without legs which must necessarily fall to the ground First then that this was contemporanea expositio made within the space of twenty years next after the making of one of these Statutes will not be made good for the last of those Statutes is that of 2 H. 4. cap. 11. which was anno 1400 and the Judgement was given the 6 H. 6. Hil. which was anno 1427 and how this can be brought within the compass of twenty years which appears so plainly to be seven years without the â—ompass I know not Besides this Statute is only in confirmation of that Statute 13 Ric. 2. 5. setting a penalty of double damage unto the party grieved and ten pounds to the King upon him that shall offend against this Statute of the 13th of Richard the Second Now it is true this Judgement doth pursue this Statute in giving double damages to the Plaintiffe and the penalty of ten pounds to the King against the Defendant But the giving of these double damages and penalty is grounded upon the breach of the former Statute unto which only this hath relation and this Statute neither needed nor had it any exposition at all But the Judgement was grounded upon an Exposition made of the former Statute 13 Ric. 2. upon which if the Statute would have born any such construction the Party suing in the Admiralty contrary to that Statute in a cause of the same nature would have before the making of the Statute of the 2d of H. 4. been liable to the single damages though not to the double but the Law whereon this Exposition was made to ground this Judgment ought to have been some Law that declareth a Haven to be within the body of a County and without the Jurisdiction of the Admiralty and must needs have been before the making of this Statute if there had been any such at all which I believe can never be found or shewed For sure I am as I said before there is not one word in the Statute it self which can so much as seem to draw any man to imagine that a Haven or Port should be within the body of a County but however it is the exposition of this Statute though groundless upon which the Judgment is founded and this Statute was made eleven years before the other and then will this contemporanea expositio said to be within twenty years scarce fall to be within twice twenty years For the Statute made in the 13th year of Richard the second was made in anno 1389 and the judgment was given in anno 1427 which is full 38 years and ought not to have had an exposition put upon it clean destructive to another Statute made within two years after and in the same Kings Raign which cleareth the Admirals Jurisdiction to be over the havens and rivers beneath the first bridges nearest to the sea even of the death of a man c. which is magis contemporanea et multo stabilior expositio being made upon as good advisement as this though perhaps not upon terms of deliberation which consideration I come to consider next And I cannot conceive the advisement upon two years deliberation upon one particular point should render the determination thereof ever the more sound but rather sheweth a great deal of doubting and fearfulness to determine But it seems after two years deliberation they determined to have the Ports and Havens without any warrant of Law that Sir Edward Coke hath declared or that I can by any means find to be within the bodies of Counties And truly I think the time was short enough and their pains great enough in that space to turn so much sea or water appertaining unto the sea into land or into the heart of a County But if the foundation of this Judgement be infirme surely it will not support it being so weighty a Judgement as it is but that the same must fall to the ground and be buried in the earth or drowned in the depth of that Sea it would have dismembred of its Ports Creeks and Havens unless whatsoever a Court shall once adjudge through misapprehension or any manner of misunderstanding must ever after be observed for law which whosoever affirmeth must maintain some men to be infallible or else that one injustice may be a warrant for another But if to persist in an error be another and a greater error then surely to square justice by so crooked and untryed a rule can produce no strait or upright future judgement I must confess the judgements of such grave and learned men in such a place and authority ought much to sway with their successors in doubtful cases and one judgement ought as little as may be to thwart and cross another but not unless the same be agreeable unto justice equity right reason and binding laws constituted appointed and published by superiour powers which are alwayes to be observed CHAP. VI. That from the two other Actions instanced in to be brought against the parties suing in the Admiralty Court for a business done upon the Ports no concluded