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
Court and hinder the just and due proceedings thereof suggested before the Kings Justices at Westminster that he and one William Cowick his Proctor were by the Officers of that Court cited to appear in the said Court in the said cause pretending the same to be a cause cognoscible before the said Justices and not in the Admiralty Court and obtained a Prohibition after which the Libel in the said cause being exhibited before the said Justices as likewise appeareth by the said Consultation and it being thereby plain that the same was for a Contract made concerning Sea business it is said that the Prohibition issued out unadvisedly praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram Justiciariis apud Westm improvidè emanavit and concludeth with a nolumus quod per hujusmodi malitiam suggest cognitio in praefata Curia nostra Admirallitatis taliter derogetur That the cognizance of that Court shall not be hindred by such malice or suggestion and so the cause is thither remitted by consultation bearing date the 11th of July in the 24th year of the said Henry the eighth T. R. Norwich apud Westm which Consultation was directed to Henry Duke of Richmond and Sommerset and Earl of Nottingham high Admiral of England Ireland Gascoine Normain and Aquitaine and to Arthur Plantaginet Knight Viscount Lisle the said Dukes Vice-Admiral or his Lieutenant and also to John Tregonwell Dr. of Laws Official Commissary or Judge of the High Court of the Admiralty and to Thomas Bagard Doctor of Laws his Surrogate in the said Court See the Consultation it self as it follows Henricus Octavus Dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae dilecto fideli nostro Henrico Duci Richmond Somerset Comiti Nottingham magno Admirallo Angliae Walliae Hiberniae Gasconiae Normaniae Aquitaniae Nec non Arthuro Plantaginet Militi Vicecom Lisle praedicti Ducis Vice-Admirallo sive ejus locum tenenti ac etiam Magistro Johanni Tregon-well legum Dostori in Curiâ principali Admiralitatis Angliae Officiali sive Commissario Magistro Thomae Bagard legum Doctori dicti venerabilis viri Johannis in dicta Curia Admiralitatis Surrogato sufficienter legitimè Deputato eorumque cuilibet salutem Ex parte vestra nobis est intimatum quod cum quidam Robertus Baker nuper de London Vintner in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Johannem Maynard de super quodam contractu de re facta super mare quidam tamen Johannes Gilbert Armiger in hac parte cognitionem vestram fraudulenter malitiosè satagens declinare debitum legis processum in eadem Curia nostra in parte illa impedire ac suggerens in Curia nostra coram Justiciariis nostris apud Westm ipsum Johannem Gilbert ac quendam Willielmum Cowicke procuratorem suum per vos in praedicto Curia Admirallitatis Coram vobis super praedicto placito praetenseundem Johannem Gilbert per inordinatam fatigationem in eadem Curia Admirallitatis coram vobis in dies trahi in placitum per ministros vestros ea occasione citari coram vobis comparere adinde respondere faciendum totis viribus sententiam versus ipsos Johannem Gilbert Willielmum Cowicke pro praemissis fulminare proponend placitum quod inde per legem terrae in praedicta Curia nostra coram Justiticiariis nostris apud Westm non coram vobis in dicta Curia nostra Admirallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ipsius Johannis Gilbert grave dampnum ac nostri contempt coronaeque nostrae Regiae exhaeredationis periculum ac contra legem cons regni nostri Angliae Breve nostrum de prohibitione minus rite vobis dirigi procuravit cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae Curiae nostrae Admirallitatis laesionem quia praedictum Breve nostrum de prohibitione à dicta Curia nostra coram Justiciariis nostris apud Westm nuper inde improvide emanavit prout per quendam libellum in dicta Curia nostra coram Justiciariis nostris apud Westm post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ac quia nolumus quod per hujusmodi malitiam suggestionem cognitio in praefata Curia nostra Admirallitatis taliter derogetur ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant T. R. Norwich apud Westm xi die Julii Anno Regni nostri vicesimo quarto One Richard Bell likewise sued one John Crayne in the Admiralty Court for that the said John did at Dartmouth within the Maritime Jurisdiction of the Admiralty promise and bind himself to exonerate and keep indemnifyed the said Richard for taking or restoring of a certain Ship called the Mary Fortune and the apparel of the same and the Goods and Merchandizes in her at the time of the taking of her and that he the said Richard at the time of the taking of the said Ship together with John Bell and others was present against one John Destyron and other Spaniards