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
Common Law because it is then parcel of a County and within the body of a County and with this agreeth that of the 8 of Ed. 4. 19. So note that beneath the low water marks the Admiral hath the sole and absolute Jurisdiction and between the high water mark and the low water mark the Common Law and the Admiralty shall have severally Power interchangeable as aforesaid to wit the one upon the water and the other upon the Land so it plainly appeareth by what himself hath declared that though the Land from the high water mark to the low water mark may be said to be within the body of a Country when the water is off it yet is it within the Jurisdiction of the Admiralty when the water doth overflow it And this will prove no argument at all why the Admiral should have no Jurisdiction upon the Ports and Havens but rather an argument à fortiori vel à majori ad minus that he shall there have Jurisdiction For if he shall not be excluded from his Jurisdiction in those places where the water recedeth and leaveth dry land of use and profit which may be claimed by the Lord of a Mannor as parcell of that Mannor much less can he be excluded from his Jurisdiction in the Ports and Havens from whence the water doth never clearly recede or where no man doth or can challenge any right of possession And again shall he not be excluded those places in the exercise of his Jurisdiction where seldom or never and little or nothing falleth under his cognizance And shall he be excluded those places in exercise thereof where things of the same nature and by the same Law determinable of greater consequence fall under his cognizance almost dayly and hourly If so we may very well suspect the reason and cause thereof that it came so to be not for any good intended either to the Commonwealth or good people thereof but for some private end To this he addeth that it was adjudged Paschae 17. Eliz. in the Exchequor Diggs being Plaintiff that the land between the flowing and reflowing of the Sea belonged to the Lord of the Mannor adjoyning as the Lord Dyer doth there report but to this I shall not need to strive to give any other answer then to the former To that of the 48. Ed. 3. and the 3. concerning the contract for Mariners wages I shall give an answer when I shall come to handle the other contracts made at land It is further objected that 46. Ed. 3. and the 3. tit conusance 36. an account of trespass was brought for taking of a Ship in the Haven of Hull against certain persons The Mayor and Bayliffs of Hull demanded cognizance by the Charter of the King granted unto them that the Citizens and Burgesses of Hull shall not be impleaded alibi de aliquibus transgressionibus conventionibus contractibus infra Burgum c. quam infra Burgum And the cognizance was granted which proveth that the Haven of Hull where the Ship did ride was infra Burgum de Hull and by consequence infra corpus comitatûs and determinable by the Common Law and not in the Admiralty Court Which conclusion no Logician will allow ex necessario to be deduced out of the premises vix ex contingenti nor will any Law as I conceive allow it that two contending at Law for that which belongeth to neither of them though it shall be adjudged to one of them that this shall in any wise be prejudicial to a third party that hath right thereunto but that he may by the same Law recover the same Several Cities and Boroughs especially upon the Sea Coasts do challenge several priviledges some by prescription and some by grant as is already set forth in this Chapter as Flotson at Bristoll c. and the Cinque Ports have their Admiralty Jurisdiction ab antique yet doth not this make their Ports and Havens there to be part of their Towns or make them to be within their Boroughs but within the compass of their priviledges nay it rather sheweth the contrary For things done upon their Ports they have their Admiralty and do or ought to proceed according to the Rules of the Civil and Maritime Laws Talem habent Jurisdictionem ratione Portuum non ratione alti maris and are to give Judgement according to the same Law as the Vice-Admirals of several parts do from which Judgements given in any Port-town except the Cinque Ports where the appeal lyeth onely to the Warden thereof an appeal lyeth to the high Court of Admiralty as it doth from the Vice-Admirals Court and for other businesses done within their Town they proceed according to the Common Law and they have their several distinct Officers for businesses of the one nature and the other as their water-Baliffs for the one and the land-Baliffs or Serjeants for the other and if the Ports and Havens were not within the Jurisdiction of the Admiralty I know no use that Cinque Ports or any other Ports can have of an Admiralty by themselves as absolutely and clearly the Cinque-Ports have seeing that the Lord high Admiral of England hath that Jurisdiction of the main Seas together with all Ports not so priviledged And it cannot be less necessary for all the other Ports to have all their businesses agitated therein tried by the Civil and Maritime Laws then it is for the Cinque-Ports Hull no doubt hath great and large privileges but whether they extend unto things done upon the Port or Haven there without the authority of the Admiral I know not It is like enough it may which being made known the cognizance of this cause might very well be dismist from the cognizance of the Judges and left unto the Major and Bailiffs of that Town Howsoever take it that the cause was dismist only upon that ground which is here set forth viz. that the Citizens and Burgesses should not be impleaded alibi in aliquibus transgressionibus conventionibus contractibus infra Burgum c. quà m infra Burgum This no doubt was sufficient for the Judges of the Common Law to dismisse the cause from being proceeded in before them before whom it was brought as an Action of Trespass not before the Admiral c. for that it rather belonged unto the Major of Hull then to them though indeed it perhaps belonged unto neither and hereupon the Major de facto might take cognizance though by no law or right I hope we shall not make the Judgment of evaery Major and Recorder to be a Law or President that others must be ruled by For then we may hang up the accessary and go seek the principal afterwards as they did at Grantham in Lincolnshire as I have heard But Sir Edward Coke further saith that the cognizance was granted c. I hope he meant not that it was adjudged to belong absolutely unto the Major and Bailiffs of Hull excluding
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
judicandis quam in classe Regiâ gubernandâ insignitur And further saith that we had the name of this Magistracy viz. Custos Maris Marinae Maritimarum partium from the Romans as may be gathered from Cicero in Epistol ad Attic. ubi ait vult me Pompeius esse quem tota haec maritima ora habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. speculatorem custodem CHAP. III. The Beginning of Sea-Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued DIonysius ascribeth the first making of Sea-laws to the Phenicians Pliny to the Carthaginians but according to the observation of most Authors out of most ancient Monuments our Sea-laws have had their beginning and original from the Island Rhode Rhodiae leges navalium commerciorum sunt ab Insula Rhodiae cognominatae in qua antiquitùs mercatorum usus fuit an Island scituate in the Carpath Sea part of the Mediterranean which being but a small Island but yet very populous the Inhabitants yea the very Indwellers thereof chose rather to live by water then by the aire and to seek their subsistence and provide for their sustenance by constant sayling and continued navigation by which means they encreased their strength and augmented their power at Sea to the terrour of all their Enemies the hinderers of their Traffique and quelling of all Pirats the disturbers of their peace They multiplyed their riches with an infinite increase and advanced their wealth to the very height And these principal ground-works being laid and chief foundation settled that which makes principally to the purpose in hand they grew so exquisite in their Navigation so skilfull and cunning in their Traffique and so expert in the discipline of both that as time now required they framed Edicts to be instituted decreed and published to be established and observed for Laws for the guidance of all men according to the most exact rules of equity in all manner of Sea-businesses insomuch that all Cities and Nations near unto them therein sought knowledge of them and to the further encrease of their riches by a ready and willing Tribute still exchanged wealth for wisedom and thought not that they paid any what too dear for the gain of such knowledge and to be directed in the rules of such Discipline and Laws as might settle such a constant determination of every mans just right at all times in all manner of Traffique Trading and Employment upon and by the seas as the Islanders had which Laws and Discipline did afterwards spread to further Nations and the very Emperours of Rome did successively referre all seafaring Debates and Controversies to the Decrees Determinations and Judgements of the Rhodian Law Leges nauticas dicimus quas Rhodii condiderunt quorum disciplinam navalem ut Strabo ait 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admirabilem omnes populi libenter etiam Romanus sequebatur And Eudaemon Nicomediensis making his complaint to Antoninus thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Domine Imperator Antonine naufragium in Italiâ facientes direpti sumus à Publicanis Cyclades Insulas habitantibus Antoninus answereth thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego quidem mundi dominus Lex autem maris Lege id Rhodiâ quae de rebus nauticis praescripta est judicetur c. Hoc idem quoque Divus Augustus judicavit Yet be there severall other titles in the body of the Civil Law which set forth several Decrees and Laws particular to the Seas and sea-faring matters to be observed And Vlpian a Father of the Law having set down some of them gives his reason why they should be precisely kept and observed Quia saith he ad summam rem-publicam navium exercitio pertinet These Rhodian Laws what of them are left and inserted in the Pandects and their defects being supplyed by the Code and novell Constitutions and their Rents repaired by the fair Applications and candid Expositions of the old Roman Lawyers and other authentique Authors which have since wrote of matters of that nature still give the rule and guidance to all seafaring business of what nature soever throughout all or well nigh all Europe and have never been opposed obstructed or interrupted but by such as least understood them And these severally had their original from that Island of sea-faring men though they have been by successive observations collected and gathered together as most just and equal for the determination of every mans just due and right in all their Maritime affairs whether they concerned complaints offences Criminal or Civil Sales or Assecurations of Ships Accounts Covenants or Contracts by Charter-party or otherwise Exchanges Freights Hyres or Money lent upon casualty or hazard at sea Causes of Reprizals Letters of Marque or concerning lading or unâ—ading and whatsoever other things else among seafaring men either of one or several Islands or Nations done or to be done either on or at the sea concerning Sea-trade Now who shall be imagined to have the supreme governance and power over these seafaring men and the cognizance of their Maritime causes to judge them according to these Sea-laws established amongst them and duly to put them in execution Certainly these Laws were hatcht of order and could not be bred up to disorder Seamen surely had amongst them a supreme Governor one or some that swayed and ruled the rest in the composure of them and so must they necessarily have in the dispensing of them and administring justice according to them Now I hope it will not be said that the maritime and seafaring men contrived and made Laws amongst themselves which concerned themselves their Traffique and Trade and when they had done gave them over into the Land men hands which could not possibly understand the grounds and depth of them with a power to put them in execution and so give others a power over themselves which before had nothing to do with them If they would so have done which no man will judge yet it is not to be believed that in this Island of Rhodes they could which consisted generally of seafaring men Who should then be fit to be chiefest in managing these Laws but such a one as had chiefly a hand and was most dexterous in making of them so that I doubt not but that we may boldly say and conclude that as these Laws were composed gathered and collected by maritime and seafaring men so were they put in execution by the principal Governor and Ruler of them and so had they both birth and growth under the jurisdiction rule and governance of the chief Captain Commander and Governor over all these seafaring men and shipping And as Causes encreased and multiplyed so did the Laws according to the nature of the Causes and as the Causes varied so did the Laws untill they required the constant and continuall study of such as were to judge by them CHAP. IIII. Of the Laws of Oleron and the Antiquity of the Admiralty argued
then brought into some Port or Harbour which I shall leave to the judgement of the world whether this Ship was taken on the Sea or on the River or can be said to be taken partly on the Sea and partly on the River And if this shall be determined to be a taking partly upon the Sea and partly upon the River and that therefore the Common Law shall take cognizance thereof I must say as I said before the Common Law hereby shall take the whole Jurisdiction of the Admiral to it self For what ship can be taken at sea or to what end shall any ship be taken at Sea if she shall not be brought into some Port or Haven that she and her goods may be there disposed of And indeed all Ships that be there taken by Letters of Marque must be brought into Port or Haven before they break bulk And the Common Law shall hereby cast off all Rules and Laws of the Sea whereby causes of that nature have been always such interruptions excepted discussed tryed and determined between us and foraign Nations and between our own Merchants and sea-faring men and try and determine them without either Rule or Law For I could never yet find that the Common Law ever afforded either Books or Presidents to guide or direct them in the adjudging and determining of causes of that nature which is a thing most requisite and necessary the Forraigner between whom and us such cases for the most part happen expecting to have his Ship and goods confiscated and condemned or quit and restored upon the same terms and according to the same Proceedings Rules and Laws as ours are in foraign parts which the Common Law affordeth not being onely a municipal Law for the guiding and governing of the Subjects of this Nation in their land affairs at home Again I would gladly know how this Observation agreeth with Lacies Case where one was stricken on the Seas and dyed on the Land the Common Law could not try this murther and Serjeant Callis in his reading at Grays-Inn An. 1622. in prima Lectura p. 19. giveth this reason thereof because that tryal was to be by a Jury which must come out of a proper County which could not in this case because the Sea was not within any County In this case the party received a mortal wound at Sea and was brought unto Land and there dyed in the other case the Ship was taken at Sea but brought into a Haven and there unladen here the party may more properly be said to be partly killed at Sea and partly killed at Land then the Ship can be said to be partly taken at Sea and partly taken at Land and yet the Land shall not find a Jury for tryal of one but the Sea Port shall find a Jury for the tryall of the other which I shall leave to be observed upon this his fourth observation how farre the same will hold water Next he urgeth that 8 Ed. 2. tit Coron 399. it is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one Land to another And that the Coroner shall exercise his Office in this case and that of this the Country may have knowledge whereby it appears saith he that things done there are tryable by the Country that is is to say by Jury and consequently not by the Admiralty Court And after in another place of the same chapter he urgeth Stamford l. 1. part Coron fol. 51. 6. to this very purpose the reducing which together can be no wrong to his Argument but rather a strengthening for vis unita fortior and so undertake the answering of both together And this is that which he saith Stamford saith If one be slain upon an arme of the Sea where a man may see the land of one part and of the other the Coroner shall enquire of this and not the Admiral because the Country may take cognizance and doth vouch the said authority of 8 Ed. 2. whereupon he concludeth in these words So this proveth that by the Common Law before the Statute of 2. H. 4. the Admiral had no Jurisdiction but upon the high Sea which only authority saith Sir Edward Coke is sufficient to over-rule all the said questions for saith he hereby it appeareth that the Jurisdiction of the Admiral is only confined by the Common Law to the high Sea and agreeth with all the Book-cases and Acts of Parliament For the first 8 Ed. 2. which saith that it is no part of the Sea where one may see what is done on one part of the water and on the other that is indeed to be on the one side of the River and see discern what is done on the other and that must be so to see and discern that he may perfectly judge of the action yea and certainly of the party acting too else can this seeing be to no purpose And hereby it may appear that the Admiral had in those times Jurisdiction upon all ebbing and flowing Rivers so farre as they continued of such breadth that one standing on the one side of the River could not see nor discern what was done and by whom on the other side So that his Jurisdiction in some places extendeth farre above the first Bridges for what man is so quick-sighted that standing on the one side of the Thames above the Bridge can so discern as to judge of the actions of men on the other and who and what manner of men they are For to see and not so exactly and judiciously discern in the adjudging of such actions is as much as not to have seen at all But this being too ambiguous and uncertain a distinction between the Sea Jurisdiction and the Land by reason of the different breadths in one and the same River and the different apprehension of things by several mens eyes and difference of the aire at several times being sometimes thick and cloudy sometimes serene and clear The next Bridges unto the Seas have been alwayes held the most certain distinction between them But indeed this Record is stretcht further and indeed so farre that it is impossible it should hold for by Sir Edward Coke it is thus set down It is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one land to the other as if there was no difference between seeing what is done on the one part and the other and seeing from one land to the other Here to make sure work with the Ports and Havens and to bring them within the compass of the Coroners Office he will bring the main Sea his altum mare likewise within the compass thereof For he that will make that to be no part of the Sea where one may see from one land to the other must needs make France and England to be one Continent which
