THE JURISDICTION OF THE ADMIRALTY Of England Asserted AGAINST Sr. EDWARD COKE'S Articuli Admiralitatis In XXII Chapter of his Jurisdiction Of COURTS By RICHARD ZOUCH Doctor of the Civil Law and late Judge of the High Court of ADMIRALTY LONDON Printed for Francis Tyton and Thomas Dring and are to be sold at their Shops in Fleetstreet 1663. Thomas Foley of Great Witley Court in the County of Worcester Esqr. TO THE READER I Do certifie and attest that the Treatise Entituled The Jurisdiction of the High Court of Admiralty asserted c. by Dr. ZOUCH was delivered into my hands by the Author himself to be Printed and which he intended to have Dedicated to his Royal Highness JAMES Duke of YORK Lord High Admiral of England Drs Commons Febr. 25. 1663. Tim. Baldwyn ASSERTIONS Concerning the JURISDICTION of the ADMIRALTY OF ENGLAND 1. THat in all places where Navigation and Trade by Sea have been in Use and Esteem and particularly in England Special Laws have been provided for regulating the same 2. That in all places where Laws have been provided for businesses concerning the Sea as also in England special Judges have been appointed to determine differences and to redresse offences concerning the same 3. That in all places where special Judges have been appointed for Sea affairs as also in England certain Causes viz. all such as have relation to Navigation and Negotiation by Sea have been held proper for their Conusance 4. That the Jurisdiction of the Lord High Admiral of England as it is granted by the King and usually exercised in the Court of Admiralty may consist with the Laws and Statutes of the Realm 5. That the Lord Admiral of England may hold Conusance of Contracts and Writings made at Land touching businesses of Navigation and Trade by Sea 6. That the Admiral of England may hold Conusance of things done in Ports and Navigable Rivers as touching damage done to Persons Ships and Goods Annoyances of free Passage and unlawfull Fishing 7. That the Lord Admiral of England may hold Pleas of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea 8. That the Courts and Judges of the Common-Law do intermeddle with and interrupt the Court of Admiralty in Causes properly belonging to that Court 9. That the Tryal of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Kingdome and the Subjects thereof than in the Courts of Common-Law Sir EDWARD COKE'S Jurisdiction of COURTS CAP. XXII The Court of the Admiralty proceeding According to the Civil LAW THe Complaint of the Lord Admiral of England to the Kings most Excellent Maiesty against the Iudges of the Realm concerning Prohibitions granted to the Court of the Admiralty 11 Febr. penultimo die Termini Hillarii Anno 8. Jac. Regis the Effect of which complaint was after by his Majesties Commandment set down in Articles by Dr. Dun Iudge of the Admiralty which are as followeth with answers to the same by the Iudges of the Realm which they afterwards confirmed by three kinds of authorities in Law 1. by Acts of Parliament 2. by Iudgements and Iudicial proceedings and lastly by Book cases Certain grievances whereof the Lord Admiral and his Officers of the Admiralty do especially complain and desire redresse THat whereas the Conusance of all Contracts and other things done upon the Sea belongeth to the Admiral Jurisdiction the same are made tryable at the Common-Law by supposing the same to have been done in Cheapside or such places By the Laws of this Realm the Court of the Admiral hath no Conusance power or Iurisdiction of any manner of Contract Plea or Querele within any County of the Realm either upon the Land or Water but every such Contract Plea or Querele and all other things rising within any County of the Realm either upon the Land or Water and also Wreck of the Sea ought to be tryed determined discussed and remedied by the Laws of the Land and not before or by the Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the water infra fluxum refluxum aquae but whether it be upon any water within any County Wherefore we acknowledge that of Contracts Pleas and Quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had by Twelve men the Admiral hath and ought to have Iurisdiction And no President can be shewed that any Prohibition hath been granted for any Contract Plea or Querele concerning any marine cause made or done upon the Sea taking that only to be the Sea wherein the Admiral hath Iurisdiction which is before by Law described to be out of any County See more of this matter in the answer to the sixth Article When Actions are brought in the Admiralty upon Bargains or Contracts made beyond the Seas wherein the Commom-Law cannot administer Justice yet in these causes Prohibitions are awarded against the Admiral Court Bargains or Contracts made beyond the Seas wherein the Common-Law cannot administer Iustice which is the effect of this Article do belong to the Constable and Marshal for the Iurisdiction of the Admiral is wholly consined to the Sea which is out of any County But if any Indenture Bond or other Specialty or any Contract be made beyond Sea for doing of any Act or Payment of any money within this Realm or otherwise wherein the Common-Law can administer justice and give ordinary remedy in these cases neither the Constable and Marshal nor the Court of