Argument is deduced TWo Actions likewise are instanced in instituted in the Court of the Common-pleas to the same purpose which can be deduced from no better reason nor founded upon any sounder ground then this first Judgement was more then that they had this for their example At exempla mala sunt reprobanda non sequenda both of them Pasch 12 H. 6. The one is an Action brought by Robert Cupper upon the before mentioned Statutes in the Court of Common-pleas against John Raymer of Norwich for that the said Raymer did sue the said Cupper in the Court of Admiralty for that he said Raymer having a Ship in portu aquae Jernemuthae infra corpus com Norf. ready for a Voyage to Zeland the said Cupper entred the said Ship lying in the said Haven and took away divers goods out of the same asserendo per praedictum placitum res illas super altum mare emersisse acsi res illae super altum mare emersissent cum non ibi sed apud Jernmutham contra formam Statutorum praedict The other was an Action between John Wydewell and the said John Raymer the same Terme in the same Court but whether there were any Judgement upon these two Actions or not or what the Judgements were is not set forth the Judgements might be given for the Defendants as well as against them for ought appears out of what Sir Ed. Coke hath set down and since he hath spared the pains to set them down I shall spare my labour for looking them out If any Judgement were given upon either which I the rather conceâ—â— there were not for that if there had been any Sir Edward Coke would not have spared to have told of them if they had been for his purpose If the Judgements were given agreeable to the former Judgement and passed by that example yet is there no better ground for the same
of these particulars there is but a limitation of his general power there Et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest For the Argument then that is deduced from this Statute which concludeth that the limits of the Lord Admirals Jurisdiction are thereby described and by the judgement of the whole Parliament as is asserted confined unto the main sea or coasts of the sea there is no other question to be made of it then whether it shall overthrow and destroy all these Logical rules or they it Another answer may be given to this argument by distinguishing upon the word Port or Haven as it is taken in a double construction and beareth a double acceptance warranted by Mr. Serjeant Callis in his Reading at Greys-Inne 1622. upon the Statute of Sewers 23 H. 8. cap. 5. who in his first Lecture to the diversity between a Creek Haven and Port p. 24. 25. saith that a Haven properly is a safe place of harbour for Ships but may be without any priviledge at all and then maketh mention of such as are alwayes graced with legal priviledges and for this he quoteth the Statute of Magna Charta in these words Quod omnes communitates Barones de quinque portubus omnes alii portus habeant omnes libertates liberas consuetudines that all common Societies of Ports and Barons of the Cinque-ports and all other Ports may have their liberties c. which can be no otherwise understood then that thereby is meant the common Societies of Port-towns the Barons of the five principal Port-towns and all other Port-towns may have their priviledges c. so that a Port-town is ordinarily termed a Port as well as the Port it self and so is a Haven Town c. though not so properly And the words of the Statute saith he confirme my former definition of Ports to be true and this is his definition A Port is a harbour and safe arrival for Ships Boats and Ballengers of burthen to freight and unfreight them at not in so that we see that he maketh the Haven where Ships lie at anchor to be a Port and the Town whereat they lade and unlade to be a Port and so the same Author maketh costeram maris to contain the shoar and banks as well as that part of the sea adjoyning thereunto and he proveth it out of the Statute 27 of Eliz. cap 24. which Act was made for the mending of the banks and sea-works on the sea-coast And out of the 7th chapter of Macchabees where Demetrius Son of Seleucus came to a City of the sea-coast c. ut in ejus libro p. 32. so that in common acceptance the places adjoyning to the Sea-coasts for their adjacency are called and taken for Coasts as well as the Coasts themselves and the Towns or Cities adjoyning to the Ports for their adjacency are termed Ports as well as the Ports themselves and then it may very well be answered that the words in this Statute out of any Haven or Port are meant of the City or Town thereunto adjoyning and so called and this the offences in that Statute mentioned unto which this clause hath reference and relation will warrant But more I shall not say concerning this argument but shall come