hundred years before mentioned for their being abolished been again suppressed born down or abolished and not received in any forraign Nation to this day What shall we say of the printing and so often reprinting of this large body of the Law since printing was first invented which was but 190 odd years agone Next what shall we say of the so late reprinting this large body with the gloss and case and other notes upon the same with the large Index thereunto in all consisting of six large Volumns in folio some printed in one Country and some in another some printted within these thirty years some within a shorter time Or what shall we say of the several Authors of most if not of all the several Nations of Christendome which have in all the several Centuries of years since the compiling of this body even unto this time wrote and commented upon the same some on one part some on another and of all those other Authors of all or most several Nations which have wrote several Tractates of Decisions and other Law-books which do ground and raise their authority from this body of the Law and quote the same for proof of whatsoever they determine Shall we say that all this from time to time continued study industry labour and pains hath been taken and all this cost charge and vast expence laid out to no end for no use or purpose or shall we say all this is done only to mock the world Certainly he that shall say either will but mock himself and such as will believe him but he can never deceive any one that hath but once seen the inside of a Civilian's study either at home or abroad for both are the same and furnished with books of the same nature and kind and all Lawyers or practisers in the Laws in all parts of Christendome are Civilians and do study and take their degrees in the Civil Law as the Civilians do here and do proceed in all causes for the most part according to the course and directions set down in the Civil Law and are regulated and guided in all their determinations and judgements by that Law saving that in several Nations they have several municipal Laws Acts or Edicts published and declared amongst themselves for the regulating their own particular Government which are binding unto no others nor observable in any other Nation then that wherein they were constituted and ordained and that in land businesses and not in maritime and sea affairs wherein several Nations by reason of their Trade and Traffique eath with other are concerned and must have their differences which happen between them determined by one and the same Law which is principally the Civil Law though some other Maritime Laws which receive their ground and foundation from the same are therewith practised by which all differences likewise happening and arising between Nation and Nation are to be regulated and determined it being now generally received as the Law of Nations although at the time of its being compiled into a body Justinian himself distinguished it both from that Law of Nations and from the Law of Nature And for other municipal Laws one Nation will not subject it self unto a municipal Law framed and constituted by an other they being in some sort different each from other though both derived from one and the same principal Law and are neither so many as the Statute Laws of this Land nor so much different from the Civil Law it self as our Statute Laws are from our ancient fundamental Common Laws For indeed the body of the Civil Law being so ample large perfect and compleat in it self for decision of all controversies of what nature soever arising between persons of what quality or condition soever The several municipall Laws of those several Countries are only some wayes confirmatory or explanatory thereof or sometimes extending or sometimes limiting the same but seldome or never contrariant or repugnant thereunto or much differing therefrom unless it be in the manner of punishment or the like and sometimes and in some places they are no other then the very same abreviated or shortned and made in affirmance of them and have their ground from them as some of our Statutes here have from the Common Law Nay those very proceedings and determinations of Controversies in the Parliament of France which many have thought most to differ from the proceedings and determinations of the Civil Law are notwithstanding plainly agreeable thereunto and grounded thereon nay the very name Constitution and Authority thereof are all derived from the Civil Law as doth plainly appear by that which Johannes Montanus concerning the Authority of that great Councel hath wrote as likewise by the additions made thereunto by Boerius that Country-man not much above 100 years since where it appeareth that the very name Parliament whereby this great Councel is called is derived from the Civil Law Bartol an ancient Commentatour upon that Law being there cited upon three several places thereof for having or using the word Parliamentum in the same sence the same is used in France and where likewise divers other Civil Law Authors are cited to the same purpose And Bartol is likewise cited for that he alloweth no Prince to hold a Parliament that acknowledgeth a Superiour Princeps non potest habere Parliamentum si superiorem recognoscat And likewise Boerius proceedeth to the setting forth the use of this Parliament namely for the profit of the people ubi super aliquo oportet provideri pro utilitate totius provinciae praeses debet facere congregare generale concilium seu Parliamentum ut super dubio proposito sanum utile concilium exhibeatur And it is there compared to the Roman assembly much mentioned in the Civil Laws Et Parliamentum potest dici coetus cujus nomen tractum est ex more Romano taking rise and example from that glorious Assembly of the Palace of Rome mentioned in the Code of the Civil Law Id ab omnibus antea proceribus nostri palatii quam gloriosissimo coetu nostro c. It is likewise called the Parliament of Paris and it is there said to be called Parliamentum Parisiense quasi Parium lamentum quia Pares Franciae qui sunt de numero ipsius querelas planctus audiunt de quo mentionem facit Paul de Castr in Consil 334. vol. antiq And it is there likewise said to be called Curia suprema or curia judicum maximorum juxta Authen de Consulibus Sect. si autem mediocre tunc dicitur curia secundum eum id est cura vel cultura juris so that it is said to be the very sollicitude care or study of the Civil Law or the very tilling dressing or trimming thereof And this great Court at first constituted by King Pipin consisted ex quatuor viginti consiliariis computatis praesidentibus eisd per conclavia quae cameras
nor the Laws of the Sea any more apt to rule the business of the Land then a horse is fit for a sea Voyage or a ship for a land Journey And then cannot Justice be said to be her self whilest she shall do right in one thing and wrong in another or whilest she should render that which is just in one matter when it is required and can afford no help at all in another when it is expected Justice saith Cicero est habitus animi communi utilitate servatâ suum cuique tribuens Justice doth every man right still preserving the common good I will not here say how slowly Justice hath oftentimes put right forwards and as it were but soared in a circle by one wings striving to out-fly the other But here I will say that he that will make most haste to his journeys end and setteth his best leg forward if that leg shall not cease to kick the other for making no more haste or shall by that or such other means lame it because it self would get both the credit and profit of the journey that leg must necessarily but hop instead of running or walking and cannot come so soon to its journey's end if ever it come there And one leg being lamed if the crutch that should supply it be applyed unto the other that is not lame the body will walk no whit the better and if one Wing be pluckt and those Feathers imped into or added unto the other the Bird will fly no whit the faster If one of these two Jurisdictions the two Wings which Justice hath to support her self should be bereaved of its power and proper priviledges though the same should be taken and assumed unto the other which enjoyeth all its own before Justice could proceed no whit more duly but much more prejudiciously to some or other For as I said before the Laws of the Sea are so different from the Laws of the Land that they will not serve to each others purpose And indeed they must necessarily so be for the traffique and commerce in Maritime affairs by transportation at Sea is in its own nature as different from the trade of bargaining and chaffering in Land businesses as is the fluid element of water from the solid element of earth For as the water doth admit of some mixture of the earth and yet still remaineth water and the earth doth admit of some mixture of water and yet remaineth earth though not in their absolute purity yet in such sort as that the one may properly enough be termed water and the other earth In like manner doth the trafficking and commerce in Merchandizing affairs admit in some sort of the like covenanting and contracting as the land Trade and bargaining doth but yet remaineth a seafaring Traffick and Commerce and the land-Trade and bargaining doth likewise in some sort admit of the like bartering and exchanging of Goods and commodities as the Traffiick and Commerce in Merchandizing affairs doth but yet remaineth a land bargain In the same manner do the Laws which regulate the one and the Laws which rule and dispose the other admit of some mixture each with other both in respect of their manner of proceedings to judgement and sometimes in regard of their concurrency in the Judgement it self where the nature of the causes differs not and yet the one remaineth the maritime Law or Law of the Sea and the other the Law of the Land Now if of these two different Elements of Water and Earth whereunto I have resembled the difference between the Traffick and Commerce in Merchandizing affairs by Sea and the Laws thereunto belonging and the land Trade and Laws which concern the same there should be such an equal mixture that the same could neither be said to be water nor earth but a mixt Body equally composed of both then would the same be fit for neither man nor beast to walk or tread on nor Ship or other Vessel to float or sayl on In like manner if these Laws purposely composed for the decision of Maritime controversies and the Laws established for determination of land differences should be promiscuously applyed to the decision or used for the determination of both and by that means such a mixture thereof made that the same could neither be termed the Laws of the Sea nor the Laws of the Land then would the same neither serve for the Government of the one nor the other For although the seafaring Commerce and land-trade have some resemblance as I have said in respect of the like contracting and bartering yet are the Goods and Wares so bartered and contracted for by way of Merchandizing of various sorts and the lading and stowing of them in Ships done or to be done after many various manners and wayes according to the nature of them and many differences there are in the manner of the Master of the Ship or Skippers acceptance of them according to the condition and quality of the Goods so received and acknowledged by his Bills of lading and severall are the consignments made of them the same being sometimes laden by Factours and consigned to their principals for their own proper use and accompt sometimes for the accompt of their correspondents c. And likewise much variety and difference is there in hyring and taking of Ships and Vessels to freight for the transportation of such Goods Wares and Merchandizes the Merchants having sometimes Ships and Vessels of their own which they sometimes freight wholly themselves sometimes joyntly with others Sometimes the Merchant hyreth or taketh a ship or Vessel to freight which hath sometimes but one sometimes many owners Sometimes he taketh her to freight of the owner sometimes of the Master appointed over her by the owners Sometimes he hyreth her by the Moneth sometimes for a whole voyage which voyage is sometimes from one Port unto another from that to a second and so to a third c. And sometimes the Ship maketh no Port but is lost or perished sometimes in the high Sea sometimes in the Port or Haven out of which she is to set sail sometime in the Port or Haven of her discharge Sometimes She maketh one Port sometimes two sometimes more and yet is cast away before she come to her last Port of discharge sometimes in the same Sometimes such Goods and Merchandizes are damnified through the wastfulness of the Master sometimes of the Mariners sometimes through their carelesness in stowage of them sometimes by reason of ill packing or making them up or putting such as are liquid in ill or leakie Casks c. Sometimes they are damnified by storm or tempest or stress of weather which is sometimes such as that the Master is constrained to cast over board divers of the Goods for preservation of the rest and saving both ship and men's lives and sometimes he is constrained to cut down the masts of his Ship as hath been said before in this Second Book Sometimes they are
Jurisdiction HAving now made it appear that there have been several Titles selected and gathered out of the body of the Civil Law for the dicision and determination of Maritime Causes and the same then and since very lately commented on for the better understanding thereof and the more perfect knowledge therein now it will remain to shew that by these Laws and divers others of the Civil Laws mentioned in the foregoing Chapters of this Book it will plainly appear that the Ports and Havens and all things had done or agitated thereon are within the power and cognizance of the Admiralty Jurisdiction And the first of those Titles so farre forth as it concerneth the Admiralty is Nautae Caupones c. ut recepta restituant And this Title consisteth of several Laws whereby Masters of Ships Mariners c. are compellable to restore such Goods Wares and Merchandizes as they shall have received aboard their Ships Now if the Jurisdiction of the Admiralty Courts had been restrained unto the high Seas where Masters of Ships and Mariners seldome or never receive in or deliver out their Merchants goods but upon some meer accidental occasion and had had no cognizance of Causes happening and falling out upon the Ports and Havens where usually they receive them in and deliver them out then certainly little reason had Peckius had to have made this Title to have been the first of those select Titles he gathered out of the body of the Civil Law for the decision of Marine Causes which belong to the Admiralty Courts and as little reason had Vinius had to have added so lately his additional Notes thereunto for that purpose The next Title so collected is de Exercitoriâ actione which concerneth Contracts and is to be made use of in its place The next is the Title ad legem Rhodiam de jactu which I have already instanced in to this purpose in the 9th 10th and 14th Chapter of this second Book and therefore shall pass it over in this place The next to this is the Title de incendio ruina naufragio rate nave expugnata of and concerning burning destruction and ruine of things ship-wrecks robbing or spoyling of Ships Now as under the first of these Titles Caupones Stabularii Victuallers and Inholders were comprehended as well as Nautae Mariners and yet is it by Peckius collected and commented on only for so much as concerned Marine and Nautical Affairs fit and proper for Admiralty Courts who saith that it is his purpose and intent in his Comment to explain those Laws only that belong thereunto and saith that the other are but things which have some affinity with or likeness unto the other or are things handled by such as handle things of another nature which he expresseth in these words Contestatum ante omnia haec volo te Lector non expositurum me hoc titulo nisi eas leges quae ad rem nauticam pertinent illud enim nostri est instituti caetera vel adfinia sunt vel ab aliis utcunque suis locis examinata So under this Title although burning ruine and destruction of things at land be comprehended as well as shipwreck c. yet doth Peckius his Comment extend only unto those Laws therein which concern Maritime affairs Now these Laws which concern offences committed in case of shipwreck and robbing and dispoiling of Ships or other Vessels comprehended under this Title do indistinctly handle the same whether they happen to be done upon the high Sea or upon any Port Creek or Haven where most of these things most commonly happen as by the particular Laws themselves it doth manifestly appear This Title setteth forth how and in what manner such persons shall be punished which when any Ship or other Vessel not being a derelict shall be wrecked stranded or otherwise distressed by robbery opposition quarrel spoil or otherwise with a deceiptfull intention to steal take carry away receive or damnifie any of the Goods Wares Merchandizes Tackle Furniture Ammunition Provision c. belonging thereunto though the same were cast out of the Ship and that indistinctly whether the said misfortune happened either upon the high Seas or upon the Ports Havens Creeks or Coasts of the Sea where Ships and other Vessels do ride lie at Anchor or have their station and indeed more proper is this Law for the Ports Havens Creeks and Coasts of the Sea then for the high Seas it rarely or never falling out that any persons are present to steal take carry away damnifie conceal or imbezle any of the goods belonging to any Ship or Vessel which shall be there wrecked nor the goods belonging to any Ship that shall be there robbed or in fight with an Enemy but such as are either the Pirats or Enemies themselves neither of which fall under the Judgment of this Law the one falling under that Judgment which is proper to Pirats the other under that which is proper to an Enemy and this being not appointed for the punishment of such as are either the Robbers Pirats or Enemies which set upon the Ship but of such as take the advantage whilst such strife and contestation is or when any wreck doth happen and when the Master and Mariners are in a distraction do take away the Goods belonging unto their Ship which must needs most commonly fall out when any such Ship or Vessel shall happen to be so wrecked robbed or dispoiled in a Port Haven Creek or Coast of the Sea where the Shoar is near and the Goods are either cast upon the same driven thereto or with Boats Engines or other Instruments fetched or brought thereon And by the two next Laws it more plainly appeareth that this Title principally aimeth at such as shall offend in this manner when a Ship is in her Port or Haven or upon any Creek or Coast of the Sea and there doth suffer any such distress or any such sad accident doth befall for that those Laws take care as well for the punishing such as shall take away any of the Goods from off the Shoar which shall be cast or driven thereon as the punishment of those that shall take them out of the Ship it self Item ait Praetor Si quid ex naufragio hic illud quaeritur utrum si quis eo tempore tulerit quo naufragium fit an vero etiam si alio tempore hoc est post naufragium Nam res ex naufragio etiam hae dicuntur quae in littore post naufragium jacent magis est ut eo tempore And the Third Law runneth in these words Qui autem in littore rem jacentem postea quam naufragium factum est abstulerit in eâ conditione est ut magis fur sit quam hoc edicto teneatur quemadmodum is qui quod de vehiculo exciderit tulit And many things more of the same nature are comprehended under the several paragraphes of
wheresoever contracted for in these and divers other like cases the Judgement of that Law cannot be agreeable unto the rules and grounds of the Maritime Laws If a Mariner be hyred by the moneth and doth serve several months in the Ship and afterwards desert or leave the Ship and run away upon Action brought for his wages the Judgements of the two Laws will be clean contrary If the Mariner without leave of the Master lie on shore and the Ship or goods be damnified or the Voyage protracted or if the Ship be not well moored so that for default thereof she be damnified or if the Mariner take up clothes or borrow money of his fellow and put the same in the Pursers book upon Action brought for his wages the Judgements of the two Laws will differ If two be they Merchants Owners Mariners or Furnishers of Ships c. and those either English or Foreigners or the one English and the other a Foreigner do for Freight Tackle or Furniture of Ships c. or by other Commerce in their seafaring business become indebted each to other upon Action brought by either of them the Maritime Law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time and alloweth him compensation which the Municipal Law alloweth not but concludeth that stoppage is no payment by which Law if exercised in business of this nature the absent might recover much against the party present and he be constrained to wait his opportunity for the recovery of what is due to him from him that hath recovered against him to the lessening of his Stock and great hinderance of his Trade And in like manner the Non-solvent might recover much against the Solvent and he nothing at all against the Non-solvent which would be very much inconvenient to all seatrading men and a thing not known abroad Now these Maritime Laws for Maritime businesses are all grounded upon strong reasons which if they could be here at large particularly set forth yet would they not take away the reason whereon the Municipal Laws for Land affairs are grounded in regard different Judgements in different things do arise from different grounds of reason so that the Judgements upon businesses agitated upon the Land may be grounded upon reason and yet will not that reason hold to ground the like Judgement upon in business at Sea or upon the great waters those being accommodated with many advantages and helps in their agitation and petformance of which these are altogether destitute And this will introduce a second reason why the welfare of the Merchants and other seafaring men cannot be maintained without the settling and upholding of these Maritime Laws for decision of differences and controversies in maritime affairs which is because these Laws are suitable thereunto and compleat to determine all differences in businesses of that nature which as I conceive the Municipal Laws of the Land are not For Maritime causes especially those for wages must have a quick and sodain dispatch of Justice the Mariners as they come in with one good wind so must they speedily go out with another and not wait Westminster-Hall Termes to the loss of a whole Voyage such their imployment being their whole livelyhood Nor must they commence every man a Suit according to his particular contract to the expence of as much if not more then his wages come to but must as the Martime Laws allow them commence their Action in one joint Petition to a Judge at all times settled in a readiness and in a constant place of Judicature where and to whom they may make their present addresses for dispatch according to such Laws as they are used unto wheresoever they come If the Mariner must have such dispatch against the Master then must the Master have the like against the Merchant for his freight out of which he is to pay the wages and the Merchant the like against the Master and Owners of the Ship for damages done to his goods at sea all which is speedily tryed at one and the same time by the maritime Laws which upon full hearing alloweth compensation and every one hath at first his own according to proof or confession upon their personal answers and no more otherwise if the Mariners shall by several Tryals at the Common Law recover their full wages of the Master and be gone and then the Merchant recover against him likewise or against the Owners of the Ship perhaps as much or more then their freight amounteth unto for damage done unto his Goods perhaps by the Mariners who are gone and not to be met with again and be put afterwards to sue for their freight this will soon cause the owners of Ships to lay their Vessels by the walls or if the Mariners shall recover their wages of the Masters or Owners and be gone and then the Owners shall recover their freight against the Merchants whose goods are damnified or spoiled by the Mariners and not by default of the Ship or by default of the Ship and not by any neglect or fault of the Mariners or by both and he then put to a tryal to recover by Jury the damage he hath sustained he is like to have but little or no redress If the Mariner shall have his dispatch and be gone which he must have or be undone and the Merchant wait his Tryal from Terme to Terme at the â—ommon Law then by reason of the absence of the Mariners can neither the Owner prove the damage to be done by meer casualty or stress of weather at sea which he is not lyable to make satifaction for nor can the Merchant prove the insufficiency of the Ship in which case the Owner is to make satisfaction besides many inconveniences more which might be reckoned Thus is not the one Law only suitable and agreeable to maritime affairs and the other unsuitable and disagreeable thereunto but the one is likewise perfect and compleat for deciding of all controversies thence arising the other imperfect and in no wise compleat for that purpose in my judgment For Bills of Bumery or Bottomry for many reasons most usefull and absolutely necessary in sea trade they are likewise triable only by the Maritime Laws and can be no wayes tryable at the Common Law wheresoever made by reason the Ship only is lyable to payment which may be arrested according to the Maritime Laws either at the main Sea or upon any Creek Port or Haven adjoyning upon the land which cannot be done by the Common Law as I humbly conceive So likewise contracts de nautico foenore pecunia trajectitia or nautica usura wheresoever made are tryable by the Civil and Maritime Laws and not by the Common Law of England and the Civil Law hath several Titles concerning these particulars as in the Digests the Title de nautico foenore in the Code the same Title in the Novel Constitutions the Title de nauticis usuris