affirming themselves to be the Masters and Owners thereof And the said John Crane not setting forth what this Contract made at Dartmouth was for but barely suggesting that he was sued upon a Contract made at Dartmouth within the body of the County of Devon and not within the Jurisdiction of the Admiralty obtained a Prohibition But upon complaint of the said Bell setting forth from whence the Contract arose and for what the same was it was held to be within the Maritime Jurisdiction of the Admiralty and a Consultation was awarded by which it is said to be in ipsius Richardi Bell grave damnum legis libertatisque Admiralli laesionem manifestam to the grievous damage of the said Richard and manifest wrong of the law and liberty of the Admiral and further saith Et quia cognitionem Jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus vobis jam significamus c. And because we will not have the Cognizance and Jurisdiction of the Admiralty in Maritime caues to be hindered by such crafty assertions we therefore c. as in the former Consulattion I shall likewise set down this Consultation which was in the time of Henry the Eighth and so come to shew you some of those which were in the time of Queen Elizabeth Henricus octavus Dei gratiâ Angliae Franciae Hiberniae Rex fidei defensor in terra Ecclesiae Anglicanae Hiberniae supremum caput Nobili prae potenti viro Domino Johanni Vicecomiti Lysle Baroni de Malpas Somerey praeclari ordinis Garteri Militi Domino Basset Tyasse Magno Admirallo Angliae Hiberniae Walliae Villae
will hereafter be disputed in which dispute the antiquity of the Admiralty will be further discovered CHAP. II. That these high Officers and Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governors of Land-Provinces had over them and had their Maritime Lawes for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs THe next thing I observe is that the preceding Officers which this prout hactenus led me unto are most of them rendred unto us under the titles of Custodes As Custos maritimarum partium Custos maris maritimarum partium Custos Portuum cum costrâ maris Custos marinae Custos portuum marinae most of which Officers so styled which I had formerly met with amongst the Records of the Tower I met with again in Mr. Seldens book de Dominio maris quoted out of the same Records who from thence and some other good and sound reasons there exprest inferreth Quod apertè constat Reges Angliae praefectos constituere solitos qui mare Anglicanam custodirent seu ejus custodes essent sive praefecti non aliter ac Provinciae cujuscunque terrestris They were to be keepers of the Seas in such wise as others were of every Land Province Primò autem saith he mari maritimae marinae idque ubi his vocibus non regio solùm maritima sed ipse etiam Oceanus Britannicus planè continetur quod non semper fieri fatemur praeficiebantur qui tuerentur custodirent nomine custodum ut interdum navium frequentius verò maritimae sensu jam dicto To which he addeth another further reason and saith that primaria Commitiorum Parliaementariorum ratio anno Regis Edvardi tertii decimo quarto est de treter sur la guard de la pees de la terre de la marche d' escoce de la mierâ— ut tractaretur de custodiâ pacis terrae limitis Scotici maris from whence he observeth Quod non alia tutelae maris quà m telluris seu terrestris provinciae habebatur ratio And he gathereth further ex tabulis ejusdem regis Parliamentariis seu consultationibus ordinum regni as he saith held upon the same matter ut dum de la saufegard de la terre seu custodia seu tutela telluris sive insulae de la saufegard de la mere seu de custodiâ maris consilium pariter ineunt tam hujus dominium quam illius ad regem suum pertinere à majoribus edocti manifestò testari videantur For saith he non de classe solùm agaunt quâ hostibus per mare resisteretur sed de ipso mari tuendo aequè ac de tutelâ insulae adeoque de jure in utroque regis avito defendendo where he maketh two distinct Dominions of the Land and Sea and the ancient right of either of them to be defended and kept and there sets forth divers who had the defending and keeping thereof in the second of Richard the Second and in the time of the three Henries succeeding him with many other things there worth noting and observing He observes further in the same Chapter the common and received acceptance of this terme Custos amongst the English in other Governments both of this Land and other Islands and even at that time when the name or terme of Custos maris was most frequently used and he instanceth in the Governours of Ireland in the time of King John and Edward the Third who were then severally styled Custos Hiberniae He instanceth likewise in John Duke of Bedford and Humphry Duke of Glocester who had one at one time and