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
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
send the Reader thither to seek it but for his readier perusal I shall again set forth the same here and therewith terminate and end this first Book of my Maritime Dicaeologie of England The words of the Record are these A vous Seignieurs Auditors Deputes per le Rois de Engliterre de France a redresser les damages faits as gents de tour royalmes des auters terres subgits a lour seignuries per mer per terre entemps depees trewes Monstrent les procorours des Prelats Nobles del Admiral de la mier d'Engliterre de Cominaltes des Cities des Villes des Merchants Mariners Messagiers Pelerins des toutes aultres du dit Royalme de Angliterre des aultres terres subgits a la Seignurie du dit Roy d'Engliterre daillours sicome de la marine de Genue Cataloigne Espaigne Alemaigne Zeland Hayland Frise Dennemarch Norway de plusours aultres lieux del Empier que come les roys d'Engliterre per raison du dit Royalme du temps dont il ny ad memoire du contrarie eussent este en paiceable possession de la Soveraigne Seignurie de la mier d'Engliterre des Isles esteaunts enycele per ordinance establicement des lois estatuts defenses d'armes des vesseaux autrement garnies que vesseaux de merchandise de seuerte prendre sauve de gardes doner en tous cas que mestier serra par ordinance entre tout manere des gents taunt dautre seignurie come de lour de propre de tous aultres faitz necessaries a la garde de pees droiture equitie par elonques passants per souveraigne garde toute manere de conisance justice haulte basse sur les dites lois estatuts ordinances defenses pur toutes autres faits queux a le government de souveraigne Seignurie appertenir purrentes lieux avandits Et A. de B. Admiral de la dit mier deputey per le Roy d'Engliterre tous les aultres Admirals par mesme celus Roy d'Engliterre ces Ancesters iades royes d'Engliterre eussent est en paisiable possession de la dit souveraigne garde ove la conisance justice touts les aultres appurtenances avant ditz forprise en case dappele de querele fait de euxa lour souveraignes roys d'Engliterre de defalte de droit on de malvais judgement especialment pur empechement metre justice faire seurte prendre de la pees de tout manere de gents usants armes en la dit mier ou menans niefs aultrement apparreilles ou garnies que nappertient au nief de marchants en touts aultres points en queux homme poit avoir reasonable cause de suspition vers eux de robbery ou des aultres mes faitz Et come le maistre de niefs du dit roialme d'Engliterre en absence des dits Admirals eussent este en paisable possession de conustre juger des touts faits en la dite mier entre touts manere de gents felone les lois estatuts les defenses franchises custumes Et come en le primer article de lailliance nadgaires faite entre les dites Roys en les traites sur le darreine pees de Paris soient comprises les paroles que sensident en une sedide annexe a yceste Primerment il est traite accorde entre nous les messagers les procurours de surdiz en nom des dits Rois que yceux Roys serront lun a lautre desores en avant bons verrois loyaux antyes eydans countre tout homme sauue lesglise de Rome en tiels manere que si ascun ou plusours quicunquez ilz fuissent voloient deponticer emphescher ou troubler les dits Roys en franchises liberties priviledges es droits es droitures ou es custumes de eux de lour royalmes quils serront bons loyaux amys aydans countre toute homme que puisse venire morir a defendre gardi maintâ—ir les franchises les liberties les privileges les droitz les droitures les custumes de susdites except le dit Roy d'Englitere Monsieur John Duc ele Braban en Brabant ses heires descendus de lui de la fille le Roy d'Englitere except pur le dit nostre Seignior le Roy de France excellent Prince Dupert Roy d'Alemaigne ses heires Roy d'Alemaigne Monsieur Johan Counte de Henan en Henan que lun ne serra en consaile ne en aide ou lautre perde vie membre estate ne honour temporel Monsieur Reymer Grimbald maistre de la navie du dit Roy de France que se dit estre Admiral de la dit mier deputey person Seignior avant dit pur sa guerre conâ—re les Flemings apres le dite alliance faite affirmee contre le forme la force de mesme lalliance lintention de ceux qui la firent loffice del Admirall en la dite mier d'Englitere par commission du dit Roy de France torseous ement emprist usa un an plus en pernant le gents Merchants du roy alme d'Englitere daillours per la dite mier passaints ovesque lour biens les gents ainsi prises livera a la prison de son dit Seigniour le Roy de France lour biens marchandizes a les resceivors per mesme celvy roy de France a ceo deputey en les ports de son dit royalme come a luy forfait acquis fist amener per son juggement a gard la prise detenue des dites gents ove lour dites biens marchandises son dit juggement a gard sur la forfaiture de eaux acquest ait justifie devant vous Seigneurs Auditors en escripts per my lautoritie de sa dite commission sur l'Admiralte avantdite per lui ainsi usurpe per une defense communement fait per le Roy d'Englitere per my son poer lelonâ— la forme de le tiers article de lalliance avantdite qui contient les paroles desusecripts en requerant que de ceoâ—ill en fusse quitz absoluts en grand damage prejudice du dite Roy d'Englitere des Prelats Nobles aultres desusnomes Purquoy les dites procurours les noms de lours ditz Seigniours a vous Seigniours Auditors avantditz pryent que deliverance dewe hastine des dites gents ovesque lour biens marchandises ainsi prises detenues faicets estre fait al Admiral du dit Roy d'Englitere a qui la conisance de ceo apertient de droit sicome dessus est dit ainsi quils sauns disturbance de vous d' aultre puisse de ceo conoistre faire ceo que apertient a son office avant dit Et que
