without legs which must necessarily fall to the ground First then that this was contemporanea expositio made within the space of twenty years next after the making of one of these Statutes will not be made good for the last of those Statutes is that of 2 H. 4. cap. 11. which was anno 1400 and the Judgement was given the 6 H. 6. Hil. which was anno 1427 and how this can be brought within the compass of twenty years which appears so plainly to be seven years without the â—ompass I know not Besides this Statute is only in confirmation of that Statute 13 Ric. 2. 5. setting a penalty of double damage unto the party grieved and ten pounds to the King upon him that shall offend against this Statute of the 13th of Richard the Second Now it is true this Judgement doth pursue this Statute in giving double damages to the Plaintiffe and the penalty of ten pounds to the King against the Defendant But the giving of these double damages and penalty is grounded upon the breach of the former Statute unto which only this hath relation and this Statute neither needed nor had it any exposition at all But the Judgement was grounded upon an Exposition made of the former Statute 13 Ric. 2. upon which if the Statute would have born any such construction the Party suing in the Admiralty contrary to that Statute in a cause of the same nature would have before the making of the Statute of the 2d of H. 4. been liable to the single damages though not to the double but the Law whereon this Exposition was made to ground this Judgment ought to have been some Law that declareth a Haven to be within the body of a County and without the Jurisdiction of the Admiralty and must needs have been before the making of this Statute if there had been any such at all which I believe can never be found or shewed For sure I am as I said before there is not one word in the Statute it self which can so much as seem to draw any man to imagine that a Haven or Port should be within the body of a County but however it is the exposition of this Statute though groundless upon which the Judgment is founded and this Statute was made eleven years before the other and then will this contemporanea expositio said to be within twenty years scarce fall to be within twice twenty years For the Statute made in the 13th year of Richard the second was made in anno 1389 and the judgment was given in anno 1427 which is full 38 years and ought not to have had an exposition put upon it clean destructive to another Statute made within two years after and in the same Kings Raign which cleareth the Admirals Jurisdiction to be over the havens and rivers beneath the first bridges nearest to the sea even of the death of a man c. which is magis contemporanea et multo stabilior expositio being made upon as good advisement as this though perhaps not upon terms of deliberation which consideration I come to consider next And I cannot conceive the advisement upon two years deliberation upon one particular point should render the determination thereof ever the more sound but rather sheweth a great deal of doubting and fearfulness to determine But it seems after two years deliberation they determined to have the Ports and Havens without any warrant of Law that Sir Edward Coke hath declared or that I can by any means find to be within the bodies of Counties And truly I think the time was short enough and their pains great enough in that space to turn so much sea or water appertaining unto the sea into land or into the heart of a County But if the foundation of this Judgement be infirme surely it will not support it being so weighty a Judgement as it is but that the same must fall to the ground and be buried in the earth or drowned in the depth of that Sea it would have dismembred of its Ports Creeks and Havens unless whatsoever a Court shall once adjudge through misapprehension or any manner of misunderstanding must ever after be observed for law which whosoever affirmeth must maintain some men to be infallible or else that one injustice may be a warrant for another But if to persist in an error be another and a greater error then surely to square justice by so crooked and untryed a rule can produce no strait or upright future judgement I must confess the judgements of such grave and learned men in such a place and authority ought much to sway with their successors in doubtful cases and one judgement ought as little as may be to thwart and cross another but not unless the same be agreeable unto justice equity right reason and binding laws constituted appointed and published by superiour powers which are alwayes to be observed CHAP. VI. That from the two other Actions instanced in to be brought against the parties suing in the Admiralty Court for a business done upon the Ports no concluded Argument is deduced TWo Actions likewise are instanced in instituted in the Court of the Common-pleas to the same purpose which can be deduced from no better reason nor founded upon any sounder ground then this first Judgement was more then that they had this for their example At exempla mala sunt reprobanda non sequenda both of them Pasch 12 H. 6. The one is an Action brought by Robert Cupper upon the before mentioned Statutes in the Court of Common-pleas against John Raymer of Norwich for that the said Raymer did sue the said Cupper in the Court of Admiralty for that he said Raymer having a Ship in portu aquae Jernemuthae infra corpus com Norf. ready for a Voyage to Zeland the said Cupper entred the said Ship lying in the said Haven and took away divers goods out of the same asserendo per praedictum placitum res illas super altum mare emersisse acsi res illae super altum mare emersissent cum non ibi sed apud Jernmutham contra formam Statutorum praedict The other was an Action between John Wydewell and the said John Raymer the same Terme in the same Court but whether there were any Judgement upon these two Actions or not or what the Judgements were is not set forth the Judgements might be given for the Defendants as well as against them for ought appears out of what Sir Ed. Coke hath set down and since he hath spared the pains to set them down I shall spare my labour for looking them out If any Judgement were given upon either which I the rather conceâ—â— there were not for that if there had been any Sir Edward Coke would not have spared to have told of them if they had been for his purpose If the Judgements were given agreeable to the former Judgement and passed by that example yet is there no better ground for the same
of these particulars there is but a limitation of his general power there Et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest For the Argument then that is deduced from this Statute which concludeth that the limits of the Lord Admirals Jurisdiction are thereby described and by the judgement of the whole Parliament as is asserted confined unto the main sea or coasts of the sea there is no other question to be made of it then whether it shall overthrow and destroy all these Logical rules or they it Another answer may be given to this argument by distinguishing upon the word Port or Haven as it is taken in a double construction and beareth a double acceptance warranted by Mr. Serjeant Callis in his Reading at Greys-Inne 1622. upon the Statute of Sewers 23 H. 8. cap. 5. who in his first Lecture to the diversity between a Creek Haven and Port p. 24. 