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
apud Turr. London 8. Decembris And another of the first of Edward the Third which runneth thus Warrosius de Valloignes constituitur Capitaneus Admirallus flotae navium c. tam quinque portuum quà m aliorum portuum locorum per costeram maris versus partes Occidentales quamdiù c ut supra The two former Records were one of them in the Reign of King Henry the Third the other in the Reign of Edward the First and these two are one of them in the Reign of Edward the Second and the other in the first year of Edward the Third And indeed most of the Records which are in the Reign of these four Kings viz. Henry the Third and the 3 Edwards which concern the grant of this great Office are of the same nature with these four and run in such like or in the very same words with these but more especially and most frequently agreeable to these two last and so do most of those Grants which were in Henry the Fourths time as may appear where I have set them down in order And these may bear a double construction and two several sences and meanings but not so different but that the best of them that can be made for the Quoter of them will serve to confute and destroy his new-set-up opinion and assertion Take this construction first and read them in this sence Constituitur Capitaneus Admirallus flotae omnium navium c. Capitaneus Admirallus tam quinque portuum quà m aliorum portuum Capitaneus Admirallus omnium aliorum locorum per costeram maris That he is Captain and Admiral of the Fleet of all Ships Captain and Admiral as well of the Cinque Ports as of all other Ports and Captain and Admiral of all other places by the Sea-coasts towards the Western parts And the first two Records of these four by him cited for concordancy and agreement sake do warrant this construction and that the same may be made of the words as without any incongruity or trespass at all upon Priscian so without any falsehood at all of the matter For the first two Records the one giving the Admiral Custodiam omnium portuum totius costerae maris And the other making him Custodem Regis portuum maritimorum do warrant the truth thereof And then are these two last a confirmation of the two first and argue the same thing besides what else may be gathered out of them against the truth of that assertion For certainly he that had Custodiam portuum and was Custos Regis portuum had the rule governance and ordering of all things in or belonging unto those Ports and that by way of Judicature according to the Civil and Maritime Laws for it 's plain by the Libel Sir Edward Coke himself hath set down which I formerly quoted that these Admirals in these times had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jurisdictionem sive potestatem audiendi determinandi causas secundum jus as I have said before or take the words as they run in the Patents themselves viz. Rex omnibus ad quos c. salutem Sciatis quod nos de fidelitate probatâ circumspectione providâ dilecti fidelis nostri N. plenariè confidentes constituimus ipsum N. Capitaneum Admirallum flotae nostrae omnium navium c. tam quinque portuum quà m aliorum portuum locorum per costeram maris versus partes c. And afford them what construction can possibly be strained out of them to save this assertion harmless yet will it thereby be scattered and torn all to pieces Take it then in this construction viz. We make him Captain and Admiral of our Fleet of all Ships of all Ports as of or belonging to all Ports c. Will any man say that he that is Admiral of all these Ships that belong unto these Ports is not Admiral of them whilest they lye or ride at Anchor within those Ports and are not riding super alto mari and that he hath not the rule governance and command over them whilst they lie there If so let him say likewise he hath no power governance or command over them untill he find or take them upon the main sea which Ships he never took out of any of those Ports or any other The Admiral therefore must have jurisdiction and power upon the Creeks Ports and Havens or else his power at sea will come to little or nothing I shall give you here but one instance which will shew the necessity of his having jurisdiction upon the Ports and Havens as well as upon the high seas If one Ship shall do damage to another either upon the main Sea or upon any Creek Port or Haven the damages must be sued for in the Admiralty Court and judgement given according to the Maritime Laws which prescribe every Ship her rule how to steer her course both going out to Sea or coming home from Sea or riding at Sea which plainly demonstrateth which Ship was in fault by which the Judgement must be regulated for which the Common Law hath no rules at all nor can any action properly by the rules thereof be commenced at that 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 as I have been by some of the learned of that profession informed be lyable to such arrest but the Master only who if solvent will not come on shore but take his imployment in some other Ship outward bound if not solvent the arrest will be to little purpose so that the remedy lyeth only against the Ship by the Civil and Maritime Laws according to the course thereof which proceedeth in cases of this nature by way of several defaults c. which either will bring in the Owners to answer the Action or make the Ship lyable to make satisfaction for the damage done in so much as she is worth which course of proceedings the Common Law hath not CHAP. IV. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiralty redargued HAd this been but a bare assertion that the Ports Havens and Creeks of the Sea are within the bodies of Counties and not within the Jurisdiction of the Admiralty more needed not I conceive have been said then what hath been already said in the former chapter But the Arguments that are used for proof thereof will necessarily require a farre larger discourse for answer thereunto and further confirmation of the contrary For here I am to encounter a great Antagonist the forementioned Sir Edward Coke sometime Lord chief Justice of the Kings Bench a man most famous for his knowledge and pains in the Laws of this Nation whose memory undoubtedly is still not
