of Common Law by witnesses which saith he cometh to pass because in those parts there be no neighbours by whose oaths Juries of twelve men may be made as in Contracts and other cases arising within the Realm is accustomed to be done To avoid the Admirals Jurisdiction in holding Pleas of Contracts or things done beyond the Sea Sir Ed. Cook affirms that Bargains and Contracts so made wherein the Courts of Common Law cannot administer Justice did belong to the Constable and Marshal for the Jurisdiction of the Admiral is wholy confined to the Sea which is out of any County whence it may be gathered that as to this point he intends for Authorities the Statutes of the 13 of Richard 2. which sets forth the Jurisdiction both of the Constables and Marshals Court as also of the Court of the Admiralty That concerning the Constable and Marshal is as far from the purpose as it was from Sir Edward Cooks thought to give any addition of power to that Court The Act declares That to the Constable and Marshal it belongs to have Conusance of Contracts and Deeds of Arms out of the Realm whence it is inferred that therefore out of the Realm the Admiral shall have no Conusance of Contracts or matters concerning Navigation and Trade It may be better argued from that Act That as the Parliament allowed to the Constable and Marshal Jurisdiction in Causes of Arms and Warr arising both within and without the Realm which cannot be determined by the Common Law so it did intend Causes of Navigation and Trade arising either within or beyond the Seas to be tried by the Admiral The nature and the Quality of the business more Conducing to the point of Jurisdiction than the Circumstances of the place where it happens The Statute which allows the Admiral to meddle with things done upon the Sea by Sir Edward Cooks leave doth not confine his Jurisdiction to the Sea in respect of â—ny place beyond the Sea It is rather â—retended to debarr him from medling with things done within the Realm which notwithstanding it being formerly shewed that the Admiral may â—old plea of Maritime Causes arising â—rom Contracts made within the Land 〈◊〉 may be less needfull to labour to prove â—hat it doth not hinder him from taking Conusance of Sutes concerning Navigation and Trade arising from Contracts made and businesses done beyond the Sea The other Authorities which may be collected to prove how the Admiral hath no Jurisdiction of things done beyond the Sea are a writ in the Register and Fitz Herbert and a number of Prohibitions That of the Register is If goods be taken from an English-man in Spain or beyond the Sea and the party cannot obtain Justice there he shall have a writ of the Sheriff to arest the Bodies of the offenders and to seize their goods to the value which proveth saith Sir Edwarâ— Cook that the Admiralty cannot hold plea thereof for that the party hath remedy at the Common Law That Argument is as good as if he had said There lies a writ of Withernam at the Common Law therefore no Letters oâ— Reprisalls can be granted in the Admiralty It stands with great reason that iâ— a Subject be spoiled of his goods in anoâ—ther Realm and can have no remedy there that the party or the goods belonâ—ging to him being found within the Juâ—isdiction of the Common Law they â—hould be made lyable to satisfaction And why should it be thought unreasoâ—able that upon the like occasion if the â—arty or his goods be found within the â—urisdiction of the Admiralty the Subâ—ect should have remedy there But this Authority concerns not Contract or barâ—ains made beyond the Sea Besides how far this writ agrees with â—he Common Law it may be consideâ—ed in regard Mr. Selden writes in Triâ—unalibus nostri Iuris Municipalis c. in â—ur Courts of Common Law the Juâ—â—sdiction hath been ever held to be such â—â—at according to the strict Laws antiâ—â—tly practis'd an Action could not be â—ought upon a business hapning elseâ—here than within the Kingdome as for â—any Ages since it hath been held that â—â—e Action ought to be rejected unless â—â—e ground of it be arising from someâ—â—ing done within the Body of a Counâ—â— And Sir Edward Cook recites divers â—â—thorities by which the same is mainâ—â—in'd as agreeable to the Common Law â—â—t this Law he allows where the â—â—ings were totally done out of the â—â—alm and Implies that it is otherwise where the Contract is made in oâ— Realm and the performance ought to bâ— in another for then sayes he as to thâ— present purpose of necessity the Conuâ—sance must be where the Contract waâ— made for otherwise there can be no triâ—al had at the Common Law and that iâ— is most reasonable that it should be so because the Contract is the ground anâ— foundation of the debt But now in casâ— a Contract be made in partibus exteris transmarinis whereby