Item soit en quis de touts communs malfaiseos sur la mer en ports se acun homme est endite quil soit comun malefaiseur il sera pris par ung caper par le mariscalt c. By the next takers that take and pay at pleasure and so downwards What Sureties shall be taken of such as shall be convict of misdemeanour What punishment shall be inflicted upon common fighters being convict What upon him that maimeth any other wilfully In what case the Master of a Ship is bound for the forth-coming of his Mariners The manner of out-lawing and banishing a Felon that absenteth himself and cannot be taken And this Law as appeareth by the Article was made by Henry the Fâ—rst which runneth thus It en temps du primier Roy Henry en temps de pluseurs Roys devant de puis quant ung homme estoit endite en fellonnie l' Admirall ou son lieutenant manderoit ung cape a l'Admirall de la Court ou au visconte de lu visconte aux second sessions quil restoit trouve sera espace en tres deux sessions xxi ovors ou plus il sera demaunde a la second session solempne lement c. And likewise the manner of out-lawing and banishing one that hath done any trespass upon any Ship Tackle or Furniture thereof c. whether upon the Seas or upon any Port which Law by the Article appears to have been made by the same King Henry the First and his Admiral of the North and West and others of authority and power adjoyned to them The Law begins thus Item gens quit sont banniz en trespass ne seront une banniz sinon par ung an ou deux c. se lon la discretion de l' Admirall sil est trouve en Angleterre dedens le temps il avara judgement comme devant est dit les biens du banny en trespass ne seront une forfeitz au Roy Comment c. And endeth thus Et ceste ordounare fuit faitte premieremet a Gypswiz out temps du primer Roy Henry per les Admiralz de North West autres seigneurs adheirdantz If Ships be arrested for the Kings service or for any other reasonable cause by the Kings Officers or Admiral and break the Arrest the penalty is by these Laws declared and this Law wherein the penalty is declared appeareth to be made in the time of Richard the First at Grimsby by the advice of most of the Lords of the Realm The Law begins thus Item soit en quis de nefs qui sont arrestes pour le service du Roy ou pour autre resonnable cause per les officers du Roy ou de l' Admirall debrisent larrest And afterwards it followeth thus Ordonne estoit en temps du Roy Richard le primier a Grymsby per advys de pluseurs seigneurs du Roylme que quant nefs seront arresters c. Divers other things of the like nature are likewise enquirable in the Admiralty Court the penalty and punishments whereof are declared by these Laws Sir Edward Coke for proof that the Admiral hath no Jurisdiction upon the Ports amongst other things instanceth in one particular that 7 Hen. 6. 22 35. an Action was brought at the Common Law for forestalling in a Port or Haven because it is infra corpus comitatûs which is a thing taken for granted but no ways proved at all as is before set forth I shall therefore here set down two or three Articles which shew that if by Port be meant within the flood-mark in the Havens forestalling and regrating there are within the cognizance of the Admiral in the Admiralty Court the first is this Item soit enquis de touts Merchants Mariners qui vont hors des Ports aux nefs charges de Marchandizes quant les dictes nefs voul droient enter ouz dits Ports les Marchandises a chattent en gros les amesnent aux Ports puis les vendent a greigneur et plus chier marche plus que les preimer Merchans vouldroient engrevance du commun peuple si aucun est endite en tel cas convicte par xii il sera imprisonne per demy an puis fera fin autant come les biens amsi a chattez amonterent maiz se la ditte nef sois repose dattendre son temps homme a chate de lui Marchandise en tel marne il ne serame dese impeshâ—e ne riens ne perdra vers le Roy. Another against forestallers in any Ship is this Item soit enquis de tous ceulx quia chattent bledz poisson ou autres vitailles dedens la nef en regratant devant quilz soient venuz adeu marche se aucun est en ce endite c. it sera greissuousement pugny fera fin au Roy de tant comme la value des bledz ou poisson amsi achattez a monte Another against Regrators within the flood-mark is this Item de ceulx qui achattent en gras bledz poisson sale poisson freiz ou autre vitaille dedens le flodmarks en Regratant c. aient mesme le judgment Divers other Articles are there expresly set down against several offences committed upon Ports or Havens with the particular punishments to be inflicted upon such offenders as against the exactions of Water-officers Against any mans appropriating to himself the benefit of salt-waters Against Kidles Wears and the like hinderance of the Fishing which is common to all Against the false Weights false Measure and the like used in any Ship or Vessel Against erecting of Mills or adding or altering any thing about them to the hinderance hurt or damage of any Port or Haven Against the taking up and concealing or keeping back from the possession of the Admiral any Flotson Jetson or Lagon found as well upon the Ports as upon the Seas Against the excessive Wages of Ship-Carpenters All which do plainly shew that the Admiral hath had and ought to have absolutely power and jurisdiction of and over even such things and in such causes as Sir Edward Coke instanceth in long before the times from whence he deduceth his authorities And divers others of these Articles to the same purpose I might instance in which for brevities sake I omit CHAP. XII 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 EDward the Third by a solemn Inquisition of divers persons most famous for skill in Maritime matters and sea-faring businesses selected and chosen from divers parts of the Kingdome and assembled at Quinborough upon the second of April in the 49th year of his reign Anno Dom 1375. set down
