pars tamen eorum Johannis Birkyrne Johannis c. a sententia praedicta ad nos nostram audientiam frivole appellavit quo praetextu quidem Magister Johannes Kingston alii colore ejusdem commissionis nostrae eis ad cognoscend procedend in dicta causa appellationis praetens negotio in ea parte principali praetens directae perperam illegitimè procedentes ac dicti parti appellanti plus debito faven dictam sententiam pro parte dicti Edmundi ut permittitur latam licet nullam habuerint jurisdictionem infirmarunt cassarunt irritarunt adnullarunt ac ipsum Edmundum in expensis per partem dictorum Johannis Birkyrne Richardi Johannis c. in praedicta praetâ—â—â—sa causa appellationis negotio principali praetenso eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus
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