payment or perâ—formance is to be made within thâ— Realm notwithstanding the Contract bâ— the ground and foundation yet the Juâ—risdiction follows the place of paymenâ— and performance and no doubt for thâ— same reason because otherwise theâ— could be no pretence for a trial at thâ— Common Law so that the Rule is fraâ—med to the building and not the buildinâ— to the Rule The last Argument is that divers Proâ—hibitions have been granted upon sutâ— brought in the Admiralty for thinâ— done in partibus exteris transmarinâ—â— and the first is as ancient as the 36. Hen. 8. But upon what Contracts buâ—â—â—nesses or occasions those sutes weâ— grounded and Commenced it is not â—pecified and to conclude this point as the former First the third request of the Judge of the Admiralty in the year 1575. viz. That the Judge of the Admiralty according to such ancient order made by King Edw. 1. and his Councel and according to the Letters patents of the Lord Admiral for the time being and allowed of other Kings of this Land ever since and by Custom time our of memory of man may have Cognition of all contracts and other things arising as well beyond as upon the Sea without â—et or prohibition The answer is that it â—s agreed upon by the Lord Chief Iustice and â—is Collegues Secondly All the Judges before the King and his Councel Octavo Caroli aâ—reed That if sutes shall be commenced â—n the Court of Admiraly for Contracts â—ade or other things done beyond the â—ea or upon the Sea no Prohibition is â—o be awarded Concerning the Concessions of the â—udges of the Kings Bench and the Reâ—olutions of all the Judges alleged for â—â—e Confirmation of the precedent Asâ—ertions it may be noted That touching the former by them are intended certain Answers of the Chief Justice and other Judges of that Bench to the Requests of the Judge of the Admiralty in the year 1575. of which mention is made in the complaint of the Admiral 7. Object wherein it is set
account against the other Secundum Legem Mercatoriam but by the Rule of the Common Law if two men be joyntly seized of other goods the one shall not call the other to account for the same 2. If two Merchants have a joynt interest in Merchandizes if one dye the surviver shall not have all but the Executor of the party deceased shall by the Law-Merchant call the surviver to an account for the Moity whereas by the Rule of the Common Law if their be two joynt Tenants of other goods the surviver Perjus accrescendi shall have all 3. In an Action of Debt upon a simple Contract which is without a Deed in Writing the Defendant by the Common Law may wage his Law That is he may barr the Plaintiff from his Action by taking an Oath that he doth not owe the Debt but when one John Cumpton Merchant brought an Action of debt Secundum Legem Mercatoriam against another Merchant upon a Contract without Deed and the Defendant would have waged his Law he was not permitted so to do and the Judgement was given for the Plaintiff It is not hereby intended that the Courts of Common Law cannot or do not take notice of the Law-Merchant in Merchants cases but that other things likewise considered it might be thought reasonable if they so desire to allow them the choice of that Court where the Law-Merchant is more respected than to confine them to other Courts where another Law is more predominant Besides there may be danger of doubt thereof because those things are not approved for proofs at the Common Law which are held sufficient in the Admiralty amongst the Merchants for as Sir Iohn Davies further observes At the Common Law no mans Writing can be pleaded against him as his Act and Deed unless the same be sealed and delivered But in sutes between Merchants Bills of Lading and Bills of Exchange being but ticquets without Seals Letters of advice and Credence Policies of assurance Assignations of Debts all which are of no force at the Common Law are of good credit and force by the Law-Merchant To which may be added what Malines observes That the bearer of such Bills by the course amongst Merchants shall be admitted to demand and recover the Contracts without Letters of Atturney which is not admitted in the Common Law It is moreover considerable That the Law of the Sea looks one way when the Common Law looks another As for instance A Ship is Freighted or hired for a Voyage to the Indies at 20 l. per moneth by Charter-party it appeareth that having been eight Moneths in the Imployment of the Merchant who Freighted her before she makes any Port with her Lading she perisheth in the Sea in this case by the Common Law as it hath been averred the Owner of the Ship ought to have Freight for eight Moneths but by the Law of the Sea which hath alwayes been allowed The Merchant losing his goods the Owner loseth his Freight Again if the