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-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
that the said Action was brought in the said Admiralty Court contrary to the said Statutes obtained a Prohibition But in Easter Term in the 9th year of King Charles a Consultation was awarded as in the other Hence I do observe that all these Judges which granted these before mentioned Consultations have heretofote afforded the before mentioned Statutes the same interpretation that I have since gathered and in this Treatise set down viz. That a Contract whether made at land or at sea if the same doth arise from a business to be done or performed at land the same is to be tried by the Law of the land But a contract whether made at sea or at land if the same doth arise from a business to be done or performed by or at sea or beyond the sea the same is cognoscible in the Admiralty Court For upon the granting these Consultations the question was not whether either the Contracts or the Charter-parties were made at sea or at land or whether they were made in the Parish of St. Mary le Bow or St. Michael Cornhill or not but whether the same were Maritime contracts or concerned Marrtime business or not and so within the Jurisdiction of the Admiralty or not as in the first of these five last cited Consultations concerning the building of a Ship the question was not whether the contracts for the wages in building of her or the materials bought and imployed upon her the meat and drink bought and spent in the time of the building of her were made at land or not or whether the Ship her self was built at land or at sea for the case was plain in the one as well as in the other that the Ship was built at land as all Ships are upon the Stocks is no doubt at all and the Ship being there built it is as little doubt that the contracts were there made nnless we will suppose that which is not to be supposed viz. that the parties went to sea to bargain for the building of her at land and to bargain for materials to build her with and for meat and drink to be spent in the time of the works being in hand but the question was whether these contracts concerned a business that was maritime or not which did arise from somewhat to be done at or by sea or not and it being plain that had it not been for sea imployment none of these contracts had been made And therefore was it adjudged that these contracts did arise from businesses to be done at sea and were therefore maritime and belonged unto the maritime Jurisdiction of the Admiralty as all other contracts for victualling tackling and furnishing of Ships with either Anchors Cables or other Ropes or whatsoever other necessaries although the same were contracted for and bought at land anciently were and did belong and of right still are and do belong And as for the Contracts and Charter-parties made of letting Ships to freight it is sure enough that they are seldome or never made but at land yet are these contracts made of and concerning a Ship which at the very time of the making thereof is Aut super mare fluctuans aut ad Anchoras in quovis portu natans infra fluxum refluxm maris infra Jurisdictionem Admirallitatis either sailing upon the Seas or lying at Anchor in some Port or Haven where the Sea ebbeth and floweth within the Jurisdiction of the Admiralty And these contracts do arise from businesses to be done at sea and were therefore adjudged to belong unto the Sea Jurisdiction But perhaps it may be still objected that the Law doth allow a fiction of place for the doing of any thing and it mattereth not whether the thing was there done or not and I do agree that the Law doth allow such a fiction so that the same be within the compass of a possibility But to feign a thing impossible as to fain that Ships sail in Cheapside or elsewhere upon the dry land the Law abhorreth as I have said before And then is it more proper and more agreeable to law to feign the Charter-party that was made at land to have been made at sea which is possible then it is to feign a Ship to be at land where the Contract was made or when she was laden or furnished with either victual tackle or any other manner of provision or furniture which is impossible I shall instance only in one Contract made beyond the seas concerning sea affairs upon which a Bill obligatory was taken for the payment of a certain summe of money and the said Bill obligatory was adjudged cognoscible in the Admiralty Court and then proceed upon another argument and this appeareth by a Consultation granted out of the Court of common-Common-pleas in the 10th year of King James Sir Edward Coke himself being then Lord Chief Justice of the Court directed unto Sir Daniel Dunn Knight and Doctor of Laws Thomas Alport libelled in the Admiralty Court against Philip Cooper that in the Moneths of January c. Anno 1609. and in the Months of March April c. the said Philip Cooper remaining in the parts beyond the seas c. did by his Bill obligatory in the said parts beyond the seas c. lawfully