c. in which Titles these particulars are defined what they are what maketh them so to be and what maketh them not to be so and are likewise distinguished into several sorts each of which is terminated and limited unto its proper bounds as when this Nauticum foenus is distinguished into Heteroplum and Amphoteroplum as some Authors terme it Heteroplum cum commeatus tantum periculum foenerator suscepit Amphoteroplum cum commeatus remeatus periculum suscepit the one when he undertaketh the danger of the Ship only outward bound or only homeward bound the other when he undergoeth the danger both of the outward and homeward Voyage and many other of the like nature of which the Common Law hath not one word that ever I could hear of much less any rule to guide the professors thereof in the Judgment of such things In Bills of sale of Ships c. though made at land the parties to whom the same are made cannot if withstood obtain the possession thereof but by the Civil and Maritime Law and power of the Admiralty Court And every Ship that is built may have many part Owners and most commonly she hath and before she can be compleatly built tackled victualled fitted and prepared to put to sea a great number of several Tradesmen must necessarily have been imployed therein and been assisting thereunto which cannot with any possibility every of them repair to every Owner some possibly being or inhabiting beyond the Seas other some in this Nation if all in this Nation yet oftentimes some in one place some in another farre remote each from other and from the place of such her building tackling c. to make his particular contract with him for his materials workmanship victual or other furniture and necessaries so that necessarily some one of the Owners which commonly hath not above an eighth sixteenth or two and thirtieth part and sometimes one that hath no part at all is by the rest made Mr. of her and contracteth with all these several Tradesmen who regard not his ability by reason the Ship it self is by the Maritime Laws lyable for the payment of every mans particular debt which Law must necessarily take place or else few or no Ships be built and employed for trade for at the Common Law I conceive they can have only their several Actions against the Master with whom they contracted who for the most part is not able to make satisfaction to one third part of them and many times not to one particular man If one Ship shall do damage to another either at the main Sea or upon any Creek Port or Haven the damage must be sued for in the Admiralty Court and Judgment given according to the Maritime Laws which prescribeth every Ship her rule how to steer her course both going out to sea or coming in from sea or riding at sea which plainly demonstrateth which Ship was in fault by which the Judgement must be regulated And no Action can be so properly commenced at the Common Law for these damages for that the Owners damnified can very hardly arrest all the Owners of the other Ship which did the damage nor indeed can any of those Owners by that Law be lyable to such arrest but the Master who if solvent will not come on shore but take his imployment in some other Ship outward bound so that the remedy lyeth properly against the Ship by the Maritime Laws as hath been already said If a contract be made beyond the seas concerning any Maritime businesses by bill or otherwise the same is not cognizable at the Common Law by their own books neither indeed if it were could it receive the same Judgment it shall by the Civil and Maritime Law for a verbal Contract is not made by Assumsit there as here it is nor in a Contract made in writing is any thing more required or thought necessary then the signing or subscribing of a Bill for performance c. and sometimes the sealing but never the delivery nor is there any such ceremony there used or known without which by the Common-Law as I have heard it is nothing so that the English Merchants or other seafaring mans Bill here signed sealed and deliveted according to the formalities of this Nation in that case required shall being sued in any Court beyond the seas prove good against him without due examinations of half the said formalities whereas the Foreigners Bill which is according to the customes and usages of those parts from which they will not by auy means depart sometimes only signed sometimes sealed sometimes both but never delivered shall for want of this one formality of delivery at the Common Law prove voyd and of none effect and so the English man become undone by formalities of the English Laws so far different from those of foreign Nations especially the Laws Maritime which are for the most part if not altogether agreeable in most places if not in all Many more reasons might be given why all contracts of this nature wheresoever made should and ought to be tryed in the Admiralty Court by the Civil and Maritime Laws and not by the Municipal Laws of this Nation and many instances more might be given wherein the Civil and Maritime Laws which are Common to all Nations do differ from the Municipal Laws of this and so would vary the Judgments in Causes of the self same nature But that is too large a task to undertake here and but a needless one when some few instances may satisfy a wise man that intendeth not to quarrel I shall endeavour here in a word to satisfie but one doubt by the way and so proceed according to the best of my judgment to the answering the Arguments brought against the Admirals cognizace of these Contracts It is objected that other Nations have their several Municipal Laws as well as England and that therefore these Contracts may as well be tried by the Municipal Laws of this Nation as by any Municipal Law of another I answer that they have in several Nations several different Municipal Laws whereby they are governed within themselves as we are here yet are those Municipal Laws all grounded upon the Civil Law and are no more different one from another then one and the same lesson playd upon several Instruments in several strains nor do otherwise differ then as the several Interpretations of several men upon them have differed as in many doctrinal points in Divinity various constructions have been rendred even upon the very text of the Divine Law according to several apprehensions and opinions of several men For upon all their decisions and determinations they quote the Civil Law and the Authentique Writers and Commentators thereon as is already said li. 2. c. And as the controversies happening and arising between one Nation and another are not to be decided by either of their Municipal Laws that being a way to raise a new controversie by which
made the Grant far larger then the request which must not be but must be reduced thereunto and receive a Construction with a due relation to it It being complained of in Parliament that the Admirals and their Deputies had encroacht as is before set forth It is desired by the Petition that they and their Deputies may not meddle with Contracts Covenants or Regraters c. tryable before the other Judges It is answered that henceforth they shall not of a thing done within the Realm but of a thing done upon the Sea The Construction of the Answer with relation to the Petition which as I humbly conceive must not be separated by any Logician will plainly be this The Admirals and their Deputies shall not henceforth meddle with any Contracts Covenants c. of or concerning any thing done within the Realm but onely of Contracts Covenants c. of or concerning things done upon the Sea So that we plainly see an Answer to a Question or Petition turned into a positive Thesis without relation to the thing whereof it is an answer is easily turned into another sence never intended And this answer to a Petition translated alone without the Petition and put positively as the translation of the Statute putteth it doth seem clearly to take away from the Admiral the Cognizance of all Contracts and Covenants whatsoever made within the Realm whereas taken with the relation to the Petition it as clearly confirms the Cognizance of Contracts of or concerning things done at Sea unto him For as the answer to the Petition doth grant that the Admiral shall not meddle with Contracts of things done within the Realm so doth it reserve the Contracts and Covenants of things done upon the Seas unto him And the words as I said before can imply no other thing to the best of my understanding For the following words Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust Poulton having thus translated the Answer without mention of any one word of the substance of the Petition rendreth barely thus as it hath been used in the time of the noble Prince King Edward Granfather of our Lord the King that now is As if this positive Thesis by him extracted out of that which was the King's Answer to a Petition and had onely a relation thereto had been so used in Edward the thirds time whereas the words are a restriction to the answer and bindeth up the Law to what was used in the Kings time for Solonc which in true French is Seloon signifieth secundum or juxta according or agreeable so that if the Answer could be taken positively without relation to the Petition which as I conceive it cannot be yet these words Solonc ceque ad estre dument use c. had restrained and limited it not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in Edward the thirds time So that under correction by that strained construction and interpretation that is made of the former part thereof the Admiral is not barred the Cognizance either of Contracts Covenants or any thing else which he had Cognizance of in that Kings raign Take that part of the Petition wholly and the King wholly grants it but no more By the Petition it is desired that the Admirals may not meddle nor encroach upon the Cognizance of Contracts Covenants Regraters c. cognizable before the other Judges the King granteth it putting a difference between the Contracts c. of things done at Land and of things done at Sea and by this restriction referreth to what Covenants Contracts Regraters c. were duly used and tryed in the Admiralty in Edward the thirds time and those he thereunto reserveth the Cognizance of but no other And now it cometh to be mainly considered whether Contracts and Covenants of and concerning Maritime businesses though made at Land were cognizable in the Admiralty Court or at the Common Law in Edward the thirds time And it seemeth plaine unto me that in Edward the thirds time the Admiral had the Cognizance of all Maritime Causes by the words of their Patents I will give but one instance of the Patent of Robert Herle already cited in which you shall finde these words Dante 's ei plenam tenore praefentium potestatem querelas omnium singulâ—rum de his quae offieium Admiralli tangunt cognoscendi in causis maritimis justitiam faciendi c. Now if Bills of Botomery whereby Ships only are lyable to the payment of the debt contracted upon them though contracted for at land or if freight for the service of Ships at sea or Mariners wages for their service at sea likewise for which either the Ships or Contracters are lyable at the parties Agents choice though the said Contracts were made at land and the like businesses which have their first rise from somewhat done at sea are not maritime causes I would gladly know what causes can be called maritime for sure I am that maritimus is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that which is on the Sea coast or nearest the Sea which the French render ou demeure aupres ou sur le bord de la mer and the Spaniard cerca de la mar Or it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 belonging to the sea take which signification of the word you will and the before mentioned causes will be causae maritimae if for on the Sea-coast or near the Sea then the Contracts in such causes though they he made at land are made on the Sea-coast in the Sea Town or near the Sea If for belonging unto the Sea then these Contracts wheresoever they are made are made for things to be agitated and done at sea and for things that cannot be done without the sea and such Contracts they are that if the sea was not would never have been made and therefore these Contracts must necessarily belong unto the sea and so must those causes which arise from them and must as necessarily be those causae maritimae which the Admiral is to take cognizance of And I am confident that it cannot be shewed that the Common Law had any cognizance of these or the like causes in Edward the Thirds time or that these or such like causes were the causes wherein the Admirals are said then or after to have encroacht upon the Kings Courts Nor that the Common Law had then nor hath yet any positive Laws rules or grounds for the decision of causes of this nature And clear enough it is that even in Edward the Thirds Reign to which this Statute hath reference many Laws and rules were confirmed and many made for direction of the Admiral in the decision of Causes of this nature as by several antient Records shall hereafter appear by which I doubt not but that it will evidently appear that the cognizace of these Contracts concerning
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-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
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
Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued p. 73. Chap. 8. The Book-Cases and Authorities brought to prove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered p. 78. Chap. 9. That the Rhodian and other Maritime Laws were ordained as well for the decision of the differences happening upon the Ports and Havens as upon the high Seas p. 102. Chap. 10. That the Laws of Oleron and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening arising from things done upon the Ports and Havens as from things done upon the high Seas p. 111. Chap. 11. That by the ancient Statutes of the Admiralty settled before the last confirmation of the Laws of Oleron 12 Edw. 3. and Articles of Enquiry added thereunto it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas p. 115. Chap. 12. That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas p. 120. Chap. 13. That by the ancient Statutes of Enquiry translated out of French into Latine by Roughton the Admirals Jurisdiction is upon the Ports and Havens as well as over the high Seas p. 124 Chap. 14. That the Civil Law is used and practised in all or most Nations of Christendome p. 129. Chap. 15. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in Foreign Nations they have their distinct Judicatories guided by the distinct Laws and that though the Judicatories for Land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely neceâ—â—ary in the decision of all Maritime causes Sea differences p. 135. Chap. 16. That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the cognizance of the Admiralty Jurisdiction p. 147. Chap. 17. That by the Records of the Admiralty it appeareth that the Admiral had and hath power and Jurisdiction upon the Ports and Havens p. 157. Chap. 18. That by Writs de Procedendo out of the Chancery upon Supersedeas from thence granted the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens p. 166. Chap. 19. That by Consultations out of the Courts of Common Law upon Prohibitions thence granted it is clear the Admiral hath Jurisdiction upon the Ports and Havens p. 170. Chap. 20. That the Ports Havens and Harbours where Ships do lye or ride at Anchor are not within the bodies of Counties but that the Jurisdiction which the Admiralty hath anciently had thereon hath been by Act of Parliament reserved thereunto p. 175. The Chapters contained in the Third Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat all differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof page 180. Chap. 2. The Arguments deduced out of the Statute of the 13th of R. 2. cap. 5. to prove that Maritime Contracts made at land concerning Maritime affairs are not tryable in the Admiralty Court answered p. 188. Chap. 3. That by the ancient Statutes of the Admiralty and by the Laws of Oleron it appeareth that Contracts made at land of and concerning Maritime affairs were cognizable and tryable in the Admiralty both before and even in the time of Edward the Third whereunto the last mentioned Statute maketh reference p. 193. Chap. 4. That by the ancient Inquisition taken at Quinborough in Edward the Third's time it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court p. 202. Chap. 5. The Argument deduced out of the Statute of the 15th of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered p. 204. Chap. 6. The Argument deduced out of the Statute of the second of Henry the Fourth cap. 11. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty redargued p. 216. Chap. 7. That the Admiral by these Statutes was not barred the cognizance of Maritime Contracts though made at land made appear by the practice of those times proved out of ancient Records remaining in the Tower of London p. 220. Chap. 8. That by other Records out of the Chancery Contracts made at land concerning Maritime Affairs are cognoscible in the Admiralty Court p. 229. Chap. 9. That by Consultations granted from the Courts of Common Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted p. 234. Chap. 10. That divers and several of the Laws under the Titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other Titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at Land concerning matters to be done at Sea p. 256. ERRATA PAg. 7. lin 10. pro Jesemuch lege Gernemouth pag. ead pro Norfolcae Suffolcae lege Norfolciae Suffolciae p. 12. l. 2 5. 7. pro Prince lege Province p. 16. l. 3. pro the others lege others p. 18. l. 40. pro find lege I find p. ead l. ult pro ameâ—amuntis lege amertiamens p. 19. l. 25. pro praecepti lege percepti l. 29. pro percellas lege parcellas l. 32. pro hinc lege huic l. 41. pro quandam lege quondam p. 20. l. 37. pro our own lege their own p. 33. l. 11. pro Covent lege Covenant p. ead l. penult pro all wares lege ill wares p. 37. l. 26. pro Admiral lege Admiralty p. 38. l. 9. pro de tour lege de lour p. 40. l. 5. pro did lege dit l. 7. pro ia lege la p. 43. l. 32. pro in self lege in it self p. 46. l. 13. pro Admiral lege Admirals p. 49. l. pro fidelum lege fidelem p. 53. l. 19. pro saith lege he saith p. 54. l. 2. pro Marrii lege Martii p. ead l. 13. dele p. 72. l. 32. pro concluded lege concludent p. 93. l. 34. pro nostr lege nobis p. 94. l. 7. pro
