for the Lawes of the Rhodians are of all Sea-Lawes the most antient Those Sea-Lawes of the Rhodians or some part of them are extant published in Greek and Latine by Symon Schardius and Marquardus Freherus and out of them related by Marisotus in the first part of his Orbis maritimus The Romans who in the beginning of their Republique received their Lawes of the Twelve Tables from the Athenians under the Empire when their State was at the heighest and abundantly furnished with Lawes for other matters in the time of Tiberius Claudius admitted the Rhodian Lawes for the regulating of the affaires of the Sea whereupon when one Eudaemon a Merchant of Nicomedia complained to the Emperour Antoninus that he with others had suffered Shipwrack and were spoyled of their goods by certain Officers of the Islands called Cyclades the Emperour answered him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that indeed he was Lord of the World that is to say of the Land or Continent but that the businesse and rights of the Sea had a speciall Rule set down in the Rhodian Lawes to which he did referr them These Rhodian Lawes as Mr Selden observes were afterwards inserted into the body of the Civil Laws by the Emperour Iustinian and others and were in high esteem both in the Roman Greek Empire The titles to which they are reduced in the Civil Law are collected by Petrus Peckius who hath commented upon them and are likewise set forth by Morisotus and as they were in use in the Greek Empire they are set out by Leunclavius amongst the Basilica or Laws from Rome received at Constantinople The wisdome and equity of the Roman Civil Laws in Processe of time have been received and allowed in all Nations and states of Europe for the regulating and determining of businesses at Sea as it plainly appears in all Authors of several Nations who have written of or handled matters of that nature To which have been added diverse Ordinances and Constitutions of their own for confirmation of those Laws and supply where it seemed necessary So the Provinces and places bordering on the Mediterranean Seas according to former usages and customs and upon new emergent occasions established several orders and constitutions for Maritime businesses which some eminent persons residing at Amalphia a Town in the Kingdome of Naples reduced into a Monument called Tabula Amalphitana of which Marinus Frecria writes In succeeding times Maritime businesses were not determined onely by the Rhodian Laws but suites and controversies touching matters of the Sea were determined by the Law which is contained in the Table of Amalphia unto this â—ay The like was done by the people of Venice Morea or Peloponnesus Rome Genua Marsellis Aragon Barcelona c. of all which places the Constitutions are comprehended in the Book called Il Consultate del Mare of which it is related in a distinct Chapter Questi sono buoni stablimenti these are the good Constitutions and Customs which belong unto the Sea the which wise men passing through the World have delivered to our Ancestors Touching the Nations confining on the Western and Northern Ocean It appears likewise That in Spain there were special Laws and Ordinances provided for the businesses of the Sea for occasions both of War and Peace as in the Partidas of Alphonsus the ninth under the Title of De los navios and under the Title De la guerre per la mer and under the Title De los navios in the Recopilation of Philip the 2d which are illustrated by the Comment of Alphonsus Azevedo and others So the French for maritime affaires have divers Edicts or Ordinances which are stiled Reglements sur la fait de Admiralty which were established by Charls the sixth Lewis the twelfth Francis the first and lastly by Henry the third most fully upon review of all former Acts which were afterwards ratified by the Court of Parliament at Paris But for ordinary matters of Navigation and Trade at Sea the Laws or Judgements of Oleron which is an Island situate at the mouth of the River Charenton near the Coast of Aquitain are of special Observation in that Kingdone as appears by an Antient Record extant amongst the Royal Edicts Entituled Droits et preminences del Admirall wherein it is declared That the Admirall ought to do justice to all Merchants according to Rights judgements c. and usages of Oleron And Grotius affirms That as the Rhodian Laws in the Mediterranean Seas were reputed as the Lawes of Nations so in France are the Laws of Oleron and sayeth further in that place That in what esteem the Laws of Oleron have been in France the same have Leges Wisbuiences amongst the Nations beyond the Rhine which if Welwood mistakes not are the same with the Laws of Oleron Translated into Dutch for the use of the Sea Coasts in those parts Malines in his Lex Mercatoria sets forth a Catalogue of the Laws of the Hanse Towns And Loccenius in his Preface to his Book de Iure Maritimo mentions jus nauticum Suesicum and Leges Wisbuiences which he sayeth are observed both in the Hanse Towns and in the Northern Kingdomes and also the Ordinances of the Hanse Towns themselves and of the Belgick Common-wealth It is likewise apparent that the Kingdome of England is not destitute of special Laws for the regulating of Sea businesses which are distinct from the Common Laws of the Realm as namely the Civil Law and others of which the Books of Common Law take notice by the