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
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
of those Municipal Laws the old should be decided no more are those controversies which do arise concerning maritime and sea affairs to be determined by those Municipal Laws but by their Maritime Laws by which they trade one Nation with another and which are generally the same and not Municipal as is before more fully set forth For further satisfaction vide caput 10. hujus libri tertii CHAP. II. The Arguments deduced out of the Statute of the 13 R. 2. c. 5. to prove that Maritime Contracts made at land concerning Maritime Affairs are not tryable in the Admiralty Court answered FOr the taking away the cognizance of Contracts made at land concerning Maritime affairs from the Admiralty Court the Statute of the 13 of R. 2. c. 5. the 15 of R. 2. c. 3. and the 2 of H. 4. c. 11. are urged by Sir Edward Coke in his before mentioned 22th Chapter of his Jurisdiction of Courts I shall take them in order The first of them he rendreth thus that the Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England but only with things done upon the sea according to that which hath been duly used in the time of the noble King Edward Grandfather to Richard the second by which saith he it is manifest that the Jurisdiction of the Admiralty is only confined to things done upon the Sea And truly taking only these words it may very well seem so to be Sed tota lex in omnibus suis partibus diligenter prospicienda est incivile est inquit Celsus nisi tota lege prolecta de una aliqua particula ejus proposita judicare vel respondere Take we then the Statute wholly as it is set down in the Parliament Roll in the Tower and then to the best of my understanding we shall find that the mis-translation hath bred a mis-construction and wrong interpretation thereof These antient Statutes were made by way of Petition and Answer and so remain still upon the Roll here is set down only the Answer to the Petition but not one word of the Petition to which the answer hath relation Et cum non sit satis ad investigationem Juris si verborum superficiem teneamus sed interius respicienda est mens legislatoris quâ ratione motus fuerit ad statuendum aliquid ut affirmat Oldendorpius loco praecitato Certè nullo modo sunt vestiganda jura si verborum omnium ne quidem superficiem istam aut teneamus aut habeamus nec quovismodo est intelligenda mens legislatoris quâ ratione motus fuit ad hoc statuendum dum abscondita sit petitio super quâ fundatur statutum Scire leges inquit Celsus non hoc est verba eorum tenere sed vim potestatem habere l. scire leges F. de legibus Quedcunque igitur negligere est legum vim potestatemque destruere I shall therefore first set down both the Petition and answer as I find them in the Tower Roll and then under correction examine the true construction and interpretation of them according to the best of my ability The words are these Item prient les comes que come les Admirals lour Deputies tiegnent lour Sessions en diverses places deins le Royalme si bien deins franchises come de hors accrochant au eux plus grant poaire que a lour office nappertinent en pre judice nostre sieūr ' le Roy le come ley du Royalme grant enblemishment de plusours diverses Franchises en destruction empourissiment del ' comen people que plese ordaine establer lour poaire en cest persent Parlament quils ne sic mellent nempriegnent sureux connisances de nulls contracts covenances regraters c. que con ques les quex divent purrant estre termines devant auter Jugges nostre sur le Roy deins les quatre miers Dengleterre deins Franchise de horse c. R. le Roy voit que les Admirals lour Deputies ne soi mellent de sore ena vant de null chose fait deins le roylme mes solemet de chose fait sur le meere solonc ce que ad estre duement use en temps du Noble Roy Edward aiel nostre sūr le Roy quorest The first part of the Petition having set forth that the Admirals keeping their Sessions in divers places in the Realm as well within the Liberties as without had incroached to themselves greater power then belonged unto their Office c. Then so much of the prayer of the Petition as is granted consisteth in these words Quils ne sic mellent nem pregnent sur eux conisances de nulls Contracts covenances regrates c. que con ques les ceux divent purrant estre termines devant autres Jugges nostre sur le Roy deins les quatre miers dengleterre deins Franchise de horse They pray that the Admirals may not so meddle or encroach upon the Cognizance of Contracts Covenants Regraters c. determinable before other the Kings Judges within the four Seas of England within franchise and without the rest of the Petition is not granted but tacitely denied and this part is thus answered by the King Le Roy vort que les Admirals lour Deputies ne soi mellent c. This Sir Edward Coke positively without any relation to the Petition rendreth in the words before set down viz. The Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England but onely with things done upon the Sea which Poulton more truly rendereth thus but still without relation to the Petition that the Admirals and their Deputies shall not meddle from henceforth of any thing done within the Realm but onely of a thing done upon the Sea rendring of for with which is the more proper signification of de and will as I conceive bring home the true construction of the Answer with relation to the Petition to which it hath and necessarily must have reference It hath been affirmed unto me by some professors of the Common Law that the King upon a Petition never grants more then is desired by the Petition and that that which is granted more then is desired is void in Law but that I leave to the determination of such as are of their own profession but the same thing hath been noted unto me as a rule from many expert Recordmen more especially from my old deceased friend Master W. C. not long before his death then above 80 years of age viz. that the King in Parliament never granted more then was askt many times less who affirmed that this in his younger time he had taken for a rule from those that were then ancient But this Answer here being set down positively alone without the Petition or any relation thereunto hath as it seemeth to me