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
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
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
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 interest of all other parties for that had been to have judged the cause inaudita nec vocatâ parte interesse habente For the controversie was then whether the Judges of the Common Law or the Major c. had the cognizance of that cause and they having dismissed it from their cognizance could grant it no otherwise to the Major and Bailiffs of Hull but insomuch or for that it belonged not unto their cognizance so that after the dismission this controversie was no longer between the Judges of the Common Law and the Major of Hull but now the difference concerning the Jurisdiction of and over this cause must rest between the Admiral and the Major and Bailiffs of Hull for that the Admiral being no party in fudicio the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull then that they should have it for ought that Court in which the Action of Trespass was brought had to do therewith or to hold plea thereof which could not barre the Admiral of his claim of Jurisdiction who was no party in judgement And then this only resteth as an Authority quoted that such an Action was brought at the Common Law and as it appeareth that the same was never there determined so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors might very well conceive that the Action being there brought the same was rather tryable before them by virtue of that clause in their Charter which was urged then by the Judges of the Common Law and the Cause being dismissed as it appeareth not that the Major and Bailiffs determined it no more doth it any ways appear that they did yet by virtue of this Dismission or Grant as Sir Edward Coke termeth it take upon them so much as the cognizance thereof or if they did that the Admiral ever had notice thereof But if the Admirall did or if he did not yet if he had taken to his Court the cognizance of this Cause I am confident that the Major and Bailiffs could no ways by virtue of that clause or upon any other ground have taken it out of his hand unless they have Admiralty Jurisdiction granted unto them as the Town of Ipswich hath the substance of whose Patent concerning the same I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports Henricus Dei gratia c. octavus c. Cumque praedictus avus noster per chartam suuam praedictam quam ut praefertur confirmavimus concesserit Ballivis Burgensibus Villae praedictae successoribus suis inter alia libertates Franches privilegia immunitates in eadem chartâ contenta specificata authoritatem potestatem faciendi exequendi infra eandem villam Gypewici ac libertatem praecinctum ejusdem omnia singula quae Admirallo seu ad officium Admiralli pertinent Cumque portus villae praedictae aqua currens recurrens prout casus exigerit ab eodem portu per fluxum refluxum maris versus le Southeast ad quendam locum vocat Polleshened alias dict Polished nec non tota terra folum quae per hujusmodi fluxum refluxum maris aliquo tempore aqua fuerit superundat sive coâ—pert infra libertatem villae praedictae extiterint Et quod iidem Ballivi Burgenses Communitas successores sui habeant gaudeant eis successoribus suis omnia singula libertates Franches authoritates privilegia jurisdictiones immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum quas nos per litteras nostras praedictas de confirmatione acceptavimus ratificavimus confirmavimus contenta specificata tam in dictâ aquâ sive in cursu aquae ac praedictâ terrâ solo per fluxum sive refluxum maris aquâ quandoque superundat sive coopert quam in omnibus singulis aliis locis quibuscunque infra villam praecinctum suburbum libertates Franches praedict juxta formam chartarum concessionum praedictarum prout ea ante tempora usi fuerunt gavisi Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi Burgenses Communitas successores sui securius liberius absque ambiguitate questione vel dubio habeant officium Admiralli nostri haeredum nostrorum infra libertatem praecinct Franchesc praedict omnia quae ad officium Admiralli tam super mare littus maris quà m alibi infra libertatem Franchisc praecinct praedict pertinent concedimus nunc Ballivis Burgensibus ac communitati villae praedictae eorum successoribus per praesentes quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri haeredum nostrorum per infra totam villam praecinctum suburbia aquam cursum aquae ac dict terram solum per fluxum refluxum maris quandoque aquâ superundat vel coopert seu in posterum superundand vel cooperend Ac omnia singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare littus maris quà m alibi infra libertatem praecinctum limites supra specificat faciant exequantur in tam amplis modo forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit facere debuit quoquo modo c. Et insuper nos de gra nostra ampliori ad relevamen incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr successoribus nostris annuatim ut praemittitur solvend damus concedimus per praesentes pro nobis haeredibus nostris eisdem Ballivis Burgensibus Communitati successoribus suis wrecum maris ac omnia bona catalla quae dicuntur Wreck Flotson Getson omnia alia bona catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent aut poterint infra dict portum aquam ac terram solum praedict per fluxum refluxum maris ac omnia bona per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend qualitercunque contingent vel ibidem in mari aut super littus maris invent seu inveniend etiam omnia singula bona catalla felonum de se nec non bona catalla quae dicuntur deodanda infra libertatem Franchesc praecinctum villae praedictae ac in infra
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
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
