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
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
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
Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
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