reparation of their old Laws then a structure or edifice of new For the rest some say they are additional some say explanatory to remove false constructions and interpretations and some say both but certainly for the most part they are but explanatory for the other Laws before mentioned are accounted most authentick and of chiefest authority throughout all or the greatest part of Europe But be these additional yet the addition of Sea-laws to Sea-laws is no diminution of Sea-Jurisdiction but rather a compleating and perfecting thereof but the composure of new land-Laws or if it be but the reformation of old if those Laws look but toward the Sea they oftentimes cause the discomposure of Sea-laws and unless well lookt unto the very destruction of that Jurisdiction but of that more will appear by what shall be said hereafter And now before I proceed to any other argument for the proof of the antiquity of this Jurisdiction I shall give you one reason only which induceth me to believe that the same was settled long before the time before mentioned and that the Rhodian Sea-laws were here settled long before the Laws of Oleron by Richard the First and that is an Ordinance made by Henry the first at Ipswich concerning the banishing a man for Felony or Trespass which I find mentioned in an Article of the antient Inquiry of maritime offences annexed unto the antient Statutes of the Admiralty in the antient Parchment-leaved Book called the black Book of the Admiralty where after the manner of such banishment is set forth it is said Et cêste ordonnance fat faitte primerement a Gyspswiz ou temps du primer Roy Henry per les Admiralx de North West autres Seigneurs adheirdantz CHAP. V. The antient Introduction of the Sea-laws argued and inferred from the King of Englands Dominion over the British Seas THat the Kings of France have no Dominion at all over the British Seas or any right or claim thereunto whatsoever is made plain by what is set forth in the 14th Chapter of the second book De Dominio maris written by Mr. Selden who in his 27th and 28th Chapters of the same Book proceeds to make further proof thereof and therein sets forth that there being warre between King Edward the First of England and King Philip the Fair of France but agreed by Covenant that all Commerce on both sides shall be free so that to all Merchants whatsoever there should be induciae which were called sufferantia guerrae and by both of them Judges were appointed that should take cognizance of all things done against these Truces and should exercise judicia secundum legem mercatoriam formam sufferantiae Now it being contained in the first head of this League that they should defend each others rights against all others this afterwards was the ground of an action which was instituted in the same Kings time c. before these Cognitors chosen by both the said Princes by the Proctors of the Prelates Nobility and high Admiral of England and of all the Cities Towns and Subjects of England c. unto which are joyned the Proctors of the most maritime Nations throughout Europe as of Genua Catalonia Spain Alemania Zealand Holland Frise Denmark and Norway and divers others subject to the Roman Empire against Reginer Grimbald the then Admiral of France for that there being Warres between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their voyage to Flanders and dispoyled them of their goods whereas the King of England and his predecessors as they all joyntly by libell do declare and affirme without all controversie beyond the memory of man have had the supreme Government of the English Seas and the Islands thereof Praescribendo scilicet leges statuta atque interdicta armorum naviùmque alio ac mercatoriis armamentis instructarum cautiones exigendo tutelam praebendo ubicunque opus esset atque alia constituendo quaecunque fuerint necessaria ad pacem jus aequitatem conservandam inter omnimodas gentes tam exteras quà m in imperio Anglicano comprebensas quae per illud Transierint supremam â—sdem item fuisse atque esse tutelam merum mixtum imperium in juredicendo secundum dictas leges statuta praescripta interdicta aliisque in rebus quae ad sumumm imperium possint attmere in locis judicatis Ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectare jurisdictionem ex imperio ejusmodi exercendam And he sets forth further in the same Libel that they do all of them together desire ut à custodiâ liberati qui carceri ita traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae ad quem solum tam ex jure rerum ac loci quà n personarum hujusmodi jurisdictio attinebat subirent These things I have cited out of Mr. Selden not only to shew here for my purpose that the Kings of England have had from antient times the power and dominion over the British Seas for then might I have referred the whole matter to his whole book which doth so learnedly so many wayes and by so many several arguments convince in that point but as well to shew that the Kings of England's Admirals have likewise as antiently had jurisdiction under them over those maritime affairs which fell sub isto regimine dominio And also to shew that so many Nations did concurre and agree therein and that they had istud regimen dominium exclusivè of the Kings of France bordering upon the same seas and of all other Kings and Princes whatsoever for they all likewise joyntly agree an usurpation and interruption of the King of England's right of Dominion over these Seas by the King of France in granting a Patent of the Admiralty of the Seas unto his Admiral Reginer Grimbald and therefore all joyntly proceed in their Petition further Vt cognitorum sententia Reginerus Grimbaldus ipsa damna Actoribus resarciret si nimirum solvendo esset sin minùs tunc ut ad idem faciendum damnaretur Rex Franciae qui ejusmodi praefecturae codicillis eum donasset Damnis autem resarcitis tum etiam Reginerus ob foederis violationem poenas daret quales alios à simili facinore in posterum deterrere possent And in the 28th Chapter of the same Book the Libel is set out at large in its own language worthy the reading Now all these things considered shall any man that understands that the Kings of France who have no Jurisdiction at all over these Seas have so antiently had and continued their Admirals in such power as the Edict by Parliament at Paris declares them to have done so much as imagine that the Kings of England who have had from Edward the First 's time and so long before as that all the aforenamed Nations do joyntly acknowledge it to be then beyond
