c. de qua idem Johannes Gethin ad tunc ibidem instanter obiit I shall instance only in one notorious Pyracy more committed upon the same Navigable River of Severn upon which were indicted William Holborne of Southold in the County of Suffolk Gentleman Captain of a Man of Warre called the Hopewell of Weymouth Melcombe Regis Edward Wright of Berry in the same County Gentleman otherwise called Captain Careless Captain of a French Man of Warre of the burthen of fourty Tuns Henry Ward of Barstable in the County of Devon Captain of the Ship the Mary of Stonehouse William Sweet of Stonehouse in the County of Devon Mariner and 12 more by name besides others in general for that upon the second day of August c. they being in the said three Ships furnished in a warlike manner between the Maritime places called Wormeshead and Oxmuch in the River of Severn within the Maritime Jurisdiction of the Admiralty of England being pyratically and feloniously gathered together did by force of arms viz. with Swords Guns c. in the three said Robbing Ships pyratically and feloniously appointed between the said Wormshead and Oxmuch within the said Jurisdiction the day and year aforesaid pyratically and feloniously set upon climb up into break and enter into 4 Merchants Ships called the Margaret of Caermarthen the little Matthew of Caermarthen the Tasker of Milford and the Margaret of Burrey laden with divers Goods Wares and Merchandizes at the Fair of St. James then lately held at Bristol whilst they were sailing from the Port of Bristol towards the Port of Caermarthen and did by force of arms assault and make Affray upon beat and evil intreat and put in fear of their lives James Joanes Thomas Richards William Tasker and Griffith Jones Governors and Masters of the said Ships under God and divers other persons Mariners of the said Ships unto the said Pyrats and Robbers unknown being then and there the said day and year in the said Merchants Ships in the peace of God and their said Soveraign the Queen and three Packs of Woollen and Linnen Cloth Dowlas Cress-cloth Holland Cambricks and Lockerams to the value of three hundred pounds of English money two great Chests of Velvets Taffaties and other Goods to the value of two hundred pounds one Iron Chest to the value of twelve pounds one pack of fine Dowlas Lockerams Cress-clothes Hollands Cambricks Silk Lace and other Goods to the value of one hundred and sixty pounds of like English money one great Chest of Millian Fustians and Callicoes and other Merchandizes to the value of sixty pounds and a Chest of large Hats Mantles and Clothes to the value of thirty pounds of like English money of the Goods and Chattels of Griffith Atkins and Henry Philips of Carmarthen Merchants then and there the day and year aforesaid between the said Wormsbead and Oxmuch upon the said navigable River within the Jurisdiction of the Admiralty aforesaid being and remaining in the Custody and possession of the aforesaid James Joanes Thomas Richards William Tasker and Richard Joans Masters under God of the Ships the Margaret of Caermarthen the little Matthew of Carmarthen the Tasker of Milford and the Margaret of Burry out of the said Ships from the said Masters and out of their custody and possession did then and there pyratically feloniously and violently take steal spoyl and carry away contary to the peace of the Soveraign Lady the Queen her Crown and dignity and contrary to the form of divers Statutes to the contrary made and provided The Indictment it self runneth in the same forme with those before mentioned viz. Inquiratur pro Dominâ Reginâ si Willielmus Holbourne nuper de Southould in Comitatu Suffolciae Gen. nuper Capitaneus navis militaris the Hopewell Portus de Weymouth Melcombe Regis Edvardus Wright nuper de Berrie in Comitatu Suffolciae Gen. alias dictus Captain Carelesse navis Gallicae militariter instructae oneris quadraginta doliorum vel Circiter Henricus Ward nuper de Barstable in Comitatu Devon nuper Capitaneus naviculae vocat the Mary de Stonehouse Willielmus Sweet nuper de Stonehouse in Comitatu Devon Marinarius nuper proprietarius dictae naviculae vocat the Mary c. ac diversi alii pyratae malefactores incogniti secundo die mensis Augusti anno Regni c. in praedictis tribus navibus militaliter instructis tunc c. as in fully set down in English Now to shew further that the Cognizance of all matters happening upon these Ports and Havens did and doth belong unto the Jurisdiction of the Admiralty properly and entirely and to no other Jurisdiction I shall instance in one Record of many whereby it will appear that when the City of London who by their Charter have more power and priviledge upon the River of Thames