the Sea or on the Haven or Port by his authority might call them and have their testimony or if gone in any voyage to any forain parts might by Commssion have them examined sub mutuo vicissitudinis obtentu and receive their testimony Now this seeing being rightly thus understood the Lord high Admiral of England will not so soon nor so easily be thrust out of his Jurisdiction upon the Ports and Havens of the Sea by the Coroner of a County or by the Common Law eitheir as Sir Edward Coke by that which is deduced and drawn from this authority would have him Yet saith Sir Edward Coke this onely Authority is sufficient to over-rule all the said questions For saith he hereby it appeareth that the Jurisdiction of the Admiral is onely confined by the Common Law to the high Sea and affirmeth that it agreeth with all his former Book-cases and Acts of Parliament For the Book-cases I cannot deny but that they are much alike but all of them together not sufficient to make a sufficient proof for that which he would have and against that which is denied him For its agreeing with the Acts of Parliament I wonder he should averre it seeing this very point even in this particular concerning the death of a man upon the Ports and Havens is so clean contrary to what the Statute of 15 of Rich. 2. c. 3. in express words saith de mort de homme de maheym fitz en grosses niefs esteantz ethoverantz en my le haut fil de grosses Rivers tant solement peravale lez pontz de mesme les Rivers pluis procheyns al meer et en null autre lieu de mesme les Rivers est l'Admiral cognissance of the death of a man and of main done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridges of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance which is a thing needed not nor would have been provided for by this Statute if a Jury could have been had out of a proper County for the tryal thereof which is a thing requisite by the Common Law as in Lacyes Case twice already cited upon other occasions and as by Serjeant Callis his reading likewise in the same places So then for this particular concerning the death of a man upon a Port or Haven which is the foundation of this Argument that the Admiral should have no Jurisdiction upon the Ports and Havens it resteth onely in question whether the Statute shall over-rule Sir Edward Coke or Sir Edward Coke the Statute and ancient Law and Practice of the Admiralty This next thing he urgeth against the Admirals having Jurisdiction upon the Ports and Havens is the 43. Ed. 3. which saith he the Lord Dyer voucheth in Mich. 15. and 16. Eliz. saying quod vidi The Case is that the Abbot of Ramsey was seised of the Mannor of Brancaster in Norfolk bordering upon the Sea but more especially upon 60. acres of Marsh of the said Manor upon which the Sea did flow and reflow and yet it was adjudged parcel of the Abbots Manor and by consequence within the body of the County unto the low-water mark This argument cannot so much as seem to carry him so farre as he would have gone before for hereby he pretendeth the body of the County to reach only unto the low-water mark and that only by consequence which consequence will not hold For as Serjeant Callis in his Grays-Inne Reading saith p. 26. in Sir Henry Constables Case the Citizens of Bristol claimed Flotzon goods floating on the Sea by custome and in Bracton cap. 12. one alleaged to be discharged of Toll or Custome on the Seas by praescription in the Case of the Swans in Sir Edward Cokes 7th Report one prescribed to have a game of wild Swans at Abbots-beery in a Creek of the Sea which is a member or arme thereof And in Sir Henry Constables Case it is taken and received for Law that a Subjects Manor may extend to the low-water mark by praescription yet is not the Admirals Jurisdiction at all hereby taken away upon the same places For Sir Sir Ed. Coke himself in the same case declareth that the Judgements of the Common Law have been both for the Admirals Jurisdiction and the Jurisdiction of the Common Law both upon one and the same place at several times For saith he Fuit resolve per totam curiam que le soil sur que le mere flow reflow sc inter le high water mark le low-water mark poet cê parcel d' un manner d' un subject 16 El. Dier 326. 6. act issint fuit adjudge in Lacyes Case Trin. 25. El. in cest court en uncore fuit resolve quant le mere flow ad plenitudinem maris le Admiral avara jurisdictîon de chescun chose fait sur le ewe inter le high-water mark le low-water mark per le ordinarie naturall course del mare issint fuit adjudge in le dit case de Lacy que le felony fait sur le mere ad plenitudinem maris inter le high-water mark le low-water mark per le ordinarie naturall course del mare le Admiral avara jurisdiction uncore quant le mere est reflow le terr port apperteine al subject chescum chose fait quant le terr est reflow serra try al common ley car ceo donques est per cel del country infra corpus comitatus our ceo agree 8 Ed. 4. 19. issint nota que South le low-water mark le Admiral ad le sole absoâ—â—â— jurisdiction inter le high-water mark low-water mark le common ley le Admiraltie avoint divisum imperium interchangeablement come est avant dit se 〈◊〉 super â—quam l' auter super terram It wâ—â— resolved saith he by the whole Court that the soil upon 〈◊〉 the 〈◊〉 doth ebb and flow to wit between the high water 〈◊〉 and the low water mark may be parcel of a Mannor of a Subject 16 Eliz. Dyer 326. 6 acc and so it was adjudged in Lacyes Case Trin. the 25 of Eliz. in this Court and so it was resolved when the Sea doth flow unto the full height the Admiral shall have Jurisdiction of any thing whatsoever done upon the water between the high water mark and the low water mark by the ordinary and natural course of the Sea And so it was adjudged in the same Case of Lacy that a Felony done upon the Sea at full Sea between the high water mark and low water mark by ordinary and natural course of the Sea that the Admiral shall have Jurisdiction And so when the Sea returned the ground may appertain to a Subject and every thing done upon the ground when the water is returned shall be tryed at
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