to that which the same Author further inferreth upon his own conclusion when as his premisses can no way be granted which is that of Job the 38th chapter the 8 10 11. verses That Almighty God as he himself out of a whirlwind spake hath shut up the sea within certain dores or bounds Quis conclusit mare ostiis quando erumpebat quasi de vulvâ praecedens Circumdedi illud terminis meis posui vectem ostia dixi Vsque huc venies non procedes amplius hîc confringes tumentes fluctus tuos Hence I do conceive that he would inferre that God then put the dores of the seas where he himself by his interpretation of this Statute would now put them between the high Seas and the Ports and Havens But then he must have said that when God put them there he then left them wide open and never shut them since for sure I am the sea was never yet shut out of the Ports and Havens if we mean the Ports and Havens where ships do ride or lye at anchor and not the Port or Haven Towns so termed by reason of their adjacency so near unto them Nor can it be allowed by what is here urged that there they were put standing wide open for he that saith posui vectem ostia saith dixi Vsque huc venies non amplius So that we see his doctrine suits not to this text but the text it self may very well serve for my purpose that God himself hath put the gates and dores of the sea and hath himself appointed its limits and bounds to be those within which it is by his own power terminated And look how farre it extendeth it self so farre it is sea and there and no where but there hath God placed these gates and dores and terminated its limits and bounds by man unalterable CHAP. V. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued OTher arguments there are by Sir Edward Coke deduced out of the Judgements and Judicial Presidents at the Common Law I shall first begin with the Judgements And the first that he urgeth is a Judgement given in the Court of Common-pleas Hil. 6 H. 6. Rot. 303. between John Burton Plaintiffe and Batholomew Put Defendant and the Case was saith he upon the Statutes of the 13 Rich. 2. cap. 5. the 15 Rich. 2. cap. 3. and the Statute of the 2 Hen. 4. cap. 11. upon which Statutes the said Bartholomew having sued the said John Burton in the Admiralty Court before Thomas Duke of Exeter then Admiral of England for that the said John Burton with force and armes the second day of September anno 1 H. 6. three ships of the said Bartholomews with his Prisoners and Merchandises to the value of 960 marks 5 s. 5 d. ob in the same ships being did take and carry away supposing by his Libel the same to be taken away super altum mare upon the high sea Judgement was given that the taking aforesaid was infra corpus comitatùs in Bristol the said ships lying in the Haven of Bristol and not upon the high sea contrary to the forme and effect of the said Statutes the parties having descended to an Issue which was found for the Plaintiffe and damages to 700 l. And this is the Judgement he quoteth Et super hoc audito tam recordo quam veredicto praedicto per curiam plenius intellect consideratum est quòd praedictus Johannes Burton recuperet versus praefatum Bartholomeum damna sua praedicta occasione attachiamenti prosecutionis vexationis
praedictum portum cursum aquae ac terram solum praedict per fluxum refluxum maris aqua ut praefertur superundat vel coopert vel in posterum superundand vel cooperend absquo compoto sive alique alio nobis vel haeredibus nostris pro praemissis vel aliquo praemissorum reddend vel solvend Sciatis insuper c. Teste meipso apud Hampton-Court tertio die Martii anno regni nostri decimo per ipsum Regem de dat praedict authoritate Parliamenti Now I hope it plainly appeareth hereby that the Admiral hath full power jurisdiction upon the Ports and Havens if he be not excluded by special grant and that made in the vacancy or interval between one Admirals Patent ceasing and anothers beginning And if the Port had been within the Borough of Ipswich and things there done had been triable at their Town Court or at the Common Law then had they had no need of this Grant of Admiralty Jurisdiction c. by which Grant of Admiralty Jurisdiction unto them it doth likewise as plainly appear that whatsoever is done upon the Port or Haven is of Admiralty cognizance this Admiralty Jurisdiction of theirs extending only unto their Port and Haven which reacheth only unto the place called Pollishened alias Poleshead and no further which is the point of the high Sea as Sir Edward Coke termeth it so that they have Admiralty Jurisdiction and yet none upon the main Sea but upon the Port and Haven only But I shall proceed unto the next thing by Sir Edward Coke insisted upon And in the next place it is thus objected that 7 R = 2. tit trespass in Statham pl. 54. in an