made to appear for founding them upon then for the former which is but a quakemire CHAP. VII The Argument deduced from two Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued BUt to keep some method I must out of these things which Sir Edward Coke hath promiscuously urged against the Admirals cognizance of businesses done upon the Ports and Havens and of Contracts made upon the land for freight Mariners wages tackle furniture and ammunition and of things done beyond the seas c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the Ports and Havens and give some answer to them first and those are Praemunire's Prohibitions Book-cases and Authorities in Law and then come in the third book of this Treatise to those things which he hath urged against the Admirals cognizance of or concerning Contracts made upon the land for freight Mariners wages c. Two Praemunire's he instanceth in the one brought Mich. 38. H. 6. By John Cassy Esquire against Richard Beuchampe Thomas Paunce Esquires and others upon the Statute of 16 Rich. 2. cap. 5. for sueing in Curiâ Romanâ vel alibi of matters belonging to the Common Law for that the Defendants did sue the Plaintiffe in the Admiralty Court before Henry Duke of Excester that the said John Cassy did take and carry away certain Jewels super altum mare ubi idem Johannes Cassy bona illa apud Stratford Bow infra corpus comitatûs Middlesexiae non super altum mare cepit which saith he is so evident and of so dangerous consequence as no application shall be made thereof but I must under favour take leave to make some application and some answer likewise hereunto and shew that the urging â—oth of this and the other which he instanceth in which is a Premunire brought 9 H. 7. for a Suit in the Admiralty Court before John Earl of Oxford for taking and carrying away quandam naviculam apud Horton Key at South-Lyn c. supposing the same to be super altum mare where it was infra corpus comitatûs is no way consequent or concludent to prove the Ports and Havens to be within the bodies of Counties For the first of these it is plainly affirmed that John Cassy did take away the goods he was sued for in the Admiralty Court at Stratford Bow being a Town or Parish plainly within the body of the County of Middlesex and no Haven or Haven-Town This suggestion being proved the Admiral had no colour at all to take cognizance of this cause For the taking and carrying away of the little Ship little Barque or Boat for navicula signifieth either of the three at Horton Key at South-Lynne it concludeth nothing against the Admirals Jurisdiction upon the Haven or Port taken for the water beneath the first Bridge for a Key is often taken for the Wharfe or place whereon goods are usually landed but strictly it is taken for the very separation of the land from the water by wood or stone or both in such places as goods are usually landed at and these are the keys that lock those dores that Sir Edward Coke would have stand wide open placed by God himself to no purpose so farre within the Seas Now At Horton Key may be as well on the dry side of the Key as on the wet as well upon the land as upon the water and little Ships little Barques or Boats are oftentimes drawn up at the Keys where they arrive to be caulked and repaired and might be from thence taken and carried away perhaps from the water their accustomed Element to the fire wherewith for the most part when they escape drowning they are at last consumed when they are become unserviceable Again these two Premunire's are said only to have been brought and nothing said of the event or what was determined thereon so that here is nothing but the opinion of those that brought them and no resolution of the Judges and so these two Praemunire's conclude nothing at all But grant two suppositions neither to be granted nor supposed unless proved viz. that these two severals Acts were done or committed upon Ports and Havens and that the determination and resolution of the Judges was against the Defendants yet he that will but look may see the two foundations whereon these determinations or resolutions were or should have been built from whence this land Argument is raised to have been laid upon the sea sands too slippery a place for them to stand on the one is that before mentioned groundless supposition of the Ports and Havens being within the bodies of Counties for which no proof is offered but that some against all reason and they know not wherefore have taken them so to be The other is the Statute upon which these Praemunire's were brought which he affirmeth to be the Statute 16 Rich. 2. for suing in Curiâ Romanâ vel alibi of matters belonging to the Common Law This Statute consisteth of a Petition made by the Commons unto the King and the King's Answer thereunto as all ancient Statutes of those dayes do In the Petition is first set forth that the King and all his liege People ought of right and of old time were wont to sue in the Kings Court to recover their presentments to Churches Prebends and other Benefices of holy Church to which they had right to present c. And when Judgement was given in the same Court upon such a Plea and Presentment the Archbishops Bishops and other Spiritual persons which had the Institutions unto such Benefices within their Jurisdiction were bound and did make execution of such Judgements by the Kings Commandments of all the time aforesaid without interuption c. And in the next place they do complain that of late divers Processes had then been made by the Bishop of Rome and Censures of Excommunication upon certain Bishops of England because they had made execution of such commandments to the open desherison of the Crown c. And further complaining that also it was said and a common clamour was made that the said Bishops of Rome had then ordained and purposed to translate some Prelates of the same Realm some out of the Realm without the Kings assent and knowledge and some out of one Bishoprick into another within the same Realme without the Kings assent and knowledge and without the assent of the Prelates so to be translated which Prelates were much profitable and necessary to the King and his Realme by which the Statutes of the Realm would become defeated c. And nothing more is contained in the said Petition but what concerneth the premisses The King in his Answer doth ordain That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elswhere any such Translations Processes and Sentences of Excommunication Bulls Instruments
