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
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
and Weights within the Jurisdiction of the Admiralty 5 Of such as make spoil of wrecks so that the Owners coming within a year and a day cannot have their goods 6 Of such as claim wrecks having neither Charter nor Prescription 7 Of Wears Riddles Blind-stakes Water-millsâ— c. whereby ships or men have been lost or endangered 8 Of removing Anchors and cutting of Buoy-Ropes 9 Of such as take Salmons at unseasonable times 10 Of such as spoyl the breed of Oisters or dreg for Oisters and Mussels at unseasonable times 11 Of such as fish with unlawfull Nets 12 Of taking Royal Fishes viz. Whales Sturgeons Purpoises c. and detaining the one half from the King Thirdly Offences against the Admiral the Navy and Discipline of the Sea 1 Of Judges entertaining Pleas of Causes belonging to the Admiral and of such as in Admiralty Causes sue in the Courts of Common Law and of such as hinder the Execution of the Admirals process 2 Of Masters and Mariners contemptuous to the Admiral 3 Of the Admirals shares of Weifs or Derelicts and of Deodands belonging to the Admiral 4 Of Fletson Jetson and Lagon belonging to the Admiral 5 Of such as Freight Strangers bottoms where Ships of the Land may be had at reasonable rates 6 Of Ship-wrights taking excessive wages 7 Of Masters and Mariners taking excessive wages 8 Of Pilots by whose ignorance ships have miscarried 9 Of Mariners forsaking their ships 10 Of Mariners Rebellious and dis obedient to their Masters In the same antient Book of the Admiralty there is a Copy of a more antient Enquiry touching Admiral Causes wherein some things relate to Constitutions made by King Richard the first at Grimesby viz. That ships arrested for the Kings service breaking arrest shall be confiscated to the King and by King Iohn at Hastings That no private man should appropriate to himself the benefit of any salt waters by Meers Ridles and the like and that the same should be pulled down And the fishing cryed common to all people was likewise ordered by King Iohn This may suffice to confirm that there were certain special Causes both Civil and Criminal which did antiently belong and properly to the Conusance of the Admiral and to shew that his Jurisdiction was not wholly confined onely to the Sea That the Iurisdiction of the Admiral of England as it is granted by the King and is usually exercised in the Admiralty Court may consist with the Statutes and Laws of this Realm FIrst it appears by antient Record of the time of King Edward the first De superioritate Maris That it was acknowledged by the Deputies of the Parliament of England and of divers other Nations That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas by prescribing Laws and Statutes for the preserving Peace and Justice and by exercising all kind of Authority in matters of Judicature and all other things which may concern his Soveraignty in the same which being granted his power to depute a Magistrate or Officer to those purposes with so much of his authority as he shall think fit cannot be denied Secondly That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral is agreeable to Commissions antiently granted and which have been passed from time to time by the Kings learned Counsel and by the Lord Chancellor or the Lord Keeper for the time being who have thereunto set the Great Seal and that the authority and Jurisdiction of the Constable and Marshal is designed by St Edward Cook by referring to Grants of those Offices antiently made by many several Kings with exception onely to one irregular precedent in the time of King Edward the fourth Thirdly That Mr. Selden shews that all the Patents of the Office of the Lord Admiral from the beginning of Queen Mary's time to the time of King Charles have been conceived after one and the same form and tenor as of Edward Lord Clintâ—on afterwards Earl of Lincoln under King Philip and Queen Mary of Charles Howard Lord Effingham afterwards Earl of Nottingham under Queen Elizabeth of Charles Duke of York after King Charles under King Iames and of George Duke of Buckingham under King Iames and King Charles to which may be added the Patent of Algernon Earl of Northumberland under King Charles the first and of Iames the most Illustrious Duke of York under King Charles the Second Fourthly That the Lord Admiral and his Deputies proceeding according to his Commission is expresly allowed by King Philip and Queen Mary where they by a Statute restraining the exportation of Corn without Licence make a special provision That that Act shall not be prejudicial or hurtfull to the Lord Great Admiral of England for the time being or to the King and Queens Majesties Iurisdiction of the Admiralty but that the said Lord Admiral or his Deputies shall exercise use and execute all kinds of Iurisdiction belonging to the Sea according to his or their Commissions which provision although it seems to have been made in respect of that Statute yet