25. saith that a Haven properly is a safe place of harbour for Ships but may be without any priviledge at all and then maketh mention of such as are alwayes graced with legal priviledges and for this he quoteth the Statute of Magna Charta in these words Quod omnes communitates Barones de quinque portubus omnes alii portus habeant omnes libertates liberas consuetudines that all common Societies of Ports and Barons of the Cinque-ports and all other Ports may have their liberties c. which can be no otherwise understood then that thereby is meant the common Societies of Port-towns the Barons of the five principal Port-towns and all other Port-towns may have their priviledges c. so that a Port-town is ordinarily termed a Port as well as the Port it self and so is a Haven Town c. though not so properly And the words of the Statute saith he confirme my former definition of Ports to be true and this is his definition A Port is a harbour and safe arrival for Ships Boats and Ballengers of burthen to freight and unfreight them at not in so that we see that he maketh the Haven where Ships lie at anchor to be a Port and the Town whereat they lade and unlade to be a Port and so the same Author maketh costeram maris to contain the shoar and banks as well as that part of the sea adjoyning thereunto and he proveth it out of the Statute 27 of Eliz. cap 24. which Act was made for the mending of the banks and sea-works on the sea-coast And out of the 7th chapter of Macchabees where Demetrius Son of Seleucus came to a City of the sea-coast c. ut in ejus libro p. 32. so that in common acceptance the places adjoyning to the Sea-coasts for their adjacency are called and taken for Coasts as well as the Coasts themselves and the Towns or Cities adjoyning to the Ports for their adjacency are termed Ports as well as the Ports themselves and then it may very well be answered that the words in this Statute out of any Haven or Port are meant of the City or Town thereunto adjoyning and so called and this the offences in that Statute mentioned unto which this clause hath reference and relation will warrant But more I shall not say concerning this argument but shall come to that which the same Author further inferreth upon his own conclusion when as his premisses can no way be granted which is that of Job the 38th chapter the 8 10 11. verses That Almighty God as he himself out of a whirlwind spake hath shut up the sea within certain dores or bounds Quis conclusit mare ostiis quando erumpebat quasi de vulvâ praecedens Circumdedi illud terminis meis posui vectem ostia dixi Vsque huc venies non procedes amplius hîc confringes tumentes fluctus tuos Hence I do conceive that he would inferre that God then put the dores of the seas where he himself by his interpretation of this Statute would now put them between the high Seas and the Ports and Havens But then he must have said that when God put them there he then left them wide open and never shut them since for sure I am the sea was never yet shut out of the Ports and Havens if we mean the Ports and Havens where ships do ride or lye at anchor and not the Port or Haven Towns so termed by reason of their adjacency so near unto them Nor can it be allowed by what is here urged that there they were put standing wide open for he that saith posui vectem ostia saith dixi Vsque huc venies non amplius So that we see his doctrine suits not to this text but the text it self may very well serve for my purpose that God himself hath put the gates and dores of the sea and hath himself appointed its limits and bounds to be those within which it is by his own power terminated And look how farre it extendeth it self so farre it is sea and there and no where but there hath God placed these gates and dores and terminated its limits and bounds by man unalterable CHAP. V. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued OTher arguments there are by Sir Edward Coke deduced out of the Judgements and Judicial Presidents at the Common Law I shall first begin with the Judgements And the first that he urgeth is a Judgement given in the Court of Common-pleas Hil. 6 H. 6. Rot. 303. between John Burton Plaintiffe and Batholomew Put Defendant and the Case was saith he upon the Statutes of the 13 Rich. 2. cap. 5. the 15 Rich. 2. cap. 3. and the Statute of the 2 Hen. 4. cap. 11. upon which Statutes the said Bartholomew having sued the said John Burton in the Admiralty Court before Thomas Duke of Exeter then Admiral of England for that the said John Burton with force and armes the second day of September anno 1 H. 6. three ships of the said Bartholomews with his Prisoners and Merchandises to the value of 960 marks 5 s. 5 d. ob in the same ships being did take and carry away supposing by his Libel the same to be taken away super altum mare upon the high sea Judgement was given that the taking aforesaid was infra corpus comitatùs in Bristol the said ships lying in the Haven of Bristol and not upon the high sea contrary to the forme and effect of the said Statutes the parties having descended to an Issue which was found for the Plaintiffe and damages to 700 l. And this is the Judgement he quoteth Et super hoc audito tam recordo quam veredicto praedicto per curiam plenius intellect consideratum est quòd praedictus Johannes Burton recuperet versus praefatum Bartholomeum damna sua praedicta occasione attachiamenti prosecutionis vexationis
quà m missarum custagiorum ad septuaginta libras per juratores praedictos superius assess in duplum per Statutum c. Quae damna in duplo se extendunt ad mille 400 l. Et idem Barthol poenam decem librarum erga Dom. Regem nunc per statutum incurrat capiatur c. querens remittit 400 l. And he saith that it appeareth by the Record that this being the first Case that can yet be found that received judgement in the Court of Common-pleas upon the said Statutes and that the same depended in advisement and deliberation eight Terms whereby it plainly appears the time being computed from the making of the said Statutes whereon this Action was grounded to the time of the Judgement 6 Hen. 6. that the Courts of Common-law had not for above 20 years after the making of these Statutes ever medled with causes of this nature Nor can it I am confident be found that cases of this nature were any of those cases wherein the Admirals had encroached upon the Common-law before the making of the said Statutes and what ground these Statutes then gave them for this Judgement I could wish he had reported with the Judgement it self The Statutes I have endeavoured to the utmost of my weak skil to examine one by one but cannot find that in such cases as this the Admiralty was by them in any wise prohibited to proceed of which Examition of mine I shall hereafter render the best Accompt I can more especially when I come to treat of Contracts made at land of and concerning maritime and sea affairs but I must here in the first place examine the observations by Sir Edward Coke himself gathered out of this Judgement From the whole he gathereth these four observations 1. That it is contemporannea expositio being made within 20 years of the making of one of the said Statutes and he saith that contemporanea expositio est optima 2. That albeit the said three Ships with the Prisoners and Merchandizes in them lay in the Haven inter fluxum refluxum aquae and infra primos pontes yet that the Haven is infra corpus Comitatûs and that for taking of the Ships with the Prisoners and Merchandizes in the same no Suit ought to be had in the Admiralty Court but at the Common Law 3. That the Court of Admiralty hath no Jurisdiction but super altum mare which is not within any County for the Record saith as he averreth that the said three Ships with the Prisoners and Merchandizes in the same did lie infra Comitat. Bristoliae non super altum mare as the Plaintiffe in the Admiralty Court supposed the same to be 4. That this Judgement so solemnly and with such advisement given if it were alone were sufficient to give full satisfaction in this point for saith he Judicium est tanquam juris dictum judicium pro veritate accipitur I conceive that by two of these four observations the first and the last he endeavoureth to prove that this Judgement is a good Judgement which ought to be observed ever after for Law which if he hath thereby proved the two other the second