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
or any other thing whatsoever which touch the King against Him his Crown and Regality or his Realm as is aforesaid And they which bring within the Realm or them receive or make thereof notification or any other execution whatsoever within the same Realm or without That they their Notary Procurators Maintainers Abetters Fautors and Counsellors shall be put out of the Kings Protection and their Lands and Tenements Goods and Chattels forfeited to our Lord the King that they may be attached by their bodies c. In these antient Statutes which are by way of Petition and Answer the Answer hath alwayes relation to the Petition and granteth what is therein desired sometimes less but never more by this Petition nothing is desired but the restraint of the Popes power and assumed authority in those things therein exprest nor is there any thing more in the Answer granted if these words in the genuine sence thereof be duly examined which can be no other then this If any purchase c. in the Court of Rome or elswhere from the Pope or any Power or authority derived from him viz. either in his Court at Avignon which he sometimes held there or any other Ecclesiasticall Court under his Supremacy whether beyond the Seas or in the Realm of England For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him as their supreme only or at least as well as the King and of these Courts and none other can this elsewhere be understood as will plainly also appear by the things specified in this answer to be purchased and pursued viz. If any purchase or pursue in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunications Bulls c. Now cannot these things nor could they elsewhere or in any other place besides the Court of Rome be purchased or pursued but from the Pope or his Authority in those other Courts before mentioned Again these words else where were necessarily inserted and necessarily to be understood of those Courts under the Popes authority from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise whosoever had purchased any of them elsewhere to wit in any of these other Courts under his authority and not in the Court of Rome had not been by this Statute lyable to the punishment thereof But some perhaps may say I have here purposely waved the general words which close up the particular specified things forbidden to be purchased or pursued viz. Bulls Instruments oâ— any other things whatsoever which words perhaps may seem to have relation to else where and be thought to be of so large an extent that the words else where must be stretched to all places whatsoever beyond other Courts of the Popes or under his authority But indeed I intended it not But as they are the last words which close up the particulars specified so I reserved them to the last place wherein I shall disclose and clear that doubt When several particulars then of the same nature are closed up with a general that general comprehendeth all other particulars of that nature and nothing of a different and distinct quality So here these general words or any other things whatsoever must be understood of any other thing whatsoever of the same nature with those Translations Processes c. And this is plain enough by the words themselves if seriously observed and rightly understood For take them as they run and they carry their limitation with them which bindeth them close and restraineth them unto what precedeth in the Petition And as the Court of Rome and elsewhere have relation to the Pope to the Popes Court at Rome and unto his Courts elsewhere so must these words Instruments and other things whatsoever have reference and relation thereunto And then take these words as they answer the Petition and they can bear no other sense then this viz. Whereupon our Lord the King by the assent aforesaid and at the request of the said Commons hath ordained and established that if any purchase or pursue or cause to be purchased or pursued in the Popes Court of Rome or any other of his Courts elsewhere any such Translations Processes and Sentences of Excommunications Bulls Instruments or any other things whatsoever which touch the Kings protection c. So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused against whom these Praemunires were brought for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be and hath been wrested and catcht at to diminish and straighten the Jurisdiction of the Admiralty and enlarge the already extraordinary large power of the Common Law Nor are these Interpretations or Constructions in any wise contemporary with the Statutes as Sir Edward Coke would have them but taken up a long time after and crept into their Law as heresies do into Religion by new constructions of Scripture Neither indeed can either the Judgement or any of these Praemunires instanced in be said to be contemporary with the said Statutes For further proof of this point he instanceth in four or five Prohibitions unto the Court of Admiralty for holding plea of Contracts made upon Ports or Havens and beyond the Seas But to these I shall give an answer hereafter when the Contracts made at land concerning Maritime affairs shall come to be insisted upon CHAP. VIII The Book-Cases and Authorities brought to proove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered CErtain Bookâ—Cases and Authorities as Sir Edward Coke calleth them are likewise urged for proof of this particular of the Admirals having no Jurisdiction upon the Ports and Havens 1. Some Books are quoted nothing being exprest what the Books say nor any argument deduced out of them to conclude the point I cannot therefore give an answer to an argument unframed nor is it proper for me my self to raise an argument out of those books and then my self to frame an answer thereunto But I will conceive those Authorities he hath quoted at large to make most for his purpose and endeavour to answer unto them He saith in tempore Ed. 1. tit Avowry 192. a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea and for carrying the same from thence into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough which is neither Town nor Place out of which a Jury may be taken for that the Coast is four miles long And also of a thing done in the Sea this Court hath no cognizace