it shews what respect the King and Queen intended to their Lord High Admiral their own Admiralty Jurisdiction in all matters belonging to the Sea and to the Commission by them granted Against the Jurisdiction of the Admiral as is granted by the King and as it is exercized in the Court it is pretended in general That it is not agreeable First To several Acts of Parliament Secondly To divers Judgments Book-Cases and Judicial proceedings to which may be added the Resolutions of the Judges upon the complaint of the Admiral in Sir Edward Cooks Articuli Admiralitatis All which more specially may be reduced to three heads First Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm Secondly Where he meddles with other things done within the Bodies of Counties and Thirdly With such things as are made or done beyond the Sea The Acts of Parliament are First The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm Secondly That of the 15. of the same King chap. 3. which declares that he hath no Jurisdiction within Bodies of Counties Thirdly That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourthly That of the 5 of Elizabeth which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers The First of these being more general may in this place be considered the rest being more particular may in discussing of some other particular points to which they are appliable be examined That of the 13 Rich. 2. chap. 5. ordains that the Admirals and their Deputies shall not meddle of any thing done within the Realm but only of things done upon the Sea as it hath been used in the time of King Edward the
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
recited in the Solemn form of the Admiralls Commission by Mr. Selden as sufficient to his purpose and then saith he follow many things declaring that most ample power and Jurisdiction amongst which is expressed in Civil Causes that to him it is granted Ad cognoscendum de placitis c. To hold Conusance of Pleas Debts Bills of Exchange Policies of Assurance Accounts Charter-parties Contractions Bills of Lading and all other Contracts which may any wayes concern Moneys due for freight of Ships hired and let to hire moneys lent to be paid beyond the Seas at the hazzard of the lender and also of any Cause Businesse or Injury whatsoever had or done in or upon or through the Seas or publique Rivers or fresh Waters Streams Havens and places subject to overflowing whatsoever within the flowing and ebbing of the Sea upon the Shoares or Banks whatsoever adjoyning to them or either of them from any the said first Bridges whatsoever towards the Sea throughout our Kingdoms of England and Ireland or our Dominions aforesaid or else where beyond the Seas or in any Ports beyond the Seas whatsoever with divers other Clauses containing power of coercion for the maintenance of that Jurisdiction By the Commission of Oyer and Terminer granted likewise under the Great Seal according to the Statute of the 28th of Henry the 8. chap. 15. and other Statutes for the punishing of Offences and matters Criminal committed within the Jurisdiction of the Admirall Power is granted in the Kings name to hear and determine De omnibus singulis proditionibus c. of all and singular Treasons Robberies Murthers Felonies and Consederacies c. as well in and upon the Sea or any River Port or Fresh-water Creek or place whatsoever within the flowing of the Sea to the the full beneath the first Bridges towards the Sea as upon the shoar of the Sea or elsewhere within the Kings Maritime Iurisdiction of the Admiralty of the Realm of England and the Dominion of the same As well against the Peace and the Laws of the Land as against the Kings Laws Statutes and Ordinances of the Kings Court of Admiralty And also touching all and singular other matters which concern Merchants Owners and Proprietaries of Ships Masters Shipmen Mariners Shipwrights Fisher-men Workmen Labourers Saylours Servitours or any others That in all places where Iudges have been appointed for Sea businesses as also in England certain Causes viz. such as have Relation to Navigation and Negotiation by Sea have been held proper for their Conusance MAritime Laws saith Godeâ—ry concern persons or Dealings between Merchants and Sea-men which is agreeable to the subject matter of the several Laws mentioned in the first Chapter and what appeares to have belonged to the office of Maritime Judges Amongst the Grecians Causes happening betwixt Merchants and Sea-men were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes Concerconcerning Trade as Julius Pollux and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas testifies The Rhodian Lawes although as they are now extant are not ranked under distinct Heads or Titles yet they may be reduced to these particulars As first Concerning hiring freighting of Ships Secondly Concerning transporting Passingers and Goods Thirdly Touching the delivery ad discharging the things received in good Condition Fourthly Touching Contributions for Losses in Common