names of Ley Merchant and Ley Meriner Touching the Civil Law how it is observed in the Admiralty of England Sir Edward Cook shews in his Comment upon Littleton where he mentions divers Laws which are in use in this Kingdome And Mr. Selden in his dissertation ad Fletam sayes Iuris Civilis vel Caesarij usus ab antiquis seculis etiam num retinetur in foro Maritimo seu curia Admiralitatis And accordingly in the time of King Edward the sixth when Monsieur Villandry being imployed for the King of France upon occasion of some differences hapning betwixt the Subjects of England and of France concerning Sea businesses Signified that the King his Master was desirous that the Ordinances and the Customs of England might be reduced into one form without any difference betwixt them and the French answer was made That the English Ordinances for Marine affairs were no other than the Civil Laws and certain antient Additions of the Realm wherein they could not conceive any reason or convenience of change The Law Merchant is likewise mentioned and allowed by Sir Edward Cook in his Comment upon Littleton as a Law distinct from the Common Law of England And so doth Mr. Selden mention it in his notes upon Fortescue And Sir Iohn Davis more fully ownes it in a Manuscript Tract touching Impositions where he affirms That both the Common
Councell Garsias Mastrilli sayes he hath all Jurisdiction both Civil and Criminal in Maritime causes exclusive to all others The King of Spain hath divers other Admirals both in Europe and the Jndies of equal power Marinus Siculus sayeth of the Admirall of Castile that he is next unto the Constable and hath supreme Authority over all that use the Sea and is held to be Lord and chief Commander of the Sea as it is also largely described in the Partidos besides for the dispatch of ordinary Maritime businesse by the same Laws Judges are appointed to reside in Port Towns and other places on the Sea Coasts which are to hear the causes of Sea-men concerning Freight of Ships and Contributions for goods cast over-board or any other matter which Judges were to proceed plainly without solemnities and with all expedition c. In France by an Ordinance of Henry the third made upon a survey of all other former Ordinances ratifyed by the Parliament of Paris The Office of the Admirall in the Kings name is thus declared 1. That of all Armies which shall be raised and set to Sea the Admirall of France shall be chief and our Lieutenant General and shall be obeyed in all Maritime Towns and places which are or may be without contradiction Secondly He shall have Jurisdiction Conusance and determination of all things done or committed on the Sea or shoars of the Seas likewise of all acts of Merchandise fishing freighting or letting to freight or breach of ships of Contracts made touching the matters afore-said of Charter parties of Sea briefs and of all other things whatsoever happening upon the Sea or shoars thereof as our Lieutenant General alone and to all purposes in the places afore-said which Jurisdiction Cognizance and determination we have interdicted to all other our Judges He shall hold his principal Court at the marble Table in the Palace at Paris and shall appoint Judges Deputies in Maritime Cities and Towns who shall hear ordinary matters happening within their Circuits and if any businesse fall out worthy of greater consideration they shall referre the same to him In Denmark the third place of dignity in the Kingdom belongs to the Admirall who is commonly called Ryâ—ks Admirall and as Morisotus writes He hath the same Right and Power as the Admirall of France In Scotland as VVellwood a Scotish man writes the Admirall and Judge of the Admiralty hath power within the Sea-flood over all Sea-faring men and in all Sea-faring Causes and debates Civil and Criminal So that no other Judge of any degree may meddle therewith but only by way of Assistance as it was found in the Action brought by Anthony de la Tour against Christian Martens 6 Novemb. 1542. The Admirall of England as Mr. Selden observes hath another manner of Right and Jurisdiction than the Admirall of France or other ordinary Admiralls for that the Jurisdiction over the Seas of England and Ireland and the Dominions and Isles of the same as a Province are committed to his Custody and Tuition as to a President to defend the same as in the Dominion of the King by whom he is Authorized The bounds of which Jurisdiction are limited and determined in those Seas and besides as the French and other Admiralls he hath the power over the Navy and the Government over the Sea-men and Jurisdiction over the persons and moveable goods which come under his Judicature pour raison ou occasion del faie de la mer which Jurisdiction hath no bounds but extends to the Mediterranean African and Indian Seas or any other far remote What Mr. Selden delivers concerning the Admirall of Englands special Jurisdiction in the first respect is confirmed by an ancient Record in French in Archivis of the Tower of London set out at large by Sr. Edward Cook the effect and tenour whereof is That whereas during the Warrs between Philip King of France and Guy Earl of Flanders Reginerus Grimbaldus Admirall of the French Navy had spoiled the Merchants of divers Nations sailing towards Flanders in the English Seas and Commissioners being appointed by the two Kings to hear and redresse the Complaints