which undoubtedly they had and have as hath been shewed before And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port or any Port or Chambers of a foreign Prince other then the Ports and Chambers of that Prince against whose Subjects the same were granted And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce that such a fact was done super alto mari hoc est quoad Portus suos but in other cases for Maritime businesses done either upon the Port or contracted for upon the land it is sufficient in the first to lay in the libel that they were done infra fluxum refluxum maris and in the last infra jurisdictionem Admirallitatis as hath been already said and shall hereafter be more fully shewed For that which followeth in the next place out of Stamford I joyned it with that of the 8 Ed. 2. and have already spoken thereto Next it is said 4 5 Ph. Mar. Dyer 159. 6. by the libel in the Admiralty the cause is supposed to commence sur le haut mere infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs non super altum mare whereby saith Sir Edward Coke it also appeareth that the Lord Admirals Power is confined to the high-sea This Conclusion can no wayes be deduced out of the premisses for though by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere infra Jurisdictionem de l'Admiralty and perhaps falsly so suggested because the thing was done in some Town within the body of a County for the instance is ubi revera facta fuit in tali loco infra corpus Comitatûs which locus may be any in-land Town within any County and non super altum mare as it deduced in the libel For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs If by the Libel the cause had been supposed to have commenced in vel super tali Portu infra fluxum refluxum maris then the words of the Authority might have run thus ubi revera facta fuit in tali loco infra corpus Comitatûs non super talem portum vel infra fluxum refluxum maris aswell as non super altum mare for the words non super altum mare are onely in affirmance of the contrary to what is layed in the Libel and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel specifying and designing that very place where such a particular act was not done if so be in the Libel it had been laid that this act had been done about the mid-way between Dover and Callis and the Authority had said ubi revera facta fuit in tali loco infra corpus comitatus and not in or about the mid-way between Dover and Callis I hope no man will say that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis so that it is plain this conclusion cannot be drawn out of the authority The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea and of things done or contracted beyond the seas which I shall deferre to their proper places There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas and not to be upon the Ports and Havens which are not cited amongst his Book-cases and Authorities of Books but are cited before them one amongst the Praemunire's by him cited which I have spoken to already and the other cited amongst the Prohibitions by him cited which concern Contracts and are referred to their proper places These two I shall here insert before I proceed to the next chapter The first of them is urged out of the book of Entries fol. 23. tit Admiralty where it appeareth saith he that the taking of a Ship called the Trinity of London lying upon the River of E. in the County of Kent is not super altum mare but infra corpus comitatus Cantiae and therefore a Suit for the taking of that Ship lying there in the Admiralty Court before John Earl of Huntingdon Admiral of England appeareth to be against the said Statutes and yet no question that was infra fluxum refluxum maris infra primos pontes Here he saith that the taking of that Ship in that place appeareth to be against the said Statutes but mentioneth not what Statutes having quoted divers before If there had been a Judgement in the case he certainly would have added this proof to the Judgement of Burton and Putts Case and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited and the Statutes next before mentioned are the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's which must be the Statutes against which this taking must be said to appear to be by reason he saith it appeareth to be against the said Statutes which must be meant of the next mentioned preceding Statutes If then it appeareth there to be against the Statute of premunire I hope it hath already received an answer If against that of the 32 of Hen. 8. c. 14. it cannot be so as shall be shewed when we come to treat of freight and contracts where we shall have occasion to mention that Statute against his tenents The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. The River of Thames at Billinsgate saith he is not within the Jurisdiction of the Admiralty but infra corpus comitatus This followeth next after the premunires and precedeth next before the prohibitions by him quoted that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty by this Record it must appear thereby not so to be either by a premunire brought or by a prohibition granted as I conceive being inserted in that place and must have some relation either to what precedeth or what followeth If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought I can say no more to it then I have already said If by a prohibition granted onely it proveth nothing for many a prohibition hath been granted and consultations have been awarded without denial of the suggestions And oftentimes prohibitions have been granted upon such suggestions as could not be maintained but deserved consultations upon the debate thereof and sometimes the parties have come
