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
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
the Sea or on the Haven or Port by his authority might call them and have their testimony or if gone in any voyage to any forain parts might by Commssion have them examined sub mutuo vicissitudinis obtentu and receive their testimony Now this seeing being rightly thus understood the Lord high Admiral of England will not so soon nor so easily be thrust out of his Jurisdiction upon the Ports and Havens of the Sea by the Coroner of a County or by the Common Law eitheir as Sir Edward Coke by that which is deduced and drawn from this authority would have him Yet saith Sir Edward Coke this onely Authority is sufficient to over-rule all the said questions For saith he hereby it appeareth that the Jurisdiction of the Admiral is onely confined by the Common Law to the high Sea and affirmeth that it agreeth with all his former Book-cases and Acts of Parliament For the Book-cases I cannot deny but that they are much alike but all of them together not sufficient to make a sufficient proof for that which he would have and against that which is denied him For its agreeing with the Acts of Parliament I wonder he should averre it seeing this very point even in this particular concerning the death of a man upon the Ports and Havens is so clean contrary to what the Statute of 15 of Rich. 2. c. 3. in express words saith de mort de homme de maheym fitz en grosses niefs esteantz ethoverantz en my le haut fil de grosses Rivers tant solement peravale lez pontz de mesme les Rivers pluis procheyns al meer et en null autre lieu de mesme les Rivers est l'Admiral cognissance of the death of a man and of main done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridges of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance which is a thing needed not nor would have been provided for by this Statute if a Jury could have been had out of a proper County for the tryal thereof which is a thing requisite by the Common Law as in Lacyes Case twice already cited upon other occasions and as by Serjeant Callis his reading likewise in the same places So then for this particular concerning the death of a man upon a Port or Haven which is the foundation of this Argument that the Admiral should have no Jurisdiction upon the Ports and Havens it resteth onely in question whether the Statute shall over-rule Sir Edward Coke or Sir Edward Coke the Statute and ancient Law and Practice of the Admiralty This next thing he urgeth against the Admirals having Jurisdiction upon the Ports and Havens is the 43. Ed. 3. which saith he the Lord Dyer voucheth in Mich. 15. and 16. Eliz. saying quod vidi The Case is that the Abbot of Ramsey was seised of the Mannor of Brancaster in Norfolk bordering upon the Sea but more especially upon 60. acres of Marsh of the said Manor upon which the Sea did flow and reflow and yet it was adjudged parcel of the Abbots Manor and by consequence within the body of the County unto the low-water mark This argument cannot so much as seem to carry him so farre as he would have gone before for hereby he pretendeth the body of the County to reach only unto the low-water mark and that only by consequence which consequence will not hold For as Serjeant Callis in his Grays-Inne Reading saith p. 26. in Sir Henry Constables Case the Citizens of Bristol claimed Flotzon goods floating on the Sea by custome and in Bracton cap. 12. one alleaged to be discharged of Toll or Custome on the Seas by praescription in the Case of the Swans in Sir Edward Cokes 7th Report one prescribed to have a game of wild Swans at Abbots-beery in a Creek of the Sea which is a member or arme thereof And in Sir Henry Constables Case it is taken and received for Law that a Subjects Manor may extend to the low-water mark by praescription yet is not the Admirals Jurisdiction at all hereby taken away upon the same places For Sir Sir Ed. Coke himself in the same case declareth that the Judgements of the Common Law have been both for the Admirals Jurisdiction and the Jurisdiction of the Common Law both upon one and the same place at several times For saith he Fuit resolve per totam curiam que le soil sur que le mere flow reflow sc inter le high water mark le low-water mark poet cê parcel d' un manner d' un subject 16 El. Dier 326. 6. act issint fuit adjudge in Lacyes Case Trin. 25. El. in cest court en uncore fuit resolve quant le mere flow ad plenitudinem maris le Admiral avara jurisdictîon de chescun chose fait sur le ewe inter le high-water mark le low-water mark per le ordinarie naturall course del mare issint fuit adjudge in le dit case de Lacy que le felony fait sur le mere ad plenitudinem maris inter le high-water mark le low-water mark per le ordinarie naturall course del mare le Admiral avara jurisdiction uncore quant le mere est reflow le terr port apperteine al subject chescum chose fait quant le terr est reflow serra try al common ley car ceo donques est per cel del country infra corpus comitatus our ceo agree 8 Ed. 4. 19. issint nota que South le low-water mark le Admiral ad le sole absoâ—â—â— jurisdiction inter le high-water mark low-water mark le common ley le Admiraltie avoint divisum imperium interchangeablement come est avant dit se 〈◊〉 super â—quam l' auter super terram It wâ—â— resolved saith he by the whole Court that the soil upon 〈◊〉 the 〈◊〉 doth ebb and flow to wit between the high water 〈◊〉 and the low water mark may be parcel of a Mannor of a Subject 16 Eliz. Dyer 326. 6 acc and so it was adjudged in Lacyes Case Trin. the 25 of Eliz. in this Court and so it was resolved when the Sea doth flow unto the full height the Admiral shall have Jurisdiction of any thing whatsoever done upon the water between the high water mark and the low water mark by the ordinary and natural course of the Sea And so it was adjudged in the same Case of Lacy that a Felony done upon the Sea at full Sea between the high water mark and low water mark by ordinary and natural course of the Sea that the Admiral shall have Jurisdiction And so when the Sea returned the ground may appertain to a Subject and every thing done upon the ground when the water is returned shall be tryed at
