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
le dit Monsieur Remeyr soit condempne distreint a faire due satisfaction a touts les dits damages seavant come il purra suffire en sa defalte son dit Seignior le Roy de France per que il estoit deputey al dit office que apres dewe satisfaction faitz as dits damages le did Monsieur Reymer soit si duement punis par le blemissement de la dite alliance que ia punission de luy soit as autres example par temps a venir Item in alio Rotulo annexo Item A la fin que venes consideres les formes des proces les letters ordenees per les consaillers le Aiel nostre Seignior le Roy c. especialment a retinir maintenir la souveraign que ses dits ancesters Roys d'Englitere loloyent avoir en la dite mier d'Englitere quant al amendment declaration interpretation des loix per eux faites a governer touts maneres des gents passants per la dite mier Et Primerement a son Admiral as Maisters Mariners des niefs de Cync ports d'Englitere des autres terres annexes a la corone d'Englitere emendant asa armee en la dite mir pur retinir maintenir la garde des lois avantditz la punission de touts faitz al encountre en la mier susdite Libri primi finis THE MARITIME DICAEOLOGIE OR SEA-JURISDICTION THE SECOND BOOK CHAP. I. That the Sea Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependance each upon the other ALthough the exact time of the beginning or first settlement of the Jurisdiction of the Admiralty Court here in England be not by me in the preceding book so clearly set forth as some might have expected yet is some foundation thereof deduced from such hight of Antiquity as that I cannot but hope that the Jurisdiction it self will for that cause and what shall be shewed in this ensuing Treatise deserve a continuance to posterity And although in the precited antient Records we find not the same title of that Office observed and kept yet may we very well perceive the same Office to have been preserved exercised and executed though under several titles And we find that in Edward the First 's time as plainly appears by the before quoted Libel and other before cited Records the same was exercised under the title of the Admiral And doubtless that title was long before that time known to belong unto the chief Captain Commander or Keeper of the Fleets Ports and Seas and hath been so used by many other Nations in Europe However the diversity of names neither extinguisheth the nature of the Office nor doth so much as make any distinction between the one and the other person so diversly named whilst they both bear one and the same signification But here I shall proceed next to distinguish this Jurisdiction from the Land Jurisdiction and shew that the Land Jurisdiction and Sea Jurisdiction are and must necessarily so be two absolute different and distinct Jurisdictions having no dependency one upon the other And first these two Jurisdictions are absolutely different and distinct in respect of the parties which exercise them the one being exercised in the active and directive part by the Admirals Captains and Governors of the Seas Sea-coasts Ports and Shipping which have all or most of them from antient times been Equites Aurati descended from Royal Bloud Noble-men or descended from Nobility as Sir Henry Spelman saith The judicial part by the Judges of the High-Court of the Admiralty and Vice-Admirals Courts learned and well verst in the Civil and Maritime Laws juxta illud venerabilis ejusdem Spelmanni verb. Admirallo Gollico pag. 16. Nos enim c. de quo vide supra cap. 2. lib. 1. sub fine The other exercised by the learned Judges of the Land in the Courts at Westminster and within the Bodies of the several Counties of the Nation in their several Circuits the Judges of one Circuit having no authority or power over the other nor having any thing to do to intermeddle with the other in their Circuits Secondly the Court of the Admiralty hath from antient times been styled Suprema Curia suae Majestatis Admiralitatis Angliae so that the same hath antiently been styled the Kings Court as well as his Courts at Westminster But from the one Jurisdiction there lyeth an immediate appeal unto the supreme authority in Chancery which Court appointeth Judges Delegates by Commission under the Great Seal upon the apprehension of an illegal sentence who are assigned and appointed Judges for further hearing deciding and adjudging of the said sentence and cause of appeal according to the rules of the Civil Law In the other there lies a Writ of Error from the Common-Pleas to the Kings-Bench and from that Bench to the Judges of all the three Benches in the Exchequer Chamber The Appeal from the Admiralty is for the rectifying of the Sentence as well as of the proceedings which appeal the Forraigner must be allowed otherwise he will complain at home of injustice done here and so proceed to the course of obtaining Letters of Reprisal for his satisfaction whether the first sentenc was good or not upon this ground only that he had not the due course of Law allowed him for the tryal of that Sentence which was first given against him The Writ of Error reverseth the Judgement though never so just if an error be found in the proceedings but reverseth not the Judgement though the same seem never so erroneous to him against whom it was given if no error be found in the proceedings Thirdly they are absolutely different and distinct in regard of the different and distinct subjects the Judges of them do handle and are busied about they of the one being busied and occupied in the ordering and disposing of all businesses upon the Coasts and Havens of the Seas tending to the preservation of this Nation from forraign Invasion and keeping thereof in safety and quiet and in the building repairing tackling and furnishing or causing the building repairing tackling and furnishing of all manner or sorts of Ships Boats or Vessels whatsoever for that purpose and keeping the dominion over the British Seas and in the otherwise ordering and directing of all manner of Ships and Shipping and seafaring Men and all manner of Trading Merchandising Traffique and Commerce thereby or therewith and in hearing deciding and adjudging all differences debates and controversies arising from things done or to be done at Sea or in any Port Harbour or Creek thereof either between the King or the Lord High-Admiral and any party or between party and party Forraigner or others whether Criminal or Civil Those of the other Jurisdiction being employed in ordering of all things for the good peace and quiet of this Kingdome within self and in the hearing
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