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-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
the Sea or on the Haven or Port by his authority might call them and have their testimony or if gone in any voyage to any forain parts might by Commssion have them examined sub mutuo vicissitudinis obtentu and receive their testimony Now this seeing being rightly thus understood the Lord high Admiral of England will not so soon nor so easily be thrust out of his Jurisdiction upon the Ports and Havens of the Sea by the Coroner of a County or by the Common Law eitheir as Sir Edward Coke by that which is deduced and drawn from this authority would have him Yet saith Sir Edward Coke this onely Authority is sufficient to over-rule all the said questions For saith he hereby it appeareth that the Jurisdiction of the Admiral is onely confined by the Common Law to the high Sea and affirmeth that it agreeth with all his former Book-cases and Acts of Parliament For the Book-cases I cannot deny but that they are much alike but all of them together not sufficient to make a sufficient proof for that which he would have and against that which is denied him For its agreeing with the Acts of Parliament I wonder he should averre it seeing this very point even in this particular concerning the death of a man upon the Ports and Havens is so clean contrary to what the Statute of 15 of Rich. 2. c. 3. in express words saith de mort de homme de maheym fitz en grosses niefs esteantz ethoverantz en my le haut fil de grosses Rivers tant solement peravale lez pontz de mesme les Rivers pluis procheyns al meer et en null autre lieu de mesme les Rivers est l'Admiral cognissance of the death of a man and of main done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridges of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance which is a thing needed not nor would have been provided for by this Statute if a Jury could have been had out of a proper County for the tryal thereof which is a thing requisite by the Common Law as in Lacyes Case twice already cited upon other occasions and as by Serjeant Callis his reading likewise in the same places So then for this particular concerning the death of a man upon a Port or Haven which is the foundation of this Argument that the Admiral should have no Jurisdiction upon the Ports and Havens it resteth onely in question whether the Statute shall over-rule Sir Edward Coke or Sir Edward Coke the Statute and ancient Law and Practice of the Admiralty This next thing he urgeth against the Admirals having Jurisdiction upon the Ports and Havens is the 43. Ed. 3. which saith he the Lord Dyer voucheth in Mich. 15. and 16. Eliz. saying quod vidi The Case is that the Abbot of Ramsey was seised of the Mannor of Brancaster in Norfolk bordering upon the Sea but more especially upon 60. acres of Marsh of the said Manor upon which the Sea did flow and reflow and yet it was adjudged parcel of the Abbots Manor and by consequence within the body of the County unto the low-water mark This argument cannot so much as seem to carry him so farre as he would have gone before for hereby he pretendeth the body of the County to reach only unto the low-water mark and that only by consequence which consequence will not hold For as Serjeant Callis in his Grays-Inne Reading saith p. 26. in Sir Henry Constables Case the Citizens of Bristol claimed Flotzon goods floating on the Sea by custome and in Bracton cap. 12. one alleaged to be discharged of Toll or Custome on the Seas by praescription in the Case of the Swans in Sir Edward Cokes 7th Report one prescribed to have a game of wild Swans at Abbots-beery in a Creek of the Sea which is a member or arme thereof And in Sir Henry Constables Case it is taken and received for Law that a Subjects Manor may extend to the low-water mark by praescription yet is not the Admirals Jurisdiction at all hereby taken away upon the same places For Sir Sir Ed. Coke himself in the same case declareth that the Judgements of the Common Law have been both for the Admirals Jurisdiction and the Jurisdiction of the Common Law both upon one and the same place at several times For saith he Fuit resolve per totam curiam que le soil sur que le mere flow reflow sc inter le high water mark le low-water mark poet cê parcel d' un manner d' un subject 16 El. Dier 326. 6. act issint fuit adjudge in Lacyes Case Trin. 25. El. in cest court en uncore fuit resolve quant le mere flow ad plenitudinem maris le Admiral avara jurisdictîon de chescun chose fait sur le ewe inter le high-water mark le low-water mark per le ordinarie naturall course del mare issint fuit adjudge in le dit case de Lacy que le felony fait sur le mere ad plenitudinem maris inter le high-water mark le low-water mark per le ordinarie naturall course del mare le Admiral avara jurisdiction uncore quant le mere est reflow le terr port apperteine al subject chescum chose fait quant le terr est reflow serra try al common ley car ceo donques est per cel del country infra corpus comitatus our ceo agree 8 Ed. 4. 