which undoubtedly they had and have as hath been shewed before And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port or any Port or Chambers of a foreign Prince other then the Ports and Chambers of that Prince against whose Subjects the same were granted And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce that such a fact was done super alto mari hoc est quoad Portus suos but in other cases for Maritime businesses done either upon the Port or contracted for upon the land it is sufficient in the first to lay in the libel that they were done infra fluxum refluxum maris and in the last infra jurisdictionem Admirallitatis as hath been already said and shall hereafter be more fully shewed For that which followeth in the next place out of Stamford I joyned it with that of the 8 Ed. 2. and have already spoken thereto Next it is said 4 5 Ph. Mar. Dyer 159. 6. by the libel in the Admiralty the cause is supposed to commence sur le haut mere infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs non super altum mare whereby saith Sir Edward Coke it also appeareth that the Lord Admirals Power is confined to the high-sea This Conclusion can no wayes be deduced out of the premisses for though by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere infra Jurisdictionem de l'Admiralty and perhaps falsly so suggested because the thing was done in some Town within the body of a County for the instance is ubi revera facta fuit in tali loco infra corpus Comitatûs which locus may be any in-land Town within any County and non super altum mare as it deduced in the libel For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs If by the Libel the cause had been supposed to have commenced in vel super tali Portu infra fluxum refluxum maris then the words of the Authority might have run thus ubi revera facta fuit in tali loco infra corpus Comitatûs non super talem portum vel infra fluxum refluxum maris aswell as non super altum mare for the words non super altum mare are onely in affirmance of the contrary to what is layed in the Libel and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel specifying and designing that very place where such a particular act was not done if so be in the Libel it had been laid that this act had been done about the mid-way between Dover and Callis and the Authority had said ubi revera facta fuit in tali loco infra corpus comitatus and not in or about the mid-way between Dover and Callis I hope no man will say that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis so that it is plain this conclusion cannot be drawn out of the authority The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea and of things done or contracted beyond the seas which I shall deferre to their proper places There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas and not to be upon the Ports and Havens which are not cited amongst his Book-cases and Authorities of Books but are cited before them one amongst the Praemunire's by him cited which I have spoken to already and the other cited amongst the Prohibitions by him cited which concern Contracts and are referred to their proper places These two I shall here insert before I proceed to the next chapter The first of them is urged out of the book of Entries fol. 23. tit Admiralty where it appeareth saith he that the taking of a Ship called the Trinity of London lying upon the River of E. in the County of Kent is not super altum mare but infra corpus comitatus Cantiae and therefore a Suit for the taking of that Ship lying there in the Admiralty Court before John Earl of Huntingdon Admiral of England appeareth to be against the said Statutes and yet no question that was infra fluxum refluxum maris infra primos pontes Here he saith that the taking of that Ship in that place appeareth to be against the said Statutes but mentioneth not what Statutes having quoted divers before If there had been a Judgement in the case he certainly would have added this proof to the Judgement of Burton and Putts Case and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited and the Statutes next before mentioned are the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's which must be the Statutes against which this taking must be said to appear to be by reason he saith it appeareth to be against the said Statutes which must be meant of the next mentioned preceding Statutes If then it appeareth there to be against the Statute of premunire I hope it hath already received an answer If against that of the 32 of Hen. 8. c. 14. it cannot be so as shall be shewed when we come to treat of freight and contracts where we shall have occasion to mention that Statute against his tenents The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. The River of Thames at Billinsgate saith he is not within the Jurisdiction of the Admiralty but infra corpus comitatus This followeth next after the premunires and precedeth next before the prohibitions by him quoted that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty by this Record it must appear thereby not so to be either by a premunire brought or by a prohibition granted as I conceive being inserted in that place and must have some relation either to what precedeth or what followeth If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought I can say no more to it then I have already said If by a prohibition granted onely it proveth nothing for many a prohibition hath been granted and consultations have been awarded without denial of the suggestions And oftentimes prohibitions have been granted upon such suggestions as could not be maintained but deserved consultations upon the debate thereof and sometimes the parties have come
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
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