danger and for salvage of Goods Fifthly For borrowing and trusting of money for Sea-voyages Sixthly Concerning Mariners duties their wages and the like The same were the matters taken into Cosideration when the Roman Senate entred into a Consultation to settle the businesse of the Sea For when Tiberius Claudius had signified to them that the Sea-men and Merchants trading by Sea had besought him that such businesses which were incident to the Sea might be reduced into some order Nero then a Senator advised that some might be sent to the Isle of Rhodes who should diligently enquire and take notice of what was there observed Concerning Mariners Sea-men Merchants and passengers Goods put on Board shipps Partner-ships Building Buying or Selling of Ships Entrusting Gold and Silver and divers other things All which was done accordingly as appeares by the titles of the Roman Civil Lawes into which the Rhodian Laws were inserted and by the Laws touching Sea affairs which afterwards the Greek Empire received from the Romans as in the Title De Nauticis Obligationibus c. Touching the obligations or duties of Mariners and all manner of actions which may be brought concerning Ships or those who sail in Ships Owners Masters or Passengers Moreover touching wrecks of Ships casting forth of Goods and Contributions and also Fisher-men and Fishing The same businesses also are regulated by the Constitutions of the Consolato del Mare in which are conteined the Statutes and Ordinances of Antient Authority provided for all Causes of Merchandising and Navigation as it is more fully signified in a Chapter of that Book Nello progresso di questo libro In the progresse of this book it is declared how the Masters of Ships ought to demean themselves towards Merchants Mariners Strangers and all other sorts of people which passe in their Ships and also how Merchants ought to perform with Masters of Ships and how Strangers and others ought to pay fraight for the transporting of their persons c. All which are made good in the particular Ordinances and Constitutions therein conteined The Sea-Lawes in the Spanish Partidaes have the same scope as it is in the Title We intend here to speak of shipping hired to undergoe the Adventure of tbe Sea and we will shew what things the Master of the Ship ought to observe towards the Merchants and how the dammage that shall happen to goods cast over board by occasion of storm ought to be divided and of the price due for the hire of Ships and of other matters with may concern the same affair So much is likewise signified in the Title of the Laws of Oleron which in the Edition annexed to the Customes of Normandy are called Ordonances Royaul touchant le fait de la Mere as also Judgments de la mere des nef des Mariners aussi des Merchants de tout leur estre and in the Edition set out by Peter Garrias La maniere comme les Maestres de Navire The manner how Masters of Ships Merchants and Mariners ought to regulate and govern themselves according to the Iudgements of the Roll of Oleron Notwithstanding these Examples of the usages of all other Nations some amongst us as take upon theÌ„ to determine that to the Jurisdiction of the Admiralls of England no special or certain Causes do belong so the Lord Hobard in Audly and Iennings Case affirms That their Jurisdiction is not in respect of any certain Causes as the Causes of Tithes and Testaments are in the Spiritual Court but only in respect of place and no doubt but Sir Edward Cook and others who talk so much of Altum Mare are
Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
whereas some of them speak of Altum Mare the Statute of the 13 of Rich. 2. hath no such Attribute but mentions simply the Sea 2 That the same Authorities granting that the Admiral hath jurisdiction on the Sea do not declare much less conclude that he hath no jurisdiction elsewhere And as to the particulars 1 The Authority of 2 Rich. 2. which affirms that the Irish were subject to the Admiral of England for a thing done on the Sea mentions not for what kinde of thing and happily it might be for some offence against the Crown or against the Peace in offering violence to the Kings Subjects or the subjects of his Allies and in such Cases it might be understood that he had Jurisdiction over the Irish as over the Subjects of England and other Nations onely extending to the high Sea but it cannot from thence be argued but that if it were a business concerning Navigation or Negotiation by Sea he might also have had Jurisdiction over the Irish as well as over other persons not onely super alto mari but also in other places elsewhere 2 The Plea to the Action of Trespass in the 7 Rich. the 2. might be good and allowed in two respects First In regard the thing was done where the Country could take no notice and therefore no Jury by twelve men could be had Secondly In regard the Ship and goods were taken from the Kings Enemies against whom no â—respass could be committed because that to offend them any wayes was lawfull and in that