19. issint nota que South le low-water mark le Admiral ad le sole absoâ—â—â— jurisdiction inter le high-water mark low-water mark le common ley le Admiraltie avoint divisum imperium interchangeablement come est avant dit se 〈◊〉 super â—quam l' auter super terram It wâ—â— resolved saith he by the whole Court that the soil upon 〈◊〉 the 〈◊〉 doth ebb and flow to wit between the high water 〈◊〉 and the low water mark may be parcel of a Mannor of a Subject 16 Eliz. Dyer 326. 6 acc and so it was adjudged in Lacyes Case Trin. the 25 of Eliz. in this Court and so it was resolved when the Sea doth flow unto the full height the Admiral shall have Jurisdiction of any thing whatsoever done upon the water between the high water mark and the low water mark by the ordinary and natural course of the Sea And so it was adjudged in the same Case of Lacy that a Felony done upon the Sea at full Sea between the high water mark and low water mark by ordinary and natural course of the Sea that the Admiral shall have Jurisdiction And so when the Sea returned the ground may appertain to a Subject and every thing done upon the ground when the water is returned shall be tryed at
the same land should be in the very next year viz. in the 7th year of the same Kings Reign reconverted into sea Yet is there a great deal more colour for an Action to lye at the Common Law for forestalling in a Port or Haven then for the beforementioned Judgement but upon another ground then that which Sir Edward Coke would have to be the ground namely because a Port or Haven is within the body of a County which is this Though the forestalling be an act done upon the Port or Haven yet is it the forestalling of a Market which is kept at land so that act done upon the Port or Haven hath relation unto the Market which is at land And so the act done upon the Port or Haven may be said to arise from the Market which is at land and within the body of a County and that act upon the Port to be a forestalling of that Market which is at land Just as a Contract made at land for transporting goods by sea is an act done upon the land but hath relation to a thing done at sea and so the Contract though made at land is a thing that doth arise from a thing done or to be done at sea and doth not arise from a thing either done or to be done at land within the body of any County And therefore is this Contract tryable in the Admiralty and not at the Common Law And this agreeth with the Statute of the fifteenth of Richard the Second the Statute being truly examined which I shall plainly shew when I come to speak of Contract Yet may not this construction of the forestalling upon the water be allowed for this is no Contract made for the performance of any act or thing at land positive and therefore ariseth not from any act or thing to be done at land but is a Contract which doth privatively debarre a further act to be done at land And besides this is a compleat act having reference to nothing more yet to be done but the bargain is made the comomodity bought and all is done therefore is this forestalling triable in the Admiralty Court and there punishable as will hereafter appear by what I shall shew in several chapters of this second book In the next place it is objected that the 19 H. 6. 7. it is said that the Statute doth restrain that the Admiral shall not hold plea of any thing rising within any of the Counties of this Nation but Executions he may make upon the land this Statute which this Authority citeth must be the same before mentioned Statute of 15 Ric. 2. therefore I will say nothing to this here more then that Sir Edward Coke doth hence inferre that though it be said in the 22 ass pl. 93. that every water which flows and reflows is an arme of the Sea yet it followeth not saith he that the Admiral shall have Jurisdiction there unless it be out of every County or else such a place whereof the Country cannot take knowledge as it appeareth in the book of E. 2. before cited But how this hath any reference to that of the Statute to serve for his purpose I know not The last thing against that which is said 22. ass pl. 93. he would prove by that of 8 Ed. 2. before cited which I have answered already It is argued out of Fortescue cap. 32. fol. 38. that the Admirals Jurisdiction is confined to the high Sea for that he there saith Nam si quae super altum mare extra corpus cujuslibet comitatus regni illius fiant quae postmodum in prohibito coram Admirallo Angliae deducantur per testes illa juxta legum Angliae sanctiones terminari debent which saith Sir Edward Coke proveth by express words that the Jurisdiction of the Admiral is confined to the high Sea which is not within any County of the Realm If Fortescue had said much more then here he doth to have afforded him a better foundation for his Argument then this which he hath said doth I should not have much marvelled at it For he that conceived that if Adam had not sinned in Paradise all the World had been governed by the Common Law perhaps might in his time think it meritorious to reduce as much of the World as he could to the subjection of that Law But truly out of what he saith here Sir Edward Cokes conclusion is not Logically to be deduced For to say that because Fortescue saith that the Admiral hath Jurisdiction upon the high Sea which is out of any