appellant distributis And after other additions made thereunto by Charles the Great Son of the said King Pipin Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum domus regiae ut sic centenarum judicum numerum tenens illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent creavit There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House that it keeping the number of an hundred Judges it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth Nay the dignity the precedency and placing of the Counsellors of this great Councell is derived from the authority of the Civil Law as is plainly set forth in the said Montanus upon the Authority of the Parliament of France and Boerius his additions thereon who both quote the Civil Law for the same and so is likewise the very authority of the Councel from thence derived as by the said Authors doth likewise appear And shall we now say that this great Court or Councell and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law and say conceive or think that their judgements and determinations of Controversies c. there given and made are not according and agreeable to the same Law If I should here endeavour to set forth those several Authors and Writers upon the Civil Law which have as I said before in the several Nations of Christendome in all the several Ages and Centuries of years which have been ever since the Compiling that Body even unto this time written and commented thereon and those which have wrote the Decisions Determinations Judgements Objections and other Law books grounded upon the same and which cite them for their authority and proof of what they conclude I should extend this Chapter to a whole Book or Volumne and but shew the Civilian and such as have been verst in Law Libraries what they have seen already and but tell others of those things which they will neither search for nor endeavour to see And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty but before I can return to steer a right course thither it will be necessary first to shew that the Civil Law is likewise necessarily practised used and exercised in all Admiralty Courts and there binding and of authority to direct the Determinations Sentences and Judgements decisorie in Maritime and Sea affairs between party and patty be they forreigners or others and then to shew that by those Laws so exercised and practised in those Cours as well as by the other Laws already set forth it doth appear that the Ports and Havens and all things done thereou are within the Jurisdiction of the Admiralty CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely necessary in the decision of all Maritime and Sea differences SUch as were apt to believe that the Civil Law was and is abolished in all forreign Parts and no use made thereof in the rule and governance of land affairs would very hardly without the removal of that misapprehension have been perswaded that the same was of any use in their Admiraly Courts in sea businesses I must therefore in the next place shew that he which understandeth only the Rhodian Laws the Laws of Oleron and the Inquisitions and Statutes before mentioned which the Civilian must needs most perfectly do the first being a great part thereof inserted in the very body of the Civil Law and the other from thence derived cannot without much reading and knowledge in other parts of that Law be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party and between the supreme Authority and those that are employed by that authority and such as are in subjection to the same much less to judge and determine such causes therein according to law and justice For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome whereby men are made happy in possessing and enjoying their own and defending themselves against wrongs and injuries offered by others hath two wings duas volatiles habet alas she hath two wings wherewith she soars aloft and stretcheth her self unto and spreadeth her self over both sea and land she hath two Jurisdictions the one fitted with Laws most apt and proper for distributing of right in all land businesses the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs and yet how different and distinct soever these two Jurisdictions are each from other as I have set forth more at large in the first chapter of this second Book yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law and are from thence furnished and fitted with different and distinct Laws whereby they keep up and carry justice upright between them both and by the one extendeth her directions unto the business of the land and by the other reacheth forth her proceed and effects unto the affairs of the sea Which two wings if taken off Justice must needs fall flat to the ground and can by no other means so expand her self as to extend either her directions unto the one or reach forth such her effects unto the other Secundis alitibus procedere nequit she cannot go on prosperously or happily to execute or performe her own proper office either upon the one or upon the other Nay if either of these two wings should be taken off or but joynted implumed or bereaved of those feathers nature at first gave it though the other should be preserved and kept never so compleat and perfect yet could Justice by the perfection of that one wing but hover and heave her self upwards on one side whilst the defect in the other would pull her downwards and the one side falling to the ground the other must necessarily follow If the power and privileges of either of these Jurisdictions should be decayed or but impaired though the other should be left never so entire yet could not the effects of Justice in the one supply the defects in the other For the Laws of the Land are no more fit to regulate the Affairs of the Sea
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