be proceeded in according to the rules of the Civil Law and have their determination from the same or else be decided without testimony which is to judge blindfold or else to rest unadjudged and the wronged and injured party to be left remediless and unrelieved But it will be answered that in such cases they may have a Commission out of the Chancery for that purpose To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law or to the Civil and Maritime Law And then surely it must more properly belong unto that Law and that Court which can of it self without the assistance of any other Court make a compleat proceeding and tryall and give a direct judgement according to express rules of Justice in such causes then to that Court which without the assistance of another Court can do neither Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions neither hath it in as many causes any express rules to direct the Judicature thereof I shall here set down some few of those Laws which the Civil and Maritime Laws give in such Cases so farre forth onely as to shew that the Maritime Laws were ordained as well for the Ports and Havens as for the main Seas First then for the lading of a Ship which is always or commonly in a Port or Haven the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading as shall be put aboard the said Ship and who shall not sunt quidam in navibus qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diaetarii Si quis igitur ex his receperit puto in exercitorem dandam actionem quia is qui eos hujusmodi officio praeponit committi eis permittit quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant Sed si hoc non extet tamen de recepto navicularius tenebitur non debet per remigem aut mesonautam obligari sed per se vel navis magistrum This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship but likewise what things they are chargeable for and saith Quod cujusque salvum fore receperint hoc est quamcunque rem sive mercem receperint and least it might be thought that it is onely meant of Wares and Merchandizes and nothing else it explaineth it self yet further and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent veluti vestimenta quibus in nayibus uterentur cetera quae ad quotidianum usum habemus parvi referre res nostras an alienas intulimus si tamen nostra intersit salvas esse And assoon as such Merchandizes and other Commodities are put aboard the Ship whether she be upon Port Haven or any other part of the Seas he that is exercitor navis is chargeable therewith and if the same be there lost or purloined or sustain any damage hurt or loss whether in the Haven before or upon the Seas after the Ship be set forward on her voyage whether it be done by the Mariners or any other through their permission or negligence he that is exercitor navis is to make good the same For saith the Law recepit salvum fore utrum si in navim res missae ei assignatae sint an etsi non sint assignatae hoc tamen ipso quod in navim missae sint receptae videntur omnium recepit custodiam quae in navini illatae sunt Et factum non solum nautarum praestare debet sed vectorum And in these cases two several Maritime Actions do lie whereof the Agent hath his choice Dicendum duas proponi actiones exercitorias una est de recepto in simplum quae dicitur in factum altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur Et haec est in duplum sed in eam non venit factum vectorum So that the very lading of goods aboard the Ship chargeth him that is exercitor navis therewith which the Common Law doth not for he is lyable for whatsoever his Mariners shall do aboard the Ship be she in Port Haven or upon the high Seas but he is not lyable for what they shall do being at land and not aboard the Ship so that the Ship maketh distinction of Actions but maketh no distinction at all between her being upon the high Seas or upon Port or Haven Debet Exercitor omnium nautarum suorum sive liberi sint sive servi factum praestare nec immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam in ipsa nave damnum datum sit caeterum si extra navim licet a nautis non praestabit But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda and shall lose them or suffer them to be stoln from him before they shall be laden aboard the said Ship he shall be lyable to make satisfaction Idem ait etiam si nondum sint res in navim receptae sed in littore perierint quas semel recepit periculum ad eum pertinere If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship and transported in case they there perish or be otherwise damnified much more shall he be answerable for such goods and merchandizes as he shall receive or shall be laden aboard his Ship if the same perish or be damnified in or upon the Port or Haven Those Laws of the Rhodes which we find inserted into the body of the Civil Law which are the ancientest Sea-laws extant do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship and the remainder of goods and of the Avaridge payable out of the same whether the Ship be in such stress of weather upon the Ports or Havens or upon the high Seas and the rules there set down do serve as well for the one place as the other These Laws and Rules being general and not restrained to the high Seas do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved And such danger doth not alwayes fall out upon the high Seas but oftentimes upon the Ports and Havens But least this shall be thought not sufficient but that notwithstanding the generality of the Sea Laws which have provided directions sufficient for what is to be done in such cases