more then to enlarge that which I study to be brief in But he that will be curious therein may find as well those that were both in and before Edward the Third's time briefly set down in Sir Henry Spelmans Glossarie under the title Admiral pag. 16. as those that have been from the said Edward the Third's time unto the 16th year of King James from which time the rest that have been since constituted are easily collected Those then which serve to my purpose are these I finde that before the 49th of Edward the Third a Patent of that Office of Admiral was granted to Guy de Bryenne ad partes Occâ—â—â—entales anno 45 Ed. 3. And another to John Nevill ad partes Boreales anno 44 Ed. 3. And another to John Nevill and Guy de Bryenne then Knights the same year both joyned together in one Patent And another to Robert de Ashton ad partes Occidentales anno 43. Ed. 3. And another to Nich. Tâ—mworth ad partes Boreales anno eodem And another to Ralph Spignevell for the keeping the Town of Dover the Cinque-Ports and the Admiralty ad partes Australes Boreales et Occidentales anno 38 Ed. 3. Next I shall here set forth a Patent at large granted to Robert de Herle anno 35 Ed. 3. by which Patent it will plainly appear that the Office of the Admiral was then accounted an ancient Office and had an ancient different and distinct Jurisdiction from the Municipall Lawes of the Land The Patent in the Tower Roll is thus set forth Rex universis et singulis Vicecomitibus Majoribus Balivis Ministris Dominis Magistratis et Marinariis navium ac aliis fidelibus suis tam infra libertates qua extra ad quos c. Salutem Sciatis quod nos de circumspectione et fidelitate dilecti et fidelis nostri Roberti de Herle plenius confidentes constituimus ipsum Admirallum nostrum omnium flotarum navium Australium Borealium Occidentalium quamdiu nobis placuerit Dante 's ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium Admiralli tangunt cognoscendi in causis maritimis justitiam faâ—iendi et excessus corrigendi et Delinquentes juxta eorum demerita castigandi puniendi incarcerandi et incarceratos qui deliberandi fuerint deliberandi et omnia alia quae ad officium Admiralli pertinent faciendi et ad alios quos ad hoc idoneos noverit quoties idem Robertus vacare non poterit ad omnia praemissa et singula faciendum loco suo substituendum et deputandum prout ei melius videbitur expedire et ideo vobis mandamus quod eidem Roberto et ejus deputato in praemissis omnibus singulis faciendis et exequendis intendentes sitis et respondentes quotiens et prout idem Robertus vel ejus deputati vobis vel alicui vestrum fecerint vel fecerit ex parte nostra in cujus c. T. R. apud Westmonasterium per ipsum Regem 26 die Jan. Now amongst those that have been of opinion that the Jurisdiction of the Admiralty had its beginning in Edward the Third's time I find Mr. Lambert to be one who in his Archeion saith that he thinketh that the decision of maritime causes was not put out of the Kings House and committed over unto the Admiral untill the time of Edward the Third and his reason is for that as he saith he never heard mention of it before the second year of Richard the Second who in his 13th year made a Statute to restrain the Admiralty from medling any further then it used to do in the time of his Grandfather Edward the Third where he heard mention of it in the second year of Richard the second he mentioneth not But he must give me leave who by this Record last mentioned and by divers others have found mention made of it before such time as he heard mention of it and for divers other reasons to believe this Court to be farre more ancient then he thought it to be For if this Record be well observed it will plainly appear that the Office of the Admiralty was an ancient Office at the time of the Grant which may easily be gathered out of these words Dante 's ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium Admiralli tangunt c. and likewise out of these et omnia alia quae ad officium Admiralli pertinent c. from whence it appeareth that there was then a known Office of the Admiral not then lately instituted and ordained And it will more plainly appeare if we look further back to the Grants and Patents made unto others throughout this Kings Reign and other Kings Reigns before him which being deduced out of the Tower Records will shew this Office and Place to be of a farre greater antiquity I shall therefore steer my course by degrees backwards towards the confines of the antiquity of this Jurisdiction although hopeless to arrive there yet I shall go as farre by the antient Records as will serve for my purpose Next before this Robertus de Herle John de Bello-Campo frater Tho. de Bello-Campo Com. Warwicensis Eques primae fundationis ordinis periscelidis constitutus fuit Admirallus ad partes tam Boreales quam Occidentales Angliae 10. Julii anno 34 Ed. 3. qui fuit eodem tempore Dom. Gardianus quinque Portuum constabularius Turris Lond. et Castri Dover et obiit in possessione dictorum munerum 2. Decembris eodem anno Robertus Morley Baro de Hengham constitutus fuit Admirallus ad partes Boreales 5 Martii anno 29 Ed. 3. Johan de Bello-Campo fuit eodem tempore Admirallus ad partes Occidentales qui eandem dignitatem obtinuit anno 24 Ed. 3. Wiliel de Bohun Comes Northampt. constitutus fuit Admirallus ad partes Boreales 8. Martii anno 25 Ed. 3. eodem tempore Hen. Duâ—â— Lancast constitutus fuit Admirallus ad partes Occidentales proximo sequente anno in ejus loco Tho. de Bello-Campo Comes Warwicensis Robertus de Ufford Comes Suffolciae quum constitutus fuisset Admirallus ad partes Boreales 8. Maii anno 18 Ed. 3. continuatus fuit Admirallus 23. Feb. anno 20 Ed. 3. Rich. fil Alani Comes Arund qui constitutus fuisset Admirallus ad partes Occidentales 23. Feb. anno 19 Ed. 3. continuatus fuit Admirallus 23. Feb. anno 28 Ed. 3. Robertus Morley Baro de Hengham fuit Admirallus ad partes Boreales in anno 13 Ed. 3. in anno 16 ejusdem Regis per literas patentes constitutus Capitaneus Admirallus singulorum portuam locorum per costram maris versus partes Boreales quamdiu c. T. R. apud Eltham 3. Aprilis Et Johannes de monte Gomeri eodem tempore constitutus fuit
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
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the sea-Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without
and determining of all offences debates and differences arising or growing from any thing done or to be done within the several bodies of the Counties thereof whether they be Criminal or Civil whether they concern Estates real or personal whether they be between the King and any other party or between party and party which are tryable by the said Law Fourthly they are different and distinct in respect of the rules the Judges proceed unto judgement by those of the one Jurisdiction proceeding according to the rules of the Civil Law known and used by all or most Courts and Judicatures in Christendome Those of the other proceeding according to Rules and Laws municipal known only unto themselves and such as are well skilled and verst in the same and are Inhabitants and Subjects of this Nation To set forth the differences between these two Jurisdictions in their proceedings was to undertake the setting down of the whole proceedings in all several causes tryable both in the Admiralty and the Common-Law Courts the one of which with some pains I might very wel do but the other belongs not to me to undertake yet so much I know of them as that I am sufficiently informed in my judgement that they are exceednigly different even in their proceedings Fifthly they are different even in the Laws themselves whereby the Judges are guided to their determination and directed in their giving of judgement those of the one Jurisdiction determining according to those Civil Laws which are Maritime and still retained and kept in use in most Nations in Europe adjoyning thereunto those few and short Laws of Oleron with some other customary Laws of the Seas which are commonly accepted and known where such Judicatories are kept and held and are expresly declared and published by several Maritime Writers Those of the other judging according to a municipal Law fitted prepared and composed only for Land affairs and indeed only for the Land affairs of this Kingdome by the advice of such as have had the best judgement in those Land affairs And as these are different and distinct from the Civil and Maritime Laws which have been composed by the advice of such as have had frequent Traffique Trade and Commerce at sea and by that means have had best knowledge and judgement in sea affairs So indeed in the same manner are the Civil Laws which have been composed and established in other Nations by such as have been of best experience in businesses of the Republique for the guiding and governance thereof distinguished and kept apart from those other Civil Laws which are Maritime The absolute necessity of keeping these two Jurisdictions thus distinct one from the other you shall have fully set forth in the 14. and 15. chapters of this second Book wherein is shewed the use and practice of the Civil Law in most forraign Nations and that the same is absolutely necessary to be used and practised in all Admiralty Courts unto which two chapters I especially referre the Reader CHAP. II. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-trading men SEeing then that the Admiralty is a distinct Jurisdiction from the Land Jurisdiction in the next place the bounds and limits thereof are to be considered and those will best appear by the before mentioned Records of the Patents and grants of that Jurisdiction First then that this Jurisdiction extendeth to all manner of Ships and Shipping I conceive will not be denyed for it is plain by the Records already quoted that the Kings had in those antient times their Admirals as well for the Northern Seas and Coasts as the Western yea and sometimes several Admirals for one of these Coasts as in the twentieth year of Edward the second quidam habuerunt custodiam costerarum maris inter Toffe Thaw quidam aliarum and in the tenth year of the same Kings reign one W. 〈…〉 had the same power ab ore aquae Thamesis usque Ipswic and Johannes de Thorpe ab Ipswic usque Linn Shall we think then that this King had in those times when shipping was farre more scarce then it hath been since in each of these Coasts and in every of these particular places within these Coasts where he had Capitaneum Admirallum flotae suae a Fleet consisting of his own particular Ships which he called flota nostra which required a Captain and Admiral to govern them Certainly no but all Ships Boats and Vessels whatsoever belonging unto sea tam remiculi quà m corbitae sive gauli tam naves frumentariae sive onerariae quà m naves praesidiariae tam Beucentauri quà m naves praetoriae sive Navarchae c. were all comprehended under flota navium And this is plain for that these Governors were sometimes stiled Capitanei navigii as well as Capitanei Admiralli flotae navium And that navigium signifieth all manner of shipping I have already shewed And likewise very many of the antient Patents expresly run flotae nostrae omnium navium I shall instance only in one or two as in that of the 8 Ed. 3. which runneth thus Rex omnibus ad quos c. salutem Sciatis quod nos de fidelitate probatâ circumspectione providâ dilecti fidelis nostri Rogeri de Hengham plenariè confidentes constituimus ipsum Rogerum Capitaneum Admirallum flotae nostrae omnium navium c. tam quinque portuum quam aliorum portuum locorum per costeram maris versus partes c. And in that of the first of Edward the Third in these words Rex omnibus ad quos c. salutem Sciatis quod nos de circumspectione fidelitate dilecti nobis Johannis Parbroun confidentes constituimus eum Capitaneum Admirallum flotae nostrae omnium navium magnae Jernemouth omnium aliorum locorum c. per costeram maris versus partes Boreales quamdiu nobis placuerit c. So that these who were Admirals of the Kings Fleet were Admirals of all Ports and Admirals of all Ships of all Ports And as it extendeth to all manner of Shipping so doth it extend unto all manner of Shipmen for to little purpose was it for the Admiral to have had power and authority over the wooden Vessels if they had not had power over all the Seamen and Mariners in them yea and over all others that belonged thereunto or had to do therewith or were skilled therein For by almost all the beforecited Patents they had not only potestatem super omnes singulos marinarios but also super omnes de flotâ of or belonging to the Fleet Navage Ships or Shipping as well the owners of them the Merchants and Traders with them and Imployers of them as the Mariners of what degree soever sailing in them or in any wise belonging to them tam mercatores exercitores quà m proprietarios tam naucleros quà m helciarios tam gubernatores quà m diaturios tam proretas
quà m missarum custagiorum ad septuaginta libras per juratores praedictos superius assess in duplum per Statutum c. Quae damna in duplo se extendunt ad mille 400 l. Et idem Barthol poenam decem librarum erga Dom. Regem nunc per statutum incurrat capiatur c. querens remittit 400 l. And he saith that it appeareth by the Record that this being the first Case that can yet be found that received judgement in the Court of Common-pleas upon the said Statutes and that the same depended in advisement and deliberation eight Terms whereby it plainly appears the time being computed from the making of the said Statutes whereon this Action was grounded to the time of the Judgement 6 Hen. 6. that the Courts of common-Common-law had not for above 20 years after the making of these Statutes ever medled with causes of this nature Nor can it I am confident be found that cases of this nature were any of those cases wherein the Admirals had encroached upon the Common-law before the making of the said Statutes and what ground these Statutes then gave them for this Judgement I could wish he had reported with the Judgement it self The Statutes I have endeavoured to the utmost of my weak skil to examine one by one but cannot find that in such cases as this the Admiralty was by them in any wise prohibited to proceed of which Examition of mine I shall hereafter render the best Accompt I can more especially when I come to treat of Contracts made at land of and concerning maritime and sea affairs but I must here in the first place examine the observations by Sir Edward Coke himself gathered out of this Judgement From the whole he gathereth these four observations 1. That it is contemporannea expositio being made within 20 years of the making of one of the said Statutes and he saith that contemporanea expositio est optima 2. That albeit the said three Ships with the Prisoners and Merchandizes in them lay in the Haven inter fluxum refluxum aquae and infra primos pontes yet that the Haven is infra corpus Comitatûs and that for taking of the Ships with the Prisoners and Merchandizes in the same no Suit ought to be had in the Admiralty Court but at the Common Law 3. That the Court of Admiralty hath no Jurisdiction but super altum mare which is not within any County for the Record saith as he averreth that the said three Ships with the Prisoners and Merchandizes in the same did lie infra Comitat. Bristoliae non super altum mare as the Plaintiffe in the Admiralty Court supposed the same to be 4. That this Judgement so solemnly and with such advisement given if it were alone were sufficient to give full satisfaction in this point for saith he Judicium est tanquam juris dictum judicium pro veritate accipitur I conceive that by two of these four observations the first and the last he endeavoureth to prove that this Judgement is a good Judgement which ought to be observed ever after for Law which if he hath thereby proved the two other the second and third may be deduced into some conclusion otherwise not He then that will examine the argument comprehended in these two observations must deduce it thus or else he shall find no argument therein at all viz. a Judgement given per contemporaneam expositionem of a Statute or Statutes made within twenty years after the making of one of them and that solemnly upon two years advisement given is a good Judgement which ought ever after to be observed for Law But this Judgement was given by a contemporary exposition of the said Statutes made within twenty years after the making of one of them and that solemnly with advisement by the space of two years therefore this Judgement is to be observed for Law ever after then will the other two observations be easily deduced into a conclusion otherwise not But I must crave leave that without offence I may call into question the truth of the premisses out of which this conclusion is deduced First then whether a Judgement given per contemporaneam expositionem of a Statute made within the space of twenty years next before such interpretation or exposition though solemnly advised on by the space of eight Terms which is two whole years must necessarily be ever after observed for law is that which first cometh in question Under correction I conceive that neither the time of such interpretation or exposition-making nor the deliberate advisement thereupon conclude this necessity that the Judgement thence proceeding must be ever after observed nay I conceive it ought not ever after or at all to be observed unless such exposition be grounded upon both law and reason or at least one of them This is said to be the first and leading Case and so the first exposition of those three before mentioned Statutes made to this purpose and therefore the law and reason whereupon such exposition had its ground and foundation might very well have been expected to have been there by him set down where the Judgement it self is urged but finding neither I have according to my weak abilities endeavoured to search both or either of them out But indeed am so thick-sighted that I can find out neither the one nor the other to warrant the same The Statute of the 5 Eliz. 5. before mentioned and urged for the proof of this assertion might had it been made before this exposition of the other three have set some colour thereon but no more then a colour for there is nothing therein contained substantial that could have afforded this interpretation of the other three but coming after this interpretation this interpretation hath lost that colour and is left upon the Statutes themselves wherein I for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation The first of them is that of the 13 Rich. 2. 5. which Statute hath relation unto a Petition upon which the interpretation thereof ought to be grounded according to the manner of making Acts in those dayes which Petition in other Acts is inserted as a preamble to the Act it self but in this is premised only in part and that not truly rendred by the Translation as shall appear when we come to treat of Contracts made at land for sea affairs the Statute it self runneth thus Le Roy voit que les Admiralls lour deputees ne sic mellent de sore ana vant de nul chose fait deins le Roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre sâ—r ' le Roy quorust The Kings pleasure is that the Admirals and their Deputies shall not from henceforth so meddle viz. as is complained of in the Petition of
the interest of all other parties for that had been to have judged the cause inaudita nec vocatâ parte interesse habente For the controversie was then whether the Judges of the Common Law or the Major c. had the cognizance of that cause and they having dismissed it from their cognizance could grant it no otherwise to the Major and Bailiffs of Hull but insomuch or for that it belonged not unto their cognizance so that after the dismission this controversie was no longer between the Judges of the Common Law and the Major of Hull but now the difference concerning the Jurisdiction of and over this cause must rest between the Admiral and the Major and Bailiffs of Hull for that the Admiral being no party in fudicio the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull then that they should have it for ought that Court in which the Action of Trespass was brought had to do therewith or to hold plea thereof which could not barre the Admiral of his claim of Jurisdiction who was no party in judgement And then this only resteth as an Authority quoted that such an Action was brought at the Common Law and as it appeareth that the same was never there determined so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors might very well conceive that the Action being there brought the same was rather tryable before them by virtue of that clause in their Charter which was urged then by the Judges of the Common Law and the Cause being dismissed as it appeareth not that the Major and Bailiffs determined it no more doth it any ways appear that they did yet by virtue of this Dismission or Grant as Sir Edward Coke termeth it take upon them so much as the cognizance thereof or if they did that the Admiral ever had notice thereof But if the Admirall did or if he did not yet if he had taken to his Court the cognizance of this Cause I am confident that the Major and Bailiffs could no ways by virtue of that clause or upon any other ground have taken it out of his hand unless they have Admiralty Jurisdiction granted unto them as the Town of Ipswich hath the substance of whose Patent concerning the same I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports Henricus Dei gratia c. octavus c. Cumque praedictus avus noster per chartam suuam praedictam quam ut praefertur confirmavimus concesserit Ballivis Burgensibus Villae praedictae successoribus suis inter alia libertates Franches privilegia immunitates in eadem chartâ contenta specificata authoritatem potestatem faciendi exequendi infra eandem villam Gypewici ac libertatem praecinctum ejusdem omnia singula quae Admirallo seu ad officium Admiralli pertinent Cumque portus villae praedictae aqua currens recurrens prout casus exigerit ab eodem portu per fluxum refluxum maris versus le Southeast ad quendam locum vocat Polleshened alias dict Polished nec non tota terra folum quae per hujusmodi fluxum refluxum maris aliquo tempore aqua fuerit superundat sive coâ—pert infra libertatem villae praedictae extiterint Et quod iidem Ballivi Burgenses Communitas successores sui habeant gaudeant eis successoribus suis omnia singula libertates Franches authoritates privilegia jurisdictiones immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum quas nos per litteras nostras praedictas de confirmatione acceptavimus ratificavimus confirmavimus contenta specificata tam in dictâ aquâ sive in cursu aquae ac praedictâ terrâ solo per fluxum sive refluxum maris aquâ quandoque superundat sive coopert quam in omnibus singulis aliis locis quibuscunque infra villam praecinctum suburbum libertates Franches praedict juxta formam chartarum concessionum praedictarum prout ea ante tempora usi fuerunt gavisi Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi Burgenses Communitas successores sui securius liberius absque ambiguitate questione vel dubio habeant officium Admiralli nostri haeredum nostrorum infra libertatem praecinct Franchesc praedict omnia quae ad officium Admiralli tam super mare littus maris quà m alibi infra libertatem Franchisc praecinct praedict pertinent concedimus nunc Ballivis Burgensibus ac communitati villae praedictae eorum successoribus per praesentes quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri haeredum nostrorum per infra totam villam praecinctum suburbia aquam cursum aquae ac dict terram solum per fluxum refluxum maris quandoque aquâ superundat vel coopert seu in posterum superundand vel cooperend Ac omnia singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare littus maris quà m alibi infra libertatem praecinctum limites supra specificat faciant exequantur in tam amplis modo forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit facere debuit quoquo modo c. Et insuper nos de gra nostra ampliori ad relevamen incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr successoribus nostris annuatim ut praemittitur solvend damus concedimus per praesentes pro nobis haeredibus nostris eisdem Ballivis Burgensibus Communitati successoribus suis wrecum maris ac omnia bona catalla quae dicuntur Wreck Flotson Getson omnia alia bona catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent aut poterint infra dict portum aquam ac terram solum praedict per fluxum refluxum maris ac omnia bona per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend qualitercunque contingent vel ibidem in mari aut super littus maris invent seu inveniend etiam omnia singula bona catalla felonum de se nec non bona catalla quae dicuntur deodanda infra libertatem Franchesc praecinctum villae praedictae ac in infra