fuisse nullum remedium in hac parte habere potuisse dictos Willielmum Thomam in Curia Constabularii Marescalli Angliae ad respondendum sibi in causa praedicta summoneri venire fecit ac quendam libellum super actionem praedictam in eadem Curia coram dilectis fidelibus nostris Johanne Cheyne locum tenente Constabularii praedicti Willielmo Faringdon locum tenente dicti Marescalli nostri versus praedictos Willielmum Thomas adhibuit proposuit idemque Johannes Willielmus locum tenentes in causa praedicta minùs rite indebitè procedentes ac judicialiter affirmantes allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos Willielmum Snoke Thomam à cura praedicta de instantia praedicti Johannis Coppin sine causa rationabili quacunque dimiserunt deliberaverunt ipsum Johannem Coppin in quadam magna pecuniae summa argenti pro custibus ipsorum Willielmi Snokes Thomae in hac casu coram eis in eadem Curia factis per sententiam suam seu judicium condemnârunt dictos custus ad quandam summam nimis excessivam taxarunt limitarunt de quibus quidem sententia judicio condemnatione expensarum de taxatione earundem aliis gravaminibus praetensis praefato Johanni Copyn in hac parte illatis per partem dicti Johannis ad nos nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet qui quidem Johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu nobis supplicaverit ut sibi super appellatione sua praedicta certos Judices sive Commissarios dare assignare dignaremur nos supplicationi praedictae tanquam juri consonae annuentes vobis de quorum fidelitate industria fiduciam gerimus specialem commitimus vices nostras plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa sive causis appellationis hujus prout dictaverit ordo juris ipsamque ipsas cum suis emergentibus dependentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend debito fine terminand ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis coram vobis judicialiter producentes sine dolo vel fraude odio vel favore aut alià s injustè subtraxerint veritati testimonium perhibere compellandum Et mulctae alteriusque temporalis cohertionis cujuslibet potestate ideo vobis mandamus quod vocatis coram vobis partibus praedictis aliis quos in hac parte fore videretis evocand auditisque in hujus causis appellationis earum rationibus allegationibus circa praemissa diligenter intendatis ea faciatis exequamini prout justum fuerit consonum rationi volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis aliâ—s vel alii vestrum libere procedere valeat sive valeant in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus In cujus c. T. R. apud Westm xiiii die Novembris After this and after the making of the other Statute of the 2d of Henry the fourth one Edmund Brookes Mariner brought his Action in the Admiralty Court before John Sturmister Lieutenant General of Edmund Earl of Kent Admiral of England against John Birkyrne Richard Honesse John Walls and William Burton of Kingston upon Hull Merchants Partners in a Maritime Cause of contracting and taking to freight of a certain Ship called the Laurence of Gyppelwich and the same was there proceeded in unto sentenc and sentence was given for the said Edmund Brookes against the said John Byrkyrne and Company from which sentence the said Byrkyrne and Company appealed unto the King in Chancery and there obtained a Commission of Appeal from thence directed unto John Kington and others who by virtue thereof proceeded in the said Cause unto sentence and thereby reversed the former sentence and condemned the said Brookes in expences from which said sentence the said Brookes again appealed unto the King in Chancery and obtained a Commission of Review directed unto the then Bishop of London and six Civilians to review discusse and hear the said Cause in due course of Law and to determine the same according thereunto And this last Commission of Review was granted but eight years after the making of the said Statute of the 2d of Henry the fourth and therefore the Cause must needs be instituted and begun in the first instance some years before nearer unto the time of the making of the said Statute the same having been proceeded in even unto seentences in two several instances before the granting of this Commission all which appeareth by the Commission of Review it self which is upon Record in the Tower in these words following Rex venerabili in Christo patri R. Episcopo London ac dilectis ac fidelibus suis Thomae Beauford Thomae Eppingham Magistro Thomae Field Roberto Thorley Willielmo Senenocks Johanni Oxney salutem ex parte Edmundi Brookes marinarii nobis est ostensum quod licet Magister Johannes Sturmyster nuper locum tenens generalis Edmundi nuper Comitis Cantiae nuper Admiralli nostri Angliae in quadam causa maritima quae in Curia Admirallitatis occasione affectationis conductionis sive locationis cujusdem navis Laurence de Gippelwich coram praefato Johanne tunc Judice in ea parte competenti inter praefatum Edmundum partem actricem ex una parte Johannem Birkyrne Richardum Hornesse Johannem Walas Willielmum Burton socios ut dicitur in causa praedicta Mercatores de villa de Kingston super Hull partem ream ex altera vertebatur quandam sententiam pro parte dicti Edmundi contra partem praedictorum Johannis Birkyrne c. rite legitime tulerit definitivam pars tamen eorum Johannis Birkyrne Johannis c. a sententia praedicta ad nos nostram audientiam frivole appellavit quo praetextu quidem Magister Johannes Kingston alii colore ejusdem commissionis nostrae eis ad cognoscend procedend in dicta causa appellationis praetens negotio in ea parte principali praetens directae perperam illegitimè procedentes ac dicti parti appellanti plus debito faven dictam sententiam pro parte dicti Edmundi ut permittitur latam licet nullam habuerint jurisdictionem infirmarunt cassarunt irritarunt adnullarunt ac ipsum Edmundum in expensis per partem dictorum Johannis Birkyrne Richardi Johannis c. in praedicta praetâ—â—â—sa causa appellationis negotio principali praetenso eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus
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