the same land should be in the very next year viz. in the 7th year of the same Kings Reign reconverted into sea Yet is there a great deal more colour for an Action to lye at the Common Law for forestalling in a Port or Haven then for the beforementioned Judgement but upon another ground then that which Sir Edward Coke would have to be the ground namely because a Port or Haven is within the body of a County which is this Though the forestalling be an act done upon the Port or Haven yet is it the forestalling of a Market which is kept at land so that act done upon the Port or Haven hath relation unto the Market which is at land And so the act done upon the Port or Haven may be said to arise from the Market which is at land and within the body of a County and that act upon the Port to be a forestalling of that Market which is at land Just as a Contract made at land for transporting goods by sea is an act done upon the land but hath relation to a thing done at sea and so the Contract though made at land is a thing that doth arise from a thing done or to be done at sea and doth not arise from a thing either done or to be done at land within the body of any County And therefore is this Contract tryable in the Admiralty and not at the Common Law And this agreeth with the Statute of the fifteenth of Richard the Second the Statute being truly examined which I shall plainly shew when I come to speak of Contract Yet may not this construction of the forestalling upon the water be allowed for this is no Contract made for the performance of any act or thing at land positive and therefore ariseth not from any act or thing to be done at land but is a Contract which doth privatively debarre a further act to be done at land And besides this is a compleat act having reference to nothing more yet to be done but the bargain is made the comomodity bought and all is done therefore is this forestalling triable in the Admiralty Court and there punishable as will hereafter appear by what I shall shew in several chapters of this second book In the next place it is objected that the 19 H. 6. 7. it is said that the Statute doth restrain that the Admiral shall not hold plea of any thing rising within any of the Counties of this Nation but Executions he may make upon the land this Statute which this Authority citeth must be the same before mentioned Statute of 15 Ric. 2. therefore I will say nothing to this here more then that Sir Edward Coke doth hence inferre that though it be said in the 22 ass pl. 93. that every water which flows and reflows is an arme of the Sea yet it followeth not saith he that the Admiral shall have Jurisdiction there unless it be out of every County or else such a place whereof the Country cannot take knowledge as it appeareth in the book of E. 2. before cited But how this hath any reference to that of the Statute to serve for his purpose I know not The last thing against that which is said 22. ass pl. 93. he would prove by that of 8 Ed. 2. before cited which I have answered already It is argued out of Fortescue cap. 32. fol. 38. that the Admirals Jurisdiction is confined to the high Sea for that he there saith Nam si quae super altum mare extra corpus cujuslibet comitatus regni illius fiant quae postmodum in prohibito coram Admirallo Angliae deducantur per testes illa juxta legum Angliae sanctiones terminari debent which saith Sir Edward Coke proveth by express words that the Jurisdiction of the Admiral is confined to the high Sea which is not within any County of the Realm If Fortescue had said much more then here he doth to have afforded him a better foundation for his Argument then this which he hath said doth I should not have much marvelled at it For he that conceived that if Adam had not sinned in Paradise all the World had been governed by the Common Law perhaps might in his time think it meritorious to reduce as much of the World as he could to the subjection of that Law But truly out of what he saith here Sir Edward Cokes conclusion is not Logically to be deduced For to say that because Fortescue saith that the Admiral hath Jurisdiction upon the high Sea which is out of any County of the Kingdom that he hath no Jurisdiction elswhere is no better an Argument then to say that Sir Edward Coke was Lord of the Mannor of N. and therefore he could have no Land elswhere For Fortescue doth not speak this exclusive to any other part of the Admirals Jurisdiction Nor by saying Quae super altum mare extra corpus cujuslibet comitatus regni illius fiant doth he averre quod aliquis portus maris est infra corpus alicujus Comitatûs If this Answer doth not satisfie adde the Answer to the next Objection to it The next Objection is deduced out of the 2 Rich. 2. fol. 12. quod Hibernici sunt sub Admirallo Angliae de re facta super altum mare Which saith he agreeth with the former viz. that the Jurisdiction of the Admiral is super altum mare And no doubt but it is but it doth not therefore follow that it is nowhere else Now this very authority sheweth the true use and ground of this distinction of super altum mare and super portum maris which is this The Admiral of England hath Jurisdiction super altum mare quo ad Hibernicos Hibernici sunt sub Admirallo Angliae de re sacta super altum mare non super portum Hibernicum nisi per appellationem And so it is between England and other Nations adjoyning to the Brittish Seas For the Kings of England have ab antiquo had the dominion of those Seas as is sufficiently demonstrated and proved by that learned Gentleman Mr. Selden by exceeding many Arguments throughout his whole Book de Dominio maris called Mare clausum which I have toucht upon before but though the King of England had the dominion of those Seas yet had those Nations Admirals who had the Jurisdiction of and over all business done in and upon their own Ports so that the Admiral of Englands Jurisdiction Respectu Regis Angliae Dominii maris is said to be super altum mare quo ad alias omnes nationes But as had his Power from the King so hath he Power Authority and Jurisdiction as over the Sea so over the Ports and Havens of the Sea belonging to this Nation aswell as the Admirals of France and the Admirals of other Nations had and have over the Ports and Havens belonging to their several Nations