concerning the same the Deputies of the Prelates Nobility and Commonalty of the Towns of England and of divers Maritime Countries as of Genua Catalonia Spain Germany Zeland Holland Friesland and Norway declare That the Kings of England by reason of that Realm time out of mind have been in peaceable possession of the Soveraign Dominion of the Sea of England and of the Islands therein situate by ordering and establishing Lawes Statutes and Counter-mands of Armes Vessels otherwise furnished than for Merchandising and by taking security and giving protection in all Causes needful by ordeining all other things requisite for the maintaining of Peace and Right amongst all other People as well of other Seignieuries as of their own passing through the same And all manner of Cognizance and Jurisdiction high and low touching those Laws Statutes Ordinances Countermands and all other Acts which may appertain to the Soveraign Dominion afore-said and that A. D. B. Admirall of the Sea deputed by the King of England and all other Admiralls appointed by him and his Ancestors heretofore Kings of England have been in peaceable Possession of the said Soveraign Protection together with the Conusance and Jurisdiction and all things before mentioned thereunto appertaining except in case of Appeals to their Soveraign Kings of England for default of doing Right or giving wrong Judgment and especially in making Restraint doing Justice and taking security for the peace of all manner of People bearing Arms on the Sea or Ships sailing otherwise apparelled or furnished than belongs to Ships of Merchandise and in all other points in which a man may have reasonable Cause of Suspicion against them touching Robbery or other misdemeanours Besides the Jurisdiction Extraordinary of the Admirall of England concerning Protection against depredations in the English Seas as Mr. Selden writes his Ordinary Jurisdiction is over the persons and goods moveable which come under his judicature by occasion of businesses relating to the Sea is not only agreeable to the Jurisdiction of the French and other Admiralls but is also warranted by the Kings Commissions as it is apparent by antient and later Patents granted by the Kings of England in which the Admiralls of Englands Ahthority and Jurisdiction is expressely fully declared as followeth Damus Concedimus c. We give and grant to N. the Office of our great Admiral of England Ireland Wales c. And we make appoint and ordain him Governour General of our Navies and Seas of the Kingdoms afore-said And be it further known that we of our special Grace and certain knowledge do give and grant to the same our great Admirall and Governour of our Navies all and all manner of Iurisdictions Liberties Offices Fees Profits Preheminences and Privileges Whatsoever belonging or appertaining So far is
amending saving or necessary victualling of a Ship against the Ship it self and not against any party by name but such as for his interest makes himself a party no Prohibition is to be granted though this be done within the Realm That the Admiral of England may hold Conusance of things done in Ports and Navigable Rivers as touching Dammages done to persons Ships and goods Annoyances of the Publick passage and unlawfull fishing FIrst it is apparent that Ports and Navigable Rivers are places where Maritime businesses and causes of difference concerning the same may happen as well as on the main Sea it self and in truth are more proper for such affairs than for any ordinary businesses of the Land Portus saith Ulpian est locus conclusus quo importantur merces exportantur and importation and exportation of goods do chiefly concern Navigation and Merchants affairs Secondly Flumina navigabilia that is navigable Rivers are of the same condition and use and it is allowed by the Common Law that every water which flows and reflows is an Arm of the Sea and Mr. Selden maintains that Navigable Rivers are in the Kings special Dominion and Protection and under the King within the Jurisdiction of the Admiral for he shewing the difference betwixt the Admiral of France and the Admiral of England saith the Government of Rivers which are in the Dominion of the King of France belongs not to the Admiral of France but to the special Iurisdiction of those who are called the Presidents or Masters of the Waters and Forests for the Publick Rivers as he affirms within the limits of that Kingdome belong wholly to another Office and not to that of the Admiral as it doth to the Admiral of England Thirdly it is evident by the Judgements of Oleron established for Law in the Admiralty of England That many causes are resolved concerning Dammages done by one Ship to another sailing in the River and for falling foul one upon another in the Port or Harbour as also for loss done to Merchants goods in the Ports of discharge by miscarriage in the unloading by reason of unfit coardage and tackling It may likewise be shewed out of the Inquisition taken at Quinborough that many things done in Ports and Navigable Rivers are within the Jurisdiction of the Admiralty as Ship-wrights taking excessive wages removing of Anchors cutting of Buoy ropes and taking Salmon at unseasonable times the using of unlawfull Nets the spoyling of Beds of Oysters the dregging for Oysters and Mussells at unseasonable times and divers other matters Against the Admirals Jurisdiction in