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
be proceeded in according to the rules of the Civil Law and have their determination from the same or else be decided without testimony which is to judge blindfold or else to rest unadjudged and the wronged and injured party to be left remediless and unrelieved But it will be answered that in such cases they may have a Commission out of the Chancery for that purpose To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law or to the Civil and Maritime Law And then surely it must more properly belong unto that Law and that Court which can of it self without the assistance of any other Court make a compleat proceeding and tryall and give a direct judgement according to express rules of Justice in such causes then to that Court which without the assistance of another Court can do neither Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions neither hath it in as many causes any express rules to direct the Judicature thereof I shall here set down some few of those Laws which the Civil and Maritime Laws give in such Cases so farre forth onely as to shew that the Maritime Laws were ordained as well for the Ports and Havens as for the main Seas First then for the lading of a Ship which is always or commonly in a Port or Haven the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading as shall be put aboard the said Ship and who shall not sunt quidam in navibus qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diaetarii Si quis igitur ex his receperit puto in exercitorem dandam actionem quia is qui eos hujusmodi officio praeponit committi eis permittit quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant Sed si hoc non extet tamen de recepto navicularius tenebitur non debet per remigem aut mesonautam obligari sed per se vel navis magistrum This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship but likewise what things they are chargeable for and saith Quod cujusque salvum fore receperint hoc est quamcunque rem sive mercem receperint and least it might be thought that it is onely meant of Wares and Merchandizes and nothing else it explaineth it self yet further and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent veluti vestimenta quibus in nayibus uterentur cetera quae ad quotidianum usum habemus parvi referre res nostras an alienas intulimus si tamen nostra intersit salvas esse And assoon as such Merchandizes and other Commodities are put aboard the Ship whether she be upon Port Haven or any other part of the Seas he that is exercitor navis is chargeable therewith and if the same be there lost or purloined or sustain any damage hurt or loss whether in the Haven before or upon the Seas after the Ship be set forward on her voyage whether it be done by the Mariners or any other through their permission or negligence he that is exercitor navis is to make good the same For saith the Law recepit salvum fore utrum si in navim res missae ei assignatae sint an etsi non sint assignatae hoc tamen ipso quod in navim missae sint receptae videntur omnium recepit custodiam quae in navini illatae sunt Et factum non solum nautarum praestare debet sed vectorum And in these cases two several Maritime Actions do lie whereof the Agent hath his choice Dicendum duas proponi actiones exercitorias una est de recepto in simplum quae dicitur in factum altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur Et haec est in duplum sed in eam non venit factum vectorum So that the very lading of goods aboard the Ship chargeth him that is exercitor navis therewith which the Common Law doth not for he is lyable for whatsoever his Mariners shall do aboard the Ship be she in Port Haven or upon the high Seas but he is not lyable for what they shall do being at land and not aboard the Ship so that the Ship maketh distinction of Actions but maketh no distinction at all between her being upon the high Seas or upon Port or Haven Debet Exercitor omnium nautarum suorum sive liberi sint sive servi factum praestare nec immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam in ipsa nave damnum datum sit caeterum si extra navim licet a nautis non praestabit But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda and shall lose them or suffer them to be stoln from him before they shall be laden aboard the said Ship he shall be lyable to make satisfaction Idem ait etiam si nondum sint res in navim receptae sed in littore perierint quas semel recepit periculum ad eum pertinere If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship and transported in case they there perish or be otherwise damnified much more shall he be answerable for such goods and merchandizes as he shall receive or shall be laden aboard his Ship if the same perish or be damnified in or upon the Port or Haven Those Laws of the Rhodes which we find inserted into the body of the Civil Law which are the ancientest Sea-laws extant do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship and the remainder of goods and of the Avaridge payable out of the same whether the Ship be in such stress of weather upon the Ports or Havens or upon the high Seas and the rules there set down do serve as well for the one place as the other These Laws and Rules being general and not restrained to the high Seas do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved And such danger doth not alwayes fall out upon the high Seas but oftentimes upon the Ports and Havens But least this shall be thought not sufficient but that notwithstanding the generality of the Sea Laws which have provided directions sufficient for what is to be done in such cases
yet they were to be made use of only when such accidents happened and fell out upon the high Seas and that they were constituted and ordained only for such causes falling out upon the high Seas and not upon the Ports and Havens but left such causes there falling out unto the cognizance of the Common Law here in England and other municipal Laws in other Nations I shall here set down one express Law inserted amongst the rest of 〈◊〉 Sea Laws which sheweth that all these Laws were as well appointed for such causes happenning upon the Ports and Havens as they were ordained for those that fell out on the high Seas which Law maketh further provision in a cause of the like nature happenning either upon the high Sea or Port in express words and sheweth plainly too that all the rest were constituted and appointed for both which runs thus Navis onustae levandae causa quia intrare flumen vel portum non potuerit cunâ—â—onere si quaedam merces in scapham trajectae sunt ne aut extra flumen periclitetur aut ipso ostio vel portu eaque scapha submersa est ratio haberi debet inter eos qui in nave merces salvas habent cum his qui in scaphâ perdiderunt perinde tanquam si jactura facta esset Here it is manifest by this Law that if for the lightening of a laden Ship because she cannot enter into the River or Port with her burthen some of the Goods shall be put into the Ships boat least the Ship should be endangered either without the River or in the door of the Sea or Port it self and that Boat shall be drowned a consideration is to be had between those which have their Goods saved in the Ship and those that have lost their Goods in the Boat as if there had been a jacture made so that here we see the same rule holdeth for the preservation of a Ship as well within the Port or Haven or the mouth or door thereof as for her preservation upon the high Seas It may be further observed out of this Law that ostium maris and portus maris be both one and the same thing for as ostium is a door-gate or entrance so is portus a Port or Portal beginning or entrance of the Sea or into the Sea and that ostium maris is not an imaginary thing between the Sea and the Port or Haven as Sir Edward Coke would have it to be for as by saying a Port or Haven we mean but one and the same thing intimating that you may take which term you will as this Law doth in the beginning by the words flumen vel portus mean one and the same thing when it saith quia intrare flumen vel portum non potuerit c. so doth it in the next place by ostium or portus mean one and the same thing likewise when it saith ne periclitetur aut extra flumen aut in ipso ostio vel portu the aut making the disjunctive and not the vel And indeed the whole Port withal its banks is door slender enough for the keeping of the raging waves and wallowing billows of the Sea from overflowing the Land And the banks may properly enough though they be termed the Sea banks be said to be the doors of the land to keep the Sea out of it yet must the Haven or Port wherein the water floweth and and refloweth necessarily be said and concluded to be the door portal or entrance whereat all Ships and Vessels whatsoever must necessarily enter into the main Sea and this door of the Sea is as much a part of the Sea as a door of an house is a part of that house where it is the door and doth more properly belong to the Sea then to the land whereof it is no part but different and is distinct both in name and nature being two several Elements and the causes arising from things done either upon the high Seas or upon the Ports being of one and the same nature all belonging to Shipping Navigation Trading and Commerce c. they are all more properly cognoscible and tryable by one and the same Law then by two namely by the Civil and Maritime Laws then by the Civil Law and the Law of the land too For nulli prorsus audientia praebeatur qui causae continentiam dividet ex beneficii praerogativa id quod in uno eodem que judicio poterat terminari apud diversos judices voluerit ventilare poena ex officio judicis eminente ei qui contra hanc supplicaverit sanctionem And the Rules of the Civil and Maritime Laws in Cases of this nature are very many and very observable for the directions of the Judicature therein setting forth what is to be done according to the variation of the Case as the Law navis onustae before mentioned setteth forth what is to be done in case divers Goods and Merchandizes be taken out of the Ship and put into the Boat and the Boat perish so contrary if the Ship and remainder of Goods and Merchandizes remaining in her perish either upon the Sea or in the Port and the Boat arrive in safety with the Goods and Merchandizes put into her the same is to be done It is not enough to know a general Rule without its exceptions and limitations nor is it enough to know that si levandae navis gratia jactus mercium factas est omnium contributione sarciatur that an avaridge must be had upon all the Goods that are saved towards satisfaction of the owners of those Goods that were cast into the Sea but it is necessary to know in case the Avaridge be not agreed of what action those whose goods were cast into the sea have against the Master of the Ship for those goods and what action the Master hath against those whose goods were saved and what the duty of the Master is in these cases It is likewise necessary to be known and the Civil and Maritime Laws do set forth whether the Ship be lyable and ought to be cast into the Avaridge or not and whether if the Ship be worn and become worse by the tempests and storms she shall be considered therefore out of the Avaridge of the goods saved And likewise these Laws set forth what is to be done in case there be goods and merchandizes of several sorts and many passengers bond-men and free and whether goods of all sorts ought to be cast over and what is to be done in case there be goods aboard which do not burthen the Ship as Jewels precious Stones and Rings and at what proportion or rate they are to be cast into the Avaridge whether Apparel or the Passengers and Merchants wearing Rings whether the Passengers themselves and their or the Ships victualls shall be cast into the Avaridge the contribution shall be made according to weight or according to the value
and is not in that space discharged More particulars I might instance in out of the said Laws of Oleron to the same purpose and how farre the said Laws are extended or limited by latter writers upon the Civil and Maritime Laws but that will be a work more properly to be entred upon when this Jurisdiction of the Admiralty shall be compleatly settled and freed from interruptions in its due procedings I shall therefore onely set down this last Judgement in its own language not endeavouring to shew what the Law is either in this case or any of the other before recited but to conclude that by these Laws so long since established for the directions of Judgements in Maritime causes it plainly appeareth that the Ports and Havens are within the Jurisdiction of the Admiralty and that all differences therein or thereupon arising are cognoscible and tryable in the same The words of the Judgement are these Item ordonne est pour custume de mer q'se une nef arrive en ung Port a sa droitturier le descharge demoure la nef illecq ' chargee jusq's axxi jours ounrables la mettre puet been mettre hors sur ung keye le Maistre doit ordonner bailler ung de ses Mariners an Marchant pour prendre garde aux vins ou autres derrenes jusque a tant q'le Maistre soit pay de son frett Et cest le Judgement en ce cas Very many more there are which will be too tedious here to set down None of all which is by any part of the Common Law treated of at all nor can it if it keep its own rules render the same Judgement with these Laws but a diverse if not in many cases a clear contrary CHAP. XI That by the ancient Statutes of the Admiralty setled before the last Confirmation of the Laws of Oleron 12 Edw. 3. and Articles of enquiry added thereunto it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas THere are likewise ancient Statutes of the Admiralty to be observed both upon the Ports and Havens the high Seas and beyond the Seas which are comprised in an old authentick Book called The black Book of the Admiralty which Statutes are ingrossed upon Vellam in the said Book and written in an ancient hand in the ancient French Language which plainly shew the Admirals Jurisdiction to be upon the Ports and Havens as well as upon the high Seas I shall set down onely one of those Statutes for proof thereof which sheweth how and in what manner damage done by one Ship unto another in a Port or Haven as well as upon the high Seas shall be satisfied in case the same be wilfully done and how and in what manner in case the same be unwillingly done by chance by reason of tempest or other mishap The words of the Statute are these It que nulle nef ne vessel de la flotte pour orgueil ne pour haine ou envie sur le mer our entrants es ports ou en port ottroie veille audommage dautre nef ou vessell de la flotte au pris par ceux de la flotte sur payne de faire playne amende de ce qui est endommage en son default qui endommage debrysse au tres entrants aux ports ou dedens ports ou sur le mere neuvoillautz par cause de tempeste ou autrement il paiera amendera la moitie du dommage a la discretion Judgement de l'Admiral There are likewise in the same Book added unto these Statutes the Oath and Articles whereupon Juries were and are to make their presentments unto the Admiral all written with the same hand the Oath onely in old English the Articles in the same Language with the Statutes which shew what things are enquirable and presentable before the Admiral and there punishable and how and in what manner such offences are to be punished out of which it iâ— easily and plainly to be gathered that the Admiral hath a full and compleat Jurisdiction exclusive to all others upon all Ports Havens and Creeks of the Sea I shall here set down verbatim the Oath to be Administred unto the Jury and some few of those Articles which shew the Admirals Power and Jurisdiction to be upon the Ports and Havens The Oath This here see my Lord the Admiral that I John atte nashe shall well and truly enquere for our Lord the King and well and truly at this time thou serve at this Court of th' Admirate present as moch as I have in knowleche or may have by information of eny of all my fellows of all mane Articles or circonstances that touchen the Courte of the Admirate and Law of the Sea the whiche shuld be grate to me at this time and I thereupon sworne and charged and of all other that may renewe in my minde and Ine shall for nothing lette that is for to say for franchise Lordship Kynreden aliance friendship love hatred envye enemytee for dred of lost of goodnee for non other cause that I shall so doo the Kings Counseills my fellows and myne owen wel and trewly hele what oute fraude or malengyn so God my help at the holydome and by this Book Next unto this Oath is set forth the punishment of the Jurate that shall disclose the secrets of the King or any of his fellow Jurates to be inflicted upon him by the Admiral The very first and second Articles to be given in charge are for Theft committed upon any Port or Haven and the punishment thereof set down These are the words in the Articles Soit aequis des larrons es ports ComeÌ„ de cords batenlz autres ancres autres appareâ—ls des nefs se nul est endite quil a felon neusement pris ung baten ou ancre que passe xxi d. il sera pendu sil est de ce convicte It se an cuy est endite quil a felon nensement pris ung boye rope de quelle value quil soit soit lie a ung autre dedens leave pour la boye il sera pendu sil nest de ce aquite And so they proceed to set down the punishment of him that shall cut any Cable whereby the Ship is cast away or any man lose his life c. And of such as shall remove an Anchor And likewise of such as shall rob Strangers Ships not being enemies And how their goods shall be restored to them though they pursue not the Felon to death And what course is to be taken in case of such robberies Petty Larceny is by that Law punishable upon the first conviction by forty dayes imprisonment upon the second half a years imprisonment upon the third death By the next Article common disturbers of Ships and Passengers either upon the Seas or the Ports are to be enquired of and their punishment is therein described
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
and such as do destroy the Fry of Fish and of such Mariners as do violence to the Owner of the Ship contrary to the Laws of the Sea and Statutes of Oleron such Mariners as disobey the lawfull commands of their Master such Masters as keep not their Mariners in order and peace according to the Laws of Oleron and likewise of Loads-men and Loads-manage And here particularly is to be enquired of such as do claim propriety in any Port or Haven which belongeth unto the King without Charter or Prescription to the disinheritance of the King Item soit enquis se aucun clame properte en port ou commers qui attient a â—â—stre sur le Roy ne la my par chartre ou praescription en disheritance du Roy. And in this respect as well as others is the Admiral called Custos portuum Custos maritimarum partium c. Here again as by the former Articles are Forestallers and Regraters as is before mentioned to be enquired of and so are Weights and Measures and the abuses of water Officers By another Article here are Fishermen to be enquired of which take Salmons out of season in any Arme of the Sea as Thames Trent c. specifying some particular Arms of the Sea and concluding withall in general so that by Arms of the Sea in these Laws exprest Ports and Havens must needs be meant the same things which Sir Edward Coke under the same notion would have to be within the Bodies of Counties and out of the Jurisdiction of the Admiralty which we see plainly did thereunto belong in far more ancient times then any of his proofs and authorities are of to the contrary and these are the words of the Article Item soit enquis de poissonners que prennent saulmons bors de saison aux bras de mer cestassavoir Thames Trent Deve Derwent Agre Reme Humbre autres riviers q'l conq's ou destroint fry de saulmont en aucun temps de lau For any one to remove an Anchor of any Ship or Vessel without warning given to the Master or some of his Company by which means the Ship doth perish or any man is slain or cut the Boy from the Boy-rope so that the Anchor is lost are offences against the Laws of Oleron presentable before the Admiral or his Lieutenant and punishable according to those Laws Here likewise is an Article agreeable with the former amongst those adjoyned unto the old Statutes concerning Shipwrights wages Divers other Articles there be which concern other matters belonging to the Jurisdiction of the Admiralty some of which might have been likewise deduced into proof for the Admirals Jurisdiction upon the Ports but I conceive these will be sufficient to convince any indifferent man that he had Jurisdiction there in Edward the Thirds time and by those that are adjoyned to the ancient Statutes of the Admiralty and introduction of the Laws of Oleron it will appear that he had Jurisdiction there long before Unto these Articles are joyned several Admonitions drawn into several Articles for the due observance of these Articles and putting them in Execution And next unto them is set forth the manner of proceeding according to the Maritime Laws both in causes Civil and Criminal CHAP. XIII That by the aucient Statutes of Enquiry translated out of French into Latine by Rowghton the Admirals Jurisdiction is upon the Ports and Havens aswell as over the high Seas WElwood in his Proeme to his Abridgement of the Sea Laws maketh mention of the Inquisition taken by 18 most famous persons for skill in seafaring matters assembled at Quinborough and the Articles there agreed on out of which I have cited some in the foregoing chapter and he saith that Thomas Roughton afterwards turned them into Latine and entitled them Articles De officio Admiralitatis Angliae But I do not find that the Articles which Roughton translated out of French into Latine were the Articles agreed on at Quinborough for the Articles of Quinborough set not down the penalties upon the breach of every particular Article but referre the punishment to the former ancient Statutes and Articles of the Admiralty and the Laws of Oleron whereas those translated by Roughton do besides at the Inquision of Quinborough there were by those exquisite skilfull men in Maritime businesses both at home and abroad several Sea Laws or Statutes agreed on and by the King confirmed which I find not translated by Roughton where he averreth such his translation of Articles out of the French tongue into the Latine and calleth them Statutes in regard the penalty of all or most of them are therein determined and appointed which his averrement is in these words at the end thereof Haec statuta fuerunt translata per me Thomam Roughton à linguâ Gallicanâ in Latinam signum meum manuale in testimonium ejusdem hic apponendo Now in this averrement there is no mention of the Articles of Quinborough besides those and these agree not in method nor in number Nor are these the translation of those ancient Articles adjoyned unto the ancient Statutes of the Admiralty which have the penalty upon the breach of every of them set down in them as these have for they have neither the same method nor the same division these being divided into 50 Articles those but into 38. Yet are not these Articles in any one particular contrariant or repugnant one unto another but so agreeable in matter of substance that that agreement amongst them may stand for a true confirmation and a strong corroboration both of the justice equity and authority they carry along with them and also of the credit that is to be given to them They all so agreeing as I have said these must needs prove the same thing that the others have done namely the Admirals Jurisdiction to be upon the Ports and Havens I shall set down some few of these in their own language to shew this agreement and so pass to a yet further proof of this particular But I shall first observe that as heretofore I have shewed that the Admirals anciently have had joyned unto their Patents for that place whereof they were Admirals a special Precept to all Sheriffs Mayors Bayliffs Constables Headboroughs c. commanding them to be obedient unto the Admiral and his Lieutenants and to be aiding and assisting unto them when they should be thereunto required so by the front of these Articles or Statutes the Admiral is directed to grant his Warrant to the Bayliffs of the Port if it be a liberty as well as to his Marshall for the summoning of a Jury to make enquiry according to these Articles of all such offences as are committed contrary thereunto which Articles are there said to concern the Maritime Law and these are the words of that direction Inprimis cum veneris ad portum per costeras maris si sit in