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
Merchiarum Calisiae Normanniae Gasconiae Aquitaniae sen ejus Deputato in Curia nostra Admirallitatis salutem Monstravit nobis in Curia nostra coram nobis Richar. Bell Com. Sussex quod cum idem Richardus nuper in Curia Admirallitatis coram vobis implîtasset Johannem Crane de eo quod idem Johannes ad certum tempus jam retroactum infra jurisdictionem maritimam promisisset se extrinxisset ad exonerand indemnem conservand ipsum Richardum ab omni obligatione juris vinculo pro captione seu restitutione cujusdam navis vocat the Mary Fortune apparatus ejusdem ac bonorum mercimoniorum in illa tempore capturae ejusdem pro eo quod idem Richardus tempore capturae hujusmodi navis una cum quodam Johanne Bell aliis interfuisset erga quosdam Johannem Desticon alios Hispanos asserent se dominos proprietarios praemissorum fuisse Idemque Johannes Crane nobis suggerendo dixerit quod hujusmodi contractus factus fuit apud Dartmouth infra corpus Comitatus nostri Devon inter partes praedictas non infra jurisdictonem maritimam vobisque superinde ad suggestionem ipsius Johannis Crane quoddam Breve nostrum de prohibitione in causa praedicta quod non procederetis porrexerimus cujus praetextu vos in causa illa huc usque procedere distulistis adhuc differtis in ipsius Richardi Bell grave damnum legis libertatisque Admiralli nostri laesionem manifest Et quia cognitionem jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impediri nolumus vobis jam significamus quod in causa praedicta jam coram vobis inter partes illas pendenti dummodo de causa maritima infra jurisdictionem Admiralli nostri juxta jura legis nostrae Angliae terminan agat licite procedatis ac procedere poteritis in causa illa quantum ad jurisdictionem Admirallitatis nostrae pertinet brevi nostro de prohibitione vobis prius inde in contrarium directo in aliquo non obstant T. R. Lyster apud Westm decimo quarto die Julii anno nostri Regni tricesimo octavo per Dominum Capitalem Justic Rooper In the time of Queen Elizabeth Christopher Turner sued Thomas Simpson of Beverly in the County of York before Matthew Bodsworth Batchelor of Laws Commissary of the Court of the Admiralty in the Northern parts of England and Judge of the Vice-Admiralty of York upon a contract before that time made between them the said Christopher and Thomas and thereupon layd and articled in the said Court that in the Moneths of April and May 1586. they the said Christopher and Thomas had speech or talk between them concerning certain quarters of Wheat and Rye to the number of 69 or thereabouts namely forty and one quarters of Wheat and twenty and eight quarters of Rye whereof part was to be taken into a certain Ship called the George of Beverley at a certain place called Emot-land upon the River of Hull alias Hull Water and the other part thereof to be taken into the said Ship at a certain place called the Good Alehouse adjoyning to the said River to be from thence carryed and conveyed in the said Ship by water unto the City of York and there to be delivered on Shipboard at a certain place called the Queen 's Stathe at the said City and further had talk of the freight or price to be paid for the carriage of the said quarters of Grain and that they the said Christopher and Thomas bargained and agreed concerning the said carriage and transportation of the said Grain in the said Ship the George in forme following viz. that the said Thomas Sympson should take and receive into the said Ship the said forty one quarters of Wheat and twenty one quarters of Rye at the said place called Emots-lands and the said other place called the Good Alehouse and should from thence transport and carry the same with all convenient speed to the Queens Stath aforesaid being beneath the first Bridge of the River of Owre towards the sea and there deliver the same on Shipboard and that in consideration thereof the said Christopher Turner did agree to and with the said Thomas Sympson for the transportation of every quarter of the said Grain to pay the summe of ten pence of lawfull money of England and further that the said Christopher Turner in consideration that the said Grain might be more safely and securely transported and carried then other his Grain before that time had been and that the same might not be heated wetted or otherwise impaired as before that time other his the said Christophers Grain had been in other lesser Vessels of his the said Thomas Sympson promised and agreed to and with the said Christopher that if the said Christopher should not deliver into the said Ship called the George sixty quarters of Grain nevertheless in regard that Ship was of a greater burthen then other Ships of the said Thomas Sympsons were he the said Christopher would pay to the said Thomas Sympson or his Assignes the whole freight for sixty quarters of Grain according to the rate of ten pence for every quarter of the aforesaid Grain and if there should be more then sixty quarters of the said Grain that then the said Christopher Turner should pay for every quarter above the number of sixty quarters according to the said rate of ten pence for every quarter thereof And that the said Thomas in consideration thereof promised and convenanted to and with the said Christopher Turner that no Grain or Goods of other men should be received into the said Ship in the said Voyage and that the said Ship should be sufficiently manned and victualled so that by reason thereof the said Christopher Turners Grain might be safely transported and carried without any heating wetting or other impairing c. Which cause was afterwards removed from the said Court of the Admiralty in the Northern parts by way of appeal made by the said Thomas Sympson on his part unto the supreme Court of the Admiralty of England and there in the end of the 31 year of the said Queens Reign depended undecided And the said Thomas Sympson in Hillary Terme following suggested in the Kings Bench that the said Christopher had libelled in the high Court of the Admiralty that the said Contract was made at Beverley within the Body of the County of York and that the said Contract was that one part of the said Grain was to be received into the said Ship at a certain place called Emot-land upon the River of Hull-water whereas indeed the said Christopher had libelled in the Court of Admiralty before the said Matthew Dodsworth in the Northern parts that that Contract was that the said Grain should be received into the said Ship at the said places called Emot-land and Good Alehouse upon the River of Hull-Water and not upon the River of Hull-Water And whereas