and third may be deduced into some conclusion otherwise not He then that will examine the argument comprehended in these two observations must deduce it thus or else he shall find no argument therein at all viz. a Judgement given per contemporaneam expositionem of a Statute or Statutes made within twenty years after the making of one of them and that solemnly upon two years advisement given is a good Judgement which ought ever after to be observed for Law But this Judgement was given by a contemporary exposition of the said Statutes made within twenty years after the making of one of them and that solemnly with advisement by the space of two years therefore this Judgement is to be observed for Law ever after then will the other two observations be easily deduced into a conclusion otherwise not But I must crave leave that without offence I may call into question the truth of the premisses out of which this conclusion is deduced First then whether a Judgement given per contemporaneam expositionem of a Statute made within the space of twenty years next before such interpretation or exposition though solemnly advised on by the space of eight Terms which is two whole years must necessarily be ever after observed for law is that which first cometh in question Under correction I conceive that neither the time of such interpretation or exposition-making nor the deliberate advisement thereupon conclude this necessity that the Judgement thence proceeding must be ever after observed nay I conceive it ought not ever after or at all to be observed unless such exposition be grounded upon both law and reason or at least one of them This is said to be the first and leading Case and so the first exposition of those three before mentioned Statutes made to this purpose and therefore the law and reason whereupon such exposition had its ground and foundation might very well have been expected to have been there by him set down where the Judgement it self is urged but finding neither I have according to my weak abilities endeavoured to search both or either of them out But indeed am so thick-sighted that I can find out neither the one nor the other to warrant the same The Statute of the 5 Eliz. 5. before mentioned and urged for the proof of this assertion might had it been made before this exposition of the other three have set some colour thereon but no more then a colour for there is nothing therein contained substantial that could have afforded this interpretation of the other three but coming after this interpretation this interpretation hath lost that colour and is left upon the Statutes themselves wherein I for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation The first of them is that of the 13 Rich. 2. 5. which Statute hath relation unto a Petition upon which the interpretation thereof ought to be grounded according to the manner of making Acts in those dayes which Petition in other Acts is inserted as a preamble to the Act it self but in this is premised only in part and that not truly rendred by the Translation as shall appear when we come to treat of Contracts made at land for sea affairs the Statute it self runneth thus Le Roy voit que les Admiralls lour deputees ne sic mellent de sore ana vant de nul chose fait deins le Roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre sâ—r ' le Roy quorust The Kings pleasure is that the Admirals and their Deputies shall not from henceforth so meddle viz. as is complained of in the Petition of
the interest of all other parties for that had been to have judged the cause inaudita nec vocatâ parte interesse habente For the controversie was then whether the Judges of the Common Law or the Major c. had the cognizance of that cause and they having dismissed it from their cognizance could grant it no otherwise to the Major and Bailiffs of Hull but insomuch or for that it belonged not unto their cognizance so that after the dismission this controversie was no longer between the Judges of the Common Law and the Major of Hull but now the difference concerning the Jurisdiction of and over this cause must rest between the Admiral and the Major and Bailiffs of Hull for that the Admiral being no party in fudicio the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull then that they should have it for ought that Court in which the Action of Trespass was brought had to do therewith or to hold plea thereof which could not barre the Admiral of his claim of Jurisdiction who was no party in judgement And then this only resteth as an Authority quoted that such an Action was brought at the Common Law and as it appeareth that the same was never there determined so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors might very well conceive that the Action being there brought the same was rather tryable before them by virtue of that clause in their Charter which was urged then by the Judges of the Common Law and the Cause being dismissed as it appeareth not that the Major and Bailiffs determined it no more doth it any ways appear that they did yet by virtue of this Dismission or Grant as Sir Edward Coke termeth it take upon them so much as the cognizance thereof or if they did that the Admiral ever had notice thereof But if the Admirall did or if he did not yet if he had taken to his Court the cognizance of this Cause I am confident that the Major and Bailiffs could no ways by virtue of that clause or upon any other ground have taken it out of his hand unless they have Admiralty Jurisdiction granted unto them as the Town of Ipswich hath the substance of whose Patent concerning the same I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports Henricus Dei gratia c. octavus c. Cumque praedictus avus noster per chartam suuam praedictam quam ut praefertur confirmavimus concesserit Ballivis Burgensibus Villae praedictae successoribus suis inter alia libertates Franches privilegia immunitates in eadem chartâ contenta specificata authoritatem potestatem faciendi exequendi infra eandem villam Gypewici ac libertatem praecinctum ejusdem omnia singula quae Admirallo seu ad officium Admiralli pertinent Cumque portus villae praedictae aqua currens recurrens prout casus exigerit ab eodem portu per fluxum refluxum maris versus le Southeast ad quendam locum vocat Polleshened alias dict Polished nec non tota terra folum quae per hujusmodi fluxum refluxum maris aliquo tempore aqua fuerit superundat sive coâ—pert infra libertatem villae praedictae extiterint Et quod iidem Ballivi Burgenses Communitas successores sui habeant gaudeant eis successoribus suis omnia singula libertates Franches authoritates privilegia jurisdictiones immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum quas nos per litteras nostras praedictas de confirmatione acceptavimus ratificavimus confirmavimus contenta specificata tam in dictâ aquâ sive in cursu aquae ac praedictâ terrâ solo per fluxum sive refluxum maris aquâ quandoque superundat sive coopert quam in omnibus singulis aliis locis quibuscunque infra villam praecinctum suburbum libertates Franches praedict juxta formam chartarum concessionum praedictarum prout ea ante tempora usi fuerunt gavisi Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi Burgenses Communitas successores sui securius liberius absque ambiguitate questione vel dubio habeant officium Admiralli nostri haeredum nostrorum infra libertatem praecinct Franchesc praedict omnia quae ad officium Admiralli tam super mare littus maris quà m alibi infra libertatem Franchisc praecinct praedict pertinent concedimus nunc Ballivis Burgensibus ac communitati villae praedictae eorum successoribus per praesentes quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri haeredum nostrorum per infra totam villam praecinctum suburbia aquam cursum aquae ac dict terram solum per fluxum refluxum maris quandoque aquâ superundat vel coopert seu in posterum superundand vel cooperend Ac omnia singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare littus maris quà m alibi infra libertatem praecinctum limites supra specificat faciant exequantur in tam amplis modo forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit facere debuit quoquo modo c. Et insuper nos de gra nostra ampliori ad relevamen incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr successoribus nostris annuatim ut praemittitur solvend damus concedimus per praesentes pro nobis haeredibus nostris eisdem Ballivis Burgensibus Communitati successoribus suis wrecum maris ac omnia bona catalla quae dicuntur Wreck Flotson Getson omnia alia bona catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent aut poterint infra dict portum aquam ac terram solum praedict per fluxum refluxum maris ac omnia bona per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend qualitercunque contingent vel ibidem in mari aut super littus maris invent seu inveniend etiam omnia singula bona catalla felonum de se nec non bona catalla quae dicuntur deodanda infra libertatem Franchesc praecinctum villae praedictae ac in infra
