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
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
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
alwayes that if any Merchant stranger or other finde himself grieved or damnified by negligent keeping of his Wares or Merchandises or by long delaying or protracting of time in making of the Voyage by the said Owner his Master or any of the Mariners of the said Ship otherwise than shall be agreed in or by the said Charter-party not having been leâ—ten by wind or weather he shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owners or Masters who shall or may summarily and without delay take such order therein as shall be thought to their discretions most convenient and according to right and justice in that behalf It is true that the Cases exprest are for the Merchants to recover satisfaction for delay or damage done to their goods according to the Charter-party from the Owners and the Masters of Ships and it were very unreasonable if the Master or Owner having dâ—ely performed their Voyage might not seek the like remedy before the same Judge against the Merchants not observing the Charter-party either in not Lading their goods within the time appointed or not paying the Freight according to agreement in the same contained and exprest the causes being hinc inde reciprocal and it being sometimes held an absurdity Illud quod in uno eodemque judicio terminari potest apud diversos Iudices ventilari The Statute of the 43 of Elizabeth Chap. 12. declares That whereas differences growing upon Policies of Assurance had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those Causes until that of late years divers persons did withdraw themselves from that arbitrary course and have sought to draw the parties assured to seek their monies of every several assurers by Sules commenced in her Majesties Courts to their great charges and delay thereupon it was enacted that a Commission should be granted giving power to certain Commissioners the first whereof is the Judge of the Admiralty to order and decree such Causes in a brief and summary course without formalities of pleadings and proceedings Malines affirms that he amongst others was one who upon experience of the great inconveniences which followed upon the drawing of those Causes to the Courts of Common Law solicited the Parliament to pass that Act. The Legal authorities which may be conceived to be intended to debar the Admiral from the Conusance of Contracts and writings made at Land touching things to be performed at Sea or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before the Courts of Common Law have admitted and held Pleas of Charter-parties of Policies of Assurance and declared something concerning Mariners wages Touching Charter-parties it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute of double damages by William Hore against Ieffery Unton who had sued the said Hore in the Admiralty for fourscore pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes imployed to go towards Island in regard Contractus ille apud novam Sarum infra corpus Comitatus non super altum mare factus junctus fuit whereupon damages were assessed against the Defendant to an hundred Marks and costs to 40 l. Again that in the 28 of Elizabeth in the Kings Bench upon a Charter-party by a Deed indented which was made at Thetford in the County of Norfolk Euangelist Constantine sued Hugh Glynn for the breach of Covenant in not staying at Muâ—trel in Spain so many dayes as were limited by the Covenant whereupon he was condemned in 500 l. and in arrest of Judgement it being shewed That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had and that therefore the trial was not sufficient Sir Christopher Wray and the whole Bench resolved that the Plaintiff should recover 500 l. besides the costs and damages because the Charter-party was made at Thetford within the Realm Concerning Policies of Assurance That in the 38 of Hen. 8. in a Case betwixt Crane and Beâ—l touching a promise made at Dartmouth That the Ship should pass without taking which was afterwards surprized by the Spaniard upon the high Sea it was held not determinable in the Admiralty for although the taking were upon the Sea yet the promise was upon the Land Again that in the 36 of Elizabeth an Action of the Case was brought in the Kings Bench upon an Assumpsit from a Policy of Assurance where it was undertaken That a Ship should sail safely from Melcomb Regis to Abbevil in France the Ship being arrested by the French King in the River of Somme in the Realm of France and the matter was there adjudged â—o which may be added what Sr Ed. Cook delivers for Law in Dowdales case Cum combein le contract comme le performance c. when as well the Contract as the performance of it is wholy done beyond the Sea and it so appears the Trial fails at the Common Law But here saith he the Assumpsit was made at London which is the ground and foundation of the Action and therefore the Trial of necessity shall be there or otherwise it shall not be tryed at all and the Arrest which is in issue is not the ground of the Action but the Assumpsit c. Touching Mariners wages is that of the Book of 48 of Edw. 3. where it is said That if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded in that Court by the Common Law Nemy per ley Mariner To these Authorities it may be replied in general that all but the last are grounded upon the commonly received sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there where it is made or written with out any respect to the nature of the business and the occasion thereof from whence in truth it doth more properly arise And whereas other acts of Parliament have in some special points ordained and declared otherwise it may be hoped that it may not be held a crime unexcusable if a man should doubt of the reasonableness of those authorities Touching the particulars As First of the 31. of Henry 6. betwixt Hore and Unton wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party it is said that the Sute was upon a Charter-party of Freightment for four score pounds It doth not appear that it was for the freight of the Ship although it be most probable and if it were so why the Master of the Ship should not as well sue for his freight by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute might sue in the Admiralty for dammage done to his