this respect are pretended likewise Statutes Book-cases Judicial Acts c. by which it is endeavoured to be proved That the Admirals Jurisdiction is confined only to the high Sea and wholly excluded from things done in Ports and Navigable Rivers which are said to be within the bodies of the Counties of the Realm The first Statute is that of 15. Richard 2. which declares that the Court of Admiralty hath no manner of Conusance Power or Jurisdiction of any Contract c. or any other thing rising within the Bodies of Counties either by Land or by Water which later part is so General and uncertain that according to the General rule delivered by Sir Edw. Cook before mentioned lex generaliter loquens restringenda est c. for by the general understanding of it as it is most generally understood by the Professors of the Common Law it doth not only debarr the Admiral from the Conusance of those causes which he is supposed to have encroached to the prejudice of the Courts of Common Law but also from the Conusance of those things which they were wont or ought to have of right contrary to the express meaning of the Praeamble of that Statute as all those Causes which before this Statute did belong to the Admiral by the Roll of Oleron and the Inquisition at Quinborough But it may reasonably and probably be conceived that the Statute intending to restrain the Admirals Jurisdiction intended by the words Other things in general such things about which Actions and Sutes at the Common Law might arise And having before mentioned Contracts Pleas and Quarrels wherein private persons might have an interest by way of personal Actions did afterwards add other things arising within the Bodies of Counties intending thereby publick offences and such as are against the Crown as Treason Murther Manslaughter Mayhemes Robbery Trespasses vt armies and the like which interpretation First is agreeable to the Praeamble which mentions encroachments upon the Jurisdiction c. pertaining to the King Secondly because the Statute ordaining that such things shall be tryed discussed and determined by the Laws of the Land and not before the Admiral seems to intend things which might be tried either way as Offences of that Nature which done on the Sea might have been tried before the Admiral and being done on the Land were to be tried in the Courts of Common Law Thirdly because the reservation in the conclusion of the Statute Provides that nevertheless of the death of a man or Mayheme done in great Ships being and hovering in the main stream beneath the Bridges next to the Sea the Admiral shall have Conusance which being in the nature of an Exception implies that the things before mentioned in general were to be understood of Offences or matters of the same nature and condition Sir Edward Cook where he cites the Statute of 15. Rich. 2. notes that it was to be observed how curious the makers of it were to exclude the Admiral from all manner of Jurisdiction within any Water which lyeth within any County of the Realm but if his words be considered his curiosity goes far beyond them for whereas the words of the Statute Anciently and generally have been received only beneath the Bridges next or nigh the Sea he renders it only beneath the Points of the same Rivers The French word Pounts being easily turned into Points which Criticism might have the better passed if it might be known what were meant by Points of Rivers we understand by Points of Land some extreme parts or ends which in respect of the rest are of a more accute figure but Rivers towards the Sea which way the Criticism looks grow broader or wider far from any Angular acuteness Again we commonly say above or bâ—neath the bridge but if we speak of the extremites we say behither or beyond within or without the Lands end besides whereas the words in that place are ships riding in the main stream of Navigable Rivers it may be doubted where that main stream can be found beneath the points of the River The former reading of the Statute viz. beneath the Bridges is agreeable to an ancient Edition of the Statutes at large printed 1543. above a hundred years since so Rastals Abridgement and Poultons Collection of the Statutes and is so received by Crompton in his Jurisdiction of Courts where he writes of
but which is wholly distinct from the same In the first case he confesseth that it is necessary to allege the cause of Action to arise within the new created Jurisdiction because prima facie nay de Iure the Courts of Common Law have general Jurisdiction of those things but in the later case as of the Admiralty if the cause be Maritime there is no need to averr it to have been done upon the Sea out of any respect to the Courts of Common Law for that it doth not tend to the diminution of any of those Courts and for Confirmation thereof he affirms that the Jurisdiction of the Marshalsey stands partly upon the Statute Articuli super Chartas and the words of that Statute are as restrictive as any words of the Statutes touching the Admiralty and by the books of the Common Laws the Marshal cannot hold Plea in some cases unless both parties be of the Kings Houshold nor in any case unless one of the parties be so yet it is resolved that the Declaration is good although it be not averred therein that any of the parties be of the houshold and therefore a Fortiori it is not necessary in the Admiralty to specifie in the