any of that nature should be elsewhere in any other Court meddled with I shall only take two or three Articles together which appoint that at all Admiralty Sessions enquiries shall be made of all such as shall implead or sue any man in any other Court then the Admiralty for any matters or things there cognoscible or determinable either by the foregoing Laws or Articles or otherwise And those are the 51 52 and 53 Articles of this Inquisition which follow in these words Item soit enquis de tous ceulx q' empleâ—â—ent aueun home a la commune loy de la tre ' de chose appurtenant dancien droit a la loy marine Item soit enquis de tous juges qui 〈◊〉 et devant eulz aucuns plets apappurtenants par droiture a la court de ladmiralâ—â— Item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de seâ— mandements These Articles are not only for the enquiry of all such as have impleaded any man at the Common Law of the land for any thing appertaining of ancient right unto the Maritime Law but likewise of all such as have held before them any pleas of right belonging unto the Court of the Admiralty according to the Laws of Oleron and the several Articles of this Inquisition both settled and confirmed in the time of his Reign and to enquire of all such likewise which have at any time disturbed the Lieutenants of the Admiralty or any other of the Ministers of the Court in the due execution of their Mandats and Warrants I might here proceed further to shew that by that other Inquisition translated out of old French into Latine by Roughton and set down in the before mentioned black book of the Admiralty it likewise plainly appeareth that Contracts made at land concerning Maritime affairs were then or before that time tryable in the Admiralty Court For whether that Inquisition was taken in Edward the Third's time or before doth not appear the same bearing no date and in that regard likely to be farre more ancient but because the same is in most particulars agreeable with this Inquisition and in regard I have touched upon it already in the chapter where I have argued the self same matter from the Laws of Oleron I shall here pass it over and passe unto the other Statutes which are instanced in against the cognizance of matters of this nature in the Admiralty Court CHAP. V. The Argument deduced out of the Statute of the 15 of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered I Am now come unto the second Statute urged by Sir Edward Coke against the Jurisdiction of the Admiralty which howsoever he took to be plain for his purpose yet well weighed and rightly considered from the original in my judgment maketh clearly against it and confirms the construction I have made of the Statute of the 〈◊〉 of Ric. 2. in the second chapter of this Book I shall first set down the Statute it self as he rendreth it then as Poulton translateth it and lastly as the original truely hath it which is worthy the observing and then come to set forth the true meaning and sence thereof according to my best understanding And first it is by him thus rendred That the Court of the Admiral hath no manner of Cognizance Power nor Jurisdiction of any manner of Contract Plea or Querele or of any other thing done rising within the Bodies of the Counties either by Land or by Water and also of wreck of the Sea But all such manner of Contracts Pleas and Quereles and all other things rising within the bodies of the Counties either by Land or by Water as is aforesaid and also wreck of the Sea shall be tryed termined discussed and remedied by the Laws of the Land and not before nor by the Admiral nor his Lieutenant in no manner Nevertheless of the death a man and of mayme done in great Ships being and hovering in the main stream in the great Rivers onely beneath the points of the same Rivers and in no other place of the same Rivers the Admirall shall have Cognizance In the ancient Statutes which were made by way of Petition and answer Poulton in his Collection of Statutes generally setteth forth the Petition by way of Preface to the body of the Statute which he deduceth out of the answer which in all Statutes which concern not one Jurisdiction and another he hath done plainly and well enough in the most and yet not in all The same method and order he hath not observed in the Translation of these before mentioned Statutes which concern the Jurisdiction of the Admiralty wherein he or some other whom he hath followed hath not dealt so fairly in my judgement as he hath done in the translating and collecting of the rest as may well be observed by comparing them with the Originals he rendreth this Statute thus At the great and grievous complaint of all the Commons made to our Lord the King in this present Parliament for that the Admirals and their Deputies do incroach to them divers Jurisdictions Franchises and many other profits pertaining to our Lord the King and to other Lords Cities and Burroughs besides those they were wont or ought to have of right to the great oppression and impoverishment of all the Commons of the Land and hinderance and loss of the Kings profits and of many other Lords Cities and Burroughs through the Realm It is Declared Ordained and established that of all manner of Contracts Pleas and Quarrels and of all other things done rising within the bodies of Counties as well by land as by water and also wreck of the sea the Admirals Court shall have no manner of cognisance power nor jurisdiction but all such manner of Contracts Pleas and Quarells and other things rising within the bodies of Counties as well by land as by water as before and also wreck of the sea shall be tryed determined discussed and remedied by the Laws of the land and not before nor by the Admiral nor by his Lieutenant in any wise nevertheless of the death of a man and of a maim done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognisance and also to arrest Ships in the great Flotes for the great Voyages of the King and of the Realm saving alwayes to the King all manner of forfeitures and profits thereof coming and he shall also have jurisdiction upon the said Flotes during the said Voyages only saving alwayes to the Lords Cities and Boroughs their Liberties and Franchises As for the exposition of this Statute made by Sir Edward Coke I shall onlâ— leave