Admirallo ad valentiam bonorum hujusmodi Si tamen naves cum hujusmodi merchandizis sive victualibus vento contrario reluctante impeditae ventum expectent faventem emptores hujusmodi rerum sive victualium ab omni impeditione in hac parte erunt immunes nichil domino Regi aut Admirallo perdent nec amittent Many Articles more there are which do enquire of offences committed and punishments proper for them which are such penalties and punishments as are not used at the Common Law I shall but only name the chiefest of them There be Articles against Stealing cutting off or carrying away the buoys fixed to an Anchor whereby the Ship doth perish or is made worse which is punished by the Law of the Sea with a punishment different from that of the Common Law Against Carpenters and other Artificers imployed about making or repairing of Ships for taking excessive wages Against such as cast Sand Ballast or any other thing into the Channel of a Port or Haven Against a Loadsman that undertaketh to bring a Ship safe through the Haven to the Key or place of discharge and through his ignorance idleness negligence or other fault suffereth the Ship or Merchandises to perish the punishment is such as is not used at the Common Law Against such as that strike wound draw blood make any fray or kill any man within the Jurisdiction of the Admiralty they are to be punished according to the quantity and quality of the offence Against Regraters such as use false weights and false measures in their Ships for buying and selling by in the Ports and Havens Against such as take extraordinary Portage in any Haven and the Article setteth down what Portage is to be paid by Ships of such a burthen c. Against Port-keepers and Water-bayliffs that raise new Customes and excessive Fees within the Port or Haven c. Against Ships and Men appointed to serve the King and avoid the service Against such as shall cut any Cables c. Against Felonies done in Foreigners Ships and other Ships upon the Sea-Ports and Havens and against such as shall remove any Anchor Against notorious Malefactors either upon the Sea or Ports Against such as have taken and concealed any Deodand upon the Sea Port or Haven To conclude the Admiralty is so farre from being limited to the cognizance of things done upon the high Seas that it is not so much as limited to things done upon Sea and Sea-Ports but the power and authority thereof is and of ancient times hath been extended to all such things as do belong unto the Seas Ports Havens and Salt-waters as will appear by the 34th Article which is this Item inquiratur de his qui colligunt in sossat aquam salsam faciunt sibi piscarias scituantes de novo facientes incipientes gurgites aut alia sibi ncciÌ„a immobilia percipientes exitus proficua eorundem ad eorum opus proprium quae in aquâ salsa omnibus debent esse communia poena si indictati fuerint vel impetiti poenam ordinationis Regis Johannis apud Hastings subituri sunt c. And this Article further sheweth that such things as these which concern or belong to Ports or Havens did in King Johns time belong to the Cognizance of the Admiralty And now I shall proceed unto such proofs as I have gathered from the Civil â—aw in confirmation of what I have gathered from other Aâ—tiquity But I must first shew that that Law is used and practised in other Nations being a thing by some strongly denyed CHAP. XIV That the Civil Law is used and practised in all or most Nations of Christendome I Have heard but am unwilling to believe it that some have strangely dreamt and as strangely fancied that dream to be true that the Civil Law is not received nor of any use at all in forreign Nations but the same hath been 1200 years since abolished but I doubt not but that when their judgements are awaked and better informed they will find the same to be but a dream and will easily be perswaded not to persist in such an error unreformed which I will more willingly term to be but a mistake for that the same may in part be understood to be true and the other part from thence miscollected for the City of Rome was no sooner built then it had Civil Laws and Sanctiones ordained constituted and appointed for the government thereof which in many hundred years were and in many more several Emperours Reigns by them altered augmented and encreased which were by warres and turmoyls about the time before mentioned and long before Justinians reduction of them into method and order and compiling them into a body much distracted and perplexed or rather laid aside and as it were destroyed and lost which makes Justinian himself in his Edict of confirmation of his digests say Post bella Parthica aeterna pace sopita postque Vandalicam gentem ereptam Carthaginem imo magis omnem Lybiam Romano Imperio iterum sociatam leges antiquas jam senio praegravatas per nostram vigilantiam praebuit in novam pulchritudinem moderatum pervenire compendium so that it seemeth these old Civil Laws with their age and perplexities of warres which do silence Laws were praegravatae even suppressed or crushed down which some perhaps may terme an utter abolition and not without cause when as Justinian himself in the same place speaking of this reduction of them Quod nemo antea hoc superavit neque humano ingenio possible esse penitus existimavit that no man before he saw it done did ever hope for or humane reason seriously think it possible For that it was marvellous that the Roman Law which began with the City it self which had by the intestine warres there for almost fourteen hundred years been staggered and shaken and that extending unto the Imperial constitution they could be reduced unto one consonancy or agreement Erat enim mirabile Romanam sancionem ab urbe conditâ usque ad nostri imperii tempora quae pene in mille quâ—dringentos annos concurrunt intestinis praeliis vacillantem hocque in imperiales constitutiones extendentem in unam reducere consonantiam And from this suppression or laying aside of these ancient Roman Laws some it seemeth have miscollected and unduly concluded that the same hath never since been received or made use of in any forreign Nation at all But this new moulding reducing and with so much pains labour and care digesting of those ancient Laws into method form and order and compiling them into a body plainly sheweth the contrary unless we will believe all this was done to no purpose And if it shall be said that these Laws thus digested and brought into forme and method have since such their reduction which was after the time of the twelve
appellant distributis And after other additions made thereunto by Charles the Great Son of the said King Pipin Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum domus regiae ut sic centenarum judicum numerum tenens illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent creavit There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House that it keeping the number of an hundred Judges it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth Nay the dignity the precedency and placing of the Counsellors of this great Councell is derived from the authority of the Civil Law as is plainly set forth in the said Montanus upon the Authority of the Parliament of France and Boerius his additions thereon who both quote the Civil Law for the same and so is likewise the very authority of the Councel from thence derived as by the said Authors doth likewise appear And shall we now say that this great Court or Councell and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law and say conceive or think that their judgements and determinations of Controversies c. there given and made are not according and agreeable to the same Law If I should here endeavour to set forth those several Authors and Writers upon the Civil Law which have as I said before in the several Nations of Christendome in all the several Ages and Centuries of years which have been ever since the Compiling that Body even unto this time written and commented thereon and those which have wrote the Decisions Determinations Judgements Objections and other Law books grounded upon the same and which cite them for their authority and proof of what they conclude I should extend this Chapter to a whole Book or Volumne and but shew the Civilian and such as have been verst in Law Libraries what they have seen already and but tell others of those things which they will neither search for nor endeavour to see And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty but before I can return to steer a right course thither it will be necessary first to shew that the Civil Law is likewise necessarily practised used and exercised in all Admiralty Courts and there binding and of authority to direct the Determinations Sentences and Judgements decisorie in Maritime and Sea affairs between party and patty be they forreigners or others and then to shew that by those Laws so exercised and practised in those Cours as well as by the other Laws already set forth it doth appear that the Ports and Havens and all things done thereou are within the Jurisdiction of the Admiralty CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely necessary in the decision of all Maritime and Sea differences SUch as were apt to believe that the Civil Law was and is abolished in all forreign Parts and no use made thereof in the rule and governance of land affairs would very hardly without the removal of that misapprehension have been perswaded that the same was of any use in their Admiraly Courts in sea businesses I must therefore in the next place shew that he which understandeth only the Rhodian Laws the Laws of Oleron and the Inquisitions and Statutes before mentioned which the Civilian must needs most perfectly do the first being a great part thereof inserted in the very body of the Civil Law and the other from thence derived cannot without much reading and knowledge in other parts of that Law be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party and between the supreme Authority and those that are employed by that authority and such as are in subjection to the same much less to judge and determine such causes therein according to law and justice For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome whereby men are made happy in possessing and enjoying their own and defending themselves against wrongs and injuries offered by others hath two wings duas volatiles habet alas she hath two wings wherewith she soars aloft and stretcheth her self unto and spreadeth her self over both sea and land she hath two Jurisdictions the one fitted with Laws most apt and proper for distributing of right in all land businesses the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs and yet how different and distinct soever these two Jurisdictions are each from other as I have set forth more at large in the first chapter of this second Book yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law and are from thence furnished and fitted with different and distinct Laws whereby they keep up and carry justice upright between them both and by the one extendeth her directions unto the business of the land and by the other reacheth forth her proceed and effects unto the affairs of the sea Which two wings if taken off Justice must needs fall flat to the ground and can by no other means so expand her self as to extend either her directions unto the one or reach forth such her effects unto the other Secundis alitibus procedere nequit she cannot go on prosperously or happily to execute or performe her own proper office either upon the one or upon the other Nay if either of these two wings should be taken off or but joynted implumed or bereaved of those feathers nature at first gave it though the other should be preserved and kept never so compleat and perfect yet could Justice by the perfection of that one wing but hover and heave her self upwards on one side whilst the defect in the other would pull her downwards and the one side falling to the ground the other must necessarily follow If the power and privileges of either of these Jurisdictions should be decayed or but impaired though the other should be left never so entire yet could not the effects of Justice in the one supply the defects in the other For the Laws of the Land are no more fit to regulate the Affairs of the Sea
damnified in the lading of them sometimes in the unlading of them sometimes in the Ship sometimes in the Lighter c. Sometimes they are damnified by one Ship or Vessel falling fowl on another and that sometimes by the negligence or carelesness of the Master or Mariners of either of them sometimes of both sometimes of neither but through the extreamity of the weather or through the darkness of the season happening either by mist or night c. which could not be helped or prevented by either the care or diligence of the Masters or their Mariners Sometimes the Ship by such means is damnnified onely and not the Goods Sometimes the Goods and not the Ship Sometimes both Ship and Goods Sometimes the like falleth out for want of a Pylot Sometimes through the ignorance and unskilfulness of such Pylot c. I might here instance in very many more particulars wherein this Commerce which consisteth in shipping and merchandizing voyages and affairs doth differ from other trades used and occupied in land business those being farre more perillous and dangerous then these and being likewise far more subject to depredations Pyratical robberies and spoils then these All which differences must needs introduce a Law for the regulating the various and divers controversies that must needs arise by reason thereof farre different and distinct from that Law which ruleth and guideth the determinations of such controversies and debates which happen in land businesses not subject to such or the like casualties dangers and damages arising from so divers various and different causes all which do aâ—ter the very Judgements and determinations according to their different qualities respects and conditions which Law as I have said before for the community of Traffick and Commerce and holding correspondency therein and obtaining the same Justice by each Nation from other must continue certain and unalterable when as the other may suffer alterations additions or diminutions It remaineth therefore here to shew that besides the Laws of Oleron c. and the Title ad legem Rhodiam de jactu before mentioned which is inserted in the Body of the Civil Law that there are several other Titles and Laws incorporated in the same Body proper and peculiar for the Decision and Determination of Maritime controversies which are not at all excercised or used in the Decision of the differences in land businesses nor any ways proper for them although many of the other Titles and Laws which are for land businesses are made use of in the proceedings and sometimes in the determinations of Maritime causes and that neither those general Laws which serve for both nor these particular Laws which serve for marine causes onely are either abolished taken from or disused in the Admiralty Courts in foraign parts but that the same are of most especial use in the same For proof hereof I might cite the Disputations Decisions Determinations and Judgements of divers and very many if not of all and all manner of causes set forth in several Authors of several Nations in several ages and times even to this present age which are all grounded upon the same Laws and do cite and quote the same for their their foundation and proof of what they conclude and determine as I have said before But no man can conceive that this Collection of so many Causes out of so many several Volumns could be contained in one so small as I intended this And some and those not a few would think it a vain and needless work to jumble so many Authors together to no other purpose then to confute so plain an errour as no man that hath been at all verst in the proceedings of foraign judicatures can be induced to believe I shall therefore instance only in some few particular Writers of these latter times of most common use and most generally known I shall step no further back then unto Peckius sometime Principal of the Juridical Order in the University of Lovain in France who collected and gathered together several titles by him pickt out of the body of the Civil Law which principally belonged unto Maritime affairs and wrote a Comment upon the same which was there printed in the year of our Lord God 1556 above a hundred years since for the use of such as were employed in the Judicature or practice in the Law in Admiralty Courts concerning Marine businesses in which Commentary he doth not only cite divers other Civil Law Authors but likewise enforceth extendeth and limiteth the understanding and construction that is to be made of the several Laws compâ—ehended under those several titles by other particular Laws set forth under several other titles within the very body of the Civil Law as necessarily he must do having not taken in all those titles which concern the business as himself confesseth in the very title of his Book which he saith is Commentaria in omnes penè Juris Civilis titulos ad rem nauticam pertinentes a Commentary upon almost all the Titles of the Civil Law which concern Maritime Affairs But indeed they are not near all if we consider the divers particular Lawes which concern the same and are intermixt with other Laws under other titles and some titles he meddleth not with which wholly concern such matters and nothing else nor doth he at all treat upon any other Laws which concern such affairs and are made use of in all Admiralty Courts together with the Civil Law Wherefore Vinius a learned Civilian of the Low Countries made an additional Commentary upon the same titles of the Civil Law and upon the Commentary of the said Peckius and set forth the same which was printed at Leyden in Holland in the year of our Lord God one thousand six hundred forty seven wherein he undertaketh not only to explicate and unfold those titles of the Civil Law which principally concern Maritime affairs as Peckius had done before but also to adjoyn thereunto the Laws of Wisbaith the Laws of Oleron the Laws set forth in the Book de Consulatu maris and likewise the Maritime Law of the Rhodes Jus navale Rhodiorum quod ad finem tomi secundi Juris Graeco Romano relatum est a Marquardo Trahero V. CL. as he himself saith that his said Work might be usefull to all Nations in their Judgments and Determinations in all manner of Controversies and therefore saith thus Cum in animo haberem locos juris nostri qui ad rem nauticam pertinent non explicare tantùm verum etiam cum generis ejusdem institutis moribus aliorum populorum conferre atque ad usum quendam accommodare communem c. Now although that for the due administration of Justice in an Admiralty Court the learning in and knowledge of the Laws in these last mentioned Books be very requisite that the same justice which one Nation affordeth to another may be by that other rendred unto that Nation again and it obtain the same yet is the learning and