Owner loseth his Freight the Mariner although he escape loseth his Wages for the time he served which happily would not be thought so if he sued at the Guild-Hall for the same Thirdly for encouragement and advantage of those who use Navigation and Trade by Sea it is considerable That in the Court of Admiralty one and the same Action may be brought against diverse and several persons undertaking the same business as when many joyn in subscription to a Policy of assurance but if a sute be brought at the Common Law every man must be sued severally which the Parliament in the Act concerning assurances held inconvenient and in the like manner divers and several Persons may joyn in the same sute as Mariners for wages at a small charge to themselves with little prejudice to the Masters or Owners which are sued and obtain a Decree or Order all together whereas when they sue at the Guild-Hall every man sues severally to the great charge of every particular and to the excessive dammage of the Masters or Owners if Judgements be given against them Besides the inconvenience of which the Statute of the 28. of Hen. the 8. cap. 15. takes notice That if Mariners or Shippers which by reason of their often Voyages and Passages must depart without long tarrying and protracting of time be enforced to attend the ordinary terms of the Common Law Fourthly the Court of Admiralty for the conveniency and dispatch of Merchants and Sea-mens causes admits of proofs which the Courts of Common Law do not allow for in that Court according to the Civil Law the Plaintiff may be relieved by the Defendants answer upon Oath which in the ordinary Courts of the Common Law is not afforded Again whereas in those Courts the Evidence must be produced at the Barr before the Jury Sea-men and Mariners which are many times necessary witnesses for the reason before exprest cannot be present without great prejudice to themselves and the Trade of the Kingdome But in the Admiralty Court they may be produc'd at any time after the sute is begun and their Examinations being taken in Writing they have liberty to follow their own and the common occasions Moreover many times in causes concerning Navigation and Trade by Sea no proof can be made but by Witnesses remaining in Forein parts to which the Writs of the Common Law do not extend but those Witnesses by Commission out of the Admiralty Court are usually sworn and examined by Magistrates in those places and their examinations so taken are allowed for sufficient proof upon return Divers other instances might be given by which it would appear that the Court of Admiralty can give redress in Sutes concerning Navigation and Trade with more conveniency than the Courts of Common Law but these considered and how much it concerns the good of the Kingdome and those who sâ—pport Navigation and Trade may be sufficient to discover which Court may be best justified in proceeding in causes of that nature What inconvenience may follow both to the Private and Publick by the interposing of the Courts of Common Law and by obstructions made unto the Admiralty in such businesses may appear in one particular that is concerning Charter-parties and Freight due for imployment of shipping There is but one instance given of a Sute brought at the Common Law upon a Charter-party viz. the 28 of Elizabeth which was on the Merchants part for breach of Covenant viz. for not staying in a Port of discharge so many dayes as were agreed upon for which the Owner was condemned in 500 l. without any respect to the Loss or Damage which the Merchant had sustained And if it be considered how many clauses there are in Charter-parties and Covenants of things to be performed for which the Owners are bound under a general penalty if upon every breach advantage should be taken in extremity no man would have great comfort in hiring out Ships to the Sea And it may be observed that
Law and Statute Laws of England take notice of the Law Merchant and do leave the caâ—ses of Merchants to be decided by the Rules of that Law which Law Merchant he saith as it is part of the Law of Nature and Nations is universal and one and the same in all Countries of the World For as Cicero saith of that Law Non erit alia lex Romae alia Athenis alia nunc alia post haec sed et omnes gentes et omni tempore una eademque Lex obtinebit whereby it is manifest that the Causes concerning Merchants are not now to be decided by the peculiar and Ordinary Lawes of every Country but by the general Lawes of Nature and Nations He sayeth further that untill he understood the difference betwixt the Law Merchant and the Common Law of England he did not a little marvell that England entertaining traffique with all Nations of the World having so many Ports and so much good Shipping The King of England also