reciteth the said three before mentioned Statutes Praedictus tamen Thomas praemissorum non ignarus sed machinans non solum ipsum Philippum contra debitam legis hujus regni Angliae formam et contra formam et effectum statutorum c. traxit in placitum falsè caute et subdolè libellando in Curia Admirallitatis c. cujus quidem suggestionis praetextu c. That upon the 3. of April 7 Jacobi within the body of the County of London viz. in the Parish of St. Mary de Bow in the Ward le Cheap and not upon the high Sea nor within the Jurisdiction of the Admiralty Court of England he by his certain Bill obligatory sealed with his seal as his deed then and there delivered unto one Thomas Alport bearing date the same day and year did bind himself his Heirs c. to pay unto the said Thomas his Heirs c. at any time upon demand the summe of 275 l. and 6 s. of lawfull mony of England and alleadgeth the three before mentioned Statutes and that notwithstanding the said Thomas not being ignorant thereof c. had brought his Suit in the Admiralty Court for the recovery of the said debt upon the said Bill obligatory contrary to the form of the Law of England and contrary to the form of the said Statutes and thereupon obtained a Prohibition But upon the 20th day of June in the tenth year of King James it being made appear by the Libell and Bill obligatory that the same was made beyond the seas in respect of a Maritime business had and done at sea the said Prohibition was released by consultation which concludeth that the Prohibition was to the grievous damage of the said Thomas Alport and manifest wrong of the Court of the Admiralty and saith the proceedings in that cause in the said Admiralty Court ought not to be delayed Et quia videtur praefatis Judiciariis pro certis caeusis ipsos specialiter moventibus quod processus in praedicta Curia Admirallitatis in praedicta causa ad prosecutionem praedicti Thomae ulterius retardari non debet Ideo vobis c. T. E. Coke apud Westm xx die Junii Anno Domini nostri Angliae Franciae Hiberniae decimo Scotiae quadragesimo quinto Crompton But it may be said that many more Prohibitions have been granted out of both the said Courts at Westminster as well in causes of this nature as in causes for things done upon Ports and Havens upon which Consultations have not been had and I doubt not but in latter times there have but it hath for the most part been when the parties have agreed and the cause compounded and so no Consultation prayed or sought for if otherwise let no man brag of that which hath been done which ought not to be done But another cause may be given and that is this that the Civilian not being suffered there to plead the right of Jurisdiction belonging to the Admiralty the same hath not been undertaken by any practicers in those Courts and if undertaken yet pleaded but coldly against the Jurisdiction of their own Courts Howsoever I do conceive that the Procedendoes out of the Chancery and the Consultations out of the Kings Bench and Common Pleas which I have in this and the second Book of this Treatise set forth though I might have instanced in very many more will be sufficient to determine the right of Jurisdiction as well in causes of the one nature as of the other against the said several Courts from whence such Supersedeases and Prohibitions were granted I will not say but that the Admiralty Court may sometime have intermedled with Contracts made at land arising from businesses done or to be done or performed at land which is here in England as it were to take Cattle from a Pasture and put into the sea to feed And in such cases I doubt not but a Prohibition may lye which shall not be dissolved by Consultation But by Prohibitions to take businesses of the Ports and Havens or Contracts made at land concerning Maritime affairs from the Admiralty to be determined by the Common-Law of the land is to take fish out of the sea to be kept alive and fed upon pasture or in some Forrest or Park at land For I shall in the next Chapter out of many shew you some few of those exact rules the Civil Law hath to proceed by in causes of this nature besides the Laws I have before mentioned which the Common-Law hath not CHAP. X. That divers and severall of the Laws under the titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at land concerning matters to be done at sea NOw concerning this matter I may rather referre the Reader unto Peckius himself Vinius and other Authors writing thereon then to spend any great labour about it but whilest he hath this book in his hand let him cast his eye upon some few of a great number of such Contracts made at land concerning businesses to be done at sea which are exactly determined by these Laws and are used and held absolutely necessary in all forreign Maritime Judicatories and not by any the rules of their Municipal Laws which as they are little or nothing different in their proceedings from the proceedings of the Civil Law so are they farre less different in their determinations from the determinations of that Law then our Municipal Laws be As in the first of these Titles If Mariners before they receive goods on board do contract with the Loader ut recepta restituant Quaeritur utrum Nauta an Exercitor navis pro restitutione conveniatur Quaeritur etiam an Exercitor Magister aut Nà uta ex contractu teneatur de rebus non ostensis Ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione Quaeritur etiam utrum nautae ex sola emissione teneantur Ac etiam an nautae de facto vectorum teneantur Quaeritur etiam quae quando actio detur subsidiaria protestatio an requirat consensum adversarii Ac an in scriptis fieri debet Quaenamque sit vis protestationis Cum quolibet nautarum sit contractum an detur actio in exercitorem Ac quid si nauta per Magistrum navis conductus in nave deliquerit an in exercitorem detur actio Magister navis per exercitorem conductus an alium substituere potest Mutuum dans in navis usum an caeteris creditoribus praefertur quando quare an quando navis per aversionem conducitur Dominus an quando quare invitus ignorans de peculio teneatur Merces an pro naulo contracto cum magistro sint obligatae Quaeritur etiam quando argumentum Ã