Whitehall Aug. 13. 1664. Let this Book be Printed HENRY BENNET THE Maritime Dicaeologie OR SEA-JURISDICTION OF ENGLAND Set forth in Three several Books The first setting forth the Antiquity of the Admiralty in England The second setting forth the Ports Havens and Creeks of the Sea to be within the Jurisdiction of the Admiralty The third shewing that all Contracts concerning all Maritime Affairs are within the Jurisdiction of the Admiralty and there cogniscible By JOHN EXTON Doctor of Laws and Judge of his Majesties High Court of Admiralty LONDON Printed by Richard Hodgkinson Printer to the Kings most Excellent Majesty 1664. TO HIS ROYAL HIGHNES JAMES Duke of York and Albany Earl of Vlster Lord High Admiral of England and Ireland c. Constable of Dover Castle Lord Warden of the Cinque-Ports Governor of Portsmouth c. YOur Royal Highness having been graciously pleased to constitute me Judge or President of the High Court of Admiralty I held it my duty according to my poor ability to assert the just Jurisdiction thereof against those undue encroachments and usurpations whereby the power of the Lord High Admiral hath been heretofore and is at this present straightned in decision of matters relating to Maritime affairs wherefore having some time since in those sad and distracted times bestowed some labour in searching and perusing such of the Records of our own as well as Forreign Nations as I could meet with wherein the just extent of the Admirals Jurisdiction is sufficiently and undeniably evidenced together with the necessity of deciding all controversies about Maritime affairs according to the ancient Sea customes and the reason and directions of the Civil and Maritime Laws I held it no less my duty to recollect the said Papers and reduce them into some method for the clearing those objections which hitherto have been and still are made use of either against the antiquity or extent of the Lord High Admiral his Jurisdiction in Maritime causes or against the decision of them by the ancient Sea customes and the rules of the Civil Law And as I have observed this Nation hath happily flourished a long time under that happy Government of all Land affairs by its municipal Laws practiced in the Common Law Courts so hath it no less prospered and been enriched in its Navies Trade and Commerce under that exact Government which hath ordered and guided all Maritime businesses and Sea affairs by the Civil and Maritime Laws and Customes corresponding agreeing and according with the Laws of Forreign Nations being suitable to the nature and negotiations of the people that are subject to them exercised and practised in the High Court of Admiralty The design therefore that I propound to my self in the publishing this Treatise is to shew how necessary and fitting it is that the power and jurisdiction of this Court should be no longer subject to such interruptions and how expedient it now is that the rights and privileges of the same should be observed and kept and the Laws and ancient Customes thereof whereby all Commerce and Navigation is upheld should be precisely and strictly preserved and maintained That all which may appear I have set forth the antiquity of the Lord Admirals Jurisdiction here in England by ancient Records of the Tower Next the Jurisdiction it self and the extent thereof as also the necessity and necessary use of it in divers respects In all which I have endeavonred neither to eclipse the honour power or least right of the Muncipall Laws of this Kingdome nor in any sort to detract from the renown of the Reverend and Learned Professors thereof but hope I have manifested that the upholding of both Jurisdictions and restraining each of them to its proper limits and confines will be more advantagious to this Kingdome and the Inhabitants thereof then the suffering eitber of them to swallow up or devour the other Be pleased therefore to receive this unpolished work from the hand of your Servant as the same is dedicated unto the protection of your Royal Self THE CONTENTS The Chapters contained in the First Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THe Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Thirds time to whose time the Statute of the 13 of Ric. 2. referreth argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times and from their Grants and Patents Page 1. Chap. 2. That these High-Officers or Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governours of Land-Provinces had over them and had their Maritime Laws for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs page 10. Chapt. 3. The beginning of Sea Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued p. 13. Chap. 4. Of the Laws of Oleron and the Antiquity of the Admiralty argued and inferred from the introduction of them into England p. 16. Chap. 5. The ancient Introduction of the Sea Laws argued and inferred from the King of Englands Dominion over the British Seas p. 21. Chap. 6. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Coâ—rts in deciding of Maritime Causes in those antient times p. 25. Chap. 7. Of the Exercise of the Sea Laws by the Grecians Athenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile p. 29. Chap. 8. Of the Admiral of France and Denmark p. 30. Chap. 9. Of the Admiral of Scotland p. 32. Chap. 10. From the common acceptance of the Sea Laws in other Nations is inferred the acceptance of them in England p. 34. The Chapters contained in the Second Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat the Sea-Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependancie each upon the other Chap. 2. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-tradingmen p. 41. Chap. 3. That the Ports and Havens and Creeks of the Sea are within the Jurisdiction of the Admiralty p. 52. Chap. 4. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiraltie redargued p. 57. Chap. 5. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued p. 62. Chap. 6. That from the two other Actions instanced in to be brought against the Parties suing in the Admiralty Court for a business done upon the Ports no concludent Argument is deduced p. 72. Chap. 7. The Argument deduced from two
Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
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
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
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
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
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