being Lord of the Sea what should be the cause that in the Books of the Common Law of England there are to be found so few Cases concerning Merchants or Ships But now the reason thereof was apparent for that the Common Law of the Land did leave those cases to be ruled by another Law Namely the Law Merchant which is a branch of the Law of Nations The Law Mariner to which happily the answer to the French Agent mentioning Antient additions of the Realm related were such things as are contained and preserved in the Antient black Book of the Admiralty as certain Royal Ordinances made by Antient Kings of the Realm 2ly The Judgements or Resolutions of Oleron in the time of King Richard the first 3ly Certain verdicts given upon an Inquisition at Quinborough in the time of King Edward the third and some other matters touching the Admiralty of England Touching the black Book of the Admiralty Mr. Selden stiles it Vetusti Tribunalis maritimi Commentarii And Codex Manuscriptus de Admiralatu And in his notes upon Fortescue he saith that there are in it worthy of Observation Constitutions touching the Admiralty of Henry the first Richard the first King Iohn and Edward the first Touching the Judgements or Laws of Oleron and the use of them in the Admiralty Court Mr. Selden where he from them argues the Soveraignty of the Kings of England in regard King Richard the first did publish the Sea Lawes in the Island of Oleron which was then in his possession sayes that they are still in force And Sir Edward Cook likewise argues that the Jurisdiction of the Lord Admirall was long before the Reign of Edward the third from the Laws of Oleron So called because they were there made by King Richard the first The Inquisition at Quinborough was taken in the year 1376. in the 49. of King Edward the third by eighteen expert Sea-men before William Nevill Admirall of the North Philip Courtny Admirall of the West And the Lord Latimer Warden of the Cinque Ports And relates as by the Title appears to the usages of former times The verdicts there given were desired to be established by the Kings Letters Patents in the Cinque Ports and Towns adjoyning to the Thames to be observed by the owners Masters and Mariners of Ships under penalties c. And Malines writes That he had seen them enrolled amongst the Records of the Tower for the Government of the Admiralty That generally where Lawes have been provided for businesse concerning the Sea as also in England several Iudges have been appointed to determine differences and redresse offences concerning the same GRegorius Tholosanus sayes Iudicum diversorum ratio eo dirigitur ut lites facilius expediantur ne immortales sint sub judicibus mole negotiorum occupatis proinde cum commercia hominum sint maximae utilitatis placuit Negotiatoribus proponi proprios Iudices and accordingly First the Grecians had their special and proper Judges appointed for those businesses So Suidas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The Natodicae were Magistrates who did Iustice to Seamen and others who trade by Sea And the Athenians had an expresse Law to that purpose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That actions concerning Seamen and Merchants should be commenced before the Iudges called The smothetae according to their Instruments of Contracts and dealings Secondly Amongst the Romans there was antiently an Officer called Praefectus Classis by Tully and Livy and Iavolenus makes mention of Seius Saturninus Archigubernius Classis Britannicae and Tacitus of Praetor Classis which name imports a power of Judicature in latter times they had also a Magistrate who was called Comes Commerciorum whose Office was to over-see matters of Commerce or Negotiation Thirdly the Roman Empire being broken into several States the lesser as Republiques had their Consuls and the greater Kingdomes had their Admiralls to order and determine those businesses The office of the Consuls is described in the Consolato Del Mare Consoli determinano â—utti le controversie c. The Consuls determine all controversies which are for Fraights for Dammages done to goods on shipbord for parts of ships to be set to sale at an outcry for Commissions given to Masters and Mariners for Debts contracted by Masters for the necessary use of the Ship for things promised or undertaken betwixt Merchants and Mariners for goods taken up at Sea and generally for all other Contracts and businesses which are declared amongst the Customs of the Sea Fourthly The Venetian State being a Seigniory when any great War is expected or undertaken have their General or Supreme Commander of the Navy who is of as high an esteem as any Magistrate of the City having absolute power over all Officers aud others of the Navy at other times the Legatus classis or Vice-General