then any Judicatory whatsoever except the Admiralty have endeavoured to take cognizance of matters of this nature the same have been demanded from them by the Admiralty Court And that Record sheweth that one John Seaward being committed to the Counter in Woodstreet London for suspision of drowning a Boy in the River of Thames The Sheriff of the City of London was commanded by the Admiralty to bring the said Seaward before the said Court of the Admiralty upon the 15th of March in the 30th year of Queen Elizabeth which Precept was returned by Thomas Dixon on the behalf of the Sheriff of London together with the said John Seaward accordingly and the Precept and return thereof run in these words Carolus Dominus Howarde Baro de Effingham praeclari ordinis Garterii Miles magnus Admirallus Angliae Hiberniae Walliae ac dominiorum insularum earundem villae Callisiae marchiarum ejusdem Normanniae Gasconiae Aquitaniae classisque et marium dictorum regnorum Angliae et Hiberniae praefectus generalis ac socii nostri Justiciarii ad omnes et singulas proditiones c. ut in priori Praecepto in hoc capite citato Vicecomitibus London nec non Williemo Blunt custodi Computator Anglice The Counter in vico dicto Woodstreet seu ejus deputato cuicunque salutem Ex parte prefatae Dom. nostrae Reginae tibi praecipimus et mandamus quotenus non ommitt propter aliquam libertatem seu Franchesiam quin sub poenâ centum librarum de bonis vestris quibus cunque ad opus et usum dictae Dom. nostrae Reginae et nostrorum levand Wherry-man super suspitionem submersionis pueri cujusdam in rivo Thamiseos infra Jurisdictionem praed apud Southwark in praetorio ibidem die Veneris Proximo quindecimo die mensis instantis Martii circa horam nonam in aurora unà cum causis ejus detentionis si quae coram vobis remanent his respondend quae sibi ex Parte praefatae Dom. nostrae Reginae cum venerit objicientur hoc â—illatenus omittatis sub poena praedicta periculo incumbenti Datum Londini
juste in ipsius Edmundi dispendium non modicum gravamen unde per partem praedicti Edmundi sentientis se ex praemissis sententiis expensarum condemnatione indebite pergravari ab eisdem sententia expensarum condemnatione ad nos nostram audientiam est appellatum sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum plenius poterit apparere idem Edmundus nobis supplicavit ut in dicta causa appellationis suis procedere sibi justitiam in hac parte facere digneremur Nos supplicationi praedictae annuentes vobis c. quorum alterum vestrum vos praefatum Episcopum Thomam Field c. I shall instance only in one more one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston as Master and Owner of half of the said Vessel and the said Cause was proceeded in before Henry Bole Lieutenant-General of the Admiralty Court which Cause was from him appealed unto the King in Chancery and a Commission in the eleaventh year of Henry the fourth being but nine years after the making the said Statute and the Cause in the first instance must needs have been begun some good space of time before that The Commission of Appeal runneth thus Rex dilectis fidelibus suis Richardo Rochefort Chivaler ' Magistro Henrico Ware Magistro Richardo Brinkley Magistro Thomae Field salutem Sciatis quod â—um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti quinque librarum praeâ—â—â—â—â—ffrectamenti medietatis cujusdam navis vocat ' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom possessorem ejusdem medietatis aliis pertinen partem actricem prosequentem ex parte una Thomam Jonesson Thomam Rafin de villa praedicta partem ream defendentem ex parte altera quae coram Henrico Bole locum tenen general curiae Admirallitatis Angliae c. Now for the three Records instanced in by Sir Edward Coke and brought out of the Courts of the Common Law against the Admirals Jurisdiction upon the Ports and Havens and in matters of contracts upon businesses to be agitated at sea I have shewed four out of the Chancery which was then as by his own setting forth appeareth the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law for thus he saith Sundry Towns of the West part praying remedy against the Officers of the Admiralty for holding plea of matters determinable by the Common Law which they pray may be revoked the Kings Answer was The Chancellor by the advice of the Justices upon hearing of the matter shall remit the matter to the Common Law and grant a Prohibition And as these Records are of farre greater antiquity then those by him instanced in so are they farre more contemporary with the said Statutes and therefore by his own rule of farre greater authority Besides these three Records by him instanced in do but de facto set forth what was done