respect the Plea might have been allowed although the Ship and Merchandise had been taken in a Port or Navigable River 3. Whereas Fortescue sayes that things done upon the high Sea prosecuted before the Admiral ought to be determined according to the Proofs made by Witnesses and no more Sir Edward Cook affirms That it proves by express words that the Admiralty is confined to the high Sea Fortescue having given reason for Trials by Jury when the Neighbourhood of the Country could take notice of the business Grants that for things done in other places the Law of the Kingdome doth allow of proofs by Witnesses as in Causes commenced before the Admiral for things done on the high Sea and likewise before the Constable for things done beyond the Sea so that it is evident he doth no more expresly confine the Admirals Jurisdiction to the high Sea than he doth the Constables to places beyond the Sea it being notorious that his Jurisdiction extends to Deeds of War and Arms within the Land as it will be proved that the Admirals Jurisdiction likewise to matters of Navigation and Negotiation by Sea 4 Touching the Authority of Dyer that by Libel in the Admiralty Court the Case is surmised to commence Sur la haut mer c. It may be answered that the Libels in the Admiralty sometimes as the business falls out declare Super alto mari infra jurisdictionem Curiae but ordinarily Causes are laid onely intra fluxum refluxum Maris Iurisdictionem Curiae and generally the Causes are no otherwise described but A contra B. in causa civili Maritima That the Admiral of England may hold Conusance of Contracts and Writings made at Land touching business of Navigation and Trade by Sea BY an ancient Record in the Black book of the Admiralty of which Mr. Selden takes notice it appears that it was ordained by King Edward the first and his Lords at Hastings Que comment divâ—rs Seigneurs avoient francheses c. That although diâ—ers Lords had â—ivers Franchises to try Pleas in Ports yet that neither their Steward nor Bayliffs should hold any Plea if it concerned Mercâ—ant or Mariner as well for matter of Fact as of Ships Obligations and other Dâ—edâ— which although it extends onely to inferiour Lords yet it may be said that it was done in favour of the Admirals Jurisdiction in such matters Secondly by Commissions from time to time Granted by the Kings of England to the Admirals power is given Ad cognoscendum c. to hold the Conusance of Charter-parties Policies of Assurance Bills of Bottomry Bills of Lading and of Sale of Ships Thirdly The Causes and Sutes arising by occasion of businesses contained in such Writings have in all observable times and places been held to be Maritime and the Conusance of them hath been allowed to Martim Courts as it hath been before fully shewed and it may be further considered that such Contracts and Writings have their Original from ancient Maritim Laws are both in names and nature things forein to the Laws of this Realm And so much may be gathered from the order which Wesâ— observeth in his Book of Presidents where after the form of Deeds and Contracts proper to the Common Law he handles those which concern Merchandizing and Trade by Sea as things of a distinct and several nature Touching the particulars First Charter-parties seem to have been derived from the Rhodian Laws by which it was provided Si quis naâ—em conduxerit instrumenta consignata sunto If any man shall hire a ship let there be Writings drawn and sealed thereupon There is likewise mention of Charter-parties in the Role of Oleron and in the French later Ordinances made for the reglement of the Admiralty of France and it is supposed that no mention of them can be found in any Law or Statute of this Realm until the 32 of King Henry the 8. cap. 14. where the Conusance of them is referred to the Admiralty as it shall be hereafter shewed Moreover Malines confirms that anciently in Charter-parties it was exprest That the Contents thereof should be understood according to the Law of Oleron and at this time there are Clauses usually inserted into them enjoyning That the Merchants besides the payment of Freight shall make allowance for Primage Average and Pettelodmenage things no where occurring in the Books of Common Law and anciently determinable by the Law of Oleron Secondly Policies of Assurance are grounded upon the Civil Law which alloweth an Action for the undertaking a hazard which is doubtfull for reward or consideration first given which is commonly called a Praemio they are of later Civillians called Sponsiones Mercatoriae and Assecurationes which Malines affirms were taken up in this Kingdome from the Laws of Oleron practised on the Sea coasts of France but it is manifest that now they are likewise in use in Venice Naples Genua Ancona Spain and Portugal and in other places where the affairs of the Sea are regulated by the Civil Law the Consolato and Laws of Oleron Thirdly Bills of Bottomry when an Owner or Master of a Ship to furnish his Voyage takes up money upon extraordinary interest to be paid when the Ship arrives at the Port appointed and thereby engages his Ship for the performance of the same are grounded on the ancient Grecian and Roman Laws Iulius Pollux a learned Expositor of tearms or words used amongst