an prout ponderant an prout valent It is considered by the same Laws likewise if a Ship be taken by a Pirat whether upon the Sea or upon a Port or Haven and be redeemed whether all must contribute or not and if any thing be taken away by Theeves or Robbers whether he must lose it that did own it and if any one redeem what is so taken away whether Contribution ought to be made for the redemption And it is considered how and in what manner this Avaridge is to be made whether the goods lost are to be valued by themselves and the goods saved by themselves or whether altogether and whether goods lost are to be valued according to the price they were bought for or according to the price they might have been sold at and at whether of those two prices the goods saved are to be valued It is likewise considered whether if a Servant or Slave in the casting over board of the goods doth happen to be drowned whether any estimation be to be made of him and if any of the Passengers be not solvendo whether the payment of his share belongth to the Master or not Whether if the goods cast over board be again recovered contribution ought to be made If contribution have been made whether it be to be restored and in what way the Master ought to proceed against him that hath so received it and in what way the Contributers ought to proceed against the Master And whether goods so cast over board are to be accounted pro derelicto and so become theirs who shall afterwards possess them or not be so accounted but remain still the owners Vtrum res Domini manent an fuerint occupantis It is likewise considered by these Laws whether if the Master to avoid danger shall cut off or throw over board any of his Masts or other Instruments belonging to his Ship for preservation of his Ship and her lading contribution in this case be due Whether the consent of the Passengers and Merchants in the Ship be requisite or not And whether it must be done justi metus causâ and who is to judge thereof In like manner it is considered if the goods cast over board be afterwards regained and saved by such as for pay or reward shall adventure and take pains to effect the same si per urinatores recuperatae sint extractae and the Ship with the remainder of her lading shall afterwards be cast away whether the goods so regained shall contribute to the other afterwards cast away And if some of those goods cast away with the Ship shal in like manner be recovered whether they shall contribute unto him that made the first jacture After a jacture or casting over board if some of the goods that be saved be deteriorated damnified or made worse by these Laws it is considered whether they were so hurt by the ill stowage or by the dashing of the water at the time of the jacture or by the uncovering of them It is considered likewise whether the damage be more then the contribution will come to or the contribution will come to more then the damage is And then it is determined whether the damnified goods shall contribute or not and if they shall in what manner If a Ship be split or any otherwayes cast away whether upon the Seas or upon a Port and the goods some or all be preserved and saved it is determined whether the goods shall contribute to the loss of the Ship or not If the Masts of the Ship whether upon the Sea or upon the Port be shivered into pieces and the sails and other tacle be consumed with lightening and the goods by what means soever preserved though by obtaining new Masts new Sails and new Tacle c. these Laws determine whither the owners of the goods be to make contribution or not Hereby it is plain that the special Cases which are comprehended under one general Law or Head are very many and various and require various decisions or judgements which are upon express reasons by the Civil and Maritime Laws and Commentators upon them most exquisitely set forth as he that shall look thereinto shall find If one Ship shall fall foul upon another either upon the high Seas or upon any Port or Haven so that either or both of them have sustained hurt or damage the same Laws do most exquisitely determine between them And under this head do likewise fall very many various cases variously by those Laws determined according and agreeable to most excellent reason If the Mariners shall do damage to the Merchants Goods â—s by drawing out and drinking up their Wines c. whether they do it upon the Seas or when the Ship lyeth at Anchor upon any Port or Haven the case is the same and the Civil and Maritime Laws determine what is to be done herein Many general heads more containing under them several various particulars might be instanced in but these are sufficient to shew that the Rhodian and Maritime Laws were ordained as well for the determination of differences happening upon the Ports and Havens as upon the high Seas and have express Laws for the guiding of the judgement therein which all Nations do acknowledge and allow wherein the Common Law of England under correction is deficient CHAP. X. The Laws of Oleron and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening and arising from things done upon the Ports and Havens as from things done upon the high Seas BY a Record which I have before set down at large it appeareth that the Laws now called the Laws of Oleron were ancient Laws and anciently practised for the regulating of Maritime and Sea affairs in that Maritime Island and that those Laws were by Richard the First King of England in his return from the Holy Land corrected and interpreted and in that Island published in the French Tongue for that purpose and called la ley Oleron in that this Record saith they were by him Correcta interpretata it plainly appeareth that they were made before but whether then used in England or in that Island onely may seem doubtful however it appeareth by the Record it self that after such correction and interpretation they were likewise published in England and were ordinata in Edward the First 's time and consummated in the 12 year of Edward 3. Now these Laws being thus established do plainly shew that the Admiral had and ought to have Jurisdiction upon the Ports and Havens as well as upon the high Seas for that they do set forth what is to be determined in controversies arising as well from things done upon the one as the other I shall instance in some of them If a Ship perish in any place whatsoever whether upon Port or the main Sea the Laws of Oleron give direction what the