the memory of man the sole rule and dominion of these Seas should not furnish this his maritimum regimen dominium with those antient maritime Laws before spoken of Certainly whosoever imagineth this concipit istud mare sine navibus vel naves sine naucleris navarchis fluctuantes concipit istas If furnished with Lawes then consequently with a Commander Admiral or Governor for the dispensing and ministring of Justice amongst Sea-Traders and seafaring-men according to those Laws else were these constituted and appointed to that use in vain But I may here rather from the forementioned Libel deduce a proof of the antient settlement of maritime Laws in England from the antient acknowledgement of an Admirals Jurisdiction then the settlement of an Admiral and his Jurisdiction from a former Introduction of the maritime Laws into this Kingdome for an Admiral of England and an Admirals Jurisdiction are both acknowledged by all the therein mentioned Nations to have been from that time which was anno 30 Ed. primi beyond the memory of man If then the Admiral had so antiently a Jurisdiction I must necessarily inferre from thence that so antiently if not somewhat before the Laws of the Sea must be settled for his rule and guidance For they do not say there was an Admiral for so there might have been and he have ruled by Arbitrary power but they say as before is said ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectaret Jurisdictionem ex imperio ejusmodi excercendam And in their Petition as is before exprest they desire ut à custodiâ liberati qui carceri traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae subirent Now as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus so jurisdictio is juris dicendi potestas And as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 likewise from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lex so Juris consultus est is qui jus consuluit sive studuit and so juridicus quod secundùm jus est as juridicus dies quô ritè jus dici potest and juridica actio quae secundùm jus est dicitur etiam juridicus qui jus dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. At cui jus ignotum est ignota jurisdicendi potestas cui jus non est jus non consuluit ubi jus non est ibi jus dici nequit No man can have a Jurisdiction or power of declaring the Law or judging by the Law to whom the Law is not known more especially where there is no known Law to declare or judge by Therefore seeing the Admiral by common consent and by so common a judicial acknowledgement so antiently had a Jurisdiction necessarily he must so antiently have had certain known and settled Laws to declare and judge by I do observe likewise that all the Patents granted unto Admirals from the 35th of Edward the Third upwards unto the 34th of Edward the First do conclude in binding them to the execution of their office prout justum fuerit fieri consuevit And as this prout fieri consuevit led me to the more antient Patents wherein the Officers bear not the title of Admiral and taught me to understand that the variation of the title did not differ or alter the property in the Office or the quality of the Officer so this prout justum fuerit shews me as well as the Jurisdiction in the Libel before spoken of did that the Admirals had then and prout hactenus shews me they had so before a Law to rule and judge by For though a private man which is vir bonus a good man which deals uprightly and punctually with all men is usually said to be vir justus and not improperly when we speak of a private man in his private dealings And vir probus sanctus which observeth the Divine Law is very properly called vir justus when we speak or discourse of matters of Religion c. But if we speak of a man set and put in place and authority over others in Sea-affairs we say he is vir justus qui jus observat à jure non discedit for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth justus doth as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do come from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the same word signifieth legitimè jure justè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifieth jus the Law it self CHAP. VI. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Courts in deciding of Maritime Causes in those antient times THat in those antient times the Custodes marinae maritimarum partium c. to whose care and trust these marinae and maritimae partes the Seas the Coasts and Ports of the Seas were committed had a great power and grand authority over all those maritime parts whereunto they were limited and over all Ships and Shipping and over all things thereunto belonging and over all persons whatsoever who were therein concern'd within the said limits and had powet and authority of hearing and determining of all differences and controversies which did or might arise concerning the same may be very well concluded upon this further ground that no other Court in those dayes presumed ever to take cognizance of any such matters or affairs which I am confident of for the reasons ensuing I hope no man will say that maritime causes were tried in the Heal-gemote now called the Court Baron nor in the Hundresmote now called the Hundred-Court and is of the same nature with the County-Court nor yet in the Scyedgemote now called the Sheriffs Turne which were the Courts then in use and had been long before the Conquest and do yet continue and never did nor do assume nay not so much as challenge any right at all to any such power Nor did the Kings Court of Exchequer which was the first Court was settled after the Conquest ever undertake to deal in causes of that nature but as Mr. Lambard determineth this point very well was only setled and appointed for causes concerning the Kings Demeasnes and Receipts And he saith that after the Conqueror had suppressed the Forces of those that made head against him here he settled this Court for his Revenues and called it his Exchequer after the name of his Exchequer in Normandy but saith he it differed not a little from that for the Exchequer of Normandy had not only the Government of the Revenues of the Duke there but was also the Soveraign Court for the administration of Justice amongst his Subjects until Lewis the Twelfth King of France anno 1499. converted it into a Parliament consisting of a President and Councellors and established it at Roan in Normandy where it still continueth But saith he this Exchequer in England had only the