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
Defendant although he pleaded that the thing was done on the Sea was overruled to answer from whence amongst other things Sr Edw. Cook makes a special observation That when the taking of a thing is partly on the Sea and partly on the Land the Common Law shall have the Jurisdiction Secondly That in the time of Edw. the 2. It was held That where one may see what is done on one part of the water and on the other it was held no part of the Sea and that the Coroner shall exercise his office in this case and of this the Country may have knowledge Thirdly That in the 43 of Edw. the third sixty Acres of Marsh ground over which the Sea did flow and reflow were adjudged parcel of the Mannor of Brancaster belonging to the Abbot of Ramsey and by consequence were within the body of the County to the low water mark Fourthly That in the 46 of Edw. 3. an Action of Trespass being brought in the Kings Court against certain persons of Hull for taking a ship in the Haven of the Town the Mayor and Bailiffs demanded Conusance by Charter of the King by which it is granted that the Citizens and Burgesses of Hull should not be impleaded Alibi de transgressionibus infra Burgum quam infra Burgum which was allowed and the Haven lying within the Burrough by consequence was within the County How far these Authorities conduce to the proof of the head proposed may be doubted but as to the ground of the head it self which is so much insisted on That where the Courts of Common Law have Conusance the Court of Admiralty can have no Jurisdiction under favour it is insufficient for in the same place several Courts to several purposes may have distinct Jurisdictions Robberies and divers other Offences committed in forests are prosecuted before the ordinary Justices and yet the Justice in Eyre concerning vert venison and other things retains his special Jurisdiction In France as Sanction writes the Lords of mannors adjoyning to Navigable Rivers have several rights of fishing and other commodities by the Kings grant or by prescription and if they be disturbed they may have their remedies in the Ordinary Courts of Justice but as touching the free use of the Rivers in respect of Navigation and that which concerns the Publique the special Officers called the Masters of the Waiters whose Authority in this Kingdome belongs unto the Admiral have the charge thereof and if any Impediments be given or Annoyances done in those respects it belongs to their Jurisdiction and power to reform the same Touching the particulars and first of that of the Replevin in the time of Edw. 1. concerning a Ship taken in the Sea and brought into a River and the defendants being over-ruled to answer the Reason was as Berry the Chief Justice said because the King would have the peace kept as well by Sea as by Land Mr. Selden in his notes upon Fortescue recites the case more fully and gives another reason viz. That William Crake de Holtham was summoned to answer a complaint of Robert de Beause for taking away a Ship of the value of 40. l. on the Sea near Scarborough to which it was pleaded by the Counsel that the Plaintiff did count or declare of a thing taken on the Sea out of any County So that if the matter were put in issue before the Country it could not be resolved what Sheriff should summon the Country and that the Admiral was appointed by the King to hear and determine sutes of things done on the Sea c. Whereunto Berry Chief Justice of the Common Pleas answered we have a general power throughout all England but of the power of the Admirals of which you speak we know nothing neither will we assign our power to them without commandment from the King touching which you shew nothing Haward said The place is so near that if a man had killed one there he should have been taken and brought to the Land and hanged as well as if the fact had been commited on the Land Mettinggam said more we tell you that we have power of things done on the Sea as upon the Land and therefore we order you to answer The reason which Mr. Selden gives was because in those times the Common Law had Conusance of things done on the British Sea within the view of the Land although afterwards it kept its limits infra corpus comitatus Leaving the Sea wholly to the Admiral So that according to the Verse sometimes applyed by Sir Edward Cook Iudicâ—s officium est ut res ita tempora rerum Quaerere the case adjudged in the time of Edw. â— can be no president for subsequent times when the Admiralty Jurisdiction was better settled and so it falls out with Sir Edw. Cooks observation upon that case viz. That when the taking of a thing is partly in the Sea and partly in a River within the County the common Law shall have the Jurisdiction because that