knowledge of the Civil Law which guideth and directeth both the Proceedings and Judgments in all Admiralties of Europe as necessary and farre more requisite for him that will justifie to any other Nation or learned Civilian his due and legal proceedings and justify his Judgments and Determinations in Maritime causes though according to the Laws before mentioned For Vinius himself in his Epistle Dedicatory to the Consuls of Amsterdam to his said Work praefixed who I doubt not but in regard that which he then said in the behalf of the Civil Law he said not to any that I now write will be believed before me that may be thought to speak for my profession in mine own Country affirmeth that Peckius in his work intended to keep himself within the rules of the Civil or Roman Law yet he did by that work shew that he wanted not the perfection of Learning or solid and sound knowledge of Law and many other things Ac forâ—asse Peckius intra limites Juris Romani se continere voluit utcunque sit ostendit sane hoc in opere Peckius sibi non defuisse justam eruditionem solidamque juris multarum rerum scientiam And this I will further add that he that in the Civil Law only and without the learning and knowledge which other Authors afford hath justam eruditionem a iust perfect or grounded learning or skill and thereby this solidam juris multarum rerum scientiam this solid and sound knowledge of the Law and multiplicity of business or matters for which the same was composed and continued may be fit to judge and determine of these Maritime matters and controversies which happen concerning the same when as he which hath the learning and knowledge of these other Authors only and hath no perfection in the learning and knowledge of the Civil Law shall be very defective in the proceedings to the due or just judgment therein But herein I shall plainly agree with this my learned Author Vinius that these Authors are of very good use may conduce much to the perfection of him that is either to judge or determine of such Controversies or shall be practicant in the same and likewise in that he further addeth in the same place viz. that notwithstanding the most perfect knowledge and learning in the Civil Laws and these other Maritime Laws it is sometimes and in some things requisite to make use of and consult with such Merchants and Mariners as are expert and skilfull in Navagation and Commerce Equidem inficior in negotiis nauticis nonnunquam confugiendum esse ad expertes sive nautas sive Mercatores aliosve hujusmodi peritos Yet this is by no means used or ought to be done but where some such thing falleth out whereof there is nothing certain set down in the written Law or introduced by Custome so that I with my same Author affirme the same with that learned Civilian Benveautus Straccha in these words Caeterum nego id fieri solere aut debere nisi ut rectè monet prudentissimus Straccha tale quid occurrat de quo nihil certi aut scripto jure cautum aut conâ—uetudâ—ne introductum est Now seeing that these Marine controversies and differences are to be adjudged and determined by these Civil and Maritime Laws certainly then are none so fit to heare and decide the same as those that are well verst and skilled in these Laws which necessarily must be such as spend their whole time pains and labour in the study thereof and by that means do better understand the diversity of such Laws and gather more knowledge therein then such as are daily imployed in Forreign affairs and continually busied in multitudes of negotiations which bring home a golden Harvest which will not be left or at any time set apart to give way for the study of those Laws which bring in no such profit Such men will rather be found in their Sellars and Ware-houses amongst their rich and precious Commodities which are to be bartered and sold then in Studies amongst mustie Books that are to be kept and not parted with And will rather be seen upon an Exchange Mart or Meeting-place of Merchants then upon a Bench of Justice And in this my said Author Vinius agreeth with me who saith Caetera enim scire possunt etiam qui vitam umbratilem colunt hi si quid literis mandare volunt plura conquirere solent curiosiùs cuncta rimari quam aut pragmatici qui rarò relictâ messe aureâ quà m assidua rerum forensium affert tractatio literarum monumentis unde nullus praeventus est student aut quilibet alii quos nimia circumfusa obsidet opprimit negotiorum multitudo And now since I have thus farre deviated and digressed from the way that I was in give me leave here in so necessary a course or rather discourse to go a little further and afterwards get home again as well as I can Let me shew of what necessary use the Civilian is in these Admiralty Courts which have the decision of Maritime Controversies and how unfit other men not verst or skilled in that Law are for the undertaking thereof I know it will be objected unto me in the first place that some Admiralties in forraign parts are regulated and ruled by the Justice and Judicature of Merchants and other feafaring men well experienced in matters of that nature I must confess I am no Traveller and that in regard have not been amongst these Mercatorian and Nauticall Judges but yet have I in my study travelled through the decisions and determinations of many forraign Judicatures and by that means I believe do know their Laws somewhat better then they which have travelled through those Countries but not through those Courts And I do finde that where such Mercatorian and Nautical Judges are they are either Civilians themselves or at least farre better verst in the Civil Law then any of the Merchants or Mariners of our Nation do seem to be or else they are not only assisted but regulated and ruled by Civilians and moreover by certain Letters yet remaining in my Study which I have in that short time that I have been verst in the high Court of Admiralty in England received from such forraign Admiralty Courts and the Copies of Letters which were unto them returned in answer and their replyes thereunto I can shew that upon contest for the right of Jurisdiction in the cognizance of causes which have happened between Forraigners and English whether the Causes were to be decided by their Court or this that they have urged and quoted the Civil Law for the foundation of their Arguments for their right of Jurisdiction therein and have received satisfaction by answers framed out of the same Law unto their said Arguments If I should here set forth those Letters and Copies it would thereby appear that the Jâ—risdiction of the Admiralty Court of England hath been maintained and defended by Civilians
in an other manner then the same would have been by such Mercatorian or Nautical Judges and that the Subject of this Nation thereby hath gained that Justice and Right at home which might otherwise perhaps have been hazarded abroad But I intend not to stuffe or fill up this short Treatise which I intended should have been farre shorter when I first took it in hand with Packets of Letters received from several Forraign Judicatures and the answers thereunto returned which will hardly or not at all be understood by such as are not already convinced of that which they should be here set down to prove Nor will I here set forth how farre those Mercatorian Courts though assisted by Civilians through their over-powering of their said Assistants have fallen short of those which have been and are wholly regulated and governed by Civilians as well in point of proceedings as in point of the distribution of Justice But I will here take occasion to set forth some inconveniences not a little destructive only to Trade Traffique and Commerce and so to the Merchant himself but also to Shipping and Navigation it self which might and doubtless would happen if the dicision and determination of Maritime Causes should be left unto or settled upon Merchants and Owners of Ships to judge according to their own skill and observations without that Jus scriptum that written Law which passeth is allowed and practised in all Admiralties of Europe wherein they cannot be so well verst as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof I shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same Law in all Nations in Maritime Causes for one Nation 's rendring of the same Justice to another that it doth from thence receive which is the chiefest thing that maintaineth the Community of Traffique and Commerce which cannot possibly be done if the same should be rendred by the various fancies of men in no wise guided by any certain forme or rule but by that thing then which nothing can be more uncertain which men call opinion tot capita tot sententiae And then I will further say that for the reason before set down in this Chapter the Mariner who cometh in with one good wind and goeth out with another and must opportunè vela ventis applicare upon any controversie or difference arising upon or about the payment of his wages cannot have so sodain and quick dispatch or determination thereof by such Mercatorian or Nauticall Judges who have other affairs and businessss to attend as by those who make the decision and determination of Maritime Causes their whole work and attend wholly upon the same every day of the week both Terme and Vacation Again it is considerable what justice the poor Mariner could expect or should be like to have if the determination and adjudication of their wages should be left unto Merchants and Owners of Ships as some men would have it out of whose freight the same ought to be paid and would be as it were parties in all Causes of that nature and if the Cause should not at one time be their own yet must it and would it assuredly be at another and so at all times would it be their own case though not their own cause and very seldome would it be that it should not be their own cause there being so many Merchants that are Owners of Ships and so many Owners of every Ship of any burthen considerable and every Part-owner of one Ship for the most part Owner or Part-owner of more if not of very many so that for the most part some or other of the Judges themselves would be absolutely concerned in the matter of difference depending before them and the poor Mariner left to their good will and pleasure for his wages and recompence for his pains impended and his time spent in their service which would be a means to dishearten and discourage all Mariners for serving in English Bottoms whensoever imployment should be offered them elsewhere Again in the commixture and joynt Trade of Merchants one with another having their complices copartners in all or most of their trading and merchandizing affairs and such their trading and dealing each for other and in each others name that it might and oftentimes would fall out that when a man conceived that he had commenced a Suit against his adversary and whom he had dealt and traded with he should in conclusion find that he had commenced the same against one or more of his Judges that were to judge and determine his Cause or rather the same might fall out so to be and not be at all discovered Much more I could say to this purpose but I hasten to return to that which I principally intended to set forth in this Chapter namely to shew by some few Authors of very many that much of the Civil Law it self is of use and in force in all Admiralty Courts as well as any other Maritime Laws And as I last instanced in Vinius I shall in the next place instance in the Authors by him mentioned namely Benvenutus Straccha who writeth de mercaturâ sive mercatore de contractibus mercatorum de mandatis de sponsionibus de nautis navibus navigatione de navibus iterum iterumque de navigatione de conturbatoribus sive decoctoribus quomodo in causis mercatorum procedendum sit de adjecto Of Merchandizes and Merchants and of their Contracts Mandates Warrants and Bargains or promises of Mariners Ships and Navigation joyntly of Ships severally and of Navigation by it self of Bankrupts and failing Merchants in what manner Merchants Causes are to be proceeded in and of Factors or Substitutes c. which Book was printed and set forth within this last Century of years And I do earnestly desire those that hold the Civil Law useless in these affairs and in the Courts designed for determination of differences happening therein but to look into the before mentioned Book together with Grotius de jure Belli Pacis Gentilis Loccenius who are latter Writers being all easily to be had and they shall find the very Text of the Civil Law and Commentators thereon not only out of these before mentioned selected Titles but out of divers others cited and quoted for authority in all the several points the said Authors do handle or treat of which I hope will be sufficient to convince any judicious man and sufficiently perswade him that the Civil Law it self is of most exquisite use in all Admiralty Courts CHAP. XVI That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the Cognizance of the Admiralty
breach of a Law so general may be a cause of the breach of such league and amity or at least of the begetting of Letters of Reprizal on their part against our Merchants and owners of Ships which is Prima species belli by which way of their reparation the Subjects of this Nation are like to pay at least three fold for the damage done by such wicked and mischievous people and not by themselves But here an Objection will arise viz. that by the express words of a Statute of the Land made in the 15th year of the raign of Richard the 2. the Admiral is to have no Cognisance Power nor Jurisdiction of wreck of the Sea To which I answer that by wreck of the Sea in this Statute mentioned is as I conceive and under correction onely meant and intended such things as are cast out of the bowels of the Sea and by the waves thereof driven on shore and upon the reflux thereof left upon the Land wherein no man hath any property or to which no man can make any claim this is properly called wreck of the Sea which belongeth properly to the King and by his grant unto the Lord High Admiral But in case any Ship or other Vessel shall be wrecked at Sea or in any Port Haven or Creek or upon or near any Coast neither the Ship nor Vessel nor any of the Goods thereunto belonging howsoever found therein or found floating upon the water or driven on shore or dry land are wreck of Sea though the Ship be usually said to be a Ship wrecked and the Goods said to be wreck but indeed are bona sparsa ex naufragio Goods scattered and thrown over board through ship-wreck or fear or danger of ship-wreck wherein the owners of them have a just property and may make their claim thereunto at any time within a year and a day and ought to recover and have the same again by the Laws of the Sea and therefore hath that Law exactly set forth how and in what maner such as shall either by violence or by stealth or howsoever take and carry away or conceal any such Goods from the lawful owner and proprietor thereof ought to be punished and make satisfaction for such their offence committed against the Law And as that Law doth distinguish those things which be ex naufragio from wreck of the Sea as plainly it doth so doth it distinguish the offence of taking away such Goods at the very time of the shipwreck from the offence in some time after the same as is plain by the Laws before quoted in this Chapter But since the making of this Statute in regard of the differences which did arise and which did grow about such Goods whether the same were wreck of Sea which belonged unto the King or derelicts Ships or Goods forsaken and given over for lost or Flotson that which after a wreck was found floating upon the water and by no man claimed or Jetson that which was thrown over board to disburden and lighten the Ship for preservation thereof and of mens lives and the rest of the Goods or Lagon that which was found in the bottom of the Sea or any great river beneth the first bridges within the low water mark all which belonged to the Kings of England who have usually granted the same which belonged unto themselves unto the said Lords Admirals amongst the other things before mentioned as doubtless they may do the same being confirmed unto themselves by the Statute and unto their own use and the said Admirals have constantly had the same and the benefit thereof Another Title there is amongst the said collected Titles de Naviculariis seu naucleris by the Laws whereof it doth likewise appear that the Admiral hath Jurisdiction upon the Ports and Havens The first of them saith thus Nullam vim oportet naucleros sustinere delegatas species annonarias transferentes nec concussiones nec aliquod genus incommodi sed venientes ac remeantes omni securitate potiri decem librarum auri mulcta proponenda his qui eos inquietare tentaverint No force or violence or any manner of disturbance or hinderance shall be offered unto the Masters of Ships or Mariners which are appointed by their Prince to transport any Goods or Commodities for the publique use or benefit under the pain of ten pounds to be imposed upon such as shall adventure to molest or disquiet them Now I hope no man will say that this extendeth not to such force violence or molestation as shall be offered unto them upon any Port or Haven either before their setting sail to sea or in any Port or Haven of their discharge or in any Port or Haven they shall by storm or stresse of weather be driven into And this Priviledge saith Peckius is no small benefit unto them for they can neither be arrested nor deteyned nor compelled to pay any Custome or Tribute Quod privilegium quae praerogativa utilitas meherule modica non est etenim nec arestari ut dicunt nec detineri nec ad vectigalium solutionem compelli possunt which certainly sheweth that this Law extendeth to the Ports and Havens upon which all Arrests of Ships or other Vessels or Mariners are for the most part made and all compulsion to the payment of Tribute or Custome used or exercised If this be not enough take the last Law of the same Title and Peckius thereupon in these words Judices qui onusta navigia cum prosperior flatus invitat sub praetextu hyemis immorari permiserint unà cum municipibus corporatis ejusdem loci fortunarum propriarum feriantur dispendiis naucleri praeterea paenam deportationis accipiant si aliquid fraudis eos admisse fuerit revelatum Such Judges as shall permit or suffer such Ships or Vessels so laden with Commodities for the publique use and service of the Common-wealth having a good wind to stay or demore in any Port or Haven under the pretence of Winter shall together with the Burgers or chief of that place bear or pay the loss or damage thereby sustained And the Masters of those Ships which shall be found guilty of such offence or fraudulent in that way are to be punished with banishment Now no man will doubt but that this stay or demorage which is thus strictly to be lookt after by the Admiralty Judge under such a pain or penalty and so severely to be by him punished is such stay or demorage as is made in the Port or Haven and not upon the high Seas And Peckius saith in express words if they shall stay or demore in the Port or Stations for Ships at such time it is the office of the Judges by all wayes or means to drive them out or compel them to go on upon that Voyage they are designed Quinimo si tempore ad navigandum idoneo suspensâ navigatione in portu stationibúsve haererent Judicis erit officium omnibus
modis eos abigere And by the same Law all Ships and Vessels of what nature condition or quality soever they be and whosoever they be may be by the power and authority of the Admitalty seized on in any Port or Haven where they ride and be taken and employed upon any service of the King and are not to be excused One Title more of the Civil Law I shall instance in which treateth of things done upon the Ports and Havens and then return to some other Arguments out of our own Presidents at home and that is the Title of the Digests Nequid in flumine publico c. where the Praetor doth interdict Nequid in flumine publico ripáve ejus facias nequid in flumine publico ripáve ejus emittas quo statio itérve navigio deterius sit fiat The Praetor forbiddeth any thing to be done or to be cast forth into a publique River or upon the banks thereof which may either hinder the lying or riding of Ships there and this Edict extendeth directly to Rivers navigable and none other which are the Ports and Havens and those other parts of the same River through which Ships and other Vessels do sail to the place of their station or anchorage Hoc interdictum ad ea tantùm flumina publica pertinet quae sunt navigabilia ad caetera non pertinet Nor doth the Praetor here forbid any publique lawfull use of these publique Streams Ports or Havens but taketh a special care that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage anchorage and lying of Ships there Non autem omni quod in flumine publico ripáve fit coercet Praetor sed si quid fiat quo deterior statio navigatio fiat and the same Law setteth forth what is accounted to be a deteriorating or making worse of the said station anchorage riding or sailing of Ships Deterior statio item iter navigio fieri videtur si usus ejus corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur proinde sive derivetur aquâ ut exiguior facta minus sit navigabilis vel si dilatetur aut diffusa brevem aquam faciat vel contra sic coangustetur ut rapidius flumen faciat vel si quid aliud fiat quod navigationem incommodet difficiliorem faciat vel prorsus impediat interdicto locus erit The Station or Anchorage and also the passage for Ships doth seem to be deteriorated and made worse if the use thereof be corrupted or made more difficult less or more shallow and more seldome to be used or shall be wholly taken away Further or if the water shall be from thence drawn and so be made less and so less navigagable or if the banks shall be taken away and the River thereby made wider and caused to spread it self more in breadth whereby the water cometh to be made more shallow or on the contrary if it shall be encroached on and so streightned that the River passeth with more strength or violence or if any thing else be done which may disaccommodate Navigation or make the same more difficult or altogether hinder it this Edict shall take place against the same From which Law many Articles of the Inquisition taken at Quinborow and of the ancient French Articles translated into Latin by Roughton set forth to be inquirable in the Admiralty are plainly derived which Articles and likewise many Statutes which forbid the same offences were enacted to make the same more notorious to the people and are only in pursuance of this Law which is the fountain from whence they flow as their original Now lest some should still strive against the stream and offer to contend that this Edict of Nequid in flumine fiat c. that nothing shall be done in any navigable River or the Banks thereof which may hinder Navigation or the station or anchorage of Ships is meant only of the River which leadeth to the Port or Haven of discharge wherein Ships do oftentimes lye at Anchor before they can come further up to be discharged in the Port. I shall further clear this point by the Interdict mentioned by Labeo in the 17th Section of the same Law where the very word Port is used Nequid in mare inve littore quo portus statio iterve navigio deterius fiat After all this perhaps some may lauch further out into the deep and say that although these Laws collected out of the Civil Law are made use of in Maritime affairs beyond the Seas and do argue their Admiralties to have jurisdiction upon their Ports and Havens yet are they of no use here for the Admiralty of England is by the Common Law of England more restrained and extendeth not unto the Ports nor hath so large a power as forreign Admiralties have Since so many Nations as are named in the Libel subsequent unto the last Chapter of the first Book of this Maritime Dicaeologie have by the same so fully acknowledged the Regimen Government and Jurisdiction over the narrow Seas to belong to to the Admiralty of England and no other Admiralty as is plainly in the same set forth Let none of this Nation for shame say that the power and authority of this Court which extendeth as farre and further then the power of any other Admiralty Courts doth shall be nothing at or near home Nor let it for shame be said that our Admiralty to which they have not only ascribed but prescribed from so antient antiquity such superiority shall not afford unto Forreigners the same Justice other forreign Admiralties afford unto this Nation But for further satisfaction to such as will be further curious I shall proceed to make further proof of this point by Presidents out of our own Courts at home CHAP. XVII That by the Records of the Admiralty it appeareth that the Admiral had and hath power and jurisdiction upon the Ports and Havens THe Statute of the 28th of Hen. 8. cap. 15. directeth that the tryal of Traytors Pyrats Theeves Robbers Murderers and Confederaters upon the Sea or in any Haven River Creek or other place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction may by virtue of a Commission under the Great Seal directed unto the said Admiral or Admirals his or their Lieutenant or Lieutenants and three or four substantial persons be made and done according to the Common course of the Laws of the Land but taketh not away the Admirals power of tryal of the same offences by the course of the Civil Law as had been formerly used but leaveth him to proceed in causes of that nature either way as the proof the fact may be most fitly had or made And this Statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the Ports Havens and Creeks of the Sea