c. in which Titles these particulars are defined what they are what maketh them so to be and what maketh them not to be so and are likewise distinguished into several sorts each of which is terminated and limited unto its proper bounds as when this Nauticum foenus is distinguished into Heteroplum and Amphoteroplum as some Authors terme it Heteroplum cum commeatus tantum periculum foenerator suscepit Amphoteroplum cum commeatus remeatus periculum suscepit the one when he undertaketh the danger of the Ship only outward bound or only homeward bound the other when he undergoeth the danger both of the outward and homeward Voyage and many other of the like nature of which the Common Law hath not one word that ever I could hear of much less any rule to guide the professors thereof in the Judgment of such things In Bills of sale of Ships c. though made at land the parties to whom the same are made cannot if withstood obtain the possession thereof but by the Civil and Maritime Law and power of the Admiralty Court And every Ship that is built may have many part Owners and most commonly she hath and before she can be compleatly built tackled victualled fitted and prepared to put to sea a great number of several Tradesmen must necessarily have been imployed therein and been assisting thereunto which cannot with any possibility every of them repair to every Owner some possibly being or inhabiting beyond the Seas other some in this Nation if all in this Nation yet oftentimes some in one place some in another farre remote each from other and from the place of such her building tackling c. to make his particular contract with him for his materials workmanship victual or other furniture and necessaries so that necessarily some one of the Owners which commonly hath not above an eighth sixteenth or two and thirtieth part and sometimes one that hath no part at all is by the rest made Mr. of her and contracteth with all these several Tradesmen who regard not his ability by reason the Ship it self is by the Maritime Laws lyable for the payment of every mans particular debt which Law must necessarily take place or else few or no Ships be built and employed for trade for at the Common Law I conceive they can have only their several Actions against the Master with whom they contracted who for the most part is not able to make satisfaction to one third part of them and many times not to one particular man If one Ship shall do damage to another either at the main Sea or upon any Creek Port or Haven the damage must be sued for in the Admiralty Court and Judgment given according to the Maritime Laws which prescribeth every Ship her rule how to steer her course both going out to sea or coming in from sea or riding at sea which plainly demonstrateth which Ship was in fault by which the Judgement must be regulated And no Action can be so properly commenced at the Common Law for these damages for that the Owners damnified can very hardly arrest all the Owners of the other Ship which did the damage nor indeed can any of those Owners by that Law be lyable to such arrest but the Master who if solvent will not come on shore but take his imployment in some other Ship outward bound so that the remedy lyeth properly against the Ship by the Maritime Laws as hath been already said If a contract be made beyond the seas concerning any Maritime businesses by bill or otherwise the same is not cognizable at the Common Law by their own books neither indeed if it were could it receive the same Judgment it shall by the Civil and Maritime Law for a verbal Contract is not made by Assumsit there as here it is nor in a Contract made in writing is any thing more required or thought necessary then the signing or subscribing of a Bill for performance c. and sometimes the sealing but never the delivery nor is there any such ceremony there used or known without which by the Common-Law as I have heard it is nothing so that the English Merchants or other seafaring mans Bill here signed sealed and deliveted according to the formalities of this Nation in that case required shall being sued in any Court beyond the seas prove good against him without due examinations of half the said formalities whereas the Foreigners Bill which is according to the customes and usages of those parts from which they will not by auy means depart sometimes only signed sometimes sealed sometimes both but never delivered shall for want of this one formality of delivery at the Common Law prove voyd and of none effect and so the English man become undone by formalities of the English Laws so far different from those of foreign Nations especially the Laws Maritime which are for the most part if not altogether agreeable in most places if not in all Many more reasons might be given why all contracts of this nature wheresoever made should and ought to be tryed in the Admiralty Court by the Civil and Maritime Laws and not by the Municipal Laws of this Nation and many instances more might be given wherein the Civil and Maritime Laws which are Common to all Nations do differ from the Municipal Laws of this and so would vary the Judgments in Causes of the self same nature But that is too large a task to undertake here and but a needless one when some few instances may satisfy a wise man that intendeth not to quarrel I shall endeavour here in a word to satisfie but one doubt by the way and so proceed according to the best of my judgment to the answering the Arguments brought against the Admirals cognizace of these Contracts It is objected that other Nations have their several Municipal Laws as well as England and that therefore these Contracts may as well be tried by the Municipal Laws of this Nation as by any Municipal Law of another I answer that they have in several Nations several different Municipal Laws whereby they are governed within themselves as we are here yet are those Municipal Laws all grounded upon the Civil Law and are no more different one from another then one and the same lesson playd upon several Instruments in several strains nor do otherwise differ then as the several Interpretations of several men upon them have differed as in many doctrinal points in Divinity various constructions have been rendred even upon the very text of the Divine Law according to several apprehensions and opinions of several men For upon all their decisions and determinations they quote the Civil Law and the Authentique Writers and Commentators thereon as is already said li. 2. c. And as the controversies happening and arising between one Nation and another are not to be decided by either of their Municipal Laws that being a way to raise a new controversie by which
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
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
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