hath the power of disposing of the Navy and over the Captains of the Gallies and other persons of the Navy They have besides four Consuls who Judge and determine all matters concerning Negotiation and Trade Fifthly Admirals in Europe had their beginning as most affirm in the time of Constantine the Emperour and that in Magna Graecia which is now the Kingdome of Naples where the dignity of Admirall is the third place to wit after the Vice Roy and Constable To whom belongeth the Building Repayring and keeping of the Ships Royal and setting out of the Fleets for Warre with the Kings consent He hath also Jurisdiction Civil and Criminal amongst Commanders Officers and others employed about the Navy and all others who get their lively-hood by the industry and art of the Sea which are held to be such which transport in Ships and adventure their Estates by Sea as also such that make it their Trade to take Fish or do build Ships This Court is called Magna Curia and from it there lyes an appeal only to the supreme
Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
the Grecians calls a Bill of this kinde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quae de nautico soenore conscripta est of which nauticum foenus there are several Titles in the Digest and Code of the Civil Law and the monies so lent to be transported at the hazard of the Lender in the Civil law is called Pecunia trajectitia of which Salmatius Pecunia trajectitia dicitur quae trans mare vehenda accipitur usurae quae ex pacto in eam pecuniam praestantur Maritimae nauticae dicuntur Fourthly Bills of sale of Ships are made conformable to Maritine Laws for as West in his Presidents delivers the form it is in such Bills of sale exprest and declared That he that sells the Ship bindes himself his Executors and Administrators the said Ship so bargained and sold to warrant and defend against all men for one whole year and a day according to the Law of Oleron the danger of the Sea Fire and Enemies onely excepted These things being considered it may be thought reasonable that such Contracts and Writings being grounded upon the Civil Law the Laws amongst Merchants and other Maritime Laws the Sutes arising about the same should rather be determined in those Courts where the proceedings and Judgements are according to those Laws than in other Courts which take no notice thereof For the restraining of the Court of Admiralty from proceeding in Sutes arising from such Contracts and Writings made at Land although the businesses therein contained are to be performed at Sea amongst the Authorities cited by Sir Edward Cook there may be intended appliable to this purpose First the Act of Parliament of the 15. of Richard the 2. Chap. 15. Secondly some judgements given and Prohibitions granted in the Courts of Common Law concerning causes of this sort commenced in the Admiralty Touching the Statute of the 15. of Richard the 2. Chap. 34. which is the ground of the main Objections against the Admirals Jurisdiction it may be conceived That whereas that of the 13. Chap. only in general restrains the Admirals from medling with things done within the Realm and allows them to meddle with things done on the Sea that is relating to the Sea This Statute was intended to declare more expressly both in what places and in what matters they should not meddle And touching the places in regard the word Realm as Sir Edward Cook observes in a general sence extends to the Sea within the Kings Dominions as well as to the Land declares the restraint to be only within the bodies of Counties And it may be supposed that he intended a difference betwixt the Bodies and the Extremities or bounds of Counties as the Statute of the 3. of Edward 1. makes a difference betwixt things done within the Shires and things done within the Marches and Borders of Shires whence the Statute of the 5. of Elizabeth Chap. 5. allows to the Admirals Jurisdiction as the main Sea so also the Coasts of the Sea being no parts of the Bodies of any Counties of the Realm and in that respect this Statute specially excepts from the Admirals Jurisdiction the Conusance of wreck of Sea as happening on the Coasts or Shores of the Sea out of the bodies of any Counties so that as to the place or Territory of the restraint this Statute declares it streighter than that of the 13. of Richard the second Touching the matters with which the Admiral by this Statute is not to meddle within the bodies of Counties they are expressly declared First Contracts Pleas and Quarrels That is personal Actions concerning Contracts and Secondly are implyed matters Criminal and the prosecution of them Touching the First which concern this Assertion the words are That the Court of Almiralty hath no manner of Conusance of any Contract Plea or Quarrel rising within the bodies of any Counties But all such Contracts Pleas and Quarrels shall be tried determined and remedied by the Common Law Which words are so general that it is pretended they ought to be understand of all Contracts and Writings whatsoever even of such as concern Sea businesses if they be made or written within the Bodies of any Countries In answer whereunto there may be taken into consideration a General Rule cited by Sir Edward Cook allowed as he saies by all Laws in construction of Statutes viz. Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit anima vigorque ipsius legis non videtur legislatur id sensisse quod ratione caret â—tiamsi verborum generalitas prima facie aliter suadeat And the reason of this Statute as may be gathered from the Praeamble as the Key thereof was to hinder the Admirals encroaching of divers Jurisdictions Franchises and Profits pertaining to the King and other Lords besides those they were wont or ought to have of right by which words it is acknowledged that the Conusance of some maâ—ters did formerly belong to that Jurisdiction And not to diminish any of their Ancient and just rights in things belonging to the Sea which are permitted and allowed to the Admiral by the Statute of the 15. of Richard 2. and unto which neither the Kings Courts noâ— the Courts of any other Lords had formerly before this Statute any pretence Sir Edward Cook in his Answers to the 1. Objection of the Complaint 8â— Iacobi saith That the Judges acknowledge that of Contracts Pleaâ— and Quarrels made upon the Sea or any part thereof c. the Admiralty hath and ought to have Jurisdiction and that no President can be shewed that any â—rohibition hath been granted for any Contract Plea or Quarrel concerning any Marine cause made or done upon the Sea By which words he implies that although the Admiral had and ought to have Jurisdiction upon the Sea yet it was only concerning Marine Causes but if a Contract Plea or Quarrel were made or done upon the Sea concerning any Terrene Cause or matters concerning businesses of the County a Prohibition might be granted Now it may seem worthy of Consideration whether any Reason can be shewed why the Courts of Common Law ought to have cognizance of Contracts Pleas and Quarrels which concern Terrene Causes or Matters concerning businesses of the County made or done upon the Sea Yet if Contracts Pleas or Quarrels which concern Marine Causes or Matters belonging to the Sea be made or done within the Bodies of Counties the Admiral ought not to have the like Cognizance And if no reason thereof can be shewed how according to the general Rule which Sir Edward Cook delivers touching the Construction of Statutes the common Interpretation which is made of that of the 15. of Richard 2. Chap. 3. by which Contracts Pleas and Quarrels arising within the Bodies of Counties are extended to Contracts Pleas or Quarrels relating to Marine affairs can be justified the reason of the Rule being Cum Ratio sit anima Legis non
may soon swallow up the other not onely to the prejudice of the subjects for whose good the diversity of Courts were erected but also the wrong of the Prince from whom those Jurisdictions are derived Sir Thomas Rydlye in his view of the Civil Laws further shews how injurious to the Admiralty and unreasonable this practice is in regard that in Law no Fiction ought to be admitted but such as is both possible and equitable First That it ought to be Possible because otherwise it were to admit that by way of supposition which nature will not alow and therefore although one that is dead to some constructions of Law may be feigned to be alive if at that time any of his equals in age be still living yet one who dyed two hundred years since cannot to any purpose be supposed to be living all of the same age being long before dead Secondly The Fiction ought to be Equitable because if there be no reason for it it is altogether unnecessary and useless and therefore although the Law may admit a Fiction or supposition that a childe in the mothers womb is already born for its benefit in regard that otherwise it might be deprived of its filial portion or some other right in equity belonging to it yet where there is no such reason or equity it ought not to be admitted as vain and ridiculous but for the fiction of a ship to arrive in wardo de cheap where there is no water to bear or carry is of a thing utterly impossible and it is wholy void of equity because a Trial of any business thereupon cannot obtain any just and fait remedy thereby at the Common Law which might not have been had in the Court of Admiralty which is a more competent and proper Court for the trial of such things than any Court of the Common Law Secondly Concerning Actions of Trespass the Admiral in his ordinary capacity