not But I must not pass over a main objection which might have been or may hereafter be raised out of this Statute as the same is by Poulton rendered which is this The Statute as he rendereth it saith that whereas in the Statute made at Westminster the thirteenth year of King Richard the second amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from henceforth of any thing done within the Realm but only of a thing done upon the sea c. so that hereby it may seem and be very well urged that this Statute doth clearly confirme the Statute of the 13th of Richard the second as the same is both by Poulton and Sir Edward Coke rendered and translated without any relation to the Petition but if this very Statute be duly considered it will plainly appear that Poulton hath here thrust in a repetition of the former Statute according to his own former rendering thereof to make the same good which the original before inserted in this very chapter being consulted withall will not allow him for there is not one word of this repetition mentioned either in the Petition or Answer quod vide for the Petition is that the Statutes made in the time of Richard the second touching the Jurisdiction of the Admiralty comprehending the one as well as the other as well the latter which rendreth the true construction of the former according unto the true meaning thereof taken with relation to the Petition as I cannot conceive but that it ought to be as the former of the 13th of Richard the second may be held and firmly kept and that the Admirals and their Lieutenants may not hold any manner of plea in the Court of the Admiralty contrary to the form and ordinance of the saiâ— Statutes which by the Answer is granted in generall without repeating any part either of the one of them or of the other So then these former Statutes being onely considered with relation to the Petitions whereunto they are answers I conceive this Statute affordeth no Argument at all against the Admirals Jurisdiction or cognizance of Contracts made at Land concerning Maritime affairs more then what the other afforded and so I hasten to what I promised in the Chapter preceding this CHAP. VII That the Admiral by these Statutes was not barred the Cognizance of Maritime Contracts though made at Land made appear by the practice of those times proved out of ancient Records remaining in the Tower of London THe Judgment given in the Case of Burton and Putt by Sir Edward Coke said to be the first that can be found that was given upon the Statutes against the Admiral 's having Jurisdiction any where but upon the high Seas and by him said to be within 20 years of the making of the Statutes and so contemporanea expositio the time being duely computed as I have said before will be found to have been given full 27 years after the last of them For the Parliament wherein the last of them viz. the Statute 2. H. 4. was made was begun and holden at Westminster in the utas of St. Hillarie Anno Domini 1400 and in Hillary Term 1427 being 6. H. 6. was this Judgement given so that the largest part of four in this computation is abated to bring this Judgement within the compass of a contemporary exposition but indeed this Judgement must be grounded as well upon the two former as this latter and principally upon the first of them and then is this Judgement 37 years and more after the making of that Statute the same being made in Anno 1389. this Statute therefore having not born this construction or exposition from the time of the making of it until 37 years after and upwards this being the first Judgement thereupon as is confest and that given by the Judges not without a great deal of doubting for the space of eight Terms before they could agree or would adventure to give that construction or such exposition thereof though tending ad suam jurisdictonem ampliandam I cannot apprehend that this was contemporanea or optima expositio nor do I find by all the particulars cited by Sir Edward Coke concerning this matter that this Judgement was ever pursued as a president or example by the same or other succeeding Judges Indeed two Actions he instanceth in brought upon the same ground one by Cupper against Rayner and the other by Wydewell against Rayner brought both in the Court of the Common Pleas about six years after this Judgement viz. Paschae 12. H. 6. But he speaketh not of any Judgement given therein which if there had he would not willingly have omitted to have inserted the same which maketh me verily conceive that no Judgement was given upon either of them nor indeed can I think that the former Judgement by him cyted ever took any effect or was ever put in execution If Sir Coke's rule be true that contemporanea expositio est optima a contemporary exposition is best then is not this exposition made by this Judgement the best though it may be magis contemporanea more contemporary then the other Judgements or expositions given longer after viz. Paschae 28 Eliz. which he instanceth in That Evangelist Constantine having covenanted with Hugh Gynn that his Ship should sail with Merchandizes of the said Gynn to Muttrellâ—in â—in Spain and should there remain for certain days upon breach of which Covenant Gynn brought an Action of Debt of 500 l. in regard the Charter party was made at Thetford in the County of Northfolk and had Judgement in the Kings Bench And that Mich. 30. and 31. Eliz. of an Action of case brought upon a policy of ensurance so that the former may be said to be melior expositio a better exposition then those latter because it seemeth to be the foundation whereon they are grounded and therefore more authentique But if I shall shew that within a farre shorter compass of time after the making of the said Statutes then any of those Judgements were given which he hath instanced in no such exposition was made of the said Statutes but that the Admirâ—â—ty was held to be the proper Court for such causes and the Civil Law fittest to Judge them by then will mine be multo magis contemporanea expositio a farre more contemporary exposition then his and by his own rule si non optima multo tamen suis melior If not the best yet farre better then his I shall therefore instance in an Action brought in the Admiralty within three years after the making of the first of these Statutes and in August next after the making of the second of them and in the same year that this last Statute was made as will appear by the Record it self which I shall in this chapter set down at large The Action was brought in the Admiralty of the West before Nicholas Clifton then Lieutenant to the Earl of