it to be considered how it varyeth from Poultons and both vary from the Original aiming as I cannot but believe at their own ends when meeting together in substance will being rightly considered conclude one and the self same thing But having here challenged Mr. Poulton or him whom he hath followed that he hath not dealt so fairly in the Translation of these Statutes as he hath in the Translation of the other I shall here shew how and wherein he hath mis-translated the same before I proceed any further My first challenge is that in the Praeamble to the first of these two recited Statutes he affirmeth that there was a great and common clamour and complaint which had been oftentimes made before that time c. whereas there is mention of no one word thereof in the Petition which denoteth any manner of clamour but only a modest complaint of things done by the Admiralty Courts which indeed ought not to have been done as plainly appeareth by the Petition it self and the answer thereunto set down before But it is a thing meerly invented in disgrace of the Admirals Jurisdiction And secondly that there is as I shewed before left out the whole Prayer of the Petition both that part which was granted and that which was not granted by which means he would wrest and set awry as I conceive the sence and meaning of the Statute Thirdly that in the Preamble to this Statute as in the former it is said it was made at the great and grievous complaint of all the Commons made unto our Lord the King c. whereas there is mention of no one word which denoteth either great or grievous complaint in the Petition but is only inserted as the other words were in the former Statute Other things that were in this Petition are not set forth in the Praeamble of the Statute which I shall not question because I do not find that they were granted but tacitely denied and therefore shall proceed to the Petition and Answer as they stand in the Parliament Roll in the Tower out of which this Statute is deduced And these be the words Item prient les comeÌ„s pour profit du Roy de Roylme que come les Admiralls lour deputes acrochent a eux diverses jurisdictions franchise auters profits que appertinent a Roy as auters Shires Cities Burghs quels ne solient avoir de droit a grant impoverishment de la come arerisment de profits la Roy que plese comander as ditz Admiralls lour deputes quils mettant avant en cest part'aint lour clayme del jurisdiction franchise profits quils clament davoir appendant a lour office issint que declaration de lour clayme en escripit puisse estre fait en cest present Parlament per ount la come ypurra saveir dont ele serra entendent ou dit Admirall dont nempe Rex le Roy voet que de touts maners contracts plees quereles touts autres choses faitsz sourdantz deins les corps de Countees â—i bien per terre come per â—awe auxint de wreck de meere la Court de la Admirall eit nulle manner conisance poair ne jurisdiccion mes soient triez termines discus remediez parles loyes de la terre nemye devant ne per l' Adimirall ne son Lieutenant en nulle manner nient meyns de mort d' home de maheim â—aitzes grosses niefs esteantz hoverantz en my le haut fil des grosses rivers tant solement pa avale les pontz de mesmes les rivers pluis procheyns al meer en null autre lieu de mesmes les rivers eit l' Admiral conisance auxint darest des niefs en les grantz-flotes pui grantz viages du Roy de Roylme savant au Roy touts manners forfaitures profitz ent provenantz eit ensement jurisdiccion sur les ditz flotes durantz les dites viages tant solement savant tondis as Shires Cities Burghs lour liberties franchises The translations of the fore part of this Statute the praeamble excepted though they do somewhat differ one from another and both in some sort from the original yet in matter of substance they may very well be brought to the same meaning and construction This Statute was made within two years next after that of the 13th of Richard the Second when the true meaning thereof rendered with the relation unto the Petition according to the custome of those times when all Statutes were so made viz. by petition unto the King and his answer thereunto was not forgotten and had that of the 13th of Richard the Second born that construction Sir Edward Coke hath since made of it the Petition whereon this of the 15th of Richard the Second is founded need never have nor ever had been made I am confident but these Western Petitioners from whence all these Petitions came and not from so general and common a clamour as Poulton makes it as plainly appeareth by the Records cited by Sir Edward Coke in his 22th chapter of the Jurisdiction of Courts towards the end thereof under this title therein Addition of some Records of Parliament not being satisfied concerning the plain meaning of the former Act pray now that the Admirals and their Deputies may bring into the Parliament their claim of Jurisdiction Franchise and Profits which they claim to belong unto their Office so that the declaration of their claim being made in writing in this present Parliament that may be reserved unto them which shall belong unto the said Admiral and no more so that whether this part of the Petition concerning the Admirals giving in their claim in writing unto the Parliament was granted or tacitly denyed or whether they gave in any such claim or not doth not appear but it doth plainly enough appear unto me that upon this Petition a true construction and exposition of the said former Statute is made which is multò magis contemporanea expositio then that exposition made of it by the first Judgment given after twenty years at the Common Law against the Admirals power and jurisdiction upon the Ports and Havens which Sir Edward Coke citeth in his said 22th chapter of his Jurisdiction of Courts and calleth optima quia contemporanea this then must therefore be melior expositio then his and his not optima which Judgement is more at large handled and treated of before Now the Exposition of that Statute of the 13th of Richard the Second made by this part of the Statute of the 15th of the same King is not disagreeable to the construction I have made thereof in the second chapter of this Book and is as I conceive absolutely in affirmance thereof being so expounded Which Exposition as I have there said before being taken with relation to the Petition and joyning them both together as they ought to be rendereth it self thus The Admiral shall not