make and with his own proper hand subscribed and sealed with his Seal tye and bind himself to the said Thomas Alport for the due payment of the summe of 275 l. and six shillings of lawfull money of England as in the said Libel in the said Consultation is summed up viz. Quod mens Jan. c. Anno Dom. 1609. nec non mensibus Martii Aprilis c. 1610. seu eorum aliquo praedictus Philippus Cooper dum partibus ultramarinis c. remanebat se pro debitâ solutione summae ducentarum septuaginta quinque librarum sex solidorum legalis monetae Angliae praefato Thomae Alport per scriptum suum obligat in partibus ultramarinis c. legitime factum manuque suâ propriâ subscript ejusque sigillo c. But the said Philip Cooper suggested in the Court of Common-Pleas as in the said Consultation is set forth Quod tertio die Aprilis anno Regni Jacobi Dei gratiâ Angliae c. septimo infra corpus Comitatus Civitatis London viz. in Parochia Beatae Mariae de Arcubus in Warda de Cheap et non super altum mare nec infra Jurisdictionem Curiae Admirallitatis Angliae per quandam billam suam obligatoriam sigillo suo sigillat et ut factum suum cuidam Thomae Alport tunc et ibidem deliberat gerens datum eodem die et anno obligasset se et Haeredes Executores et Administratores suos ad solvendum praefato Thomae Haeredibus Executoribus et Administratoribus suis ad omnia tempora super demand summam ducentarum septuagint ' et quinque librarum et sex solidorum legalis monetae Angliae cumque idem Philippus liber homo c. And
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
for certain Judgement thereof is given for the Mariners Berry chief Justice of the common-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
Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat at quod praedictus Patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat Ideo vobis mandamus quod praedictus Patricius in causa sua praedicta in praedicta Curia nostra Admiralitatis praedictae licitè procedere facere valeat quod ad praedictam Curiam nostram Admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti T. E. Anderson apud Westmon decimo nono die Junii Anno regni nostri tricesimo octavo Culwicke Scott Shortly after the granting of this Consultation by the Lord Chief Justice Anderson and before the cause could come to hearing or to be fully determined in the Admiralty Court Prideaux upon the same Suggestion procureth another Prohibition from the Lord Chief Justice Popham and thereby again stayed the proceedings in the Admiralty Court untill the 41th year of the Queen But in that year vicesimo septimo die Junii upon reexamination of the poynt another Consulation was awarded agreeable with the former and the Admiralty Court was then a second time set free to determine the Cause in these more express words Ideo vobis mandamus quod praedictus Patricius in causa praedicta quoad omnes hujusmodi res contractus praedict super altum mare vel super ejus necessaria dependentia Ita quod vos vel praedictus Patricius de aliquibus rebus contractibus infra corpus alicujus Comitatus regni nostri Angliae factis ne intromittatis c. in Curia Admiralitatis praedictae coram vobis seu aliquo vestrum licite procedere facere valeat c. Now here doth this Consultation put a plain distinction between the bodies of Counties and the Ports and Havens here called necessaria dependentia alti maris and indeed they are such necessary dependants of the Sea that they may very well nay they must be called mare the Sea though not altum mare the high Sea otherwise needless and altogether in vain was this distinction of mare altum mare of the Sea and the high Sea and main Sea if the Ports Creeks and Havens were not mare Sea and those parts of the Sea further remote from the land altum mare the high or main Sea And then let us consider that though upon every suggestion whereon a Prohibition is in such cases awarded upon the Statute of the 13th of Richard the second the words sur le meer in the same be in the Prohibition translated super altum mare yet will not those words sur le meer nor any other words in that Statute bear any such construction as by the said Statute if lookt into will appear which Statute shall be hereafter set down at large according to the Parliament Roll in the Tower And then is there nothing at all contained in that Statute which can so much as seem to limit the Admiral to the high Seas or exclude his Jurisdiction from extending to the Ports Creeks and Havens which are sea though not high sea And so the very foundation whereon all the Arguments which tend to the deprivation of the Admiral of his Jurisdiction upon the Ports and Havens are grounded is clearly taken away Patrick Landy likewise sued John Prideaux of Padstow pro tribus millibus centenis sepi libellando eundem Johannem Prideaux bona res merces praedicta ac alia bona res merces in manus possessionem sui ipsius Johannis infra fluxum refluxum maris accepisse sumpsisse eademque tunc penes se habuisse seu saltem eadem dolo alienasse c. Prideaux upon suggestion that those Goods and