the Admiralty hath any Iurisdiction And therefore when this Court of the Admiralty hath dealt therewith in derogation of the Common-Law we find that Prohibitions have been granted as by Law they ought Whereas time out of mind the Admiral Court hath used to take Stipulation for appearance and performance of the Acts and Judgments of the same Court It is now affirmed by the Judges of the Common-Law that the Admiral Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter over-throw of that Jurisdiction The Court of the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognisance as a Court of Record may do And for taking of Recognisances against the Laws of the Realm we find that Prohibitions have been granted as by Law they ought and if an Erroneous sentence be given in that Court no Writ of Error but an Appeal to certain Delegates does lye as it appeareth by the Statute of 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record That Charter-parties made only to be performed upon the Seas are daily withdrawn from that Court by Prohibitions If the Charter-party be made within any City Port Town or County of this Realm although it be
awarded Secondly if sute be before the Admiral for freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas though the Charter-party happen to be made within the Realm so as the Penalty be not demanded a Prohibition is not to be granted But if the sute be for penalty or if question be made whether the Charter-party be made or no or whether the Plaintiff did release or otherwise discharge the same within the Realm this is to be tried in the Kings Courts and not in the Admiralty Thirdly if sute be in the Admiralty for building amending saving or necessary Victualling of a Ship against the Ship it self and not against any party by name but such as for his interest makes himself a party no Prohibition is to be granted though this be done within the Realm Fourthly although of some causes arising upon the Thames beneath the Bridge and divers other Rivers beneath the first Bridge the Kings Courts have conusance yet the Admiral also hath Jurisdiction there in the point especially mentioned in the Statute of 15. of Richard 2. and also by Exposition and Equity thereof he may enquire of and redress all Annoyances and Obstructions that are or may be any Impediment to Navigation and passage to or from the Sea and also to try personal Contracts and Injuries done there which concern Navigation on the Sea and no Prohibition is to be granted in such cases Fifthly if any be imprisoned and upon habeas Corpus brought it be certified that any of these be the cause of his Imprisonment the party shall be remaunded Subscribed the 4. Feb. 1632. by all the Judges of both Benches Sir George Crooks Reports being published by Sir Harbotle Grimston are approved and allowed as for the Common benefit by the Judges then being viz. by Iohn Glynn Oliver St. Iohn Edward Atkins Robert Nicholas Matthew Hales Hugh Windham Peter Warburton and Iohn Parker It may be presumed that what so many persons Eminent both for their place and also for their knowledge of the Laws and Statutes of the Realm did so deliberately and cautiously resolve upon and others of like quality have countenanced ought to be received and respected as sufficient Authorities as to those points whereof they did declare their Resolutions notwithstanding the confident opinions of any others either private or singular persons to the contrary And that the Kings Majesty and his Councels approbation being added thereunto should be of force enough to settle all doubts and differences concerning the same the rather for that antiently as before is shewed the Kings of England with their Councel only have made Constitutions concerning the Admiralty and that in point of Jurisdiction and it is apparent by the ancient Record cited both by Mr. Selden and Sir Edward Cook That the most famous Prince King Edward the 3. in whose time the Admiralty received its chief establishment in the 12. year of his Reign did consult and advise with his Councel and his Judges concerning the same And it may seem strange that whereas by the Statute of the 13. of Richard the 2. whose Acts are insisted upon as the greatest obstructions to the Admirals Jurisdiction the Kings Councel alone are enabled to decide what belongs to the Constables and Marshals Jurisdiction the King himself with his Councel and Judges should not have as much power to determine what belongs to the Jurisdictions of his Admiral That the Courts and Iudges of the Common Law do intermeddle and interrupt the Courts of Admiralty in causes properly belonging to the same HItherto it hath been Endeavour'd to be made appear That the proceedings in the Courts of Admiralty in the chief points in difference with the Courts of Common Law may consist with the Laws and Statutes of the Realm It may now be taken into Conâ—ideration how far the proceedings of the Courts and Judges of the Common Law in intermedling with causes properly belonging to the Admiralty and in obstructing the proceedings of that Court may be justified By the former is intended their drawing of such causes by actions of Trover and of Trespass to their Conusance by the later their disparaging of Stipulations and prescribing the forms of