County of the Kingdom that he hath no Jurisdiction elswhere is no better an Argument then to say that Sir Edward Coke was Lord of the Mannor of N. and therefore he could have no Land elswhere For Fortescue doth not speak this exclusive to any other part of the Admirals Jurisdiction Nor by saying Quae super altum mare extra corpus cujuslibet comitatus regni illius fiant doth he averre quod aliquis portus maris est infra corpus alicujus Comitatûs If this Answer doth not satisfie adde the Answer to the next Objection to it The next Objection is deduced out of the 2 Rich. 2. fol. 12. quod Hibernici sunt sub Admirallo Angliae de re facta super altum mare Which saith he agreeth with the former viz. that the Jurisdiction of the Admiral is super altum mare And no doubt but it is but it doth not therefore follow that it is nowhere else Now this very authority sheweth the true use and ground of this distinction of super altum mare and super portum maris which is this The Admiral of England hath Jurisdiction super altum mare quo ad Hibernicos Hibernici sunt sub Admirallo Angliae de re sacta super altum mare non super portum Hibernicum nisi per appellationem And so it is between England and other Nations adjoyning to the Brittish Seas For the Kings of England have ab antiquo had the dominion of those Seas as is sufficiently demonstrated and proved by that learned Gentleman Mr. Selden by exceeding many Arguments throughout his whole Book de Dominio maris called Mare clausum which I have toucht upon before but though the King of England had the dominion of those Seas yet had those Nations Admirals who had the Jurisdiction of and over all business done in and upon their own Ports so that the Admiral of Englands Jurisdiction Respectu Regis Angliae Dominii maris is said to be super altum mare quo ad alias omnes nationes But as had his Power from the King so hath he Power Authority and Jurisdiction as over the Sea so over the Ports and Havens of the Sea belonging to this Nation aswell as the Admirals of France and the Admirals of other Nations had and have over the Ports and Havens belonging to their several Nations
which undoubtedly they had and have as hath been shewed before And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port or any Port or Chambers of a foreign Prince other then the Ports and Chambers of that Prince against whose Subjects the same were granted And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce that such a fact was done super alto mari hoc est quoad Portus suos but in other cases for Maritime businesses done either upon the Port or contracted for upon the land it is sufficient in the first to lay in the libel that they were done infra fluxum refluxum maris and in the last infra jurisdictionem Admirallitatis as hath been already said and shall hereafter be more fully shewed For that which followeth in the next place out of Stamford I joyned it with that of the 8 Ed. 2. and have already spoken thereto Next it is said 4 5 Ph. Mar. Dyer 159. 6. by the libel in the Admiralty the cause is supposed to commence sur le haut mere infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs non super altum mare whereby saith Sir Edward Coke it also appeareth that the Lord Admirals Power is confined to the high-sea This Conclusion can no wayes be deduced out of the premisses for though by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere infra Jurisdictionem de l'Admiralty and perhaps falsly so suggested because the thing was done in some Town within the body of a County for the instance is ubi revera facta fuit in tali loco infra corpus Comitatûs which locus may be any in-land Town within any County and non super altum mare as it deduced in the libel For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs If by the Libel the cause had been supposed to have commenced in vel super tali Portu infra fluxum refluxum maris then the words of the Authority might have run thus ubi revera facta fuit in tali loco infra corpus Comitatûs non super talem portum vel infra fluxum refluxum maris aswell as non super altum mare for the words non super altum mare are onely in affirmance of the contrary to what is layed in the Libel and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel specifying and designing that very place where such a particular act was not done if so be in the Libel it had been laid that this act had been done about the mid-way between Dover and Callis and the Authority had said ubi revera facta fuit in tali loco infra corpus comitatus and not in or about the mid-way between Dover and Callis I hope no man will say that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis so that it is plain this conclusion cannot be drawn out of the authority The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea and of things done or contracted beyond the seas which I shall deferre to their proper places There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas and not to be upon the Ports and Havens which are not cited amongst his Book-cases and Authorities of Books but are cited before them one amongst the Praemunire's by him cited which I have spoken to already and the other cited amongst