was done above or beneath the said bridges they had unduly taken cognizance thereof as well beneath the bridges as above as appeareth by what Sir Edward Coke himself hath cited in this his 22th chapter of his Jurisdiction of Courts out of the 8th of Edward the Second tit coron 399. where it is affirmed that it is no part of the Sea where one may see what is done one of part of the water and of the other as to see from one land to the other that the Coroner shall exercise his Office in this case and of this the County may have knowledge whereby saith he it appeareth that things done there are triable by the Country that is by Jury and consequently not in the Admiralty Court Now by his leave it only appears that they would have made it law that of the death of a man there which concerneth the Coroners Office they might take cognizance and this saith he is affirmed for law by Stanford's Pleas of the Crown lib. 1. fol. 51. b. in these words If one be slain upon any arm of the sea where a man may see the land of the one part and of the other the Coroner shall enquire of this and not the Admiral because the Country may take cognizance of it And he voucheth the said authority of the 8th of Edward the second whereupon he concludeth in these words so this proveth that by the Common Law before the Statute of the 2d of Henry the Fourth the Admiral had no jurisdiction but upon the high Seas which is no good conclusion if well observed as if it were impossble that the Common Law could not by some men be mistaken and made to encroach upon the Jurisdiction of the Admiralty as the Admiralty is accused to have done upon theirs whereas here we see it plain in the 8th of Edward the Second they had or would have done in this particular and therefore in express words doth this Statute declare that of the death of a man and a maihme the Admiral shall have cognizance beneath the first bridges let no man therefore from this of the 8th of Edward the Second conclude that the Admiral hath no Jurisdiction of any thing done upon the Ports and Havens or water where one may see from one side to the other since that one particular from which a general is argued an argument never allowed amongst Scholars and Logicians is by Statute corrected For the rest of the particulars whereon Sir Edward Coke insisteth he instanceth not in any one before the making of these Statutes saving that before mentioned and thus corrected by this Statute nor of almost 30 years after the making of the last of three and well nigh 40 yâ—ars after the making of the first of them for it will be found to be little less then 30 years from the second of Henry the Fourth to the sixth of Henry the 6. and little less then 40 from the 13th of Richard the Second to the 6th of Henry the Sixth in which year the first Judgement is said to be given in the Court of Common-pleas upon these Statutes which Sir Edward Coke affirmeth to be within 20 years of the making of the Statutes and therefore his first observation upon the Judgment raised from this mistaken ground is that it is contemporanea expositio which he saith is expositio optima as is said before to which I may without danger agree and consent for I shall in the next chapter save one shew that there is expositio magis contemporanea and will not very well agree either with this or any other of these latter Expositions of those Statutes and what is inferred upon this Judgement by Sir Edward Coke that it depended in advisement and deliberation in the Court of Common-pleas eight Terms as is before repeated will clearly take away what is both by Stanford and himself affirmed in general upon that one particular of the Coroners taking his Inquest upon the death of a man upon the water where one may see from the one side to the other by that of the eighth of Edward the Second namely that it appeareth that by the Common Law before the Statute things done there were tryable by the Country that is by Jury and not iâ— the Admiralty Court for if this had been so clear as both these two would make it then needed not the Judges of the Common-Pleas have advised or deliberated two days upon that point wherewith they were troubled two years which long deliberation and advisement plainly sheweth that they were at first very loth to adventure themselves upon the seas though at a Port where they had never been before yet at length they adventured but truely without any offence be it said in a rotten Barque without either Pilot or Stearsman as I conceive such a Voyage hath seldome been taken since untill Sir Coke's time immediately after which some have followed his Barque or Vessel and will so continue if their Voyage be not stopt But I shall proceed unto the next Statute leaving that point of the cognizance of wreck of sea in this Statute mentioned which is a thing that concerneth not Contracts c. about Maritime affairs made at land unto a chapter by it self CHAP. VI. The Argument deduced out of the Statute of the second of Henry the Fourth cap. 11. to prove the Contracts made at land concerning Maritime affairs are not cognizable in the Admiralty redargued THe Statute of the 2d of Henry the Fourth is likewise urged against the Admirals cognizance of Contracts and Covenants made at Land concerning Maritime affairs and hath been usually recited in prohibitions with the other two This Statute is thus rendred by Sir Edward Coke It is enacted saith he that the Act of the 13th of Richard the second cap. 5. be firmly holden and kept and put in due execution and further at the prayer of the Commons that as touching a pain to be set upon the Admiral or his Lieutenant that the Statute and the Common Law shall be holden against them and the party grieved shall recover his double damages For the first part of the Statute he apprehendeth that he hath given a due exposition of that of the 13th of Richard the second by setting down the answer to the Petition without any relation to the Petition it self and then indeed this Statute to ordain that the former should be firmly holden and kept and put in due execution would have made somewhat to his purpose But if that first Statute be duly examined and receive a due construction then I conceive this will no wayes advance his cause He further inferreth that because this Statute doth ordain as touching a pain to be set upon the Admiral or his Lieutenant that the Statute and Common Law should be holden against them That therefore it appeareth by this Act that the Statute of the 13th of Richard the second is but an affirmance of the Common Law promiseth