another at another the Government of England when King Henry the Fifth was absent in France who were called Custodes Angliae quod saith he tum in historiis tum in tabulis publicis saepissimè occurrit And likewise in Arthur Prince of Wales who was made Custos Angliae when King Henry the Seventh was gone out of England And in Peter Gaveston who was Custos Angliae Edward the Second being busied in France And also the in Governours of the Isles of Jersey and Gernsey who of antient times were Custodes of those Islands as they are now called Gubernatores Custodes and Capitanei And seeing it is so how can it be saith he that we should not think that our Ancestors used under the same notion or terme of Custos custodia the Custodes Maris and the Custodes Insulae c. Quod cum ita sit quomodo fieri potest ut non eadem notione vocabuli Custodis Custodiae majores nostros usos esse existimemus in Custodis Custodiae maris nomine quâ in Custodia Insulae caeteris jam dictis dignitatibus uti solebant sc in hisce omnibus dominium imperiumque singulare praeficientis apertissimè ita signatur includiturque adeo ut non magis authoritas in personam quae praeficitur quam rei custodiendae dominium nomine hoc planè innuatur If then there were Custodes Maris Marinae Portuum Maritimarum partium and that in such manner as of a Land Prince non aliter ac provinciae cujuscunque terrestris Then will it necessarily follow that if a Prince that ever was civilized by the dominion and rule of a Civil Governor or Governors for by such means and no other are all Nations Princes Islands and the like become civilized and ordered could not so continue civilized and ordered without Rules and Laws for every mans demeanour to be guided by That the Seas having anciently been used for Maritime affairs for free and peaceable Traffique and Commerce one Nation with another which be friends at unity and in concord and for Martial Fleets and Navies for the defence of every Kingdom against an Enemy And so antiently under the dominion of Civil Princes as under their Dominion and Government of a Civil Land Province must necessarily have had settled and known Laws suited and fitted for such their Dominion and Government which could be no other then the Maritime Laws so agreeable unto Sea-affairs and so commonly and antiently accepted and agreed unto by most Nations and Kingdomes which have had such free Traffique and peaceable Commerce upon and by them one with another to guide and direct these Custodes in the ministring of Justice in Sea-businesses as well as the Governors of Land Provinces have had their Land Laws for the ministring Justice in Land-affairs Hence Spelman in his Glossarie having reckoned up all the Admirals from the eighth year of Henry the Third unto the 16th year of King James saith Nos de munere caduco aut extraordinario non agimus at de summo stationarioque magistratu qui universae marinae reipublicae praeest suoqueâ—oro amplissima jurisdictione tam in causis civilibus
the other If not so yet let no man say that the two famous antient Universities of the Land wherein there be so many Colleges and houses of antient foundation in which have been by the Founders themselves so many Fellow-Ships Scholar-ships and places founded settled and employed properly and solely for Students in the Civil and Maritime Laws or the Laws proper and necessarily usefull for Navigation and Maritime affairs being so scattered or I will rather say decently as flowers strewed and disperst through the whole body of the Civil Law the subject whereon those Students were to spend their daily labour pains and employment could possibly be long ignorant of those Laws that these so many forenamed nations had so long and so well known What if known by this Nation was there yet any use made of them in it That they were known by what hath been said or considered cetainly I cannot have so ill a conceipt of my Country men the antient Inhabitants of this Nation as to think them so long ignorant and unskilfull of those antient Laws of the Sea and Laws so necessary for maritime affairs as some would make them to be much less will I think the Government of this Nation to be without so good order and justice in any particular as not to settle these Laws once known for the government of its maritime matters nor will I imagine the maritime men to be so dull or stupid as not gladly to embrace the settlement of such Laws as tended so much to their quiet and advance of their profit being to trade and commerce with such as used in this particular no other Laws but these Again shall we say that so many Nations some so remote and some so near home as France but over against us and Scotland even within the same Island all governed by the Civil Laws or Municipal Laws thence derived and by