and is not in that space discharged More particulars I might instance in out of the said Laws of Oleron to the same purpose and how farre the said Laws are extended or limited by latter writers upon the Civil and Maritime Laws but that will be a work more properly to be entred upon when this Jurisdiction of the Admiralty shall be compleatly settled and freed from interruptions in its due procedings I shall therefore onely set down this last Judgement in its own language not endeavouring to shew what the Law is either in this case or any of the other before recited but to conclude that by these Laws so long since established for the directions of Judgements in Maritime causes it plainly appeareth that the Ports and Havens are within the Jurisdiction of the Admiralty and that all differences therein or thereupon arising are cognoscible and tryable in the same The words of the Judgement are these Item ordonne est pour custume de mer q'se une nef arrive en ung Port a sa droitturier le descharge demoure la nef illecq ' chargee jusq's axxi jours ounrables la mettre puet been mettre hors sur ung keye le Maistre doit ordonner bailler ung de ses Mariners an Marchant pour prendre garde aux vins ou autres derrenes jusque a tant q'le Maistre soit pay de son frett Et cest le Judgement en ce cas Very many more there are which will be too tedious here to set down None of all which is by any part of the Common Law treated of at all nor can it if it keep its own rules render the same Judgement with these Laws but a diverse if not in many cases a clear contrary CHAP. XI That by the ancient Statutes of the Admiralty setled before the last Confirmation of the Laws of Oleron 12 Edw. 3. and Articles of enquiry added thereunto it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas THere are likewise ancient Statutes of the Admiralty to be observed both upon the Ports and Havens the high Seas and beyond the Seas which are comprised in an old authentick Book called The black Book of the Admiralty which Statutes are ingrossed upon Vellam in the said Book and written in an ancient hand in the ancient French Language which plainly shew the Admirals Jurisdiction to be upon the Ports and Havens as well as upon the high Seas I shall set down onely one of those Statutes for proof thereof which sheweth how and in what manner damage done by one Ship unto another in a Port or Haven as well as upon the high Seas shall be satisfied in case the same be wilfully done and how and in what manner in case the same be unwillingly done by chance by reason of tempest or other mishap The words of the Statute are these It que nulle nef ne vessel de la flotte pour orgueil ne pour haine ou envie sur le mer our entrants es ports ou en port ottroie veille audommage dautre nef ou vessell de la flotte au pris par ceux de la flotte sur payne de faire playne amende de ce qui est endommage en son default qui endommage debrysse au tres entrants aux ports ou dedens ports ou sur le mere neuvoillautz par cause de tempeste ou autrement il paiera amendera la moitie du dommage a la discretion Judgement de l'Admiral There are likewise in the same Book added unto these Statutes the Oath and Articles whereupon Juries were and are to make their presentments unto the Admiral all written with the same hand the Oath onely in old English the Articles in the same Language with the Statutes which shew what things are enquirable and presentable before the Admiral and there punishable and how and in what manner such offences are to be punished out of which it iâ— easily and plainly to be gathered that the Admiral hath a full and compleat Jurisdiction exclusive to all others upon all Ports Havens and Creeks of the Sea I shall here set down verbatim the Oath to be Administred unto the Jury and some few of those Articles which shew the Admirals Power and Jurisdiction to be upon the Ports and Havens The Oath This here see my Lord the Admiral that I John atte nashe shall well and truly enquere for our Lord the King and well and truly at this time thou serve at this Court of th' Admirate present as moch as I have in knowleche or may have by information of eny of all my fellows of all mane Articles or circonstances that touchen the Courte of the Admirate and Law of the Sea the whiche shuld be grate to me at this time and I thereupon sworne and charged and of all other that may renewe in my minde and Ine shall for nothing lette that is for to say for franchise Lordship Kynreden aliance friendship love hatred envye enemytee for dred of lost of goodnee for non other cause that I shall so doo the Kings Counseills my fellows and myne owen wel and trewly hele what oute fraude or malengyn so God my help at the holydome and by this Book Next unto this Oath is set forth the punishment of the Jurate that shall disclose the secrets of the King or any of his fellow Jurates to be inflicted upon him by the Admiral The very first and second Articles to be given in charge are for Theft committed upon any Port or Haven and the punishment thereof set down These are the words in the Articles Soit aequis des larrons es ports ComeÌ„ de cords batenlz autres ancres autres appareâ—ls des nefs se nul est endite quil a felon neusement pris ung baten ou ancre que passe xxi d. il sera pendu sil est de ce convicte It se an cuy est endite quil a felon nensement pris ung boye rope de quelle value quil soit soit lie a ung autre dedens leave pour la boye il sera pendu sil nest de ce aquite And so they proceed to set down the punishment of him that shall cut any Cable whereby the Ship is cast away or any man lose his life c. And of such as shall remove an Anchor And likewise of such as shall rob Strangers Ships not being enemies And how their goods shall be restored to them though they pursue not the Felon to death And what course is to be taken in case of such robberies Petty Larceny is by that Law punishable upon the first conviction by forty dayes imprisonment upon the second half a years imprisonment upon the third death By the next Article common disturbers of Ships and Passengers either upon the Seas or the Ports are to be enquired of and their punishment is therein described
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