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
that they should altogether and without delay forbear all manner of cognizance in Civil and Maritime causes contracted in the parts beyond the seas upon the high Sea or in any place where his Admiral of England had jurisdiction or from thence proceeding against the said John Bates by what names soever called by whomsoever or in what manner soever begun or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid in like manner as before remitting the parties if they would sue to the Court of the Admiralty of England for justice to be to them there administred in that behalf The words of the Supersedeas are these Rex c. Majori Vicecomitibus Civitatis nostrae Ebor. salutem Vobis cuilibet vestrum praecipimus quatenus ab omni cognitione in causis civilibus maritimis in partibus ultramarimis vel super alto mari aut alibi ubi magnus Admirallus noster Angliae habet jurisdictionem contractus originem contrahentibus versus Johannem Bates Mercatorem cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis deliberatis per quoscunque vel qualitercunque motis seu movendis omnino indilate supersedeatis partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes Teste meipso apud Westm decimo quarto die Aprilis Anno Regni nostri trice simo primo Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas and out of these words apud Civitatem Burdugaliae venditioni expositis That though by the course of the Common Law if a man do deliver certain Goods unto another man and doth intrust him with the keeping of them for his the Owners use or to be by him disposed of in one manner and he either selleth them or disposeth of them in another I do conceive he that so intrusted the other may recover of him such damage as he hath sustained by such the others sale or disposal Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas for his own use or for the use of any other particular man to whom the same are by him consigned or doth intrust him to dispose of them in any particular manner whatsoever yet he may in many cases upon certain exigencies happening sometimes sell the same sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them and no damage shall be by the course of the Civil and Maritime Laws recovered of him and herein those Laws have very many nice and curious distinctions and for this Cause when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all he presently flyeth to the Common Law where he knoweth he shall recover damage against the Master who was in no fault at all in such manner as mutinous and disobedient Mariners who have either through their misdemeanors by the Civil and Maritime Laws forfeited their wages or some part thereof or having received due correction from the Master at sea do fly to the Common Law either for recovery of their wages upon their Contract which they have no wayes deserved or do there bring their Actions of Battery against the Master when as he hath only given them such due correction as the Civil and Maritime Laws do allow that being a thing done at sea where complaint cannot be presently made or remedy had before a Magistrate as may be at land and therefore the like at land not to be allowed in both which cases they oftentimes recover and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas which cannot oftentimes be possibly done but by Commission out of the Admiralty Court which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships which if not remedied will be the utter destruction of Navigation And another thing I shall observe in general from both the two preceding Supersedeas's That all Contracts of and concerning Maritime affairs made between Merchant and Merchant Masters and Owners of Ships and Mariners or between them or any other person whatsoever and in what manner soever to be agitated or performed by sea upon the seas beyond the seas or elsewhere within the Jurisdiction of the Admiralty or taking their rise or original from thence or do in any manner of wise touch or concern the same were not permitted in those times to be examined or adjudged in any Court but the Admiralty And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes viz. that Contracts of this nature though made at land which do maris per transitum sive viagium aut negotia maritima quoquo modo respicere vel qualitercunque tangere concernere and so do arise from things done or to be done at sea and not from things done or to be done within the body of a County do de jure belong unto the Cognizance of the Admiralty and are in no wise by the said two Statutes taken from the same and if by them not taken from thence then doth not the penalty of the other praementioned Statute of Henry the fourth run upon those that do sue in the Admiralty Court in causes of this nature but only upon such as shall there sue upon Contracts made at land of or concerning things done or to be done or performed at land and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued CHAP. IX That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted I Shall here proceed to shew that the Maritime Contracts whereof I have hitherto treated in this third Book of this Treatise and particularly exprest in the Title of this Chapter have been by Consultations out of the Courts of Common-Law at Westminster after Prohibitions from thence obtained determined and adjudged to belong unto the Admiralty One Robert Baker of the City of London Vintner sued one John Maynard in the Admiralty Court upon a Contract made at land of and concerning a thing done upon the Sea as by the Consultation it self doth appear But one John Gilbert Esquire being Bail for the said Maynard endeavouring to decline the cognizance of that