them regulated and guided as the Sea Laws are and keep the pathes and very footsteps thereof in their proceedings as the Sea Laws do have with so much eagerness pursued and sought for these Sea Laws and with so much chearfulness embraced and continued them and that this Nation that is invested in a Law particular and municipal which doth in no wise so much as challenge or claim any derivation from or dependency of the Civil Law but is altogether different and disagreeable thereunto in its proceedings and oftentimes in its determinations and hath no foundation or grounds whereon the dicisions of sea-controversies can be built should without the knowledge and practise of these Civil and Maritime Laws deal and trade with such as do live under them and are guided by them surely no so many inconveniences distractions distempers by reason of the variousness of two Laws both in proceedings oftentimes in determinations would long agone have destroyed all our Commerce and Traffique with these other Nations and so consequently have dispoiled us of our Navigation and Shipping the principal safeguard of this Land Nay I am so farre from doubting the acceptance of these Maritime and Sea Laws here in England as well as in other Nations that I am confident they were here settled before they were settled in divers of those Nations before mentioned For I must not so much as think or have the least conceipt that England ever borrowed any thing at all from those Articles which are cognoscible in the Admiralty of Scotland But I may very well believe that those Articles of Scotland were borrowed from some of the three antient Records of the Admiralty of England For so are all things by the Admiral Judge or Lieutenant decreed and registred by an Ordinance of Richard the First made at Grimsby styled and said to be which are with very many other antient things comprised in the black Book of the Admiralty which are therein ingrossed in an antient Character upon Vellam one of which immediately followeth the antient Statutes of the Admiralty and is there set down in old French as the said Statutes are and conteineth 38 Articles A second is a Latin Copy translated out of another antient French Record by Roughton and in an antient Character in the same manner inserted into the same book and containeth 52 Articles The third is the Inquisition taken at Quinborough the 2. of April in the 49th year of the Reign of Edward the Third at which time and to which place he caused several maritime and seafaring and sea-trading men of the best judgement and knowledge in sea-affairs of most of the maritime parts of England to be summoned and there before W. Nevel Admiral of the North Philip Courtney then Admiral of the West and William Lord Latimer Chamberlain of England and Warden of the Cinque-Ports to meet together and consider of all such points and matters as had antiently and usually been observable inquirable and punishable in the Admiralty upon which inquisition 81 Articles were concluded on which are likewise ingrossed they being more particular than the former in old French in the said antient black Book of the Admiralty But these as the Scottish Articles do concern only matters to be proceeded against criminally and not matters of Trade Traffique and Commerce and damages susteined at Sea or in Ports havens c. whereof I shall come to treat in the second Book yet do these several Records in several Articles set forth in what manner such as shall sue or implead any Merchant Mariner or seafaring man for any Contract maritime whether made by Charter-party or otherwise or for any thing whatsoever done of or concerning any Ship or other Vessel in any other Court then the Admiral shall be proceeded against as I shall more particularly hereafter set forth But my chiefest reason that the Civil and Maritime Law-Courts were here settled in England before they were settled in divers of those other Nations is for that this Nation hath had the Dominion over the British Seas and their High-Admirals their Jurisdiction over those Maritime Affairs which fell sub isto regimine dominio so antiently as that in Edward the Firsts time the same was acknowledged by very many other Nations to have been then beyond the memory of man as I have before set forth in the 5th chapter of this Book where I take my authority from an antient Record of the Tower in nature of a Libel intituled De superioritate maris Angliae jure officii Admiralitatis in eodem as is in the same 5th chapter exprest The Record it self I was a long time since shewed by my old friend Mr. Collet who for a long time had the keeping of the Tower Records under several men unto whose care and custody the same were committed and afterwards I met with the same in Mr. Seldens Book De Dominio maris which I had not before read over and after that I found the same set forth by Sir Edward Coke in his Jurisdictions of Courts yet I will not