the Prohibitions by him cited which concern Contracts and are referred to their proper places These two I shall here insert before I proceed to the next chapter The first of them is urged out of the book of Entries fol. 23. tit Admiralty where it appeareth saith he that the taking of a Ship called the Trinity of London lying upon the River of E. in the County of Kent is not super altum mare but infra corpus comitatus Cantiae and therefore a Suit for the taking of that Ship lying there in the Admiralty Court before John Earl of Huntingdon Admiral of England appeareth to be against the said Statutes and yet no question that was infra fluxum refluxum maris infra primos pontes Here he saith that the taking of that Ship in that place appeareth to be against the said Statutes but mentioneth not what Statutes having quoted divers before If there had been a Judgement in the case he certainly would have added this proof to the Judgement of Burton and Putts Case and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited and the Statutes next before mentioned are the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's which must be the Statutes against which this taking must be said to appear to be by reason he saith it appeareth to be against the said Statutes which must be meant of the next mentioned preceding Statutes If then it appeareth there to be against the Statute of premunire I hope it hath already received an answer If against that of the 32 of Hen. 8. c. 14. it cannot be so as shall be shewed when we come to treat of freight and contracts where we shall have occasion to mention that Statute against his tenents The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. The River of Thames at Billinsgate saith he is not within the Jurisdiction of the Admiralty but infra corpus comitatus This followeth next after the premunires and precedeth next before the prohibitions by him quoted that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty by this Record it must appear thereby not so to be either by a premunire brought or by a prohibition granted as I conceive being inserted in that place and must have some relation either to what precedeth or what followeth If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought I can say no more to it then I have already said If by a prohibition granted onely it proveth nothing for many a prohibition hath been granted and consultations have been awarded without denial of the suggestions And oftentimes prohibitions have been granted upon such suggestions as could not be maintained but deserved consultations upon the debate thereof and sometimes the parties have come
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
made the Grant far larger then the request which must not be but must be reduced thereunto and receive a Construction with a due relation to it It being complained of in Parliament that the Admirals and their Deputies had encroacht as is before set forth It is desired by the Petition that they and their Deputies may not meddle with Contracts Covenants or Regraters c. tryable before the other Judges It is answered that henceforth they shall not of a thing done within the Realm but of a thing done upon the Sea The Construction of the Answer with relation to the Petition which as I humbly conceive must not be separated by any Logician will plainly be this The Admirals and their Deputies shall not henceforth meddle with any Contracts Covenants c. of or concerning any thing done within the Realm but onely of Contracts Covenants c. of or concerning things done upon the Sea So that we plainly see an Answer to a Question or Petition turned into a positive Thesis without relation to the thing whereof it is an answer is easily turned into another sence never intended And this answer to a Petition translated alone without the Petition and put positively as the translation of the Statute putteth it doth seem clearly to take away from the Admiral the Cognizance of all Contracts and Covenants whatsoever made within the Realm whereas taken with the relation to the Petition it as clearly confirms the Cognizance of Contracts of or concerning things done at Sea unto him For as the answer to the Petition doth grant that the Admiral shall not meddle with Contracts of things done within the Realm so doth it reserve the Contracts and Covenants of things done upon the Seas unto him And the words as I said before can imply no other thing to the best of my understanding For the following words Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust Poulton having thus translated the Answer without mention of any one word of the substance of the Petition rendreth barely thus as it hath been used in the time of the noble Prince King Edward Granfather of our Lord the King that now is As if this positive Thesis by him extracted out of that which was the King's Answer to a Petition and had onely a relation thereto had been so used in Edward the thirds time whereas the words are a restriction to the answer and bindeth up the Law to what was used in the Kings time for Solonc which in true French is Seloon signifieth secundum or juxta according or agreeable so that if