Action of Trespass for a Ship and certain Merchandizes taken away which trespass must of necessity be alleaged in some Town and County in some River or Haven the Defendant pleaded that he did take them in le haut mere one les Normans quex sont enemies le Roy and it is ruled a good plea which concurreth with the other books Here it is not said that this trespass was laid or alleaged to be done in any Town or County in any River or Haven but saith he it must of necessity be so If he take Town County River and Haven disjunctim then I think that according to the Law the Action of the Trespass must have been laid to have been done somewhere or else the Action would have abated but if he take them conjunctim as that it must of necessity be laid to be done in some River or Haven in some Town and County I confess that according to reason and nature a Ship with her lading cannot be elsewhere except it be upon the high Seas But I know that at the Common Law it is usuall per fictionem impossibilitatis which neither the Civil Law nor Nature do allow to lay and alleage in a Declaration that such a Ship with her Tackle Furniture Ammunition and Lading was in the possession of the Plaintiffs in parochia beatae Mariae de Bow in Warda de Cheap and thereby him lost and there per inventionem came to the hands and possession of the Defendant c. and why this Trespass of taking away this Ship and Merchandizes might not as well be laid to be done in some certain place within some certain Town farre enough from the Port or Haven I know not And it is not said that it was laid to be done upon a Port or Haven Wheresoever the trespass was laid to be done in what Town of what County soever for in some Town of some County or in some part of some County it must be laid to be done yet amongst all the Instances Sir Edward Coke hath brought and amongst all that I could ever yet hear of I never knew or heard of any original action brought at the Common Law which was said for a thing done upon any of the Ports or Havens except that of Hull business which never came to be adjudged between the Admiral and the Mayor c. of Hull c. or whether the action was rightly instituted or not The defendant pleaded as above and it was adjudged for a good plea. I would gladly know what could be argued from hence if the truth had been otherwise and he had pleaded he took the Ship and Goods infra fluxum refluxum maris or that he took them in tali Portu one les Spaniards quex sont les enimies le Roy must necessarily this plea have been adjudged nought because the other was adjudged good I see not the consequence how this conclusion dependeth upon the premisses if deduced into a Syllogism It is objected likewise that 7. Hen. 6. 32. an action lyeth at the Common Law for fore-stalling c. in a Port or Haven c. and by consequence the Admiral hath no Jurisdiction there Here I do observe that about the 6 and 7 year of Hen. 6. the then Lord chief Justice of the Common-pleas did much endeavour suam ampliare jurisdictionem for about the same time the first judgement upon the Statute of the 2 of Hen. 4. for double dammages was given for the pretended breach of the two former Statutes of the 13 and 15th of Rich. 2. and this 2 of Hen. 4. by suing in the Admiralty for a thing not done super altum mare contrary to those 3 Statutes whereas none of those 3 Statutes have one word in them that tendeth to the binding up the Admiral to the high Seas unless any man can make sur le mere super altum mare nor is there any word in them that tendeth to the making of the Ports and Havens to be infra corpus commitatus as I have shewed before By this Judgement double damages were recovered against him that had received a loss of 960 marks odd monies and the damages were assessed by the Jury to 700 l. which by the Judgement being doubled amounteth unto 1400 l. so that instead of recovering of 900 marks without any tryall whether due to him or not he is condemned in 1400 l. how the then Plaintiffe as the Record is cited having got the possession of the goods sued for by the Defendant formerly the Plaintiffe or pars agens in the Admiralty could sustain 700 l. damage by being sued in the Admiralty I know not nor can imagine For the Statute doth not say the party sued in the Admiralty Court contrary to the Statute of the 13th of Richard the Second shall recover double the value of what he there sued for but double the damage he sustained by such suit which could be no great matter unless he had recovered and obtained into his possession the summe sued for which doth not appear nor is it so much as alleaged or affirmed Now it could not be expected that so much sea being converted into land by this Judgement by two years labour and but finished and brought to pass in the 6th year of Henry the Sixth