the Admiralty according to the Statutes It is further confirmed by a manuscript Copy of the Statutes in French in the Library of Merton College in Oxford in which are these words Niene meyns de mort de omme de mayheme engrosses neifs estants oâ—erantâ—s a my le haut fio des grosses reviers tant seculament par-avali des pounts des mesmes les riviers L'n Admiral coâ—usance The second Statute that may be applied to this purpose is that of 5 Elizabeth Chap. 5. which relating to divers things made offences by that Statute ordains that all and every of the said offences done on the main Sea or Coasts of the Sea being no part of the bodies of any Counties of the Realm and without the Precinct Liberty and Iurisdiction of the Cinque Ports and out of any Haven or Pier shall be determined by the Lord Admiral Touching this Statute it may be observed That the end thereof was according to the Title for the maintenance of the Navy and as for a mean to that end for the imploying of English shipping especially for the bringing in of Fish for which purpose it provides That Wednesdayes should be held Fish-dayes That none shall demand toll of Fish brought in Subjects ships That no Herring unsalted should be bought out of strangers bottoms besides that no Wares should be carryed from Port to to Port and that no Wine nor Woad shall be brought in but in English ships of which businesses it might be more fit for the Officers of Corporate Sea-Towns to enquire than for the Admiral which the Parliament understanding might without prejudice to his Jurisdiction in other matters except from him touching offences of that kinde the enquiry within Havens and Piers. Besides whereas Sir Edw. Cook recites the words That all such Offences shall be tryed before the Admiral the words of the Staâ—ute are before the Lord Admiral of England or his Lieutenant or Deputy or Deputies and other Iustices of Oyer and Terminer according to the form of the Statute of the 28 Hen. 8. for Causes of Piracy So that it concerns not the Admiral in his ordinary capacity but as he is chief in that Commission And whereas Sir Edw. Cook from this concludes That by the Judgement of the whole Parliament the Jurisdiction of the Admiral is wholy confined to the Sea and Coasts of the Sea being no parcel of the County how strongly soever he conceives it under favour it is no good argument to infer from these new created offences of which he is to enquire in an extraordinary way that he hath no Jurisdiction in other matters which did formerly belong unto him especially touching Navigable Rivers of which in this Statute there is no mention nor exception Moreover whereas the Judgement of the Parliament in this Statute is so confidently urged for the limiting of the Admirals Jurisdiction it is deâ—â—red that to the points in question two other Statutes the one long subsequent to that of Rich. 2. the other not long preceding that of the 5 of Queen Elizabeth may be taken into consideration The first is that of 28 Hen. 8. Chap. 15. concerning the trial of Piracies and other crimes committed within the Admirals Jurisdiction wherein it is declared That all Treasons Felonies Murthers Robberies Confederacies committed in or upon the Sea or in any other Haven Creek or place where the Admiral or Admirals have or pretend to have Iurisdiction shall be enquired tried heard or adjudged by the Admiral and others appointed by the Kings Commission under the Great Seal in such shires and places of the Realm as shall be limited in the Commission as if any such offence had been committed upon the Land c. The end of this Statute was that whereas Piracies and other offences committed within the Jurisdiction of the Admiralty were formerly tryed according to the Civil Law and Offenders could be convicted onely by confession of the parties and proofs by Witnesses to reduce the Trial of the same to the course of the Common Law by a Jury of Twelve men by which Statute although the Manner of the trial of Offences were altered yet the Limits of the Admirals Jurisdiction are allowed to extend not onely to the Sea but to Havens Creeks and places where the Admiral or Admirals have or pretend to have Jurisdiction And in the Commission of Oyer and Terminer grounded on that Statute the places of Offences committed to be heard and determined before the Admiral and others are thus described Tam in aut super mari aut aliquo portu rivo Aqua dulci Creca seu loco quccunque infra fluxum maris ad plenitudinem a quibuscunque primis pontibus versus mare quam super littus maris alibi ubicunque infra jurisdictionem nostram Maritimam aut limites Admiralitatis Regni nostri Dominiorum nostrorum By which words not onely power is given to hear and determine offences in those places but it is likewise declared that those places do belong to his Majesties Maritime Jurisdiction and of his Admiralty The second Statute is that of the first of Elizabeth Chap. 17. made for the preservation of Spawn and fry of Fish and the remedies thereof being provided it is ordained That the Lord Admiral of England and the Lord Mayor of London for the time being and all and every other which lawfully have or ought to have any conservation or preservation of any Rivers streams or waters shall have power to enquire according to that Act which plainly shews that the Parliament then conceived that the Admiral of England had power and Jurisdiction to some purposes in Rivers and Streams salt and fresh otherwise he had not been named in the first place amongst those who had right of conservation of the same The Jurisdiction of the Admiralty as to publick offences and causes criminal since the Statute of 15 Rich. 2. hath been so well settled by the Statute of 28 Hen. 8. that there can be little occasion of difference touching those matters betwixt the Courts of the common Law and the Court of the Admiralty yet Sir Edw. Cook having unnecessarily collected many other legal authorities which may be applied to maintain that by the Common Law the Admirals Jurisdiction did not extend to Ports and Navigable Rivers it may not be amiss to examine the grounds and weight of the chiefest of them which may be reduced to two heads First such as shew that Havens and Navigable Rivers are within the bodies of Counties and that the common Law hath held plea of things done in them Secondly That the Courts of common Law have punished such as have sued in the Admiralty Court for things done in Ports and Navigable Rivers Touching the first these Authorities might be intended First That in the time of Edw. the first a Replevin was brought for the taking of a ship on the coasts of Scarborough in the Sea and carrying her into the County of N. The
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