libells in such causes The former may the rather be insisted upon in regard Sir Edward Cook doth so often and so earnestly in general inveigh against the encroaching of the Court of Admiralty upon the businesses belonging to the Courts of Common Law and in particular where he chargeth That in the blessed time of peace those who belong to that Court wanting businesses proper to that Jurisdiction do encroach upon matters belonging to the Kings Courts lest they should sit idle and have nothing to do the like practice of encroaching being far more unexcusable in those who belong to the Kings Courts which do alwayes abound with businesses sufficient for the same Concerning the Actions of Trover Amongst the grievances complained of by the Admiral 8 Iacob It is presented in the first place That whereas the Conusance of all Contract and other things done on the Sea belongeth to the Admirals Jurisdiction the same are made triable at the Common Law by supposing the same to have been done in Cheap-side or such places And under favour the answer thereunto is neither clear nor direct nor to the purpose For the ground of that answer being laid That the Admiral hath no Conusance of any thing done within any County it is said That it is not material whether the place be upon the Water Infra fluxum Aquae but whether it be upon any water within the County wherefore it is acknowledged That of things done upon the Sea out of any County the Admiral ought to have Jurisdiction and that no presidents can be shewed that any Prohibition hath been granted for any Contract Plea or Quarrel for any Maritine cause done upon the Sea In this Answer it is confest That the Admiral ought to have Jurisdiction of things done on the Sea and that no Prohibitions have been granted for any such causes but whether by the supposal or fiction of a ships arriving in Cheap-side the Courts of Common Law do hold Plea of things done on the Sea it is nether confessed nor denied much less is there any reason given for the same Where it is said It is not material whether the place be upon the water infra fluxum refluxum Aquae but whether it be upon any water within the County That may be true in respect that it is supposed that all things done in the County belongs to the Conusance of the Common Law but when the place where a thing is done belongs apparently to anothe Jurisdiction which pretends as well to the right of the place as to the right of the cause the place of the action can in no wayes be suppressed and another suggested in the room thereof for if that be permitted the one Jurisdiction being the greater a more potent
and Weights within the Jurisdiction of the Admiralty 5 Of such as make spoil of wrecks so that the Owners coming within a year and a day cannot have their goods 6 Of such as claim wrecks having neither Charter nor Prescription 7 Of Wears Riddles Blind-stakes Water-millsâ— c. whereby ships or men have been lost or endangered 8 Of removing Anchors and cutting of Buoy-Ropes 9 Of such as take Salmons at unseasonable times 10 Of such as spoyl the breed of Oisters or dreg for Oisters and Mussels at unseasonable times 11 Of such as fish with unlawfull Nets 12 Of taking Royal Fishes viz. Whales Sturgeons Purpoises c. and detaining the one half from the King Thirdly Offences against the Admiral the Navy and Discipline of the Sea 1 Of Judges entertaining Pleas of Causes belonging to the Admiral and of such as in Admiralty Causes sue in the Courts of Common Law and of such as hinder the Execution of the Admirals process 2 Of Masters and Mariners contemptuous to the Admiral 3 Of the Admirals shares of Weifs or Derelicts and of Deodands belonging to the Admiral 4 Of Fletson Jetson and Lagon belonging to the Admiral 5 Of such as Freight Strangers bottoms where Ships of the Land may be had at reasonable rates 6 Of Ship-wrights taking excessive wages 7 Of Masters and Mariners taking excessive wages 8 Of Pilots by whose ignorance ships have miscarried 9 Of Mariners forsaking their ships 10 Of Mariners Rebellious and dis obedient to their Masters In the same antient Book of the Admiralty there is a Copy of a more antient Enquiry touching Admiral Causes wherein some things relate to Constitutions made by King Richard the first at Grimesby viz. That ships arrested for the Kings service breaking arrest shall be confiscated to the King and by King Iohn at Hastings That no private man should appropriate to himself the benefit of any salt waters by Meers Ridles and the like and that the same should be pulled down And the fishing cryed common to all people was likewise ordered by King Iohn This may suffice to confirm that there were certain special Causes both Civil and Criminal which did antiently belong and properly to the Conusance of the Admiral and to shew that his Jurisdiction was not wholly confined onely to the Sea That the Iurisdiction of the Admiral of England as it is granted by the King and is usually exercised in the Admiralty Court may consist with the Statutes and Laws of this Realm FIrst it appears by antient Record of the time of King Edward the first De superioritate Maris That it was acknowledged by the Deputies of the Parliament of England and of divers other Nations That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas by prescribing Laws and Statutes for the preserving Peace and Justice and by exercising all kind of Authority in matters of Judicature and all other things which may concern his Soveraignty in the same which being granted his power to depute a Magistrate or Officer to those purposes with so much of his authority as he shall think fit cannot be denied Secondly That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral is agreeable to Commissions antiently granted and which have been passed from time to time by the Kings learned Counsel and by the Lord Chancellor or the Lord Keeper for the time being who have thereunto set the Great Seal and that the authority and Jurisdiction of the Constable and Marshal is designed by St Edward Cook by referring to Grants of those Offices antiently made by many several Kings with exception onely to one irregular precedent in the time of King Edward the fourth Thirdly That Mr. Selden shews that all the Patents of the Office of the Lord Admiral from the beginning of Queen Mary's time to the time of King Charles have been conceived after one and the same form and tenor as of Edward Lord Clintâ—on afterwards Earl of Lincoln under King Philip and Queen Mary of Charles Howard Lord Effingham afterwards Earl of Nottingham under Queen Elizabeth of Charles Duke of York after King Charles under King Iames and of George Duke of Buckingham under King Iames and King Charles to which may be added the Patent of Algernon Earl of Northumberland under King Charles the first and of Iames the most Illustrious Duke of York under King Charles the Second Fourthly That the Lord Admiral and his Deputies proceeding according to his Commission is expresly allowed by King Philip and Queen Mary where they by a Statute restraining the exportation of Corn without Licence make a special provision That that Act shall not be prejudicial or hurtfull to the Lord Great Admiral of England for the time being or to the King and Queens Majesties Iurisdiction of the Admiralty but that the said Lord Admiral or his Deputies shall exercise use and execute all kinds of Iurisdiction belonging to the Sea according to his or their Commissions which provision although it seems to have been made in respect of that Statute yet it shews what respect the King and Queen intended to their Lord High Admiral their own Admiralty Jurisdiction in all matters belonging to the Sea and to the Commission by them granted Against the Jurisdiction of the Admiral as is granted by the King and as it is exercized in the Court it is pretended in general That it is not agreeable First To several Acts of Parliament Secondly To divers Judgments Book-Cases and Judicial proceedings to which may be added the Resolutions of the Judges upon the complaint of the Admiral in Sir Edward Cooks Articuli Admiralitatis All which more specially may be reduced to three heads First Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm Secondly Where he meddles with other things done within the Bodies of Counties and Thirdly With such things as are made or done beyond the Sea The Acts of Parliament are First The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm Secondly That of the 15. of the same King chap. 3. which declares that he hath no Jurisdiction within Bodies of Counties Thirdly That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourthly That of the 5 of Elizabeth which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers The First of these being more general may in this place be considered the rest being more particular may in discussing of some other particular points to which they are appliable be examined That of the 13 Rich. 2. chap. 5. ordains that the Admirals and their Deputies shall not meddle of any thing done within the Realm but only of things done upon the Sea as it hath been used in the time of King Edward the
whereas some of them speak of Altum Mare the Statute of the 13 of Rich. 2. hath no such Attribute but mentions simply the Sea 2 That the same Authorities granting that the Admiral hath jurisdiction on the Sea do not declare much less conclude that he hath no jurisdiction elsewhere And as to the particulars 1 The Authority of 2 Rich. 2. which affirms that the Irish were subject to the Admiral of England for a thing done on the Sea mentions not for what kinde of thing and happily it might be for some offence against the Crown or against the Peace in offering violence to the Kings Subjects or the subjects of his Allies and in such Cases it might be understood that he had Jurisdiction over the Irish as over the Subjects of England and other Nations onely extending to the high Sea but it cannot from thence be argued but that if it were a business concerning Navigation or Negotiation by Sea he might also have had Jurisdiction over the Irish as well as over other persons not onely super alto mari but also in other places elsewhere 2 The Plea to the Action of Trespass in the 7 Rich. the 2. might be good and allowed in two respects First In regard the thing was done where the Country could take no notice and therefore no Jury by twelve men could be had Secondly In regard the Ship and goods were taken from the Kings Enemies against whom no â—respass could be committed because that to offend them any wayes was lawfull