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
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
Item soit en quis de touts communs malfaiseos sur la mer en ports se acun homme est endite quil soit comun malefaiseur il sera pris par ung caper par le mariscalt c. By the next takers that take and pay at pleasure and so downwards What Sureties shall be taken of such as shall be convict of misdemeanour What punishment shall be inflicted upon common fighters being convict What upon him that maimeth any other wilfully In what case the Master of a Ship is bound for the forth-coming of his Mariners The manner of out-lawing and banishing a Felon that absenteth himself and cannot be taken And this Law as appeareth by the Article was made by Henry the Fâ—rst which runneth thus It en temps du primier Roy Henry en temps de pluseurs Roys devant de puis quant ung homme estoit endite en fellonnie l' Admirall ou son lieutenant manderoit ung cape a l'Admirall de la Court ou au visconte de lu visconte aux second sessions quil restoit trouve sera espace en tres deux sessions xxi ovors ou plus il sera demaunde a la second session solempne lement c. And likewise the manner of out-lawing and banishing one that hath done any trespass upon any Ship Tackle or Furniture thereof c. whether upon the Seas or upon any Port which Law by the Article appears to have been made by the same King Henry the First and his Admiral of the North and West and others of authority and power adjoyned to them The Law begins thus Item gens quit sont banniz en trespass ne seront une banniz sinon par ung an ou deux c. se lon la discretion de l' Admirall sil est trouve en Angleterre dedens le temps il avara judgement comme devant est dit les biens du banny en trespass ne seront une forfeitz au Roy Comment c. And endeth thus Et ceste ordounare fuit faitte premieremet a Gypswiz out temps du primer Roy Henry per les Admiralz de North West autres seigneurs adheirdantz If Ships be arrested for the Kings service or for any other reasonable cause by the Kings Officers or Admiral and break the Arrest the penalty is by these Laws declared and this Law wherein the penalty is declared appeareth to be made in the time of Richard the First at Grimsby by the advice of most of the Lords of the Realm The Law begins thus Item soit en quis de nefs qui sont arrestes pour le service du Roy ou pour autre resonnable cause per les officers du Roy ou de l' Admirall debrisent larrest And afterwards it followeth thus Ordonne estoit en temps du Roy Richard le primier a Grymsby per advys de pluseurs seigneurs du Roylme que quant nefs seront arresters c. Divers other things of the like nature are likewise enquirable in the Admiralty Court the penalty and punishments whereof are declared by these Laws Sir Edward Coke for proof that the Admiral hath no Jurisdiction upon the Ports amongst other things instanceth in one particular that 7 Hen. 6. 22 35. an Action was brought at the Common Law for forestalling in a Port or Haven because it is infra corpus comitatûs which is a thing taken for granted but no ways proved at all as is before set forth I shall therefore here set down two or three Articles which shew that if by Port be meant within the flood-mark in the Havens forestalling and regrating there are within the cognizance of the Admiral in the Admiralty Court the first is this Item soit enquis de touts Merchants Mariners qui vont hors des Ports aux nefs charges de Marchandizes quant les dictes nefs voul droient enter ouz dits Ports les Marchandises a chattent en gros les amesnent aux Ports puis les vendent a greigneur et plus chier marche plus que les preimer Merchans vouldroient engrevance du commun peuple si aucun est endite en tel cas convicte par xii il sera imprisonne per demy an puis fera fin autant come les biens amsi a chattez amonterent maiz se la ditte nef sois repose dattendre son temps homme a chate de lui Marchandise en tel marne il ne serame dese impeshâ—e ne riens ne perdra vers le Roy. Another against forestallers in any Ship is this Item soit enquis de tous ceulx quia chattent bledz poisson ou autres vitailles dedens la nef en regratant devant quilz soient venuz adeu marche se aucun est en ce endite c. it sera greissuousement pugny fera fin au Roy de tant comme la value des bledz ou poisson amsi achattez a monte Another against Regrators within the flood-mark is this Item de ceulx qui achattent en gras bledz poisson sale poisson freiz ou autre vitaille dedens le flodmarks en Regratant c. aient mesme le judgment Divers other Articles are there expresly set down against several offences committed upon Ports or Havens with the particular punishments to be inflicted upon such offenders as against the exactions of Water-officers Against any mans appropriating to himself the benefit of salt-waters Against Kidles Wears and the like hinderance of the Fishing which is common to all Against the false Weights false Measure and the like used in any Ship or Vessel Against erecting of Mills or adding or altering any thing about them to the hinderance hurt or damage of any Port or Haven Against the taking up and concealing or keeping back from the possession of the Admiral any Flotson Jetson or Lagon found as well upon the Ports as upon the Seas Against the excessive Wages of Ship-Carpenters All which do plainly shew that the Admiral hath had and ought to have absolutely power and jurisdiction of and over even such things and in such causes as Sir Edward Coke instanceth in long before the times from whence he deduceth his authorities And divers others of these Articles to the same purpose I might instance in which for brevities sake I omit CHAP. XII That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. Annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas EDward the Third by a solemn Inquisition of divers persons most famous for skill in Maritime matters and sea-faring businesses selected and chosen from divers parts of the Kingdome and assembled at Quinborough upon the second of April in the 49th year of his reign Anno Dom 1375. set down