praedictum portum cursum aquae ac terram solum praedict per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend absquo compoto sive alique alio nobis vel haeredibus nostris pro praemissis vel aliquo praemissorum reddend vel solvend Sciatis insuper c. Teste meipso apud Hampton-Court tertio die Martii anno regni nostri decimo per ipsum Regem de dat praedict authoritate Parliamenti Now I hope it plainly appeareth hereby that the Admiral hath full power jurisdiction upon the Ports and Havens if he be not excluded by special grant and that made in the vacancy or interval between one Admirals Patent ceasing and anothers beginning And if the Port had been within the Borough of Ipswich and things there done had been triable at their Town Court or at the Common Law then had they had no need of this Grant of Admiralty Jurisdiction c. by which Grant of Admiralty Jurisdiction unto them it doth likewise as plainly appear that whatsoever is done upon the Port or Haven is of Admiralty cognizance this Admiralty Jurisdiction of theirs extending only unto their Port and Haven which reacheth only unto the place called Pollishened alias Poleshead and no further which is the point of the high Sea as Sir Edward Coke termeth it so that they have Admiralty Jurisdiction and yet none upon the main Sea but upon the Port and Haven only But I shall proceed unto the next thing by Sir Edward Coke insisted upon And in the next place it is thus objected that 7 R = 2. tit trespass in Statham pl. 54. in an Action of Trespass for a Ship and certain Merchandizes taken away which trespass must of necessity be alleaged in some Town and County in some River or Haven the Defendant pleaded that he did take them in le haut mere one les Normans quex sont enemies le Roy and it is ruled a good plea which concurreth with the other books Here it is not said that this trespass was laid or alleaged to be done in any Town or County in any River or Haven but saith he it must of necessity be so If he take Town County River and Haven disjunctim then I think that according to the Law the Action of the Trespass must have been laid to have been done somewhere or else the Action would have abated but if he take them conjunctim as that it must of necessity be laid to be done in some River or Haven in some Town and County I confess that according to reason and nature a Ship with her lading cannot be elsewhere except it be upon the high Seas But I know that at the Common Law it is usuall per fictionem impossibilitatis which neither the Civil Law nor Nature do allow to lay and alleage in a Declaration that such a Ship with her Tackle Furniture Ammunition and Lading was in the possession of the Plaintiffs in parochia beatae Mariae de Bow in Warda de Cheap and thereby him lost and there per inventionem came to the hands and possession of the Defendant c. and why this Trespass of taking away this Ship and Merchandizes might not as well be laid to be done in some certain place within some certain Town farre enough from the Port or Haven I know not And it is not said that it was laid to be done upon a Port or Haven Wheresoever the trespass was laid to be done in what Town of what County soever for in some Town of some County or in some part of some County it must be laid to be done yet amongst all the Instances Sir Edward Coke hath brought and amongst all that I could ever yet hear of I never knew or heard of any original action brought at the Common Law which was said for a thing done upon any of the Ports or Havens except that of Hull business which never came to be adjudged between the Admiral and the Mayor c. of Hull c. or whether the action was rightly instituted or not The defendant pleaded as above and it was adjudged for a good plea. I would gladly know what could be argued from hence if the truth had been otherwise and he had pleaded he took the Ship and Goods infra fluxum refluxum maris or that he took them in tali Portu one les Spaniards quex sont les enimies le Roy must necessarily this plea have been adjudged nought because the other was adjudged good I see not the consequence how this conclusion dependeth upon the premisses if deduced into a Syllogism It is objected likewise that 7. Hen. 6. 32. an action lyeth at the Common Law for fore-stalling c. in a Port or Haven c. and by consequence the Admiral hath no Jurisdiction there Here I do observe that about the 6 and 7 year of Hen. 6. the then Lord chief Justice of the Common-pleas did much endeavour suam ampliare jurisdictionem for about the same time the first judgement upon the Statute of the 2 of Hen. 4. for double dammages was given for the pretended breach of the two former Statutes of the 13 and 15th of Rich. 2. and this 2 of Hen. 4. by suing in the Admiralty for a thing not done super altum mare contrary to those 3 Statutes whereas none of those 3 Statutes have one word in them that tendeth to the binding up the Admiral to the high Seas unless any man can make sur le mere super altum mare nor is there any word in them that tendeth to the making of the Ports and Havens to be infra corpus commitatus as I have shewed before By this Judgement double damages were recovered against him that had received a loss of 960 marks odd monies and the damages were assessed by the Jury to 700 l. which by the Judgement being doubled amounteth unto 1400 l. so that instead of recovering of 900 marks without any tryall whether due to him or not he is condemned in 1400 l. how the then Plaintiffe as the Record is cited having got the possession of the goods sued for by the Defendant formerly the Plaintiffe or pars agens in the Admiralty could sustain 700 l. damage by being sued in the Admiralty I know not nor can imagine For the Statute doth not say the party sued in the Admiralty Court contrary to the Statute of the 13th of Richard the Second shall recover double the value of what he there sued for but double the damage he sustained by such suit which could be no great matter unless he had recovered and obtained into his possession the summe sued for which doth not appear nor is it so much as alleaged or affirmed Now it could not be expected that so much sea being converted into land by this Judgement by two years labour and but finished and brought to pass in the 6th year of Henry the Sixth
the same land should be in the very next year viz. in the 7th year of the same Kings Reign reconverted into sea Yet is there a great deal more colour for an Action to lye at the Common Law for forestalling in a Port or Haven then for the beforementioned Judgement but upon another ground then that which Sir Edward Coke would have to be the ground namely because a Port or Haven is within the body of a County which is this Though the forestalling be an act done upon the Port or Haven yet is it the forestalling of a Market which is kept at land so that act done upon the Port or Haven hath relation unto the Market which is at land And so the act done upon the Port or Haven may be said to arise from the Market which is at land and within the body of a County and that act upon the Port to be a forestalling of that Market which is at land Just as a Contract made at land for transporting goods by sea is an act done upon the land but hath relation to a thing done at sea and so the Contract though made at land is a thing that doth arise from a thing done or to be done at sea and doth not arise from a thing either done or to be done at land within the body of any County And therefore is this Contract tryable in the Admiralty and not at the Common Law And this agreeth with the Statute of the fifteenth of Richard the Second the Statute being truly examined which I shall plainly shew when I come to speak of Contract Yet may not this construction of the forestalling upon the water be allowed for this is no Contract made for the performance of any act or thing at land positive and therefore ariseth not from any act or thing to be done at land but is a Contract which doth privatively debarre a further act to be done at land And besides this is a compleat act having reference to nothing more yet to be done but the bargain is made the comomodity bought and all is done therefore is this forestalling triable in the Admiralty Court and there punishable as will hereafter appear by what I shall shew in several chapters of this second book In the next place it is objected that the 19 H. 6. 