and in that respect the Plea might have been allowed although the Ship and Merchandise had been taken in a Port or Navigable River 3. Whereas Fortescue sayes that things done upon the high Sea prosecuted before the Admiral ought to be determined according to the Proofs made by Witnesses and no more Sir Edward Cook affirms That it proves by express words that the Admiralty is confined to the high Sea Fortescue having given reason for Trials by Jury when the Neighbourhood of the Country could take notice of the business Grants that for things done in other places the Law of the Kingdome doth allow of proofs by Witnesses as in Causes commenced before the Admiral for things done on the high Sea and likewise before the Constable for things done beyond the Sea so that it is evident he doth no more expresly confine the Admirals Jurisdiction to the high Sea than he doth the Constables to places beyond the Sea it being notorious that his Jurisdiction extends to Deeds of War and Arms within the Land as it will be proved that the Admirals Jurisdiction likewise to matters of Navigation and Negotiation by Sea 4 Touching the Authority of Dyer that by Libel in the Admiralty Court the Case is surmised to commence Sur la haut mer c. It may be answered that the Libels in the Admiralty sometimes as the business falls out declare Super alto mari infra jurisdictionem Curiae but ordinarily Causes are laid onely intra fluxum refluxum Maris Iurisdictionem Curiae and generally the Causes are no otherwise described but A contra B. in causa civili Maritima That the Admiral of England may hold Conusance of Contracts and Writings made at Land touching business of Navigation and Trade by Sea BY an ancient Record in the Black book of the Admiralty of which Mr. Selden takes notice it appears that it was ordained by King Edward the first and his Lords at Hastings Que comment divâ—rs Seigneurs avoient francheses c. That although diâ—ers Lords had â—ivers Franchises to try Pleas in Ports yet that neither their Steward nor Bayliffs should hold any Plea if it concerned Mercâ—ant or Mariner as well for matter of Fact as of Ships Obligations and other Dâ—edâ— which although it extends onely to inferiour Lords yet it may be said that it was done in favour of the Admirals Jurisdiction in such matters Secondly by Commissions from time to time Granted by the Kings of England to the Admirals power is given Ad cognoscendum c. to hold the Conusance of Charter-parties Policies of Assurance Bills of Bottomry Bills of Lading and of Sale of Ships Thirdly The Causes and Sutes arising by occasion of businesses contained in such Writings have in all observable times and places been held to be Maritime and the Conusance of them hath been allowed to Martim Courts as it hath been before fully shewed and it may be further considered that such Contracts and Writings have their Original from ancient Maritim Laws are both in names and nature things forein to the Laws of this Realm And so much may be gathered from the order which Wesâ— observeth in his Book of Presidents where after the form of Deeds and Contracts proper to the Common Law he handles those which concern Merchandizing and Trade by Sea as things of a distinct and several nature Touching the particulars First Charter-parties seem to have been derived from the Rhodian Laws by which it was provided Si quis naâ—em conduxerit instrumenta consignata sunto If any man shall hire a ship let there be Writings drawn and sealed thereupon There is likewise mention of Charter-parties in the Role of Oleron and in the French later Ordinances made for the reglement of the Admiralty of France and it is supposed that no mention of them can be found in any Law or Statute of this Realm until the 32 of King Henry the 8. cap. 14. where the Conusance of them is referred to the Admiralty as it shall be hereafter shewed Moreover Malines confirms that anciently in Charter-parties it was exprest That the Contents thereof should be understood according to the Law of Oleron and at this time there are Clauses usually inserted into them enjoyning That the Merchants besides the payment of Freight shall make allowance for Primage Average and Pettelodmenage things no where occurring in the Books of Common Law and anciently determinable by the Law of Oleron Secondly Policies of Assurance are grounded upon the Civil Law which alloweth an Action for the undertaking a hazard which is doubtfull for reward or consideration first given which is commonly called a Praemio they are of later Civillians called Sponsiones Mercatoriae and Assecurationes which Malines affirms were taken up in this Kingdome from the Laws of Oleron practised on the Sea coasts of France but it is manifest that now they are likewise in use in Venice Naples Genua Ancona Spain and Portugal and in other places where the affairs of the Sea are regulated by the Civil Law the Consolato and Laws of Oleron Thirdly Bills of Bottomry when an Owner or Master of a Ship to furnish his Voyage takes up money upon extraordinary interest to be paid when the Ship arrives at the Port appointed and thereby engages his Ship for the performance of the same are grounded on the ancient Grecian and Roman Laws Iulius Pollux a learned Expositor of tearms or words used amongst