Domini nostri Regis ejus concilium ad retinendum conservandum antiquam superioritatem maris Angliae nos officii Admirallitatis in eodem quoad corrigendum interpretandum declarandum conservandum leges Statuta per ejus antecessores Angliae Reges dudum ordinata ad conservandum pacem justitiam inter omnes gentes Nationis cujuscunque per mare Angliae transeuntes ad cognoscendum super omnibus in contrarium attemptatis in eodem ad puniendum delinquentes damna passis satisfaciendum quae quidem leges Statuta per dominum Richardum quondam Regem Angliae in reditu suo à terrâ sanctâ correcta fuerunt interpretata in insulâ Oleron publicata nominata in Gallicâ Linguâ la ley Oleron These Laws thus brought in and thus established for the direction and use of the Office of the Admiralty as its plain they were by the very words of this Establishment Et nos Officii Admirallitatis in eodem c. were many of them of no use at all if the Admiral had not at and after the time of the bringing of them in or were not at and after the time of the settlement thereof to have had the Cognizance of Contracts and Covenants made at Land of and concerning Maritime affairs for many of them do set forth and declare what Judgement is to be given by the Admiral upon such Covenants and Contracts and the very first Judgement setteth forth in what case the Master of a Ship being come to a strange Port may there sell the Ship and in what case he may not and in what case he may pawn some of his tackle and in what not all which must needs be done by Contract or Covenant and he must necessarily seek his Chapman at Land and not at Sea And who should have the Judgement of such contract whether it be good or a void contract but the Admiral who hath his direction by these Laws how to Judge I know not The words of the Judgement are these Premierement leu fait ung homme Mastre d'une nef la nef est a deux hommes ou a trois la nefs seu part du pais dout ille est voyent a Bordeaux ou a la Rochelle ou alles c. se frette pour aler en pags estranges le Mastre ne puet passe vendre le nef sil na commandement ou procuration des Seigneurs mais sil a mestier de despens il puet bien mettre aucuns des apparilz exgaige par conseil des compaignons da la nof cest le Jagger en ce cas Again a Master of a Ship hyreth Mariners in the Town where the Ship is and by their Agreement contract or covenant some are to be at marinage others at whole pay in mony which done the Ship can find no freight to go to the place where the Master intended to go and whether he hyred his Mariners but must go further or not so farre This no doubt is contracting and covenanting at Land for a Maritime voyage which cannot as I believe be by the common Law according to the Maritime Rules decided nor hath it any rule of it self to Judge it by whether any of the Mariners so hired are bound to performe this new voyage or not which if the professors thereof shall undertake I much fear that in this very first question they must judge clean contrary to the Laws of the sea or clean contrary to the grounds and principles of their own Law which are very good and very reasonable in the land affairs but the reason thereof will not hold in Maritime businesses as I have said before And excellent Authors there be written by Civiliâ—ns which give exact reasons of the differences of judgments in land businesses and sea affairs 2. Whether those that are hired at marinage of those that are hired at full deneirs are the rather bound to performe the Voyage 3. Upon what termes those that are freest are bound and must performe the same 4. What is to be done in case the Voyage prove shorter or longer then that which was agreed for The Judgement upon these particulars is set down briefly in the 20th Judgement of Oleron and is by other Civil Law Authors amplyfied with express reasons of every particular The words of the Judgment in the Laws of Oleron are these Vng Maistre dune nef loue ses Mariners eu la ville dont la nef est les lowe les ungs a Marinage les autres à deniers ilz veoient que la nef ne puet troun fretts a venie en ses parties leur couÌ„ient alzr plus loing nes ceulz qui vont a marinage la doivent servir mais ceulx qui vont a deniers le maistre est tenu a leur croistre leurs loyer veve par veve corps par corps par la raison qui les avoit lovez a termine lieu cliz vienneÌ„t plus peres que leux covenant la pris il doit avoir son loyer tout au lang mais il doit aidera rendre la nef la ou illa prist se le maistre veult a la venture de dieu cest le judgement en ce cas Other Judgements there be which determine in what cases the Master of a Ship may sell part of his Merchants wines or other goods without breach of his Charter-party or contract of a freightment and in what case such his sale or contract for such wines or goods which must necessarily be made at land shall be good and sufficient in law And such cases as these the Admiralty adjudgeth sometimes at 1 2 3 or 4 hours warning or in a very short time for if such Cases should wait Terms or Courts many a Voyage would oftentimes be lost to the extraordinary great damage both of Merchants Owners Masters and Mariners of Ships But for Contracts and Covenants between the Master of a Ship and his Mariners for their wages some have thought them to be upon sufferance allowed by the Common Law unto the Admiralty for the quick dispatch of Mariners and they should not be inforc'd to bring several Actions at that Law but had it been at the allowance or sufferance of that Law another reason might have been added of such their allowance or sufferance viz. because these poor men seldome have any money to expend in Suit for obtaining of so small a summe as commonly their wages severally amounteth unto whereas in the Admiralty they are and alwayes have been heard summarily without payment of one penny for the Judges extraordinary pains in the hearing and determining causes of this nature and an Advocate expecteth but a single Fee from them all be they never so many which oft-times amounteth not to 2 d. a piece But we see plainly that such manner of Contracts belonged unto the Admiralty Court by the Law established and confirmed in the twelfth year