Merchandises were per quendam Georgium Sydenham nuper Capitaneum navis Anglicanae vocat the Black Boat apud Villam de Padstow in Comitatu Cornubiae infra corpus ejusdem Comitatus non super altum mare vendita deliberata per ipsum Johannem ibi recepta habita tenta ad vsum suum proprium conversa c. And obtained a Prohibition 12. Feb. 37 Elizab. A Consultation is awarded in the same words with the other The same Patrick Landy sued Digorius Halman in the Admiralty pro quinquaginta dycariis pellium Hibernicorum libellando quod idem Digorius praedictas quinquagintas dycarias pellium sub nomine bonorum rerum mercium in manus possessionem suas infra fluxum refluxum maris accepisset sumpissset easdemque tunc penes se habuisset saltem easdem dolo alienasset c. Digorius Halman upon suggestion that Gremfield Halse Nicholas Halse and John Hoyell alias Howele at Plymoth in the County of Devon infra corpus ejusdem Comitatus Devoniae non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium c. pro certâ denariorum summa barganizarunt vendiderunt eidem Digario Halman ac quibusdam Johanni Martin Thomae Crane praedictas quinquaginta Dicarias pellium c. And obtained a Prohibition Vicesimo sex to Maii 40 Eliz. a Consultation was awarded T. Edvardo Anderson And as before so here in this same cause and upon the same suggestion a new Prohibition was awarded by the Lord Chief Justice Popham But 26 Maii 41 Eliz. a Consultation was again awarded as in the before mentioned cause and many more I might likewise instance in and set forth both the Prohibitions and Consultations at large but that I should thereby too much enlarge this Treatise Now as by the Writs de procedendo awarded out of the high Court of Chancery upon Supersedeas in the former Chapter set down so by the Consultations upon Prohibitions awarded out the Courts of Common Law here set forth I hope it is evident enough that the Admirals Jurisdiction extendeth to the Ports and Havens and to all things done thereon Vide etiam quae sunt in cap. 9. libri tertu specificata CHAP. XX. That the Ports Havens and Harbours where Ships do lie or ride at Anchor are not within the bodies of Counties but that the Jurisdiction which the Admiralty hath anciently had thereon hath been by Act of Parliament reserved thereunto NOw seeing that the Ports and Havens whereon Ships and other Vessels do ride and lie at Anchor are not only of a different nature from the land but are absolutely consisting of the same nature with the Sea and are sometimes more drawn in and sometimes again further stretched out and are from antiquity both by antient Authors and ancient Records termed and called the Armes of the Sea as indeed most properly they still are I cannot easily be induced to think that these Ports or Havens by being only incompassed on both sides with
Quaeritur etiam utrum literae cambii paratam habeant executionem quod etiam determinatur per nota per Jasonem in L. elegantur ff de conditionibus indebiti quod etiam per Bald. consil 60. lib. tertio et text in l. si ex cautiam C. de non numerat pecunia Matthaeus de afflict in constit causas promagistro Justiciario Col. 6. Multaeque aliae hac de re exsurgunt quaestiones quae per jus civile authores super eodem conscribentes deceptantur determinantur Si unus ex nautis mercator fuerit vel ut mercator cum magistro navis contraxerit in mercibus suis in nave oneratis damnum passus est utrum sibi tenebitur exercitor quod per dict Julium Ferret d. li. 1. n. 38. expeditur Mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit juxta L. hujus ff qui potiores in pignore habeantur Et postmodum mulier peperit in navi Quaeritur an teneatur pro partu solvere naulum quod per L. sed adde sect si quis mulierem ff locati per Bartol ibidem per L. haec mori ff qui potiores in pignore habeantur directe concluditur Quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur versute res resurripuit alienas Et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit quae per exactissimam Julii Feretti de re navali distinctionem juxta L. sed ipsi ff naut caup determinatur l. 1. n. 34. Et utrum cum plures competant actiones tentata sive electa una ad aliam redire poterit actor Et quid si ad diversa plures competant actiones quae per L. quod in haeredem ff de tributoria actione c. dijudicantur Per L. 3. ff Naut caup Stab Gloss ibidem de dolo lata levi levissima culpa tenentur exercitores sive magister navis inde quaeritur utrum idem sunt vel unus pro alio ponatur quod cum deciditur per L. 2. ad L. Rhod. de jactu L. primam § 2. naut caup ac etiam quid de illo statuendum qui stat in navi navigandi causa Et cum per praedict L. 3. naut caup determinatur quod in casu naufragii in casu Pyratarum incursu in casu fortuito non tenetur exercitor Quaeritur utrum furtum latrocinium sit inter casus fortuitos numerandum inter illos ponendum et computandum Et quinam alii numerent casus fortuiti quae dirimuntur per § sed istae Instit de action sect 1. Instit quibus recontrahitur obl L. 3. § Item si servus ff naut caup per Angelum