the Answer could be taken positively without relation to the Petition which as I conceive it cannot be yet these words Solonc ceque ad estre dument use c. had restrained and limited it not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in Edward the thirds time So that under correction by that strained construction and interpretation that is made of the former part thereof the Admiral is not barred the Cognizance either of Contracts Covenants or any thing else which he had Cognizance of in that Kings raign Take that part of the Petition wholly and the King wholly grants it but no more By the Petition it is desired that the Admirals may not meddle nor encroach upon the Cognizance of Contracts Covenants Regraters c. cognizable before the other Judges the King granteth it putting a difference between the Contracts c. of things done at Land and of things done at Sea and by this restriction referreth to what Covenants Contracts Regraters c. were duly used and tryed in the Admiralty in Edward the thirds time and those he thereunto reserveth the Cognizance of but no other And now it cometh to be mainly considered whether Contracts and Covenants of and concerning Maritime businesses though made at Land were cognizable in the Admiralty Court or at the Common Law in Edward the thirds time And it seemeth plaine unto me that in Edward the thirds time the Admiral had the Cognizance of all Maritime Causes by the words of their Patents I will give but one instance of the Patent of Robert Herle already cited in which you shall finde these words Dante 's ei plenam tenore praefentium potestatem querelas omnium singulâ—rum de his quae offieium Admiralli tangunt cognoscendi in causis maritimis justitiam faciendi c. Now if Bills of Botomery whereby Ships only are lyable to the payment of the debt contracted upon them though contracted for at land or if freight for the service of Ships at sea or Mariners wages for their service at sea likewise for which either the Ships or Contracters are lyable at the parties Agents choice though the said Contracts were made at land and the like businesses which have their first rise from somewhat done at sea are not maritime causes I would gladly know what causes can be called maritime for sure I am that maritimus is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that which is on the Sea coast or nearest the Sea which the French render ou demeure aupres ou sur le bord de la mer and the Spaniard cerca de la mar Or it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 belonging to the sea take which signification of the word you will and the before mentioned causes will be causae maritimae if for on the Sea-coast or near the Sea then the Contracts in such causes though they he made at land are made on the Sea-coast in the Sea Town or near the Sea If for belonging unto the Sea then these Contracts wheresoever they are made are made for things to be agitated and done at sea and for things that cannot be done without the sea and such Contracts they are that if the sea was not would never have been made and therefore these Contracts must necessarily belong unto the sea and so must those causes which arise from them and must as necessarily be those causae maritimae which the Admiral is to take cognizance of And I am confident that it cannot be shewed that the Common Law had any cognizance of these or the like causes in Edward the Thirds time or that these or such like causes were the causes wherein the Admirals are said then or after to have encroacht upon the Kings Courts Nor that the Common Law had then nor hath yet any positive Laws rules or grounds for the decision of causes of this nature And clear enough it is that even in Edward the Thirds Reign to which this Statute hath reference many Laws and rules were confirmed and many made for direction of the Admiral in the decision of Causes of this nature as by several antient Records shall hereafter appear by which I doubt not but that it will evidently appear that the cognizace of these Contracts concerning
shall afterwards appear which I with much diligence in my reading expected but could find nothing more then what as I hope hath in its due place received an answer And if we examine the original Statutes and Poulton's Translation of this part of this Statute they will plainly shew what Statute and what Common Law shall be holden against them I shall therefore here set down the Statute according to the original and likewise Poulton's Translation thereof and the original is by way of petition and answer in these words Parl. 2. Hen. 4. mem 75. It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient tenuz firment gardez que ladmiral ses lieutenantz ne teinont null mannor de plèe deinz la Court d'admirall en contre la forme Ordinance des dits estatutz sils fount a contre en courgent la peine xx l. paiant la moite au Roy lautre moite a perte greve R. soit lestatute ent fait tenuz gardez outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute la come ley tenuz denez eux que rely que loy sente quereue en contre la forme de le dit estatute eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la Court d'admiraltie recover ' ses