of Edward the Third and so did all Contracts and Covenants between Merchants and Masters and Owners of Ships for freight or the like A Master of a Ship lets a Ship to freight to one Merchant or more and they covenant and agree that they shall so lade that the Ship may be ready to depart by a certain day and they fail and have not fully laden by that time so that the Master loseth his time and oft-times his weathering this is a Contract or Covenant made at land yet hath the Common Law no law or rule that ever I could learn to judge the same by 1. Whether in this place the Master may contract with any other Merchant for a new freight or not 2. What lading boarded firmeth the Contract and holdeth it on and what freeth it 3. In case the Contract be held firme how many dayes after the terme is expired bring the Merchants within the compass of the Law to make satisfaction 4. What satisfaction is to be made and in what manner 5. How such satisfaction being made the same is to be divided between the Master and the Mariners And 6. How such an accident firmeth or altereth the Contract made between the Master and the Mariners If therefore in Sea affairs there were not Sea Laws and Rules to limit and regulate such general Contracts but that they should be held broken for defect of performance of every particular circumstance at the Common Law very many and great inconveniences would follow in cases of this nature because as the land is more firme then the sea so are not land businesses so subject unto various events as the sea affairs are but are at a farre more certainty for the performance of particular circumstances then the sea affairs possibly can be and yet it will not be denyed but that some Contracts made at land concerning Land businesses are against the Law some void by Law and some must be regulated by Law much more must such as concern Maritime affairs be regulated by such Laws as are most proper for them which are the Maritime Laws and if these Laws shall not be observed and followed in this Land and Nation as well as in all others the English Merchants and the Enhlish Mariner and Owners of Ships will be tyed to such inconveniences as the Merchants Mariners and Owners of Ships of no other Nation are to their extraordinary disadvantage but this is but a digression which hath been spoken of more at large elsewhere and therefore we will return to the matter As the 20th Judgement of Oleron is set down for a guide and direction of the Admiral and Judges of the Admiralty in the particular Contracts before mentioned therein between Masters of Ships and Mariners so doth the 22. Judgement set down a rule to guide and direct them in the Judgement of Contracts and Covenants made between Merchants and Mariners and Owners of Ships in the case above specified which is in some particulars of that case plain enough yet in all it cannot be perfectly understood but by such Civilians as are very well verst in other both ancienter and subsequent Authors who have wrote of the Maritime Laws the words of this Judgement I shall here set down Vng Mastre frette sa nef a ung Merchant est devise entre eux im's ung terme pour chargier la nef les Mariners par le space de xv jours ou de plus oultre aucune foiz en pert le Maistre son fret sa mession par default dung Merchant le Marchant est tenu alamender in celle amende que sera faitte les Mariners auront le quart le Maistre les trois parties par la raison quil trouve les costes cest le Judgement en ce cas This Judgement is without question a plain direction to the Admiral and Judges of the Admiralty what to determine in some of the particulars above mentioned upon a Contract made at Land for freight of a Ship which serveth sufficiently for my purpose to prove that the Admiral and Judges of the Admiralty had both before and in Edward the 3. time who in the twelfth year of his raign established these Laws Cognizance of Contracts made at Land between Merchants and Mariners and Owners of Ships for freight And to this Judgement which sheweth what is to be determined in case of freight where the Merchant is in fault or delay I shall adde and here set down one Judgement more which sheweth what is to be determined when the Mariner or any of the Owners are in default or delay As if a Merchant do take to freight by Contract or Covenant any Ship lying in any Port or Haven and it falleth out that the Ship is stopped or stayed through deâ—ault of the Mariner or any of his Owners and how and in what manner this Contract or Covenant holdeth or holdeth not and these are the words of the Judgement Item ordonne est estably pour loy custume de la mer que se ung merchant a frette une nef eu quelque Port que se soit a viengne que le nef soit empeschee pour default du maistre ou du Seigneur a celliu a qui la nef est le merchant qui avoit frette la nef puet requirra le maistre entelle maniere je te requier que tu mettes mes biens ou mes denrrees en la nef le maistre dit que la nef est empeschee de par aucun Seigneur le Merchant qui avoit frette la nef se puet partir du covenant affrettment du dit maistre affretter a son choys ailleurs sans ce que soit tenu audit maistre de rien a mender se le Merchant ne trouve frett il puet bien demander au Maistre ses dommages pour la raison quil la mye tenuz ses Convenants affrement dessus ditz le Maistre lui doit amender cest le Judgement en ce cas Several other Judgements there be which when a Ship is so taken to freight by any Merchant do set forth several duties to be performed both on the Merchants part and likewise on the Masters and Mariners parts which I shall not here set down because it is not my drift or purpose to shew what the Laws of the Seas are but onely to shew that by the Laws of Oleron established in Edward the 3. time Contracts for freight of Ships and Mariners wages were cognoscible in the Admiralty Court and these Laws are left as guides and rules for the Admirals and Judges of the Admiralty to determine such causes by Hence it is plain to my understanding that the Statute of Richard the 2. though taken in the most generall construction without reference or relation to the Petition which I cannot by any means be drawn or perswaded to allow yet being restrain'd with this restriction Solonc