this Law And these distresses happening at high Sea there is little help to be expected from any at land in gathering and preserving the Goods like to be lost but by this Title encouragement is given to such as shall help in this kind Plurimum interest peritura collegerint an quae servari possint invaserint And the Seventh Law plainly forbiddeth such as dwell upon or near the shore to take away such Goods so wrecked though stranded broken or cast upon ground within the confines of any mans ground Nam Divus Adrianus edicto praecepit ut hi qui juxta littora maris possiderent scirent siquando navi vel infixâ vel fractâ intra fines agri cujusque ne naufragia deripiant c. Yet to make the matter more clear that these Laws were collected out of the body of the Civil Law as well to direct the Judgements of Maritime Judges upon those offences and trespasses committed upon the Ports Havens Creeks and Coasts of the Seas as upon the high Seas I shall instance in an Authentick by the same Author collected out of the same Law and by him likewise commented on wherein it is expressly set forth that Ships and Vessels of what kind soever usefull for marine businesses for so much the word mavigia doth import in what place they shall come which must needs be Ports Havens and Creeks of the Sea as well as the high Sea if by any contingent accident they shall be broken or otherwise come on ground as well the Ships as the Goods of the Saylers and adventurers therein shall be preserved whole and entire unto those unto whom they belonged before such Ships or Vessels fell upon the said danger the Custom of all places whatsoever contrary to this Sanction being altogether to be set aside unless they be the Ships of Pyrats or enemies These are the words of the Authentick Navigia quocunque locorum provenerint siquo casu contingente rupta fuerint vel alias ad terram pervenerint tam ipsa navigia quam navigantium bona ipsis integra reserventur ad quos spectabant antequam navigia hujusmodi periculum incurrissent sublata penitus omnium locorum consuetudine quae huic adversatur sanctioni nisi talia sint Navigia quae pyraticam exercent pravitatem sive nobis sive Christiano nomini inimica Before I pass any further I must needs here observe the same thing that Peckius hath observed upon these words of this Law Sublata penitus omnium locorum consuetudine c. viz. Illud sane sine ullâ dubitatione dici potest quod certum sit consuetudinem contra jus naturae nullam habere potestatem That it may without any doubt be said that it is certain that a custom against the Law of nature hath no power or efficacy And further he saith in casu constitutionis nostrae omnium consensus operari quicquam non potest cum divinis naturaeque praeceptis consuetudo ejusmodi repugnare videatur In this case the consent of all men can work nothing because such a custom may be discerned to be repugnant both to the divine and natural Precepts and herewith doth Vinius learnedly concur and much blameth such as have suffered any such custome And with this Law agreeth the very first Law of another Title to the same purpose with this collected by the same Author in these words Si quando naufragio navis expulsa fuerit ad littus vel siquando aliquam terram attigerit ad dominos pertineat fiscus meus sese non interponat quod enim jus habet fiscus meus in alienâ calamitate ut de re tam luctuosa compendium sectetur Whensoever a Ship by wreck shall be driven upon the shore or whensoever she shall be run upon any ground i.e. either in Port Haven or elsewhere she shall belong unto her owners my Exchequer or receipt shall not intermeddle therewith for what right hath my Exchequer that it should require or seek for any small matter or trifle in so mournful or sad matter or condition I must confess that by this last observation I have made some digression from my intended purpose Yet have I not gone much out of my way nor farre about to discover what a Rock we of this Nation who pretend not onely many Customs but inforce several Patents and Grants howsoever obtained clean contrary to this Law are like to fall upon and what a wreck we are like to make of our Maritime Law whereby we uphold all our Trade Traffick and Commerce with other Nations by falling upon this Errour so strongly maintained by Sir Edward Coke that the Ports and Havens are not within the Jurisdiction of the Admiralty Court where as this Law is universally practised in all parts of the World For although by this Law and the Inquisition taken at Quinborow in the end of Edward the 3ds raign and by the Inquisition translated into Latine out of an ancient French Copy by Roughton upon any wreck stranding or running on ground of any Ship or Vessel whatsoever or wheresoever the owners are to have their Ship or Vessel or such part thereof such tackle and furniture thereof and all such Goods as are saved and can be found out entirely restored unto them Instead hereof many Lords of Mannors who perhaps had some right of claim to all or some part of Pyrats or enemies Goods so wrecked as the best Anchor and Cable c. where the rest of the Goods belonged or were confiscable either to the Lord high Admiral or supream Authority as in some cases they are to the one in some to the other will as I do already find even out of the Ships and Goods both of those of our own Nation and of our friends and those that hold good correspondencie and are in amity with us under a pretended custom contrary to all Law claim and have the same in the like maner and other customs likewise which are as contrary to the law of Nature as this And not onely so but many even of our own Nation and others of other Nations who neither are Pyrats nor enemies to this Nation but in amity and friendship therewith may have their Ships stranded or wrecked and cast away and have their Goods even snatched from them by force and violence and carried away and detained by such as can have nether pretence nor colour for such unjust and inhumane dealing contrary to the law of Nature and Nations and that Law which is elsewhere universally practiced if the current stream of Justice of the Admiralty Court in these Ports Havens Creeks and Coasts of the Seas shall be interrupted and stopped under this pretence of having no Power or Jurisdiction over them Which pressures in such extreamities if they shall fall upon those of our own Nation we shall seem even to devour and eat up one another If they shall fall upon Forraigners that are in league and amity with us this