7. it is said that the Statute doth restrain that the Admiral shall not hold plea of any thing rising within any of the Counties of this Nation but Executions he may make upon the land this Statute which this Authority citeth must be the same before mentioned Statute of 15 Ric. 2. therefore I will say nothing to this here more then that Sir Edward Coke doth hence inferre that though it be said in the 22 ass pl. 93. that every water which flows and reflows is an arme of the Sea yet it followeth not saith he that the Admiral shall have Jurisdiction there unless it be out of every County or else such a place whereof the Country cannot take knowledge as it appeareth in the book of E. 2. before cited But how this hath any reference to that of the Statute to serve for his purpose I know not The last thing against that which is said 22. ass pl. 93. he would prove by that of 8 Ed. 2. before cited which I have answered already It is argued out of Fortescue cap. 32. fol. 38. that the Admirals Jurisdiction is confined to the high Sea for that he there saith Nam si quae super altum mare extra corpus cujuslibet comitatus regni illius fiant quae postmodum in prohibito coram Admirallo Angliae deducantur per testes illa juxta legum Angliae sanctiones terminari debent which saith Sir Edward Coke proveth by express words that the Jurisdiction of the Admiral is confined to the high Sea which is not within any County of the Realm If Fortescue had said much more then here he doth to have afforded him a better foundation for his Argument then this which he hath said doth I should not have much marvelled at it For he that conceived that if Adam had not sinned in Paradise all the World had been governed by the Common Law perhaps might in his time think it meritorious to reduce as much of the World as he could to the subjection of that Law But truly out of what he saith here Sir Edward Cokes conclusion is not Logically to be deduced For to say that because Fortescue saith that the Admiral hath Jurisdiction upon the high Sea which is out of any County of the Kingdom that he hath no Jurisdiction elswhere is no better an Argument then to say that Sir Edward Coke was Lord of the Mannor of N. and therefore he could have no Land elswhere For Fortescue doth not speak this exclusive to any other part of the Admirals Jurisdiction Nor by saying Quae super altum mare extra corpus cujuslibet comitatus regni illius fiant doth he averre quod aliquis portus maris est infra corpus alicujus Comitatûs If this Answer doth not satisfie adde the Answer to the next Objection to it The next Objection is deduced out of the 2 Rich. 2. fol. 12. quod Hibernici sunt sub Admirallo Angliae de re facta super altum mare Which saith he agreeth with the former viz. that the Jurisdiction of the Admiral is super altum mare And no doubt but it is but it doth not therefore follow that it is nowhere else Now this very authority sheweth the true use and ground of this distinction of super altum mare and super portum maris which is this The Admiral of England hath Jurisdiction super altum mare quo ad Hibernicos Hibernici sunt sub Admirallo Angliae de re sacta super altum mare non super portum Hibernicum nisi per appellationem And so it is between England and other Nations adjoyning to the Brittish Seas For the Kings of England have ab antiquo had the dominion of those Seas as is sufficiently demonstrated and proved by that learned Gentleman Mr. Selden by exceeding many Arguments throughout his whole Book de Dominio maris called Mare clausum which I have toucht upon before but though the King of England had the dominion of those Seas yet had those Nations Admirals who had the Jurisdiction of and over all business done in and upon their own Ports so that the Admiral of Englands Jurisdiction Respectu Regis Angliae Dominii maris is said to be super altum mare quo ad alias omnes nationes But as had his Power from the King so hath he Power Authority and Jurisdiction as over the Sea so over the Ports and Havens of the Sea belonging to this Nation aswell as the Admirals of France and the Admirals of other Nations had and have over the Ports and Havens belonging to their several Nations
either be built or bought at such rates or prizes as they then were so that they cannot be let for the same freight they then were For the other clause of Forreigners transporting their Wares and Merchandises in English Bottoms to pay no more Custome then the English whether the Customers have disused the same and so made it obsolete or not I know not But in case they have so done I know no warrant or necessary cause they have for so doing but for the last mentioned clause That Masters and owners of Ships shall provide that all the Merchants Wares and Merchandises shall be in good order saved and kept and that the Merchant which shall thereby or by delay or protracting of the Voyage without just cause longer then the time agreed by the Charter-party find himself aggrieved shall and may have his remedy in the Admiralty This is only in affirmance of the Law of that Court and was both before the making of that Act and hath been ever since used and practised in that Court and cannot by the disuse of it at the Common Law where it is not by that Act at all to be used be made obsolete but is by the practice and use of it where it is appointed to be used held continued and preserved from being made obsolete there Now no man can say but that this saving and keeping of Merchants Goods and Merchandises honestly and in good order is clearly meant of such saving and keeping them honestly and in good order as well whilest the Ship or Vessel remaineth in the Port or Harbour as when she cometh at high Sea and the delaying and protracting of time in taking of the Voyage with the next good wind according to the time agreed on by the Charter-party is most certainly a wrong or injury done upon the Port or Haven and the Jurisdiction of the Admiralty in causes of this nature upon the Ports and Havens by this Statute affirmed and confirmed And moreover the very breach of the Charter-party though made at land is by this Act affirmed to be cognoscible in the Admiralty which bringeth me in the very next place upon that point and particular wherewith I shall begin the next Book THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE THIRD BOOK CHAP. I. That all Differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court and the reasons thereof HAving been thus long upon the Ports and Havens it is now full time to begin to think of the discharging of the Ship and the delivery out of her lading to the Merchants to whom the same belongeth and for to come to the Caulking fitting trimming preparing and furnishing of her with Victual Tackle Apparel and furniture c. and manning her with Seamen and Mariners for some voyage and taking in of her lading from the Merchants or their Factors to be transported in the same In the effecting of all which several men of several Occupations Trades and imployments are severally to be contracted with as well at Land as upon the Port and Haven The validity and invalidity of all which contracts Sir Edward Coke would have to be Cognoscible Tryable and determinable in the Common Law Courts according to the Course of the Common Law and not in the Admiralty Court or according to the Proceedings Rules and Grounds of the Civil and Maritime Laws But I must here likewise adventure another dispute with him upon this point And first I shall offer some reasons