of these particulars there is but a limitation of his general power there Et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest For the Argument then that is deduced from this Statute which concludeth that the limits of the Lord Admirals Jurisdiction are thereby described and by the judgement of the whole Parliament as is asserted confined unto the main sea or coasts of the sea there is no other question to be made of it then whether it shall overthrow and destroy all these Logical rules or they it Another answer may be given to this argument by distinguishing upon the word Port or Haven as it is taken in a double construction and beareth a double acceptance warranted by Mr. Serjeant Callis in his Reading at Greys-Inne 1622. upon the Statute of Sewers 23 H. 8. cap. 5. who in his first Lecture to the diversity between a Creek Haven and Port p. 24. 25. saith that a Haven properly is a safe place of harbour for Ships but may be without any priviledge at all and then maketh mention of such as are alwayes graced with legal priviledges and for this he quoteth the Statute of Magna Charta in these words Quod omnes communitates Barones de quinque portubus omnes alii portus habeant omnes libertates liberas consuetudines that all common Societies of Ports and Barons of the Cinque-ports and all other Ports may have their liberties c. which can be no otherwise understood then that thereby is meant the common Societies of Port-towns the Barons of the five principal Port-towns and all other Port-towns may have their priviledges c. so that a Port-town is ordinarily termed a Port as well as the Port it self and so is a Haven Town c. though not so properly And the words of the Statute saith he confirme my former definition of Ports to be true and this is his definition A Port is a harbour and safe arrival for Ships Boats and Ballengers of burthen to freight and unfreight them at not in so that we see that he maketh the Haven where Ships lie at anchor to be a Port and the Town whereat they lade and unlade to be a Port and so the same Author maketh costeram maris to contain the shoar and banks as well as that part of the sea adjoyning thereunto and he proveth it out of the Statute 27 of Eliz. cap 24. which Act was made for the mending of the banks and sea-works on the sea-coast And out of the 7th chapter of Macchabees where Demetrius Son of Seleucus came to a City of the sea-coast c. ut in ejus libro p. 32. so that in common acceptance the places adjoyning to the Sea-coasts for their adjacency are called and taken for Coasts as well as the Coasts themselves and the Towns or Cities adjoyning to the Ports for their adjacency are termed Ports as well as the Ports themselves and then it may very well be answered that the words in this Statute out of any Haven or Port are meant of the City or Town thereunto adjoyning and so called and this the offences in that Statute mentioned unto which this clause hath reference and relation will warrant But more I shall not say concerning this argument but shall come to that which the same Author further inferreth upon his own conclusion when as his premisses can no way be granted which is that of Job the 38th chapter the 8 10 11. verses That Almighty God as he himself out of a whirlwind spake hath shut up the sea within certain dores or bounds Quis conclusit mare ostiis quando erumpebat quasi de vulvâ praecedens Circumdedi illud terminis meis posui vectem ostia dixi Vsque huc venies non procedes amplius hîc confringes tumentes fluctus tuos Hence I do conceive that he would inferre that God then put the dores of the seas where he himself by his interpretation of this Statute would now put them between the high Seas and the Ports and Havens But then he must have said that when God put them there he then left them wide open and never shut them since for sure I am the sea was never yet shut out of the Ports and Havens if we mean the Ports and Havens where ships do ride or lye at anchor and not the Port or Haven Towns so termed by reason of their adjacency so near unto them Nor can it be allowed by what is here urged that there they were put standing wide open for he that saith posui vectem ostia saith dixi Vsque huc venies non amplius So that we see his doctrine suits not to this text but the text it self may very well serve for my purpose that God himself hath put the gates and dores of the sea and hath himself appointed its limits and bounds to be those within which it is by his own power terminated And look how farre it extendeth it self so farre it is sea and there and no where but there hath God placed these gates and dores and terminated its limits and bounds by man unalterable CHAP. V. 