Libel the thing to have been done super alto mari the Admiralty Jurisdiction being more distinct from the Common Law than that of the Court of Marshalsey That the trial of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Subjects and Kingdome of England than in the Courts of Common Law HOw much the maintenance and advancement of Navigation and trade by Sea concerns the Kingdome and Subjects thereof Sir Edward Cook delivers who saith That Trade and Trafique is the lively-hood of a Merchant and the life of the Common-wealth wherein the Kingdome and every Subject hath interest For the Merchant is the good Bailiff of the Realm to Export and Vent the Native Commodities and to Import and bring in the necessary Commodities for the defence and benefit of the Realm So much is confirmed by several Acts of Parliament fram'd by common consent of the Kingdome The Statute of the 32. of Henry the 8. chap. 24. sets forth That it is notoriously known that the Realm of England for the most part is invironed with the Seas so that the Subjects cannot convey and transport their Wares Merchandizes and Commodities by Land but only by Ships and that the Navy and multitude of Ships of the Realm is very commodious and necessary as well for the intercourse and concourse of Merchants conveying and transporting their Wares and Merchandizes and a great defence and security to this Realm as well to offend and defend as also for the maintenance of many Masters Mariners and Seamen and also hath been the chief maintenance and supportation of Cities Towns Havens and Creeks near adjoyning unto the Sea-coasts Likewise that of the 43. of Elizabeth chap. 12. declares That it hath alwayes been the Policy of this Realm by all good means to comfort and encourage the Merchant thereby to advance the general Wealth of this Realm the Kings Customs and Strength of Shipping c. It hath been formerly observed That for the encouragement of those who maintain trade by Sea in all Nations and States there have been special Judges appointed to hear and determine causes concerning Trade and affairs of the Sea and it may be further noted that such Judges have been directed to proceed at such times and in such manner as might best consist with the opportunities of Trade and least hinder or detain men from their Imployments Amongst the Graecians as at Athens it was provided That all sutes betwixt Sea-men and Merchants should be determined in those vacations when the Seas were barred or in those Moneths when Navigation was restrained So much is confirmed by Salmatius Eo tempore quo oritur Arcturus navigationes suas ut plurimum desinebant mercatores domumque redibant Boedromion quippe mensis qui septembri respondet quo tempore ferè Arcturus oritur terminus erat navigationum Atticarum ideo ab eo mense Munichiâ—nem usque quo mense iterum se mari committebant ac vela dabunt Mercatores Athenienses in urbe desidebant lites suas disceptabant ut videre est apud Demosthenem adversus Apaturium Amongst the Romans likewise for the better dispatch of causes concerning Sea-businesses the Judges were ordered to proceed Levato velo and de plano without that Solemnity and formality which was used in ordinary Courts and Causes So in Italy Spain and France the Judges proceed in causes concerning the Sea Summarily and in a more compendious way than other Judges use And the like as Sir Iohn Davies relates hath seemed to the wisdome of this Kingdome Our Parliaments saith He have not only made extraordinary provisions for a more speedy recovery of debts due unto Merchants for their Merchandizes than is provided by our Common Law as appears by the Statute of Acton Burnel made the 11. of Edward 1. and the Statute De Mercatoribus made the 13. of Edward 1. but also hath allowed a Court of Proceedings in cases of Merchants different from the course of our Common Law For by the Statute of the 27. of Edw. 3. cap. 2. it is declared That the proceedings in causes of Merchants shall be from day to day and from hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament That all Merchants coming to the Staple shall be ruled by Law-merchant touching all things coming to the Staple and not by the Common Law of the Land and by another Article That neither any of the Benches nor any of the Iudges of the Common Law shall have any Iurisdiction in those cases To which may be added the Statute of 32 of Hen. 8. Chap. 15. and of the 43 of Elizabeth Chap. 12. which direct That such causes betwixt Seamen and Merchants shall be ordered summarily and without delay and as in discretion shall seem most convenient All which was and may be observed in the Court of the Admiralty which in many causes proceed at any time and in all causes summarily and according to Equity but neither is nor can be observed in Courts of Common Law which are open onely in Term times and proceed in an ordinary and strict way Secondly For the advantage of those who use Navigation and Trade by Sea The Law-merchant and Laws of the Sea admit of divers things not agreeable to the Common Law of the Realm which may be better insisted on in the Court of Admiralty than in the Courts of the Common Law So much is likewise declared by Sir Iohn Davyes relating several instances to that purpose 1. If two Merchants saith he be joynt Owners or Partners of Merchandizes which they have acquired by a joynt Contract the one shall have an Action of