Law and Statute Laws of England take notice of the Law Merchant and do leave the caâ—ses of Merchants to be decided by the Rules of that Law which Law Merchant he saith as it is part of the Law of Nature and Nations is universal and one and the same in all Countries of the World For as Cicero saith of that Law Non erit alia lex Romae alia Athenis alia nunc alia post haec sed et omnes gentes et omni tempore una eademque Lex obtinebit whereby it is manifest that the Causes concerning Merchants are not now to be decided by the peculiar and Ordinary Lawes of every Country but by the general Lawes of Nature and Nations He sayeth further that untill he understood the difference betwixt the Law Merchant and the Common Law of England he did not a little marvell that England entertaining traffique with all Nations of the World having so many Ports and so much good Shipping The King of England also being Lord of the Sea what should be the cause that in the Books of the Common Law of England there are to be found so few Cases concerning Merchants or Ships But now the reason thereof was apparent for that the Common Law of the Land did leave those cases to be ruled by another Law Namely the Law Merchant which is a branch of the Law of Nations The Law Mariner to which happily the answer to the French Agent mentioning Antient additions of the Realm related were such things as are contained and preserved in the Antient black Book of the Admiralty as certain Royal Ordinances made by Antient Kings of the Realm 2ly The Judgements or Resolutions of Oleron in the time of King Richard the first 3ly Certain verdicts given upon an Inquisition at Quinborough in the time of King Edward the third and some other matters touching the Admiralty of England Touching the black Book of the Admiralty Mr. Selden stiles it Vetusti Tribunalis maritimi Commentarii And Codex Manuscriptus de Admiralatu And in his notes upon Fortescue he saith that there are in it worthy of Observation Constitutions touching the Admiralty of Henry the first Richard the first King Iohn and Edward the first Touching the Judgements or Laws of Oleron and the use of them in the Admiralty Court Mr. Selden where he from them argues the Soveraignty of the Kings of England in regard King Richard the first did publish the Sea Lawes in the Island of Oleron which was then in his possession sayes that they are still in force And Sir Edward Cook likewise argues that the Jurisdiction of the Lord Admirall was long before the Reign of Edward the third from the Laws of Oleron So called because they were there made by King Richard the first The Inquisition at Quinborough was taken in the year 1376. in the 49. of King Edward the third by eighteen expert Sea-men before William Nevill Admirall of the North Philip Courtny Admirall of the West And the Lord Latimer Warden of the Cinque Ports And relates as by the Title appears to the usages of former times The verdicts there given were desired to be established by the Kings Letters Patents in the Cinque Ports and Towns adjoyning to the Thames to be observed by the owners Masters and Mariners of Ships under penalties c. And Malines writes That he had seen them enrolled amongst the Records of the Tower for the Government of the Admiralty That generally where Lawes have been provided for businesse concerning the Sea as also in England several Iudges have been appointed to determine differences and redresse offences concerning the same GRegorius Tholosanus sayes Iudicum diversorum ratio eo dirigitur ut lites facilius expediantur ne immortales sint sub judicibus mole negotiorum occupatis proinde cum commercia hominum sint maximae utilitatis placuit Negotiatoribus proponi proprios Iudices and accordingly First the Grecians had their special and proper Judges appointed for those businesses So Suidas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The Natodicae were Magistrates who did Iustice to Seamen and others who trade by Sea And the Athenians had an expresse Law to that purpose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That actions concerning Seamen and Merchants should be commenced before the Iudges called The smothetae according to their Instruments of Contracts and dealings Secondly Amongst the Romans there was antiently an Officer called Praefectus Classis by Tully and Livy and Iavolenus makes mention of Seius Saturninus Archigubernius Classis Britannicae and Tacitus of Praetor Classis which name imports a power of Judicature in latter times they had also a Magistrate who was called Comes Commerciorum whose Office was to over-see matters of Commerce or Negotiation Thirdly the Roman Empire being broken into several States the lesser as Republiques had their Consuls and the greater Kingdomes had their Admiralls to order and determine those businesses The office of the Consuls is described in the Consolato Del Mare Consoli determinano â—utti le controversie c. The Consuls determine all controversies which are for Fraights for Dammages done to goods on shipbord for parts of ships to be set to sale at an outcry for Commissions given to Masters and Mariners for Debts contracted by Masters for the necessary use of the Ship for things promised or undertaken betwixt Merchants and Mariners for goods taken up at Sea and generally for all other Contracts and businesses which are declared amongst the Customs of the Sea Fourthly The Venetian State being a Seigniory when any great War is expected or undertaken have their General or Supreme Commander of the Navy who is of as high an esteem as any Magistrate of the City having absolute power over all Officers aud others of the Navy at other times the Legatus classis or Vice-General hath the power of disposing of the Navy and over the Captains of the Gallies and other persons of the Navy They have besides four Consuls who Judge and determine all matters concerning Negotiation and Trade Fifthly Admirals in Europe had their beginning as most affirm in the time of Constantine the Emperour and that in Magna Graecia which is now the Kingdome of Naples where the dignity of Admirall is the third place to wit after the Vice Roy and Constable To whom belongeth the Building Repayring and keeping of the Ships Royal and setting out of the Fleets for Warre with the Kings consent He hath also Jurisdiction Civil and Criminal amongst Commanders Officers and others employed about the Navy and all others who get their lively-hood by the industry and art of the Sea which are held to be such which transport in Ships and adventure their Estates by Sea as also such that make it their Trade to take Fish or do build Ships This Court is called Magna Curia and from it there lyes an appeal only to the supreme