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 OTher arguments there are by Sir Edward Coke deduced out of the Judgements and Judicial Presidents at the Common Law I shall first begin with the Judgements And the first that he urgeth is a Judgement given in the Court of Common-pleas Hil. 6 H. 6. Rot. 303. between John Burton Plaintiffe and Batholomew Put Defendant and the Case was saith he upon the Statutes of the 13 Rich. 2. cap. 5. the 15 Rich. 2. cap. 3. and the Statute of the 2 Hen. 4. cap. 11. upon which Statutes the said Bartholomew having sued the said John Burton in the Admiralty Court before Thomas Duke of Exeter then Admiral of England for that the said John Burton with force and armes the second day of September anno 1 H. 6. three ships of the said Bartholomews with his Prisoners and Merchandises to the value of 960 marks 5 s. 5 d. ob in the same ships being did take and carry away supposing by his Libel the same to be taken away super altum mare upon the high sea Judgement was given that the taking aforesaid was infra corpus comitatùs in Bristol the said ships lying in the Haven of Bristol and not upon the high sea contrary to the forme and effect of the said Statutes the parties having descended to an Issue which was found for the Plaintiffe and damages to 700 l. And this is the Judgement he quoteth Et super hoc audito tam recordo quam veredicto praedicto per curiam plenius intellect consideratum est quòd praedictus Johannes Burton recuperet versus praefatum Bartholomeum damna sua praedicta occasione attachiamenti prosecutionis vexationis
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
several Counties and touched upon by the banks thereof can be said to be within the body of either of those Counties or so much as the least member part or parcel thereof or so much as properly be said to be within the skirts thereof I must confess that many particular Statutes and new Laws have been made directing such and such things to be done or not done either by Sea or upon any Port or Haven which by the Civil and Maritime Laws had not been formerly in the same manner or perhaps not so fully directed And the cognizance of such matters by the same Statutes and Laws may seem to belong unto other Courts as well as unto the Admiralty by reason whereof some have often reached at all and have strove to hold more in one hand then they could grasp in both their armes But such things both upon the Sea and upon the Ports and Havens as have been anciently determined by the Admiralty according to the Laws Civil and Maritime have not been by such Statutes or new Laws really taken therefrom nor were ever intended to be But the same have been constituted and made in affirmance of the power and authority of that Court as wel upon the Ports and Havens as upon the high Seas and have been by express words continued thereunto and the cognizance of many such matters by such new Laws appointed have been directed unto that Court I shall instance only in one Statute that sheweth the same and then leave this subject and breake my self unto another By the Statute of 32 Hen. 8. cap. 14. a rate was set what should be paid for the freight or portage of several particular sorts of Merchandizes from the Port of London to other places and from thence to London and this being a thing mutable which could not be formerly settled for a perpetual Law according to any Rules or Laws Civil or Maritime though the like had been formerly done by the Admiralty pro tempore as appeareth by the Inquisition taken at Quinborow and the other Statutes and Articles of the Admiralty before several times mentioned the cognizance of the excessive freight taken for transportation of these particular sorts of Merchandizes was by the same Statute to be taken in the Courts at Westminster As for the forfeiture of the double value of the freight so taken the one half to the King the other half to the Informer yet the excessive rates for freight in general taken for transportation of any goods whatsoever and from and to any Port or Place whatsoever having been punishable by the Admiralty that power is no more taken from that Court by this clause then the tryal of pyracy c. by the Civil and Maritime Laws is from thence taken by the Statute of H. 8. 