and that but as those three several times in those Courts sed quo jure non arguitur But it may be very well apprehended that in 27 years after the making of the last of those Statutes and 37 after the making of the first of them the Petitions upon which those Statutes were grounded and from whence they must receive a right construction began to be forgotten but after the same were revived and brought again into remembrance and Admiralty Court had no more such interruptions but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former when the said Petitions whereunto the Answers have or ought to have reference were as it were again quite out of remembrance For if from the time of the making of those Statutes untill the time of the last of the Judgments instanced in all the particular Actions that have been brought and â—â—â—tences that have been given in the Admiralty for things done upon the Ports and Havens against the cognizance of which causes one of these Judgements is brought and all the Actions brought and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea against which the other two Judgments are brought should be set forth I might boldly say there would be many hundreds for one and I might very well and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong nay by those Records of the Admiralty and the constant the continued and the general practice and usage of taking cognizance of Causes of this nature it plainly appeareth that the Jurisdiction thereof anciently did and still doth belong unto that Court for in land businesses whose land or soil shall we judge that to be but his who hath generally continuedly and constantly reapt the Crop and not his who hath at some times come by and taken up a a Shock or two and so done as much as he which reapt where he never sowed which he must needs do which is neither verst nor skilled in jure scripto in that Law which is positively set down for that purpose but shall judge thereof at randam and will so do because others have done so before him nor under correction can it be held to be any good rule of Justice to judge by president for if one man or more have judged unjustly and not according to law I would not have it said that he which knoweth the law is notwithstanding bound to judge as the other did because he hath a president for it But I shall pass them presidents over and as I have in the second book of this Treatise shewed you that even by Records out of the Chancery and Common Law things done upon Ports and Havens are cognizable in the Admiralty Court so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated or to be agitated at sea CHAP. VIII That by other Records out of the Chancery Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court ONe Lodowick Sutton sued John Pettite of Abville in Picardy Merchant Andrew Lord and Daniel Lancel in the Admiralty Court upon several Maritime Contracts made between them in the City of London the said Pettite Lord and Lancel upon their complaint made in Chancery that they were sued in the Admiralty
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
any of that nature should be elsewhere in any other Court meddled with I shall only take two or three Articles together which appoint that at all Admiralty Sessions enquiries shall be made of all such as shall implead or sue any man in any other Court then the Admiralty for any matters or things there cognoscible or determinable either by the foregoing Laws or Articles or otherwise And those are the 51 52 and 53 Articles of this Inquisition which follow in these words Item soit enquis de tous ceulx q' empleâ—â—ent aueun home a la commune loy de la tre ' de chose appurtenant dancien droit a la loy marine Item soit enquis de tous juges qui 〈◊〉 et devant eulz aucuns plets apappurtenants par droiture a la court de ladmiralâ—â— Item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de seâ— mandements These Articles are not only for the enquiry of all such as have impleaded any man at the Common Law of the land for any thing appertaining of ancient right unto the Maritime Law but likewise of all such as have held before them any pleas of right belonging unto the Court of the Admiralty according to the Laws of Oleron and the several Articles of this Inquisition both settled and confirmed in the time of his Reign and to enquire of all such likewise which have at any time disturbed the Lieutenants of the Admiralty or any other of the Ministers of the Court in the due execution of their Mandats and Warrants I might here proceed further to shew that by that other Inquisition translated out of old French into Latine by Roughton and set down in the before mentioned black book