for certain Judgement thereof is given for the Mariners Berry chief Justice of the Common-pleas The King willeth that the Peace be as well kept on the Sea as on the Land and we find that you are come hither by due-process and therefore ruled him to answer Out of which the Author observeth four things 1. That it is called the Sea which is not within any County from whence a Jury may come 2. That the Sea being not within any County is not within the Jurisdiction of the Court of Common-pleas but belongs to the Admirals Jurisdiction 3. That when the Ship came within the River then it is confessed to be within the County of Northumberland 4. That when a taking is partly on the Sea and partly in a River the Common Law shall have Jurisdiction For the first Observation which is that that is called Sea which is not in any County from whence a Jury may come I may very well grant it and he yet never the nearer the proof of that he aimeth at viz. that a Port or Haven is within any County out of which a Jury may come which is absolutely denied the reason whereof as before so shall be hereafter shewed For his second observation that the Sea not being in any County is not within the Jurisdiction of the Court of Common-pleas shall not be denyed him but I must crave leave to observe with him That notwithstanding this Ship was taken upon the Seas where there was neither Town nor Place from whence a Jury could be taken yet Berry the chief Justice took cognizance of this Cause and caused Mutford to answer And this might have served him for as good an Argument to have proved the Seas to be within the Jurisdiction of the Common Law as any that he hath used to prove the Ports and Havens to be within the bodies of Counties and out of the jurisdiction of the Admiralty For his third Observation which is that when the Ship came within the River it is confest to be within the County of Northumberland I conceive if Mutford might at the Common Law have pleaded two Pleas which in many cases is necessary and allowable by the Civil Law he would as well have denyed that ever he carried the Ship into the County of Northumberland as he did averre that he took her upon the Seas and silence is not a consent or confession where a man is tyed to one plea and hath divers to plead This therefore is neither confessed by Mutford or any else but by the Author himself and such as are of his party for Berry neither affirmeth nor determineth any such thing or causeth him to answer upon any such ground but upon this ground that the King willeth the peace to be kept as well on the sea as on the land And indeed the grounds are both kept alike to sound the cognizance of this Cause in the Court of Common-pleas whereas the King that willeth the peace to be kept as well on the seas as on the land hath provided instituted and appointed from antient and farre past times distinct Judges Justices and Officers for the keeping thereof on the one hand and on the other The Admiral his Deputies and other Justices with him appointed for the keeping thereof upon the Seas and the Judges of the Land and other Justices with them appointed for the keeping thereof upon the Land and neither have to do with the others Jurisdictions So that I cannot conceive nor can I grant chief Justice Berrys ground whereon he founded this Replevin and the taking this Cause into cognizance to be Terra firma And as for that which Sir Edward Coke would have to be the ground of this Replevin and cognition of this Cause namely because after she was taken at Sea she was carried into a Port or Haven which he accounteth to be within the body of a County If this should be allowed for a good ground then must all Reprizals taken at Sea by Letters of Marque and brought into the Port and Haven be exempted from their condemnation in the Admiralty Court for lawfull prize and may be set free by a Replevin granted from the Common Law and whatsoever fact done upon the Seas either by ship or man the ship or man repairing to Port or Haven Justice must be had against them from the Common Law So that by this construction the Admiral shall have no cognizance of piracy robberies c. committed at Sea either by the course of the Civil Law or by the course of the Law of the Land upon the before mentioned Statute of Hen. 8. but if the Pyrats or Robbers c. shall escape and bring that which they have stoln or by violence taken away c. into any Port or Haven or to land this pyracy robbery c. shall be tryed at the Common Law And as well may it be said that if they shall be taken upon the Sea and afterwards be brought into any Port or Haven or to land that then the Admirals Jurisdiction ceaseth and the tryal belongs to the Common Law So that the Admiral must go set up his Tribunal upon the high Seas as Sir Ed. Coke distinguisheth them if he will have any Jurisdiction at all And whatsoever injury shall happen to be done at Sea by one Ship unto another the Ship which did the injury by repairing to her Port or Haven shall free her self from the judgment of the Admiralty Court c. and the Common Law shall free the Judge of the Admiralty and all the Officers belonging to that Court from any further attendance there which doubtless was the aim of the Author as will plainly appear when I shall come to sum up all he would have And I wish it be not the aim of a great many still whose aim for their own ends must necessarily be destructive to a general good as shall be likewise hereafter shewn For the Fourth Observation which is that when a taking is partly on the Sea and partly in a River the Common Law shall have the jurisdiction For this partly taking on the Sea and partly on the River I must confess I know not how it can be for a Ship is either taken or not taken when she is taken at Sea or taken or not taken when she is taken upon the River unless we can say that one part of the Ship was upon the Sea and the other part of her upon the River at the very instant time of her taking But if the jurisdiction of the Admiralty may have its right we shall have no need of a Mathematitian to strike a line between the Sea and the River to make the distinction for indeed this distinction will be altogether needless But this Observation having relation to the matter of fact from whence it is drawn this meaning of taking partly on the Sea and partly on the River must be that a Ship is so taken when she is first taken at Sea and