in later times it hath been resolved otherwise as in the Mayor of Harwich his case which was That the Vice-admiral of England having seized a Mast floating on the Sea caused certain Fisher-men to draw it to shore at Harwich in Suffolk where the Mayor then claiming Admiralty Jurisdiction likewise seized it for which he being sued in the Admiralty Court of England moved for a Prohibition but the Judges were of opinion that it did beâ—ong to the Admiral of England and denied a Prohibition because the â—eizure at Sea and drawing to shore at Harwich was one continued act and â—herefore the drawing it to shore at Harâ—ich gave no right to the Mayor of Harwich The like may be gathered â—rom a Resolution in communi banco 40 Eliza. viz. An Inhabitant of Plyâ—outh being Owner of a ship joyned in the furnishing and victualling her and sent her to Sea in which imployment the Captain of the ship by Piracy took a French mans ship laden with salt and brought her into Plimouth and sold his salt to the Owner whereupon the French men sued the Plimouth-man being Owner in the Admiralty Court for the Ships goods and upon suggestion that part of the wrong was done upon the Land a Prohibition was awarded but after a long debate a Consultation was granted because the first wrong was done upon the Sea Secondly Touching the Coroners exercising his Office in the time oâ— Edw. 2. in an Arm of the Sea wherâ— one might see what was done on onâ— side and on the other whereupoâ— Standford concludes that by the Comâ—mon Law before the Statute of thâ— 2 Hen. 4. or rather of 15 of Rich. 2. thâ— Admiral had no Jurisdiction but on thâ— high Sea which onely Authority saitâ— Sir Edward Cook was sufficient to overrulâ— all Questions It may be observed whaâ— was delivered in the precedent Case concerning those times and it may bâ— further noted what Mr. Selden writes 〈◊〉 the power and authority of the Sheriffs
awarded Secondly if sute be before the Admiral for freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas though the Charter-party happen to be made within the Realm so as the Penalty be not demanded a Prohibition is not to be granted But if the sute be for penalty or if question be made whether the Charter-party be made or no or whether the Plaintiff did release or otherwise discharge the same within the Realm this is to be tried in the Kings Courts and not in the Admiralty Thirdly if sute be in the Admiralty for building 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 Fourthly although of some causes arising upon the Thames beneath the Bridge and divers other Rivers beneath the first Bridge the Kings Courts have conusance yet the Admiral also hath Jurisdiction there in the point especially mentioned in the Statute of 15. of Richard 2. and also by Exposition and Equity thereof he may enquire of and redress all Annoyances and Obstructions that are or may be any Impediment to Navigation and passage to or from the Sea and also to try personal Contracts and Injuries done there which concern Navigation on the Sea and no Prohibition is to be granted in such cases Fifthly if any be imprisoned and upon habeas Corpus brought it be certified that any of these be the cause of his Imprisonment the party shall be remaunded Subscribed the 4. Feb. 1632. by all the Judges of both Benches Sir George Crooks Reports being published by Sir Harbotle Grimston are approved and allowed as for the Common benefit by the Judges then being viz. by Iohn Glynn Oliver St. Iohn Edward Atkins Robert Nicholas Matthew Hales Hugh Windham Peter Warburton and Iohn Parker It may be presumed that what so many persons Eminent both for their place and also for their knowledge of the Laws and Statutes of the Realm did so deliberately and cautiously resolve upon and others of like quality have countenanced ought to be received and respected as sufficient Authorities as to those points whereof they did declare their Resolutions notwithstanding the confident opinions of any others either private or singular persons to the contrary And that the Kings Majesty and his Councels approbation being added thereunto should be of force enough to settle all doubts and differences concerning the same the rather for that antiently as before is shewed the Kings of England with their Councel only have made Constitutions concerning the Admiralty and that in point of Jurisdiction and it is apparent by the ancient Record cited both by Mr. Selden and Sir Edward Cook That the most famous Prince King Edward the 3. in whose time the Admiralty received its chief establishment in the 12. year of his Reign did consult and advise with his Councel and his Judges concerning the same And it may seem strange that whereas by the Statute of the 13. of Richard the 2. whose Acts are insisted upon as the greatest obstructions to the Admirals Jurisdiction the Kings Councel alone are enabled to decide what belongs to the Constables and Marshals Jurisdiction the King himself with his Councel and Judges should not have as much power to determine