to the contrary and then endevour an answer unto his Arguments And after both I shall set forth what Laws have been made for the determination of such differences as shall arise upon such contracts by which Laws certainly they are still to be determined And first I say that by Ships and Shipping this Nation is secured and preserved from foraign Invasions and by Trade and Commerce with foraign Nations not a little enriched and neither Shipping nor Trade can be upheld without the welfare of Merchants Owners of Ships Fitters Furnishers of them Mariners c. And this welfare of the Merchant Owner Fitter Furnisher and Mariner cannot be maintained without a settled Jurisdiction of Admiralty regulated according to the Civil and Maritime Laws setled amongst and known unto all Maritime Nations Because as it is well known all of them have dealings with such foraign Nations abroad and such foraign Nations with them at home who both expect and will have the same Justice meted to them that they measure unto others else will they both forbear to Trade with that Nation which shall deny them that Justice and likewise deny that Nation to Trade with them Now it is most certain that the municipal Laws of this Kingdom are so different from the Civil and Maritime Laws that if Maritime Causes be they either for freight wages damages done to Merchants Goods Building Tackling and furnishing of Ships c. should be here determined by the municipal Laws of this Nation and beyond the Seas by the Civil and Maritime Laws they must necessarily receive many of them a different many of them a clean contrary Judgment To instance briefly in some few of many If Mariners be hired to serve in a Ship for so much by the Moneth and serve divers Moneths in her and the Ship dieth at Sea and never maketh port here the Judgement of these two Laws will be clean contrary Likewise if a Ship be let to freight at a certain rate by the Moneth from Port to Port and so home again and the Ship in some of those Ports shall be imbarqued for some moneths here the Judgements of the two Laws both for freight and wages for those moneths will be contrary and upon other emergent causes from hence arising the Judgements will likewise be in some farre different and in other some clean contrary If the Merchants Wines Oyls c. be leaked out end for end the Judgements upon Action for the freight will be different if not contrary If the Merchants Goods shall be damnified by ill stowage or careless looking to or shall be purloyned or stoln the party not known or if known not able to make satisfaction here upon Action brought by the Owner for his freight and by the Mariner for his Wages the Judgements will differ very much If in a storm at Sea or in any Port or Haven the Ship and her lading be in danger and some Goods be cast over board for preservation of the rest by the Maritime Laws the remaining Goods are to be cast into an Avaridge to make satisfaction for the Goods cast over-board by which Law certain Rules as well concerning the danger the nature of the several Goods and the casting them over board as concerning the Avaridge it self to be made are prescribed which Rules are not known or owned by the municipal Laws of this Nation and therefore cannot that Law take cognizance thereof and consequently upon Action brought by the owners for freight
wheresoever contracted for in these and divers other like cases the Judgement of that Law cannot be agreeable unto the rules and grounds of the Maritime Laws If a Mariner be hyred by the moneth and doth serve several months in the Ship and afterwards desert or leave the Ship and run away upon Action brought for his wages the Judgements of the two Laws will be clean contrary If the Mariner without leave of the Master lie on shore and the Ship or goods be damnified or the Voyage protracted or if the Ship be not well moored so that for default thereof she be damnified or if the Mariner take up clothes or borrow money of his fellow and put the same in the Pursers book upon Action brought for his wages the Judgements of the two Laws will differ If two be they Merchants Owners Mariners or Furnishers of Ships c. and those either English or Foreigners or the one English and the other a Foreigner do for Freight Tackle or Furniture of Ships c. or by other Commerce in their seafaring business become indebted each to other upon Action brought by either of them the Maritime Law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time and alloweth him compensation which the Municipal Law alloweth not but concludeth that stoppage is no payment by which Law if exercised in business of this nature the absent might recover much against the party present and he be constrained to wait his opportunity for the recovery of what is due to him from him that hath recovered against him to the lessening of his Stock and great hinderance of his Trade And in like manner the Non-solvent might recover much against the Solvent and he nothing at all against the Non-solvent which would be very much inconvenient to all seatrading men and a thing not known abroad Now these Maritime Laws for Maritime businesses are all grounded upon strong reasons which if they could be here at large particularly set forth yet would they not take away the reason whereon the Municipal Laws for Land affairs are grounded in regard different Judgements in different things do arise from different grounds of reason so that the Judgements upon businesses agitated upon the Land may be grounded upon reason and yet will not that reason hold to ground the like Judgement upon in business at Sea or upon the great waters those being accommodated with many advantages and helps in their agitation and petformance of which these are altogether destitute And this will introduce a second reason why the welfare of the Merchants and other seafaring men cannot be maintained without the settling and upholding of these Maritime Laws for decision of differences and controversies in maritime affairs which is because these Laws are suitable thereunto and compleat to determine all differences in businesses of that nature which as I conceive the Municipal Laws of the Land are not For Maritime causes especially those for wages must have a quick and sodain dispatch of Justice the Mariners as they come in with one good wind so must they speedily go out with another and not wait Westminster-Hall Termes to the loss of a whole Voyage such their imployment being their whole livelyhood Nor must they commence every man a Suit according to his particular contract to the expence of as much if not more then his wages come to but must as the Martime Laws allow them commence their Action in one joint Petition to a Judge at all times settled in a readiness and in a constant place of Judicature where and to whom they may make their present addresses for dispatch according to such Laws as they are used unto wheresoever they come If the Mariner must have such dispatch against the Master then must the Master have the like against the Merchant for his freight out of which he is to pay the wages and the Merchant the like against the Master and Owners of the Ship for damages done to his goods at sea all which is speedily tryed at one and the same time by the maritime Laws which upon full hearing alloweth compensation and every one hath at first his own according to proof or confession upon their personal answers and no more otherwise if the Mariners shall by several Tryals at the Common Law recover their full wages of the Master and be gone and then the Merchant recover against him likewise or against the Owners of the Ship perhaps as much or more then their freight amounteth unto for damage done unto his Goods perhaps by the Mariners who are gone and not to be met with again and be put afterwards to sue for their freight this will soon cause the owners of Ships to lay