or any other thing whatsoever which touch the King against Him his Crown and Regality or his Realm as is aforesaid And they which bring within the Realm or them receive or make thereof notification or any other execution whatsoever within the same Realm or without That they their Notary Procurators Maintainers Abetters Fautors and Counsellors shall be put out of the Kings Protection and their Lands and Tenements Goods and Chattels forfeited to our Lord the King that they may be attached by their bodies c. In these antient Statutes which are by way of Petition and Answer the Answer hath alwayes relation to the Petition and granteth what is therein desired sometimes less but never more by this Petition nothing is desired but the restraint of the Popes power and assumed authority in those things therein exprest nor is there any thing more in the Answer granted if these words in the genuine sence thereof be duly examined which can be no other then this If any purchase c. in the Court of Rome or elswhere from the Pope or any Power or authority derived from him viz. either in his Court at Avignon which he sometimes held there or any other Ecclesiasticall Court under his Supremacy whether beyond the Seas or in the Realm of England For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him as their supreme only or at least as well as the King and of these Courts and none other can this elsewhere be understood as will plainly also appear by the things specified in this answer to be purchased and pursued viz. If any purchase or pursue in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunications Bulls c. Now cannot these things nor could they elsewhere or in any other place besides the Court of Rome be purchased or pursued but from the Pope or his Authority in those other Courts before mentioned Again these words else where were necessarily inserted and necessarily to be understood of those Courts under the Popes authority from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise whosoever had purchased any of them elsewhere to wit in any of these other Courts under his authority and not in the Court of Rome had not been by this Statute lyable to the punishment thereof But some perhaps may say I have here purposely waved the general words which close up the particular specified things forbidden to be purchased or pursued viz. Bulls Instruments oâ— any other things whatsoever which words perhaps may seem to have relation to else where and be thought to be of so large an extent that the words else where must be stretched to all places whatsoever beyond other Courts of the Popes or under his authority But indeed I intended it not But as they are the last words which close up the particulars specified so I reserved them to the last place wherein I shall disclose and clear that doubt When several particulars then of the same nature are closed up with a general that general comprehendeth all other particulars of that nature and nothing of a different and distinct quality So here these general words or any other things whatsoever must be understood of any other thing whatsoever of the same nature with those Translations Processes c. And this is plain enough by the words themselves if seriously observed and rightly understood For take them as they run and they carry their limitation with them which bindeth them close and restraineth them unto what precedeth in the Petition And as the Court of Rome and elsewhere have relation to the Pope to the Popes Court at Rome and unto his Courts elsewhere so must these words Instruments and other things whatsoever have reference and relation thereunto And then take these words as they answer the Petition and they can bear no other sense then this viz. Whereupon our Lord the King by the assent aforesaid and at the request of the said Commons hath ordained and established that if any purchase or pursue or cause to be purchased or pursued in the Popes Court of Rome or any other of his Courts elsewhere any such Translations Processes and Sentences of Excommunications Bulls Instruments or any other things whatsoever which touch the Kings protection c. So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused against whom these Praemunires were brought for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be and hath been wrested and catcht at to diminish and straighten the Jurisdiction of the Admiralty and enlarge the already extraordinary large power of the Common Law Nor are these Interpretations or Constructions in any wise contemporary with the Statutes as Sir Edward Coke would have them but taken up a long time after and crept into their Law as heresies do into Religion by new constructions of Scripture Neither indeed can either the Judgement or any of these Praemunires instanced in be said to be contemporary with the said Statutes For further proof of this point he instanceth in four or five Prohibitions unto the Court of Admiralty for holding plea of Contracts made upon Ports or Havens and beyond the Seas But to these I shall give an answer hereafter when the Contracts made at land concerning Maritime affairs shall come to be insisted upon CHAP. VIII The Book-Cases and Authorities brought to proove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered CErtain Bookâ—Cases and Authorities as Sir Edward Coke calleth them are likewise urged for proof of this particular of the Admirals having no Jurisdiction upon the Ports and Havens 1. Some Books are quoted nothing being exprest what the Books say nor any argument deduced out of them to conclude the point I cannot therefore give an answer to an argument unframed nor is it proper for me my self to raise an argument out of those books and then my self to frame an answer thereunto But I will conceive those Authorities he hath quoted at large to make most for his purpose and endeavour to answer unto them He saith in tempore Ed. 1. tit Avowry 192. a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea and for carrying the same from thence into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough which is neither Town nor Place out of which a Jury may be taken for that the Coast is four miles long And also of a thing done in the Sea this Court hath no cognizace
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
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
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