nostri Cantiae factis emergentibus graviter distrinxistis multipliciter inquietastis minus juste in ipsius Thomae dampnum non modicum gravamen ac contra statutum Domini Richardi nuper Regis Angliae post Conquestum secundi anno regni sui quinto decimo apud Westm editi Et eo praetextu dictus Thomas brevem nostrum de supersedendo datum apud Westm vicesimo septimo die Maii Anno Regni nostri tricesimo quinto vobis minus rite dirigi procuravit cujus quidem brevis nostri vigore vos in placito praedicto huc usque supersedistis in dispendium Ideo quibusdam certis de causis coram nobis in dicta Cancellaria nostra propositis nos in ea parte juste moventibus maxime pro eo quod dictum brevem nostrum de supersedendo ab eadem Curia Chancellariae nostrae improvide emanavit quia dictus Thomas pro rebus injuriis infra nostram Jurisdictionem Admiralitatis nostrae praedictae factis emergentlbus juste tractatus existit prout per quendam libellum coram vobis in dicta Curia nostra Admiralitatis nostrae praedictae oblatum responsiones dicti Thomae Lendsey ad positiones ejusdem ibidem virtute sui praestiti juramenti facti coram nobis in dictâ Cancellaria nostra ostensas plenius apparet Nos nolentes quòd per hujusmodl malitiam suggestionem cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur vobis mandamus quod in placito illo secundum legem consuetudinem dictae Curiae nostrae Admiralitatis nostrae Angliae praedictae procedatis partibus praedictis justitiae complementum in ea parte haberi ministrari faciatis cum effectu dicto brevi nostro aut aliqua alia prohibitione vobis inde in contrarium direct in aliquo non obstanti T. meipso apud Westm xix die Februarii Anno regni nostri tricesimo sexto Southwel Now it is plain this was an Action brought in the Admiralty for or concerning certain things and injuries done unto the Agent within the Jurisdiction of the Admiralty and the place which is here said to be within the Jurisdiction of the Admiralty is a Port or Haven set down in express words viz. the publick River of Thames within the ebbing and flowing of the Sea beyond London Bridge towards the Sea infra Jurisdictionem Admiralitatis Angliae super publico flumine Rivi Thamisiae infra fluxum et refluxum maris ultra pontem Civitatis London versus mare c. And this Action is likewise there said to be brought according to due form of law and custome of the Admiralty Court secundam debitam legis formam et consuetudinem Curiae nostrae Admiralitatis praedictae coram vobis in eâdem Curiâ implacitaverit And Lindsey for suggesting these injuries done upon the River of Thames to be done in the body of the County of Kent is said to have endeavoured fraudulently and maliciously to decline the cognizance of the Court of the Admiralty and unjustly to hinder the due course of Law there Cognitionem ejusdem Curiae nostrae Admiralitatis in eâ parte fraudulenter et malitiosè satagens declinare et debitum legis praecessum ibidem minus justè impedire And he is said unlawfully to have procured that Writ of Supersedeas to be directed to that Court breve nostrum de supersedendo vobis minus ritè dirigi procuravit And that Writ of Supersedeas is said to have gone out rashly and unadvisedly improvide emanavit because Lindsey was justly sued there for things and injuries done and arising within the Jurisdiction of the Admiralty pro rebus injuiis infra nostram jurisdictionem Admiralitatis nostrae praedictae factis et emergentibus juste tractatus extitit And it is there declared that the Cognizance of the Admiralty Court shall not by such malice and suggestion be wronged Nolentes quod per hujusmodi militiam et suggestionem cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur And the Court commanded to proceed according to law c. notwithstanding the Supersedeas or any other Prohibition directed to the contrary So by these Writs de procedendo out of the Chancery the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens and many more of the same nature might be instanced in which for brevity sake I omit CHAP. XIX That by Consultations out of the Courts of Common Law upon Prohibitions thence granted it is clear the Admiral hath Jurisdiction upon the Ports and Havens AS it is manifest by Writs de procedendo out of the Chancery upon Writs of Supersedeas thence granted that the Admiral hath jurisdiction upon the Ports and Havens so it is likewise evident by consultations out of the Common Law Courts at Westminster upon Prohibitions from thence upon false suggestions granted that the Admirals power and authority doth extend unto the cognizance of such causes as do from thence arise some of which I shall instance in Patrick Landy of Broheda in Ireland sued Richard Prideaux in the Admiralty Court pro quâ—â—quaginta les dicars pellium salsorum libelling that the said Richaâ—d Prideaux had infra fluxum refluxum maris received and taken into his hands and possession the Goods and Merchandises aforesaid and kept the same or otherwise had de eitfully alienated them or disposed of them ipsum Richardum Prideaux bona res merces c. in manus et possessionem sui ipsius Richardi infra fluxum et refluxum maris accepissâ— et sumpsisse eademq tunc penes se habâ—â—sse seu saltem eadem dolo malo alienasse Prideaux suggesteth that these fifty Dickers of Hides being in certain Warehouses at Padstow in the County of Cornwall infra corpus ejusdem Câ—nutâ—ûs were by George Syddenham and George Francis there sold and delivered unto him and by him received and kept and convetted to his own use and that he was unjustly vexed and sued in the Admiralty Court for the same contrary to the Statutes of 13 and 15 of R 2. and obtained a Prohibition But the matter being argued in Court and the Goods and Merchandises being found to have been in the possession of the said Prideaux within the Jurisdiction of the Admiralty viz. within the ebbing and flowing of the Sea 19 die Junii 38 Eliz. a Consultation was awarded which saith Quia tamen Justiciariis nostris apud Westmon per debitam Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impediriseu retardari non debeat The Consultation I shall here set down at large whereby both the Libel Suggestion Prohibition and Consultation will appear Elizabetha Dei gratiâ Angliae Franciae Hiberniae Regina fidei defensor c. venerabili viro Julio Caesari legum Doctori supremae Curiae Admiralitatis
either be built or bought at such rates or prizes as they then were so that they cannot be let for the same freight they then were For the other clause of Forreigners transporting their Wares and Merchandises in English Bottoms to pay no more Custome then the English whether the Customers have disused the same and so made it obsolete or not I know not But in case they have so done I know no warrant or necessary cause they have for so doing but for the last mentioned clause That Masters and owners of Ships shall provide that all the Merchants Wares and Merchandises shall be in good order saved and kept and that the Merchant which shall thereby or by delay or protracting of the Voyage without just cause longer then the time agreed by the Charter-party find himself aggrieved shall and may have his remedy in the Admiralty This is only in affirmance of the Law of that Court and was both before the making of that Act and hath been ever since used and practised in that Court and cannot by the disuse of it at the Common Law where it is not by that Act at all to be used be made obsolete but is by the practice and use of it where it is appointed to be used held continued and preserved from being made obsolete there Now no man can say but that this saving and keeping of Merchants Goods and Merchandises honestly and in good order is clearly meant of such saving and keeping them honestly and in good order as well whilest the Ship or Vessel remaineth in the Port or Harbour as when she cometh at high Sea and the delaying and protracting of time in taking of the Voyage with the next good wind according to the time agreed on by the Charter-party is most certainly a wrong or injury done upon the Port or Haven and the Jurisdiction of the Admiralty in causes of this nature upon the Ports and Havens by this Statute affirmed and confirmed And moreover the very breach of the Charter-party though made at land is by this Act affirmed to be cognoscible in the Admiralty which bringeth me in the very next place upon that point and particular wherewith I shall begin the next Book THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE THIRD BOOK CHAP. I. That all Differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof HAving been thus long upon the Ports and Havens it is now full time to begin to think of the discharging of the Ship and the delivery out of her lading to the Merchants to whom the same belongeth and for to come to the Caulking fitting trimming preparing and furnishing of her with Victual Tackle Apparel and furniture c. and manning her with Seamen and Mariners for some voyage and taking in of her lading from the Merchants or their Factors to be transported in the same In the effecting of all which several men of several Occupations Trades and imployments are severally to be contracted with as well at Land as upon the Port and Haven The validity and invalidity of all which contracts Sir Edward Coke would have to be Cognoscible Tryable and determinable in the Common Law Courts according to the Course of the Common Law and not in the Admiralty Court or according to the Proceedings Rules and Grounds of the Civil and Maritime Laws But I must here likewise adventure another dispute with him upon this point And first I shall offer some reasons to the contrary and then endevour an answer unto his Arguments And after both I shall set forth what Laws have been made for the determination of such differences as shall arise upon such contracts by which Laws certainly they are still to be determined And first I say that by Ships and Shipping this Nation is secured and preserved from foraign Invasions and by Trade and Commerce with foraign Nations not a little enriched and neither Shipping nor Trade can be upheld without the welfare of Merchants Owners of Ships Fitters Furnishers of them Mariners c. And this welfare of the Merchant Owner Fitter Furnisher and Mariner cannot be maintained without a settled Jurisdiction of Admiralty regulated according to the Civil and Maritime Laws setled amongst and known unto all Maritime Nations Because as it is well known all of them have dealings with such foraign Nations abroad and such foraign Nations with them at home who both expect and will have the same Justice meted to them that they measure unto others else will they both forbear to Trade with that Nation which shall deny them that Justice and likewise deny that Nation to Trade with them Now it is most certain that the municipal Laws of this Kingdom are so different from the Civil and Maritime Laws that if Maritime Causes be they either for freight wages damages done to Merchants Goods Building Tackling and furnishing of Ships c. should be here determined by the municipal Laws of this Nation and beyond the Seas by the Civil and Maritime Laws they must necessarily receive many of them a different many of them a clean contrary Judgment To instance briefly in some few of many If Mariners be hired to serve in a Ship for so much by the Moneth and serve divers Moneths in her and the Ship dieth at Sea and never maketh port here the Judgement of these two Laws will be clean contrary Likewise if a Ship be let to freight at a certain rate by the Moneth from Port to Port and so home again and the Ship in some of those Ports shall be imbarqued for some moneths here the Judgements of the two Laws both for freight and wages for those moneths will be contrary and upon other emergent causes from hence arising the Judgements will likewise be in some farre different and in other some clean contrary If the Merchants Wines Oyls c. be leaked out end for end the Judgements upon Action for the freight will be different if not contrary If the Merchants Goods shall be damnified by ill stowage or careless looking to or shall be purloyned or stoln the party not known or if known not able to make satisfaction here upon Action brought by the Owner for his freight and by the Mariner for his Wages the Judgements will differ very much If in a storm at Sea or in any Port or Haven the Ship and her lading be in danger and some Goods be cast over board for preservation of the rest by the Maritime Laws the remaining Goods are to be cast into an Avaridge to make satisfaction for the Goods cast over-board by which Law certain Rules as well concerning the danger the nature of the several Goods and the casting them over board as concerning the Avaridge it self to be made are prescribed which Rules are not known or owned by the municipal Laws of this Nation and therefore cannot that Law take cognizance thereof and consequently upon Action brought by the owners for freight
of Edward the Third and so did all Contracts and Covenants between Merchants and Masters and Owners of Ships for freight or the like A Master of a Ship lets a Ship to freight to one Merchant or more and they covenant and agree that they shall so lade that the Ship may be ready to depart by a certain day and they fail and have not fully laden by that time so that the Master loseth his time and oft-times his weathering this is a Contract or Covenant made at land yet hath the Common Law no law or rule that ever I could learn to judge the same by 1. Whether in this place the Master may contract with any other Merchant for a new freight or not 2. What lading boarded firmeth the Contract and holdeth it on and what freeth it 3. In case the Contract be held firme how many dayes after the terme is expired bring the Merchants within the compass of the Law to make satisfaction 4. What satisfaction is to be made and in what manner 5. How such satisfaction being made the same is to be divided between the Master and the Mariners And 6. How such an accident firmeth or altereth the Contract made between the Master and the Mariners If therefore in Sea affairs there were not Sea Laws and Rules to limit and regulate such general Contracts but that they should be held broken for defect of performance of every particular circumstance at the Common Law very many and great inconveniences would follow in cases of this nature because as the land is more firme then the sea so are not land businesses so subject unto various events as the sea affairs are but are at a farre more certainty for the performance of particular circumstances then the sea affairs possibly can be and yet it will not be denyed but that some Contracts made at land concerning Land businesses are against the Law some void by Law and some must be regulated by Law much more must such as concern Maritime affairs be regulated by such Laws as are most proper for them which are the Maritime Laws and if these Laws shall not be observed and followed in this Land and Nation as well as in all others the English Merchants and the Enhlish Mariner and Owners of Ships will be tyed to such inconveniences as the Merchants Mariners and Owners of Ships of no other Nation are to their extraordinary disadvantage but this is but a digression which hath been spoken of more at large elsewhere and therefore we will return to the matter As the 20th Judgement of Oleron is set down for a guide and direction of the Admiral and Judges of the Admiralty in the particular Contracts before mentioned therein between Masters of Ships and Mariners so doth the 22. Judgement set down a rule to guide and direct them in the Judgement of Contracts and Covenants made between Merchants and Mariners and Owners of Ships in the case above specified which is in some particulars of that case plain enough yet in all it cannot be perfectly understood but by such Civilians as are very well verst in other both ancienter and subsequent Authors who have wrote of the Maritime Laws the words of this Judgement I shall here set down Vng Mastre frette sa nef a ung Merchant est devise entre eux im's ung terme pour chargier la nef les Mariners par le space de xv jours ou de plus oultre aucune foiz en pert le Maistre son fret sa mession par default dung Merchant le Marchant est tenu alamender in celle amende que sera faitte les Mariners auront le quart le Maistre les trois parties par la raison quil trouve les costes cest le Judgement en ce cas This Judgement is without question a plain direction to the Admiral and Judges of the Admiralty what to determine in some of the particulars above mentioned upon a Contract made at Land for freight of a Ship which serveth sufficiently for my purpose to prove that the Admiral and Judges of the Admiralty had both before and in Edward the 3. time who in the twelfth year of his raign established these Laws Cognizance of Contracts made at Land between Merchants and Mariners and Owners of Ships for freight And to this Judgement which sheweth what is to be determined in case of freight where the Merchant is in fault or delay I shall adde and here set down one Judgement more which sheweth what is to be determined when the Mariner or any of the Owners are in default or delay As if a Merchant do take to freight by Contract or Covenant any Ship lying in any Port or Haven and it falleth out that the Ship is stopped or stayed through deâ—ault of the Mariner or any of his Owners and how and in what manner this Contract or Covenant holdeth or holdeth not and these are the words of the Judgement Item ordonne est estably pour loy custume de la mer que se ung merchant a frette une nef eu quelque Port que se soit a viengne que le nef soit empeschee pour default du maistre ou du Seigneur a celliu a qui la nef est le merchant qui avoit frette la nef puet requirra le maistre entelle maniere je te requier que tu mettes mes biens ou mes denrrees en la nef le maistre dit que la nef est empeschee de par aucun Seigneur le Merchant qui avoit frette la nef se puet partir du covenant affrettment du dit maistre affretter a son choys ailleurs sans ce que soit tenu audit maistre de rien a mender se le Merchant ne trouve frett il puet bien demander au Maistre ses dommages pour la raison quil la mye tenuz ses Convenants affrement dessus ditz le Maistre lui doit amender cest le Judgement en ce cas Several other Judgements there be which when a Ship is so taken to freight by any Merchant do set forth several duties to be performed both on the Merchants part and likewise on the Masters and Mariners parts which I shall not here set down because it is not my drift or purpose to shew what the Laws of the Seas are but onely to shew that by the Laws of Oleron established in Edward the 3. time Contracts for freight of Ships and Mariners wages were cognoscible in the Admiralty Court and these Laws are left as guides and rules for the Admirals and Judges of the Admiralty to determine such causes by Hence it is plain to my understanding that the Statute of Richard the 2. though taken in the most generall construction without reference or relation to the Petition which I cannot by any means be drawn or perswaded to allow yet being restrain'd with this restriction Solonc
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
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