27. cap. 4. an 28. cap. 15. which giveth a power to that Court to try the same offences after another manner which is a thing by all of both professions acknowledged Another clause there was contained in the said Statute that if any Stranger Denizen or not Denizen should lade on board any English Bottom any of their Goods Wares and Merchandizes to be transported to any forraign Port that they should pay no other Custome or Subsidy therefore then such as the English paid But in case that they did laid their said Goods Wares and Merchandizes aboard the Ships or Vessels of Forreigners then they should pay such Custome or Subsidy as had been usually paid by Forreigners This being a thing newly by that Statute appointed and not determined formerly by the Civil and Maritime Laws whereby the Admiralty proceedeth yet was it by the same Statute provided that if there should be no such Ships or Vessels of England or Dominions of the same at or in the Port Haven or Place where the said Strangers Aliens or Denizens their Servants or Factors would freight or lade their Wares and Merchandizes toward the outward Regions that then if the said Stangers or Denizens their Factors Atturneys or Servants before he or they did lade freight or convey the said Goods Wares Commodities or Merchandises into any strange Ship or Vessel did notify and declare the same lack or want of such English Ships or Vessels unto the Lord high Admiral of England for the time being or his Lieutenant Deputy or Deputies if c. and did obtain his or their Certificate to be made under his or their Seal to whom such notice or declaration was to be made of lack and want of such English Ships and Vessels that then it should be lawfull for them to freight and lade their said Wares and Merchandises in any strange Ship or Vessel at that time being in the same Port or Haven and to pay none other Susidies or Customes therefore but as the English Merchants did use and ought to do by the Laws and Customes of England And it is enacted by the said Statute That the Owner and Owners Master and Masters and other Governour or Governours of Ships and every of them to his or their power and for as much as in him or them should be shall provide that all Wares and Merchandises which shall be by Merchants their Factors or Servants or any of them brought into any Ship or Vessel shall be honestly and in good order saved and kept And under that clause it is provided That if any Merchant Stranger or other find himself aggrieved or damnifyed by negligent keeping of the said Merchandises or Wares or by long delaying or protracting of the time in taking the Voyage by the said Owner his Factor Master or any the Mariners of the said Ship otherwise then shall be agreed betwixt the said Merchant his Factor Atturney or Servant and Master or Owner in or by the said Charter-party not being letted by wind or weather shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owner or Owners Master or Masters Governour or Governours or his or their Factor or Factors which Lord Admiral for the time being his Lieutenant or Deputy shall and may summarily and without delay take such order and give such direction therein as shall be thought to his or their discretions most convenient and according to right and justice in that behalf which is in affirmance of the Civil Laws before mentioned But Mr. Poulton rendreth this Statute obsolete And for the first part of it which setteth a rate what shall be paid for the freight or portage of Goods and Merchandises from the Port of London to other places and from thence to London I must needs agree with him that the same may or necessarily must be obsolete and out of use for that since the time of making of the said Statute the rates and prizes for Cables Anchors and other Tackle Furniture Victual and other Provisions have been much altered and encreased nor indeed are or can the Ships themselves
Quaeritur etiam utrum literae cambii paratam habeant executionem quod etiam determinatur per nota per Jasonem in L. elegantur ff de conditionibus indebiti quod etiam per Bald. consil 60. lib. tertio et text in l. si ex cautiam C. de non numerat pecunia Matthaeus de afflict in constit causas promagistro Justiciario Col. 6. Multaeque aliae hac de re exsurgunt quaestiones quae per jus civile authores super eodem conscribentes deceptantur determinantur Si unus ex nautis mercator fuerit vel ut mercator cum magistro navis contraxerit in mercibus suis in nave oneratis damnum passus est utrum sibi tenebitur exercitor quod per dict Julium Ferret d. li. 1. n. 38. expeditur Mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit juxta L. hujus ff qui potiores in pignore habeantur Et postmodum mulier peperit in navi Quaeritur an teneatur pro partu solvere naulum quod per L. sed adde sect si quis mulierem ff locati per Bartol ibidem per L. haec mori ff qui potiores in pignore habeantur directe concluditur Quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur versute res resurripuit alienas Et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit quae per exactissimam Julii Feretti de re navali distinctionem juxta L. sed ipsi ff naut caup determinatur l. 1. n. 34. Et utrum cum plures competant actiones tentata sive electa