de Aretio super D. Loc. Quaeritur ex d. illa L. 3. Naut caup utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor quod dirimitur per Bartol in d. L. 3. ff naut caup c. Per legem primam L. cum navarcarum C. de naviculariis li. 10. nauta cogatur navigare Quaeritur igitur an nauta teneatur ex jussu inimici navigare vel in sua navi recipere inimicum suum de jure quod ex Gloss super D. L. 1. ff nautae caup dirimitur Now have I not here rendred or set forth the determinations of these few questions which I have here nominated they being not considerable without the rest which taken altogether with their divisions distinctions decisions and determinations would make by themselves a whole Tract de jure Admirallitatis which would be a Book to little or no purpose nor receive any welcome unless this which is de ejus Jurisdictione may first receive some entertainment which how necessary and advantagious the same may redound unto this Kingdome I shall leave to the consideration of him that hath or shall throughly read this Maritime Dicaeologie THis small Treatise which I have written in Vindication of the Jurisdiction of the Lord High Admiral of England c. I doubt not but will receive this Addition of Advantage as to tend likewise to the vindication and clearing of the honour and reputation of those Reverend and Learned Judges of the Land the two Lords Chief Justices the Lord Chief Baron and the rest of the then Judges their Associates together with the Attorney General whose Judgements and Justice have been blemished and unworthily aspersed by some of their own Profession in saying those Reverend Judges were questioned in Parliament for setting their hands unto an Agreement made before his Majesty of Blessed Memory Charles the First between them his Judges of the Land and Sir Henry Martin Judge then of his High Court of Admiralty purporting in substance the matter of this Treatise It 's true I have heard that some of the Puisne Lawyers and young men of that Profession sitting in the Long Parliament would have attempted such an undiscreet and unparelleld act but by the gravity and wisdome of others more learned in that Profession then themselves were disswaded from it Yet if they had I doubt not but he that reads this Treatise will find sufficient reasons to justify their assent to that agreement and that it contained nothing but what they might and ought to do notwithstanding the Judgements of their Predecessours or Successours Others do not forbear or stick to say this Subscription to this Agreement was an extrajudiciall act and so takes not the effect of a Law either to bind them or their Successours as though the place and formality of sitting upon the Bench were of the essence of a true and just opinion and the Judges being called and convened by special summons before his Majesty that their Judgements and Opinions there delivered in matters propounded debated and argued were of less force and validity and more extraneous to reason then if they were judicially sitting Which is an opinion that I cannot conceive any man of sound judgement can adhere unto and therefore I shall conclude this Treatise with that judgement given by those twelve Learned and Reverend Judges of the Land with the consent of that famous Man Mr. Noy his Majesties Attorney General At Whitehall 18 February 1633. Present The KING' 's MOST EXCELLENT MAJESTY The Lord Keeper And 23 Lords of the Councel THis day his Majesty being present in Councel the Articles and Propositions for accomodating the differences concerning Prohibitions agreed unto and subsigned by all the Judges and his Majesties Attorney-General were Read and Ordered to be entred in the Register of Councel Causes and the Original to remain in the Conncel Chest If Suit shall be Commenced in the Court of Admiralty upon Contracts made or other things personally done beyond or upon the Seas no Prohibition
direction of his Demeasnes and Receipts and the administration of Common Justice continued still in that high Court of Justice and Equity which did then and a long time after as well as before the Conquest follow the King himself and for proof thereof he quoteth Gervasius Tilburiensis who wrote many observations upon the Exchequer which he dedicated to King Henry the second and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there But because as Mr. Lambard saith some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas for all Subjects whatsoever and that for the maintenance of their assertion they do alledge the title of Mr. Glanvil's Book in part thus Et illas solùm leges continet consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium lest others should hereby be misled and for this reason think so too and so be brought to conceive that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco that the Exchequer might have the cognizance of all Causes between party and party as well maritime belonging to the Sea and Sea-affairs and from thence arising as terrene belonging to the Land and Land-affairs and from