dammages denums mesme le pursueant au double encourge mesme le pursuant la peine de x l. en â—i le Roy pur sa pursuit ensi faitz sil soit attemte Which Statute is by Poulton rendred thus Item Whereas in the Statute made at Westminster the 13 year of the said King Richard amongst other things it is contained that the Admirals and their Deputies shall not intermeddle from hence forth of any thing done within the Realm but only of a thing done upon the Sea according as it hath been duely used in the time of the Noble King Edward Grandfather to the said King Richard our said Lord the King willeth and granteth that the said Statute be firmly holden and kept and put in due execution and moreover the same our Lord the King by the advice and ascent of the Lords Spiritual and Temporal and at the Prayer of the said Commons hath ordained and stablished That as touching a pain to be set upon the Admirall as his Lieutenant that the Statute and the Common Law be holden against them and that he that feeleth himself grieved against the form of the said Statute shall have his action by Writ grounded upon the Case against him that doth so pursue in the Admiralty Court and recover his double damages against the pursuant and the same pursuant shall incurre the pain of ten pounds to the King for the pursuit so made if he be attainted Now it plainly appeareth by the Original which I have here verbatim set down that this Statute is onely in confirmation of the former Statute as originally enacted according to the true construction thereof which taken together with that exposition of the 15th of Richard the 2. hath truely rendred of that and the same being taken with relation to the Petition as I conceive it ought to be and by Sir Edward Coke and Poultons Translations here it is in affirmance of the first of them onely as Poulton himself hath in his Translation thereof rendred it so that neither of these two Translations agree with the Original saving in this that he that shall find himself aggrieved against the form thereof shall recover double damages against the pursuant Now what may be called Damages that shall be recovered double by this Statute is a great question If a man do sue in the Admiralty Court and there recover and is paid a just and due debt of 100 l. which he ought to have sued for in the Common Law and might have there surely recovered the question whether the other party can be said to be damniâ—â—ed that 100 l. over and above his expences and trouble I cannot imagine any reasonable man will say he was What shall be thought then of the leading case Hil. 6. H. 6. in the Common Pleas cited by Sir Edward Coke for the first that received Judgement in that Court upon this Statute of double damages who saith that Bartholomew Putt sued John Burton in the Admiralty for that he by force of arms three Ships of the said Bartholomews with his Prisoners and Merchandizes to the value of 960 marks odd money being in the said Ships did take and carry away supposing the taking to be super altum mare whereas it was in the Haven of Bristow whereupon the said Burton sued the said Putt upon the Statutes and a verdict was found for the said Burton against the said Putt and damages assessed unto 700 l. and Judgement given double for 1400 l. In this place I shall set aside the Question whether this case was proper to the Admiralty Court or the Common Law having spoken to that purpose already in a place more proper and here onely examine the question concerning the damages and them doubled It doth not appear by any thing is said by Sir Edward Coke that Putt had either received from or so much as recovered of the said Burton the said 900 marks or any part thereof and yet the said Burton is found thereto be damnified the said 900 marks besides 100 l. more for his expence and trouble all which is double by the Judgement so that by this Judgement he was barred and hindred any tryal for his 900 marks or whatsoever else he should prove himself to be damnified which no man can or could then say he was not to have recovered in one of the said Courts but was condemned to pay 1400 l. damages to Burton who was damnified nothing more then his expence and some trouble in a wrong Court as is pretended for what he had unjustly done for ought ever appeared or was ever attempted to be made appear and he hereby acquitted of that Act how unjust soever If it might have been granted which may not be that the Admiral had no jurisdiction nor cognizance of this Cause yet surely that Court which had might first have examined whether Burtons act complained of was an unjust act or not and whether Putt should not there have recovered 900 marks as well as in the Admiralty Court and certainly if he should then cannot I conceive how Burton can be said to be damnified that 900 marks which might elsewhere have been recovered and obtained against him nor can I judge that he being sued for 900 marks which neither were or could there or elsewhere have been obtained against him was thereby damnified 900 marks I shall therefore leave it here to be considered whether such a Judgement once given at the Common Law is to be held firme and continued for law ever after or