of the Admiralty it likewise plainly appeareth that Contracts made at land concerning Maritime affairs were then or before that time tryable in the Admiralty Court For whether that Inquisition was taken in Edward the Third's time or before doth not appear the same bearing no date and in that regard likely to be farre more ancient but because the same is in most particulars agreeable with this Inquisition and in regard I have touched upon it already in the chapter where I have argued the self same matter from the Laws of Oleron I shall here pass it over and passe unto the other Statutes which are instanced in against the cognizance of matters of this nature in the Admiralty Court CHAP. V. The Argument deduced out of the Statute of the 15 of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered I Am now come unto the second Statute urged by Sir Edward Coke against the Jurisdiction of the Admiralty which howsoever he took to be plain for his purpose yet well weighed and rightly considered from the original in my judgment maketh clearly against it and confirms the construction I have made of the Statute of the 〈◊〉 of Ric. 2. in the second chapter of this Book I shall first set down the Statute it self as he rendreth it then as Poulton translateth it and lastly as the original truely hath it which is worthy the observing and then come to set forth the true meaning and sence thereof according to my best understanding And first it is by him thus rendred That the Court of the Admiral hath no manner of Cognizance Power nor Jurisdiction of any manner of Contract Plea or Querele or of any other thing done rising within the Bodies of the Counties either by Land or by Water and also of wreck of the Sea But all such manner of Contracts Pleas and Quereles and all other things rising within the bodies of the Counties either by Land or by Water as is aforesaid and also wreck of the Sea shall be tryed termined discussed and remedied by the Laws of the Land and not before nor by the Admiral nor his Lieutenant in no manner Nevertheless of the death a man and of mayme done in great Ships being and hovering in the main stream in the great Rivers onely beneath the points of the same Rivers and in no other place of the same Rivers the Admirall shall have Cognizance In the ancient Statutes which were made by way of Petition and answer Poulton in his Collection of Statutes generally setteth forth the Petition by way of Preface to the body of the Statute which he deduceth out of the answer which in all Statutes which concern not one Jurisdiction and another he hath done plainly and well enough in the most and yet not in all The same method and order he hath not observed in the Translation of these before mentioned Statutes which concern the Jurisdiction of the Admiralty wherein he or some other whom he hath followed hath not dealt so fairly in my judgement as he hath done in the translating and collecting of the rest as may well be observed by comparing them with the Originals he rendreth this Statute thus At the great and grievous complaint of all the Commons made to our Lord the King in this present Parliament for that the Admirals and their Deputies do incroach to them divers Jurisdictions Franchises and many other profits pertaining to our Lord the King and to other Lords Cities and Burroughs besides those they were wont or ought to have of right to the great oppression and impoverishment of all the Commons of the Land and hinderance and loss of the Kings profits and of many other Lords Cities and Burroughs through the Realm It is Declared Ordained and established that of all manner of Contracts Pleas and Quarrels and of all other things done rising within the bodies of Counties as well by land as by water and also wreck of the sea the Admirals Court shall have no manner of cognisance power nor jurisdiction but all such manner of Contracts Pleas and Quarells and other things rising within the bodies of Counties as well by land as by water as before and also wreck of the sea shall be tryed determined discussed and remedied by the Laws of the land and not before nor by the Admiral nor by his Lieutenant in any wise nevertheless of the death of a man and of a maim done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognisance and also to arrest Ships in the great Flotes for the great Voyages of the King and of the Realm saving alwayes to the King all manner of forfeitures and profits thereof coming and he shall also have jurisdiction upon the said Flotes during the said Voyages only saving alwayes to the Lords Cities and Boroughs their Liberties and Franchises As for the exposition of this Statute made by Sir Edward Coke I shall onlâ— leave