shall afterwards appear which I with much diligence in my reading expected but could find nothing more then what as I hope hath in its due place received an answer And if we examine the original Statutes and Poulton's Translation of this part of this Statute they will plainly shew what Statute and what Common Law shall be holden against them I shall therefore here set down the Statute according to the original and likewise Poulton's Translation thereof and the original is by way of petition and answer in these words Parl. 2. Hen. 4. mem 75. It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient tenuz firment gardez que ladmiral ses lieutenantz ne teinont null mannor de plèe deinz la Court d'admirall en contre la forme Ordinance des dits estatutz sils fount a contre en courgent la peine xx l. paiant la moite au Roy lautre moite a perte greve R. soit lestatute ent fait tenuz gardez outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute la come ley tenuz denez eux que rely que loy sente quereue en contre la forme de le dit estatute eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la Court d'admiraltie recover ' ses dammages denums mesme le pursueant au double encourge mesme le pursuant la peine de x l. en â—i le Roy pur sa pursuit ensi faitz sil soit attemte Which Statute is by Poulton rendred thus Item Whereas in the Statute made at Westminster the 13 year of the said King Richard amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from hence forth of any thing done within the Realm but only of a thing done upon the Sea according as it hath been duely used in the time of the Noble King Edward Grandfather to the said King Richard our said Lord the King willeth and granteth that the said Statute be firmly holden and kept and put in due execution and moreover the same our Lord the King by the advice and ascent of the Lords Spiritual and Temporal and at the Prayer of the said Commons hath ordained and stablished That as touching a pain to be set upon the Admirall as his Lieutenant that the Statute and the Common Law be holden against them and that he that feeleth himself grieved against the form of the said Statute shall have his action by Writ grounded upon the Case against him that doth so pursue in the Admiralty Court and recover his double damages against the pursuant and the same pursuant shall incurre the pain of ten pounds to the King for the pursuit so made if he be attainted Now it plainly appeareth by the Original which I have here verbatim set down that this Statute is onely in confirmation of the former Statute as originally enacted according to the true construction thereof which taken together with that exposition of the 15th of Richard the 2. hath truely rendred of that and the same being taken with relation to the Petition as I conceive it ought to be and by Sir Edward Coke and Poultons Translations here it is in affirmance of the first of them onely as Poulton himself hath in his Translation thereof rendred it so that neither of these two Translations agree with the Original saving in this that he that shall find himself aggrieved against the form thereof shall recover double damages against the pursuant Now what may be called Damages that shall be recovered double by this Statute is a great question If a man do sue in the Admiralty Court and there recover and is paid a just and due debt of 100 l. which he ought to have sued for in the Common Law and might have there surely recovered the question whether the other party can be said to be damniâ—â—ed that 100 l. over and above his expences and trouble I cannot imagine any reasonable man will say he was What shall be thought then of the leading case Hil. 6. H. 6. in the Common Pleas cited by Sir Edward Coke for the first that received Judgement in that Court upon this Statute of double damages who saith that Bartholomew Putt sued John Burton in the Admiralty for that he by force of arms three Ships of the said Bartholomews with his Prisoners and Merchandizes to the value of 960 marks odd money being in the said Ships did take and carry away supposing the taking to be super altum mare whereas it was in the Haven of Bristow whereupon the said Burton sued the said Putt upon the Statutes and a verdict was found for the said Burton against the said Putt and damages assessed unto 700 l. and Judgement given double for 1400 l. In this place I shall set aside the Question whether this case was proper to the Admiralty Court or the Common Law having spoken to that purpose already in a place more proper and here onely examine the question concerning the damages and them doubled It doth not appear by any thing is said by Sir Edward Coke that Putt had either received from or so much as recovered of the said Burton the said 900 marks or any part thereof and yet the said Burton is found thereto be damnified the said 900 marks besides 100 l. more for his expence and trouble all which is double by the Judgement so that by this Judgement he was barred and hindred any tryal for his 900 marks or whatsoever else he should prove himself to be damnified which no man can or could then say he was not to have recovered in one of the said Courts but was condemned to pay 1400 l. damages to Burton who was damnified nothing more then his expence and some trouble in a wrong Court as is pretended for what he had unjustly done for ought ever appeared or was ever attempted to be made appear and he hereby acquitted of that Act how unjust soever If it might have been granted which may not be that the Admiral had no jurisdiction nor cognizance of this Cause yet surely that Court which had might first have examined whether Burtons act complained of was an unjust act or not and whether Putt should not there have recovered 900 marks as well as in the Admiralty Court and certainly if he should then cannot I conceive how Burton can be said to be damnified that 900 marks which might elsewhere have been recovered and obtained against him nor can I judge that he being sued for 900 marks which neither were or could there or elsewhere have been obtained against him was thereby damnified 900 marks I shall therefore leave it here to be considered whether such a Judgement once given at the Common Law is to be held firme and continued for law ever after or