una ad aliam redire poterit actor Et quid si ad diversa plures competant actiones quae per L. quod in haeredem ff de tributoria actione c. dijudicantur Per L. 3. ff Naut caup Stab Gloss ibidem de dolo lata levi levissima culpa tenentur exercitores sive magister navis inde quaeritur utrum idem sunt vel unus pro alio ponatur quod cum deciditur per L. 2. ad L. Rhod. de jactu L. primam § 2. naut caup ac etiam quid de illo statuendum qui stat in navi navigandi causa Et cum per praedict L. 3. naut caup determinatur quod in casu naufragii in casu Pyratarum incursu in casu fortuito non tenetur exercitor Quaeritur utrum furtum latrocinium sit inter casus fortuitos numerandum inter illos ponendum et computandum Et quinam alii numerent casus fortuiti quae dirimuntur per § sed istae Instit de action sect 1. Instit quibus recontrahitur obl L. 3. § Item si servus ff naut caup per Angelum de Aretio super D. Loc. Quaeritur ex d. illa L. 3. Naut caup utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor quod dirimitur per Bartol in d. L. 3. ff naut caup c. Per legem primam L. cum navarcarum C. de naviculariis li. 10. nauta cogatur navigare Quaeritur igitur an nauta teneatur ex jussu inimici navigare vel in sua navi recipere inimicum suum de jure quod ex Gloss super D. L. 1. ff nautae caup dirimitur Now have I not here rendred or set forth the determinations of these few questions which I have here nominated they being not considerable without the rest which taken altogether with their divisions distinctions decisions and determinations would make by themselves a whole Tract de jure Admirallitatis which would be a Book to little or no purpose nor receive any welcome unless this which is de ejus Jurisdictione may first receive some entertainment which how necessary and advantagious the same may redound unto this Kingdome I shall leave to the consideration of him that hath or shall throughly read this Maritime Dicaeologie THis small Treatise which I have written in Vindication of the Jurisdiction of the Lord High Admiral of England c. I doubt not but will receive this Addition of Advantage as to tend likewise to the vindication and clearing of the honour and reputation of those Reverend and Learned Judges of the Land the two Lords Chief Justices the Lord Chief Baron and the rest of the then Judges their Associates together with the Attorney General whose Judgements and Justice have been blemished and unworthily aspersed by some of their own Profession in saying those Reverend Judges were questioned in Parliament for setting their hands unto an Agreement made before his Majesty of Blessed Memory Charles the First between them his Judges of the Land and Sir Henry Martin Judge then of his High Court of Admiralty purporting in substance the matter of this Treatise It 's true I have heard that some of the Puisne Lawyers and young men of that Profession sitting in the Long Parliament would have attempted such an undiscreet and unparelleld act but by the gravity and wisdome of others more learned in that Profession then themselves were disswaded from it Yet if they had I doubt not but he that reads this Treatise will find sufficient reasons to justify their assent to that agreement and that it contained nothing but what they might and ought to do notwithstanding the Judgements of their Predecessours or Successours Others do not forbear or stick to say this Subscription to this Agreement was an extrajudiciall act and so takes not the effect of a Law either to bind them or their Successours as though the place and formality of sitting upon the Bench were of the essence of a true and just opinion and the Judges being called and convened by special summons before his Majesty that their Judgements and Opinions there delivered in matters propounded debated and argued were of less force and validity and more extraneous to reason then if they were judicially sitting Which is an opinion that I cannot conceive any man of sound judgement can adhere unto and therefore I shall conclude this Treatise with that judgement given by those twelve Learned and Reverend Judges of the Land with the consent of that famous Man Mr. Noy his Majesties Attorney General At Whitehall 18 February 1633. Present The KING' 's MOST EXCELLENT MAJESTY The Lord Keeper And 23 Lords of the Councel THis day his Majesty being present in Councel the Articles and Propositions for accomodating the differences concerning Prohibitions agreed unto and subsigned by all the Judges and his Majesties Attorney-General were Read and Ordered to be entred in the Register of Councel Causes and the Original to remain in the Conncel Chest If Suit shall be Commenced in the Court of Admiralty upon Contracts made or other things personally done beyond or upon the Seas no Prohibition