their Vessels by the walls or if the Mariners shall recover their wages of the Masters or Owners and be gone and then the Owners shall recover their freight against the Merchants whose goods are damnified or spoiled by the Mariners and not by default of the Ship or by default of the Ship and not by any neglect or fault of the Mariners or by both and he then put to a tryal to recover by Jury the damage he hath sustained he is like to have but little or no redress If the Mariner shall have his dispatch and be gone which he must have or be undone and the Merchant wait his Tryal from Terme to Terme at the â—ommon Law then by reason of the absence of the Mariners can neither the Owner prove the damage to be done by meer casualty or stress of weather at sea which he is not lyable to make satifaction for nor can the Merchant prove the insufficiency of the Ship in which case the Owner is to make satisfaction besides many inconveniences more which might be reckoned Thus is not the one Law only suitable and agreeable to maritime affairs and the other unsuitable and disagreeable thereunto but the one is likewise perfect and compleat for deciding of all controversies thence arising the other imperfect and in no wise compleat for that purpose in my judgment For Bills of Bumery or Bottomry for many reasons most usefull and absolutely necessary in sea trade they are likewise triable only by the Maritime Laws and can be no wayes tryable at the Common Law wheresoever made by reason the Ship only is lyable to payment which may be arrested according to the Maritime Laws either at the main Sea or upon any Creek Port or Haven adjoyning upon the land which cannot be done by the Common Law as I humbly conceive So likewise contracts de nautico foenore pecunia trajectitia or nautica usura wheresoever made are tryable by the Civil and Maritime Laws and not by the Common Law of England and the Civil Law hath several Titles concerning these particulars as in the Digests the Title de nautico foenore in the Code the same Title in the Novel Constitutions the Title de nauticis usuris
juste in ipsius Edmundi dispendium non modicum gravamen unde per partem praedicti Edmundi sentientis se ex praemissis sententiis expensarum condemnatione indebite pergravari ab eisdem sententia expensarum condemnatione ad nos nostram audientiam est appellatum sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum plenius poterit apparere idem Edmundus nobis supplicavit ut in dicta causa appellationis suis procedere sibi justitiam in hac parte facere digneremur Nos supplicationi praedictae annuentes vobis c. quorum alterum vestrum vos praefatum Episcopum Thomam Field c. I shall instance only in one more one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston as Master and Owner of half of the said Vessel and the said Cause was proceeded in before Henry Bole Lieutenant-General of the Admiralty Court which Cause was from him appealed unto the King in Chancery and a Commission in the eleaventh year of Henry the fourth being but nine years after the making the said Statute and the Cause in the first instance must needs have been begun some good space of time before that The Commission of Appeal runneth thus Rex dilectis fidelibus suis Richardo Rochefort Chivaler ' Magistro Henrico Ware Magistro Richardo Brinkley Magistro Thomae Field salutem Sciatis quod â—um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti quinque librarum praeâ—â—â—â—â—ffrectamenti medietatis cujusdam navis vocat ' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom possessorem ejusdem medietatis aliis pertinen partem actricem prosequentem ex parte una Thomam Jonesson Thomam Rafin de villa praedicta partem ream defendentem ex parte altera quae coram Henrico Bole locum tenen general curiae Admirallitatis Angliae c. Now for the three Records instanced in by Sir Edward Coke and brought out of the Courts of the Common Law against the Admirals Jurisdiction upon the Ports and Havens and in matters of contracts upon businesses to be agitated at sea I have shewed four out of the Chancery which was then as by his own setting forth appeareth the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law for thus he saith Sundry Towns of the West part praying remedy against the Officers of the Admiralty for holding plea of matters determinable by the Common Law which they pray may be revoked the Kings Answer was The Chancellor by the advice of the Justices upon hearing of the matter shall remit the matter to the Common Law and grant a Prohibition And as these Records are of farre greater antiquity then those by him instanced in so are they farre more contemporary with the said Statutes and therefore by his own rule of farre greater authority Besides these three Records by him instanced in do but de facto set forth what was done and that but as those three several times in those Courts sed quo jure non arguitur But it may be very well apprehended that in 27 years after the making of the last of those Statutes and 37 after the making of the first of them the Petitions upon which those Statutes were grounded and from whence they must receive a right construction began to be forgotten but after the same were revived and brought again into remembrance and Admiralty Court had no more such interruptions but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former when the said Petitions whereunto the Answers have or ought to have reference were as it were again quite out of remembrance For if from the time of the making of those Statutes untill the time of the last of the Judgments instanced in all the particular Actions that have been brought and â—â—â—tences that have been given in the Admiralty for things done upon the Ports and Havens against the cognizance of which causes one of these Judgements is brought and all the Actions brought and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea against which the other two Judgments are brought should be set forth I might boldly say there would be many hundreds for one and I might very well and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong nay by those Records of the Admiralty and the constant the continued and the general practice and usage of taking cognizance of Causes of this nature it plainly appeareth that the Jurisdiction thereof anciently did and still doth belong unto that Court for in land businesses whose land or soil shall we judge that to be but his who hath generally continuedly and constantly reapt the Crop and not his who hath at some times come by and taken up a a Shock or two and so done as much as he which reapt where he never sowed which he must needs do which is neither verst nor skilled in jure scripto in that Law which is positively set down for that purpose but shall judge thereof at randam and will so do because others have done so before him nor under correction can it be held to be any good rule of Justice to judge by president for if one man or more have judged unjustly and not according to law I would not have it said that he which knoweth the law is notwithstanding bound to judge as the other did because he hath a president for it But I shall pass them presidents over and as I have in the second book of this Treatise shewed you that even by Records out of the Chancery and Common Law things done upon Ports and Havens are cognizable in the Admiralty Court so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated or to be agitated at sea CHAP. VIII That by other Records out of the Chancery Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court ONe Lodowick Sutton sued John Pettite of Abville in Picardy Merchant Andrew Lord and Daniel Lancel in the Admiralty Court upon several Maritime Contracts made between them in the City of London the said Pettite Lord and Lancel upon their complaint made in Chancery that they were sued in the Admiralty