claiming no Jurisdiction of offences against the Crown but onely on the Sea and of wrongs and injuries done in other places without force or violence to make such causes triable in the Kings Courts it is suggested that they were done vi armis which is the usual form of Endictments of Trespasses in the Kings Bench as of cutting of a purse although in truth there were no fear nor violence used in committing the same Touching the interrupting and obstructing the proceedings in the Court of Admiralty in causes properly belonging to the same concerning Stipulations and Libels although it may be presumed that what Sir Edward Cook affirms That where the principal matter is acknowledged to be of Ecclesiastical Cognisance the Temporal Iudges ought not to call in question the form of proceedings though they be against the reason of the Common Law because Cuilibet in sua arte merito credendum that the same should be allowed in the Admiral Court Yet in the third Objection of the Complaint 8 Iacob it is shewed That whereas time out of minde the Admiral Court hath used to take Stipulations for appearance and performance of the Acts and Judgements of the same Court It is now affirmed by the Iudges of the Common Law that the Amiralty Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter overthrow of that Court The answer whereunto is That the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognizances as a Court of Record may do and for taking of Recognizances against the Law of the Realm we finde that Prohibitions have been granted as by the Law they ought And if an erronious sentence be given in that Court no Writ of Errour but an appeal to certain Delegates doth lye as it is apparent by the Statute of the 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record Whereunto it may be replied That some things done by or before the Admiral are matters of Record may be maintained from an ancient Ordinance of King Richard the first with advice of the Lords at Grimsby viz. That when the King writes by his Letters Patents to the Admiral to arrest Ships more or less for his service and that the Admiral should write to his Lieutenant to see things put in execution accordingly forasmuch as the Admiral and his Lieutenants are of Record After the Admiral shall have written to the King or to the Chancellour of England the names of the Ships arrested together with the names of the Owners and Masters of them in that case neither the Owner of the Ship nor the Master shall be admitted to say that the Ship is not arrested but admitting that the Court of Admiralty is not a Court of Record in ordinary matters no more are the Stipulations taken there such Recognizances as are required to be taken in Courts of Record by the Common Law those Stipulations causing no privileged obligations before other bonds nor extending to any part of mens Lands which is otherwise in Recognizances taken in Courts of Records by the Common Law And it may seem strange thâ—◠〈◊〉 Edward Cook acknowledging and â—â—â—â—â—ing the proceedings of that 〈…〉 according to the Civil Laws 〈…〉 Stipulations or bayls for the 〈◊〉 appearance and the performances of Deâ—crees and Sentences in â—hat Court prâ—scribed by the Civil Law Ne judicia sint elusoria and unversally practised where judicial proceedings are according to that Law as likewise in this Kingdome in the Constable and Marshals Court and in the Courts of the Universities proceeding by the Civil Law the same should not be allowed in the Admiralty Court And the complaint in this point may seem the more considerable in regard that to the publique Notaries about the Exchange with out Exception or Controll it hath been allowed That Merchants appearing before them in a manner nearer to the Recognizances of the Common Law do acknowledge bonds and bind Se Executores bona tam immobilia quam mobilia praesentia in futura And sometimes themselves being absent the same things are done in their namâ—s by their servants or factors Exhibiting Procurations from them to that purpose And it may be noted that amongst Sir Edw. Cooks Authorities there cannot be discerned any Statute Judgement or Book-case to make good the Answer to that Objection in the Complaint Secondly concerning Libells in the Court of Admiralty The Lord Hobard in Audly and Iennings case affirms that if a Contract in truth were made at Sea and in the Admirals Court it be laid generally without saying super alto mari a Prohibition might lye for the Libel must warrant the sure in it self But Justice Reeves in his Argument Paschae 22. Garoli differs from him in opinion and distinguishes betwixt a particular Jurisdiction created in diminution of the general Courts of Common Law and a particular Jurisdiction over things that never did belong to the Courts of Common Law