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
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
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
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 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
the other If not so yet let no man say that the two famous antient Universities of the Land wherein there be so many Colleges and houses of antient foundation in which have been by the Founders themselves so many Fellow-Ships Scholar-ships and places founded settled and employed properly and solely for Students in the Civil and Maritime Laws or the Laws proper and necessarily usefull for Navigation and Maritime affairs being so scattered or I will rather say decently as flowers strewed and disperst through the whole body of the Civil Law the subject whereon those Students were to spend their daily labour pains and employment could possibly be long ignorant of those Laws that these so many forenamed nations had so long and so well known What if known by this Nation was there yet any use made of them in it That they were known by what hath been said or considered cetainly I cannot have so ill a conceipt of my Country men the antient Inhabitants of this Nation as to think them so long ignorant and unskilfull of those antient Laws of the Sea and Laws so necessary for maritime affairs as some would make them to be much less will I think the Government of this Nation to be without so good order and justice in any particular as not to settle these Laws once known for the government of its maritime matters nor will I imagine the maritime men to be so dull or stupid as not gladly to embrace the settlement of such Laws as tended so much to their quiet and advance of their profit being to trade and commerce with such as used in this particular no other Laws but these Again shall we say that so many Nations some so remote and some so near home as France but over against us and Scotland even within the same Island all governed by the Civil Laws or Municipal Laws thence derived and by them regulated and guided as the Sea Laws are and keep the pathes and very footsteps thereof in their proceedings as the Sea Laws do have with so much eagerness pursued and sought for these Sea Laws and with so much chearfulness embraced and continued them and that this Nation that is invested in a Law particular and municipal which doth in no wise so much as challenge or claim any derivation from or dependency of the Civil Law but is altogether different and disagreeable thereunto in its proceedings and oftentimes in its determinations and hath no foundation or grounds whereon the dicisions of sea-controversies can be built should without the knowledge and practise of these Civil and Maritime Laws deal and trade with such as do live under them and are guided by them surely no so many inconveniences distractions distempers by reason of the variousness of two Laws both in proceedings oftentimes in determinations would long agone have destroyed all our Commerce and Traffique with these other Nations and so consequently have dispoiled us of our Navigation and Shipping the principal safeguard of this Land Nay I am so farre from doubting the acceptance of these Maritime and Sea Laws here in England as well as in other Nations that I am confident they were here settled before they were settled in divers of those Nations before mentioned For I must not so much as think or have the least conceipt that England ever borrowed any thing at all from those Articles which are cognoscible in the Admiralty of Scotland But I may very well believe that those Articles of Scotland were borrowed from some of the three antient Records of the Admiralty of England For so are all things by the Admiral Judge or Lieutenant decreed and registred by an Ordinance of Richard the First made at Grimsby styled and said to be which are with very many other antient things comprised in the black Book of the Admiralty which are therein ingrossed in an antient Character upon Vellam one of which immediately followeth the antient Statutes of the Admiralty and is there set down in old French as the said Statutes are and conteineth 38 Articles A second is a Latin Copy translated out of another antient French Record by Roughton and in an antient Character in the same manner inserted into the same book and containeth 52 Articles The third is the Inquisition taken at Quinborough the 2. of April in the 49th year of the Reign of Edward the Third at which time and to which place he caused several maritime and seafaring and sea-trading men of the best judgement and knowledge in sea-affairs of most of the maritime parts of England to be summoned and there before W. Nevel Admiral of the North Philip Courtney then Admiral of the West and William Lord Latimer Chamberlain of England and Warden of the Cinque-Ports to meet together and consider of all such points and matters as had antiently and usually been observable inquirable and punishable in the Admiralty upon which inquisition 81 Articles were concluded on which are likewise ingrossed they being more particular than the former in old French in the said antient black Book of the Admiralty But these as the Scottish Articles do concern only matters to be proceeded against criminally and not matters of Trade Traffique and Commerce and damages susteined at Sea or in Ports havens c. whereof I shall come to treat in the second Book yet do these several Records in several Articles set forth in what manner such as shall sue or implead any Merchant Mariner or seafaring man for any Contract maritime whether made by Charter-party or otherwise or for any thing whatsoever done of or concerning any Ship or other Vessel in any other Court then the Admiral shall be proceeded against as I shall more particularly hereafter set forth But my chiefest reason that the Civil and Maritime Law-Courts were here settled in England before they were settled in divers of those other Nations is for that this Nation hath had the Dominion over the British Seas and their High-Admirals their Jurisdiction over those Maritime Affairs which fell sub isto regimine dominio so antiently as that in Edward the Firsts time the same was acknowledged by very many other Nations to have been then beyond the memory of man as I have before set forth in the 5th chapter of this Book where I take my authority from an antient Record of the Tower in nature of a Libel intituled De superioritate maris Angliae jure officii Admiralitatis in eodem as is in the same 5th chapter exprest The Record it self I was a long time since shewed by my old friend Mr. Collet who for a long time had the keeping of the Tower Records under several men unto whose care and custody the same were committed and afterwards I met with the same in Mr. Seldens Book De Dominio maris which I had not before read over and after that I found the same set forth by Sir Edward Coke in his Jurisdictions of Courts yet I will not
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
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