what belongs to the Jurisdictions of his Admiral That the Courts and Iudges of the Common Law do intermeddle and interrupt the Courts of Admiralty in causes properly belonging to the same HItherto it hath been Endeavour'd to be made appear That the proceedings in the Courts of Admiralty in the chief points in difference with the Courts of Common Law may consist with the Laws and Statutes of the Realm It may now be taken into Conâ—ideration how far the proceedings of the Courts and Judges of the Common Law in intermedling with causes properly belonging to the Admiralty and in obstructing the proceedings of that Court may be justified By the former is intended their drawing of such causes by actions of Trover and of Trespass to their Conusance by the later their disparaging of Stipulations and prescribing the forms of libells in such causes The former may the rather be insisted upon in regard Sir Edward Cook doth so often and so earnestly in general inveigh against the encroaching of the Court of Admiralty upon the businesses belonging to the Courts of Common Law and in particular where he chargeth That in the blessed time of peace those who belong to that Court wanting businesses proper to that Jurisdiction do encroach upon matters belonging to the Kings Courts lest they should sit idle and have nothing to do the like practice of encroaching being far more unexcusable in those who belong to the Kings Courts which do alwayes abound with businesses sufficient for the same Concerning the Actions of Trover Amongst the grievances complained of by the Admiral 8 Iacob It is presented in the first place That whereas the Conusance of all Contract and other things done on the Sea belongeth to the Admirals Jurisdiction the same are made triable at the Common Law by supposing the same to have been done in Cheap-side or such places And under favour the answer thereunto is neither clear nor direct nor to the purpose For the ground of that answer being laid That the Admiral hath no Conusance of any thing done within any County it is said That it is not material whether the place be upon the Water Infra fluxum Aquae but whether it be upon any water within the County wherefore it is acknowledged That of things done upon the Sea out of any County the Admiral ought to have Jurisdiction and that no presidents can be shewed that any Prohibition hath been granted for any Contract Plea or Quarrel for any Maritine cause done upon the Sea In this Answer it is confest That the Admiral ought to have Jurisdiction of things done on the Sea and that no Prohibitions have been granted for any such causes but whether by the supposal or fiction of a ships arriving in Cheap-side the Courts of Common Law do hold Plea of things done on the Sea it is nether confessed nor denied much less is there any reason given for the same Where it is said It is not material whether the place be upon the water infra fluxum refluxum Aquae but whether it be upon any water within the County That may be true in respect that it is supposed that all things done in the County belongs to the Conusance of the Common Law but when the place where a thing is done belongs apparently to anothe Jurisdiction which pretends as well to the right of the place as to the right of the cause the place of the action can in no wayes be suppressed and another suggested in the room thereof for if that be permitted the one Jurisdiction being the greater a more potent
may soon swallow up the other not onely to the prejudice of the subjects for whose good the diversity of Courts were erected but also the wrong of the Prince from whom those Jurisdictions are derived Sir Thomas Rydlye in his view of the Civil Laws further shews how injurious to the Admiralty and unreasonable this practice is in regard that in Law no Fiction ought to be admitted but such as is both possible and equitable First That it ought to be Possible because otherwise it were to admit that by way of supposition which nature will not alow and therefore although one that is dead to some constructions of Law may be feigned to be alive if at that time any of his equals in age be still living yet one who dyed two hundred years since cannot to any purpose be supposed to be living all of the same age being long before dead Secondly The Fiction ought to be Equitable because if there be no reason for it it is altogether unnecessary and useless and therefore although the Law may admit a Fiction or supposition that a childe in the mothers womb is already born for its benefit in regard that otherwise it might be deprived of its filial portion or some other right in equity belonging to it yet where there is no such reason or equity it ought not to be admitted as vain and ridiculous but for the fiction of a ship to arrive in wardo de cheap where there is no water to bear or carry is of a thing utterly impossible and it is wholy void of equity because a Trial of any business thereupon cannot obtain any just and fait remedy thereby at the Common Law which