direction of his Demeasnes and Receipts and the administration of Common Justice continued still in that high Court of Justice and Equity which did then and a long time after as well as before the Conquest follow the King himself and for proof thereof he quoteth Gervasius Tilburiensis who wrote many observations upon the Exchequer which he dedicated to King Henry the second and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there But because as Mr. Lambard saith some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas for all Subjects whatsoever and that for the maintenance of their assertion they do alledge the title of Mr. Glanvil's Book in part thus Et illas solùm leges continet consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium lest others should hereby be misled and for this reason think so too and so be brought to conceive that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco that the Exchequer might have the cognizance of all Causes between party and party as well maritime belonging to the Sea and Sea-affairs and from thence arising as terrene belonging to the Land and Land-affairs and from thence growing I shall here set down Mr. Lambards answer to that which is alledged for the proof and maintenance of this assertion who confidently affirmeth that the aforementioned words are not the words of Glanvil himself but of the Publisher of his Book in print which appeareth by what precedeth the words alledged in the Title viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo which saith he doth plainly shew and bewray that the Publisher spake of Glanvile as another man and which also lived not then but at another time And herein he must needs say very truly for never was there any Author of any credit that ever gave himself this or the like title or being living would say that he was juris regni antiquarum consuetudinum eo tempore peritissimus And again they have not taken in all the words of that title which do follow but have left out these viz. Et coram judiciariis ubicunque fuerint which being so the Kings Bench or Court which then followed the King must needs be herein comprehended and included and the whole title being collected thus Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo eas solùm leges continet consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium coram Justiciariis ubicunque fuerint Then doth this title make no argument for the proof of their assertion And so I shall leave the Exchequer then only to govern and rule the Kings Revenues Demeasnes and Receipts and such matters as belong only thereunto and next cast only a glance upon the Justices in Eyre and their Jurisdiction The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes but by Bracton are called itinerantes For King Henry the Second in the 32th year of his reign divided the Realm into six parts from which the Circuits which our Judges do now ride do not much differ and to every of those parts appointed three Justices who at their appointed times kept Circuits in their several parts to them limited and held plea as well of Criminal as of Civil Causes But Justices of Assises being likewise appointed whose first office was to take Assises of Mort d'ancester and Novel Desseisins according to the customes of Normandy where it is called la Novellette and gaining a further power of taking Attaints Juries and Certificates and delivery of Gaols These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre who about that time did surcease and take leave Now could neither of these Justices the Justices in Eyre not coming every year into the Country nor the other Justices being sometimes at home sometimes in their Circuit and in their Circuit sometimes in one place and sometimes in another take cognizance or have the hearing and determining of maritime causes seafaring matters or any thing them concerning For such causes did and do require a more speedy dispatch and determination than these Justices could afford them Nam breviter summariè tales sunt examinandae causae nec ad plenissimas Judiciorum formulas recurrere oportet sed suceinctè de plano sine strepitu judiciorum solenni figurâ immo velo levato in eis procedendum est ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem transfretationem properant judicium sic properat ad navigandum transfretandum festinatio Merchants Mariners and Seamen whose business and affairs are ordered here ventulated at sea and agitated beyond the seas must have a quick and sudden dispatch of Justice that as they come in with one good wind so they may go out with another the Mariners cause admitteth no delay but must have a judge and a settled place of Judicature at all times in readiness for his dispatch for whilest his cause is pleading for his right his Ship is preparing for his Voyage to which I may well apply the verse in Virgil Interea classem velis aptare jubebat For his ditty is alwayes the same with another verse of the same Authors Rursus agam pelago ventis dare vela jubebo Neither for the very same reason if there had been no other could the Court of Common-Pleas when it was settled take cognizance of maritime causes or seafaring matters nor did the settling thereof dissettle the Marina which had at and before that time been committed unto the care and charge of several persons as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited for the Court of Common-pleas 't is plaine began not to be settled untill the ninth year of the same King if so soon for it was but that year determined that it should be so settled but the power thereof rested in the King himself and his supreme Court which constantly followed him whithersoever he removed and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place by these words Communia placita non sequantur curiam nostram sed teneantur in certo aliquo loco Now although differences and controversies of what nature soever were then perhaps neither so many nor did so frequently arise as now nor were of so great consequence and concernment as since they have been yet cannot I or any man else as I conceive think that