THE JURISDICTION OF THE ADMIRALTY Of England Asserted AGAINST Sr. EDWARD COKE'S Articuli Admiralitatis In XXII Chapter of his Jurisdiction Of COURTS By RICHARD ZOUCH Doctor of the Civil Law and late Judge of the High Court of ADMIRALTY LONDON Printed for Francis Tyton and Thomas Dring and are to be sold at their Shops in Fleetstreet 1663. Thomas Foley of Great Witley Court in the County of Worcester Esqr. TO THE READER I Do certifie and attest that the Treatise Entituled The Jurisdiction of the High Court of Admiralty asserted c. by Dr. ZOUCH was delivered into my hands by the Author himself to be Printed and which he intended to have Dedicated to his Royal Highness JAMES Duke of YORK Lord High Admiral of England Drs Commons Febr. 25. 1663. Tim. Baldwyn ASSERTIONS Concerning the JURISDICTION of the ADMIRALTY OF ENGLAND 1. THat in all places where Navigation and Trade by Sea have been in Use and Esteem and particularly in England Special Laws have been provided for regulating the same 2. That in all places where Laws have been provided for businesses concerning the Sea as also in England special Judges have been appointed to determine differences and to redresse offences concerning the same 3. That in all places where special Judges have been appointed for Sea affairs as also in England certain Causes viz. all such as have relation to Navigation and Negotiation by Sea have been held proper for their Conusance 4. That the Jurisdiction of the Lord High Admiral of England as it is granted by the King and usually exercised in the Court of Admiralty may consist with the Laws and Statutes of the Realm 5. That the Lord Admiral of England may hold Conusance of Contracts and Writings made at Land touching businesses of Navigation and Trade by Sea 6. That the Admiral of England may hold Conusance of things done in Ports and Navigable Rivers as touching damage done to Persons Ships and Goods Annoyances of free Passage and unlawfull Fishing 7. That the Lord Admiral of England may hold Pleas of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea 8. That the Courts and Judges of the Common-Law do intermeddle with and interrupt the Court of Admiralty in Causes properly belonging to that Court 9. That the Tryal of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Kingdome and the Subjects thereof than in the Courts of Common-Law Sir EDWARD COKE'S Jurisdiction of COURTS CAP. XXII The Court of the Admiralty proceeding According to the Civil LAW THe Complaint of the Lord Admiral of England to the Kings most Excellent Maiesty against the Iudges of the Realm concerning Prohibitions granted to the Court of the Admiralty 11 Febr. penultimo die Termini Hillarii Anno 8. Jac. Regis the Effect of which complaint was after by his Majesties Commandment set down in Articles by Dr. Dun Iudge of the Admiralty which are as followeth with answers to the same by the Iudges of the Realm which they afterwards confirmed by three kinds of authorities in Law 1. by Acts of Parliament 2. by Iudgements and Iudicial proceedings and lastly by Book cases Certain grievances whereof the Lord Admiral and his Officers of the Admiralty do especially complain and desire redresse THat whereas the Conusance of all Contracts and other things done upon the Sea belongeth to the Admiral Jurisdiction the same are made tryable at the Common-Law by supposing the same to have been done in Cheapside or such places By the Laws of this Realm the Court of the Admiral hath no Conusance power or Iurisdiction of any manner of Contract Plea or Querele within any County of the Realm either upon the Land or Water but every such Contract Plea or Querele and all other things rising within any County of the Realm either upon the Land or Water and also Wreck of the Sea ought to be tryed determined discussed and remedied by the Laws of the Land and not before or by the Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the water infra fluxum refluxum aquae but whether it be upon any water within any County Wherefore we acknowledge that of Contracts Pleas and Quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had by Twelve men the Admiral hath and ought to have Iurisdiction And no President can be shewed that any Prohibition hath been granted for any Contract Plea or Querele concerning any marine cause made or done upon the Sea taking that only to be the Sea wherein the Admiral hath Iurisdiction which is before by Law described to be out of any County See more of this matter in the answer to the sixth Article When Actions are brought in the Admiralty upon Bargains or Contracts made beyond the Seas wherein the Commom-Law cannot administer Justice yet in these causes Prohibitions are awarded against the Admiral Court Bargains or Contracts made beyond the Seas wherein the Common-Law cannot administer Iustice which is the effect of this Article do belong to the Constable and Marshal for the Iurisdiction of the Admiral is wholly consined to the Sea which is out of any County But if any Indenture Bond or other Specialty or any Contract be made beyond Sea for doing of any Act or Payment of any money within this Realm or otherwise wherein the Common-Law can administer justice and give ordinary remedy in these cases neither the Constable and Marshal nor the Court of the Admiralty hath any Iurisdiction And therefore when this Court of the Admiralty hath dealt therewith in derogation of the Common-Law we find that Prohibitions have been granted as by Law they ought Whereas time out of mind the Admiral Court hath used to take Stipulation for appearance and performance of the Acts and Judgments of the same Court It is now affirmed by the Judges of the Common-Law that the Admiral Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter over-throw of that Jurisdiction The Court of the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognisance as a Court of Record may do And for taking of Recognisances against the Laws of the Realm we find that Prohibitions have been granted as by Law they ought and if an Erroneous sentence be given in that Court no Writ of Error but an Appeal to certain Delegates does lye as it appeareth by the Statute of 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record That Charter-parties made only to be performed upon the Seas are daily withdrawn from that Court by Prohibitions If the Charter-party be made within any City Port Town or County of this Realm although it be
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