or any other thing whatsoever which touch the King against Him his Crown and Regality or his Realm as is aforesaid And they which bring within the Realm or them receive or make thereof notification or any other execution whatsoever within the same Realm or without That they their Notary Procurators Maintainers Abetters Fautors and Counsellors shall be put out of the Kings Protection and their Lands and Tenements Goods and Chattels forfeited to our Lord the King that they may be attached by their bodies c. In these antient Statutes which are by way of Petition and Answer the Answer hath alwayes relation to the Petition and granteth what is therein desired sometimes less but never more by this Petition nothing is desired but the restraint of the Popes power and assumed authority in those things therein exprest nor is there any thing more in the Answer granted if these words in the genuine sence thereof be duly examined which can be no other then this If any purchase c. in the Court of Rome or elswhere from the Pope or any Power or authority derived from him viz. either in his Court at Avignon which he sometimes held there or any other Ecclesiasticall Court under his Supremacy whether beyond the Seas or in the Realm of England For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him as their supreme only or at least as well as the King and of these Courts and none other can this elsewhere be understood as will plainly also appear by the things specified in this answer to be purchased and pursued viz. If any purchase or pursue in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunications Bulls c. Now cannot these things nor could they elsewhere or in any other place besides the Court of Rome be purchased or pursued but from the Pope or his Authority in those other Courts before mentioned Again these words else where were necessarily inserted and necessarily to be understood of those Courts under the Popes authority from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise whosoever had purchased any of them elsewhere to wit in any of these other Courts under his authority and not in the Court of Rome had not been by this Statute lyable to the punishment thereof But some perhaps may say I have here purposely waved the general words which close up the particular specified things forbidden to be purchased or pursued viz. Bulls Instruments oâ— any other things whatsoever which words perhaps may seem to have relation to else where and be thought to be of so large an extent that the words else where must be stretched to all places whatsoever beyond other Courts of the Popes or under his authority But indeed I intended it not But as they are the last words which close up the particulars specified so I reserved them to the last place wherein I shall disclose and clear that doubt When several particulars then of the same nature are closed up with a general that general comprehendeth all other particulars of that nature and nothing of a different and distinct quality So here these general words or any other things whatsoever must be understood of any other thing whatsoever of the same nature with those Translations Processes c. And this is plain enough by the words themselves if seriously observed and rightly understood For take them as they run and they carry their limitation with them which bindeth them close and restraineth them unto what precedeth in the Petition And as the Court of Rome and elsewhere have relation to the Pope to the Popes Court at Rome and unto his Courts elsewhere so must these words Instruments and other things whatsoever have reference and relation thereunto And then take these words as they answer the Petition and they can bear no other sense then this viz. Whereupon our Lord the King by the assent aforesaid and at the request of the said Commons hath ordained and established that if any purchase or pursue or cause to be purchased or pursued in the Popes Court of Rome or any other of his Courts elsewhere any such Translations Processes and Sentences of Excommunications Bulls Instruments or any other things whatsoever which touch the Kings protection c. So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused against whom these Praemunires were brought for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be and hath been wrested and catcht at to diminish and straighten the Jurisdiction of the Admiralty and enlarge the already extraordinary large power of the Common Law Nor are these Interpretations or Constructions in any wise contemporary with the Statutes as Sir Edward Coke would have them but taken up a long time after and crept into their Law as heresies do into Religion by new constructions of Scripture Neither indeed can either the Judgement or any of these Praemunires instanced in be said to be contemporary with the said Statutes For further proof of this point he instanceth in four or five Prohibitions unto the Court of Admiralty for holding plea of Contracts made upon Ports or Havens and beyond the Seas But to these I shall give an answer hereafter when the Contracts made at land concerning Maritime affairs shall come to be insisted upon CHAP. VIII The Book-Cases and Authorities brought to proove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered CErtain Bookâ—Cases and Authorities as Sir Edward Coke calleth them are likewise urged for proof of this particular of the Admirals having no Jurisdiction upon the Ports and Havens 1. Some Books are quoted nothing being exprest what the Books say nor any argument deduced out of them to conclude the point I cannot therefore give an answer to an argument unframed nor is it proper for me my self to raise an argument out of those books and then my self to frame an answer thereunto But I will conceive those Authorities he hath quoted at large to make most for his purpose and endeavour to answer unto them He saith in tempore Ed. 1. tit Avowry 192. a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea and for carrying the same from thence into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough which is neither Town nor Place out of which a Jury may be taken for that the Coast is four miles long And also of a thing done in the Sea this Court hath no cognizace
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
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
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
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 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
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
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
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