thence growing I shall here set down Mr. Lambards answer to that which is alledged for the proof and maintenance of this assertion who confidently affirmeth that the aforementioned words are not the words of Glanvil himself but of the Publisher of his Book in print which appeareth by what precedeth the words alledged in the Title viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo which saith he doth plainly shew and bewray that the Publisher spake of Glanvile as another man and which also lived not then but at another time And herein he must needs say very truly for never was there any Author of any credit that ever gave himself this or the like title or being living would say that he was juris regni antiquarum consuetudinum eo tempore peritissimus And again they have not taken in all the words of that title which do follow but have left out these viz. Et coram judiciariis ubicunque fuerint which being so the Kings Bench or Court which then followed the King must needs be herein comprehended and included and the whole title being collected thus Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo eas solùm leges continet consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium coram Justiciariis ubicunque fuerint Then doth this title make no argument for the proof of their assertion And so I shall leave the Exchequer then only to govern and rule the Kings Revenues Demeasnes and Receipts and such matters as belong only thereunto and next cast only a glance upon the Justices in Eyre and their Jurisdiction The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes but by Bracton are called itinerantes For King Henry the Second in the 32th year of his reign divided the Realm into six parts from which the Circuits which our Judges do now ride do not much differ and to every of those parts appointed three Justices who at their appointed times kept Circuits in their several parts to them limited and held plea as well of Criminal as of Civil Causes But Justices of Assises being likewise appointed whose first office was to take Assises of Mort d'ancester and Novel Desseisins according to the customes of Normandy where it is called la Novellette and gaining a further power of taking Attaints Juries and Certificates and delivery of Gaols These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre who about that time did surcease and take leave Now could neither of these Justices the Justices in Eyre not coming every year into the Country nor the other Justices being sometimes at home sometimes in their Circuit and in their Circuit sometimes in one place and sometimes in another take cognizance or have the hearing and determining of maritime causes seafaring matters or any thing them concerning For such causes did and do require a more speedy dispatch and determination than these Justices could afford them Nam breviter summariè tales sunt examinandae causae nec ad plenissimas Judiciorum formulas recurrere oportet sed suceinctè de plano sine strepitu judiciorum solenni figurâ immo velo levato in eis procedendum est ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem transfretationem properant judicium sic properat ad navigandum transfretandum festinatio Merchants Mariners and Seamen whose business and affairs are ordered here ventulated at sea and agitated beyond the seas must have a quick and sudden dispatch of Justice that as they come in with one good wind so they may go out with another the Mariners cause admitteth no delay but must have a judge and a settled place of Judicature at all times in readiness for his dispatch for whilest his cause is pleading for his right his Ship is preparing for his Voyage to which I may well apply the verse in Virgil Interea classem velis aptare jubebat For his ditty is alwayes the same with another verse of the same Authors Rursus agam pelago ventis dare vela jubebo Neither for the very same reason if there had been no other could the Court of Common-Pleas when it was settled take cognizance of maritime causes or seafaring matters nor did the settling thereof dissettle the Marina which had at and before that time been committed unto the care and charge of several persons as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited for the Court of Common-pleas 't is plaine began not to be settled untill the ninth year of the same King if so soon for it was but that year determined that it should be so settled but the power thereof rested in the King himself and his supreme Court which constantly followed him whithersoever he removed and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place by these words Communia placita non sequantur curiam nostram sed teneantur in certo aliquo loco Now although differences and controversies of what nature soever were then perhaps neither so many nor did so frequently arise as now nor were of so great consequence and concernment as since they have been yet cannot I or any man else as I conceive think that
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without