might not have been had in the Court of Admiralty which is a more competent and proper Court for the trial of such things than any Court of the Common Law Secondly Concerning Actions of Trespass the Admiral in his ordinary capacity claiming no Jurisdiction of offences against the Crown but onely on the Sea and of wrongs and injuries done in other places without force or violence to make such causes triable in the Kings Courts it is suggested that they were done vi armis which is the usual form of Endictments of Trespasses in the Kings Bench as of cutting of a purse although in truth there were no fear nor violence used in committing the same Touching the interrupting and obstructing the proceedings in the Court of Admiralty in causes properly belonging to the same concerning Stipulations and Libels although it may be presumed that what Sir Edward Cook affirms That where the principal matter is acknowledged to be of Ecclesiastical Cognisance the Temporal Iudges ought not to call in question the form of proceedings though they be against the reason of the Common Law because Cuilibet in sua arte merito credendum that the same should be allowed in the Admiral Court Yet in the third Objection of the Complaint 8 Iacob it is shewed That whereas time out of minde the Admiral Court hath used to take Stipulations for appearance and performance of the Acts and Judgements of the same Court It is now affirmed by the Iudges of the Common Law that the Amiralty Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter overthrow of that Court The answer whereunto is That the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognizances as a Court of Record may do and for taking of Recognizances against the Law of the Realm we finde that Prohibitions have been granted as by the Law they ought And if an erronious sentence be given in that Court no Writ of Errour but an appeal to certain Delegates doth lye as it is apparent by the Statute of the 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record Whereunto it may be replied That some things done by or before the Admiral are matters of Record may be maintained from an ancient Ordinance of King Richard the first with advice of the Lords at Grimsby viz. That when the King writes by his Letters Patents to the Admiral to arrest Ships more or less for his service and that the Admiral should write to his Lieutenant to see things put in execution accordingly forasmuch as the Admiral and his Lieutenants are of Record After the Admiral shall have written to the King or to the Chancellour of England the names of the Ships arrested together with the names of the Owners and Masters of them in that case neither the Owner of the Ship nor the Master shall be admitted to say that the Ship is not arrested but admitting that the Court of Admiralty is not a Court of Record in ordinary matters no more are the Stipulations taken there such Recognizances as are required to be taken in Courts of Record by the Common Law those Stipulations causing no privileged obligations before other bonds nor extending to any part of mens Lands which is otherwise in Recognizances taken in Courts of Records by the Common Law And it may seem strange thâ—◠〈◊〉 Edward Cook acknowledging and â—â—â—â—â—ing the proceedings of that 〈…〉 according to the Civil Laws 〈…〉 Stipulations or bayls for the 〈◊〉 appearance and the performances of Deâ—crees and Sentences in â—hat Court prâ—scribed by the Civil Law Ne judicia sint elusoria and unversally practised where judicial proceedings are according to that Law as likewise in this Kingdome in the Constable and Marshals Court and in the Courts of the Universities proceeding by the Civil Law the same should not be allowed in the Admiralty Court And the complaint in this point may seem the more considerable in regard that to the publique Notaries about the Exchange with out Exception or Controll it hath been allowed That Merchants appearing before them in a manner nearer to the Recognizances of the Common Law do acknowledge bonds and bind Se Executores bona tam immobilia quam mobilia praesentia in futura And sometimes themselves being absent the same things are done in their namâ—s by their servants or factors Exhibiting Procurations from them to that purpose And it may be noted that amongst Sir Edw. Cooks Authorities there cannot be discerned any Statute Judgement or Book-case to make good the Answer to that Objection in the Complaint Secondly concerning Libells in the Court of Admiralty The Lord Hobard in Audly and Iennings case affirms that if a Contract in truth were made at Sea and in the Admirals Court it be laid generally without saying super alto mari a Prohibition might lye for the Libel must warrant the sure in it self But Justice Reeves in his Argument Paschae 22. Garoli differs from him in opinion and distinguishes betwixt a particular Jurisdiction created in diminution of the general Courts of Common Law and a particular Jurisdiction over things that never did belong to the Courts of Common Law