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
forth That the Agreement made in anno Domini 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain Execution of Admiral Jurisdiction was not observed to which Sir Edward Cook answers that that supposed agreement had not been delivered unto them but having heard the same read before his Majesty out of a Paper not subscribed with the hand of any Judge they answer that for so much thereof as differs from their present Answers it was against the Laws and Statutes of the Realm and therefore the Judges of the Kings Bench never assented thereunto as it is pretended neither doth the phrase thereof agree with the Terms of the Laws of the Realm It is not probable that Dr. Dunn then Judge of the Admiralty would have produced such an Agreement to the Judges before the King but that he had some ground for the same which being supposed it may as well inferr that those Concessions were agreeable to the Laws and Statutes of the Realm because those Judges did assent unto them as that they did not assent because they were not agreeable to the same And it may as well be doubted whether those things wherein those Answers at that time did differ from the Resolutions of all the Judges in the 8. of King Charls were agreeable to the Laws and Statutes of the Realm as it is confidently affirm'd that wherein those Concessions did differ from those Answers were against the same wherein the phrase of the Requests and Answers is not agreeable to the terms of the Common Law is not so much considerable as how the matters therein contained may consist both with Law and Equity and to that end it may not be amiss to recite them as they are extant in several Manuscripts in which are collected things of those times remarkable both concerning the Ecclesiastical Courts and the Court of Admiralty as followeth 12. Of May 1575. The Requests of the Judge of the Admiralty to the Lord chief Justice of her Majesties Bench and his Collegues with their Answers to the same That after Judgement or Sentence given in the Court of Admiralty in any cause or Appeal made from the same to the high Court of Chancery it may please them to forbear the granting of any Writ of Prohibition either to the Judge of the said Court or to her Majesties Delegates at the sute of him by whom such Appeal shall be made seeing by choice of Remedy in that way in reason he ought to be contented therewith and not to be relieved any other way It is agreed by the Lord chief Justice and his Collegues that after Sentence given in the Delegates no Prohibition shall be granted And if there be no Sentence if a Prohibition be not sued for within the next term following Sentence in the Admiralty Court or within two terms after at the farthest no Prohibition shall pass to the Delegates That Prohibitions hereafter be not granted upon bare Suggestions or Surmises without summary Examination and Proof made thereof wherein it may be lawfull to the Judge of the Admiralty and the party defendant to have Counsel and to plead for the stay thereof if there shall appear cause They have agreed that the Judge of the Admiralty and the party defendant shall have Counsel in Court and to plead to stay if there may appear evident cause That the Judge of the Admiralty according to such an antient Order as hath been taken by King Edward the first and his Councel and according to the Letters Patents of the Lord Admiral for the time being and allowed by other Kings of the Land ever since and by custom time out of Memory of man may have and enjoy cognition of all Contracts and other things rising as well beyond as upon the Sea without let or Prohibition This is agreed upon by the said Lord Chief Justice and his Collegues That the said Judges may have and enjoy the knowledge of the breach of Charter-parties made betwixt Masters of Ships and Merchants for Voyages to be made to the parts beyond the Sea and to be performed upon and beyond the Sea according as it hath been accustomed time out of mind and according to the goodâ— meaning of the Statute of 32. of Henry 8. chap. 14. though the same Charter-parties be made within the Realm This is likewise agreed upon for things to be performed either upon or beyond the Sea though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. cap. 14. That Writs of Corpus cum Causa be not directed to the said Judge in causes of the nature afore-said and if any happen to be directed that it may please them to accept of the Return thereof with the Cause and not the Body as it hath alwayes been accustomed If any Writ of this nature be directed in the causes before specified they are content to return the Bodies again to the Lord Admirals Gaol upon Certificate of the cause to be such or if it be for contempt or disobedience to the Court in any such cause Touching the Resolutions of all the Judges 8. Caroli it may be considered That in the presence of the Kings Majesty and twenty three Lords and others of his Majesties Councel they were subscribed unto by all the Judges viz. Thomas Richardson Robert Heath Humphrey Dawenport Iohn Denham Richard Hutton William Iones George Crook Thomas Trevor Iames Weston Robert Barkley Francis Crawly and also by Henry Martin Judge of the Admiralty and William Noy the Attorney general and the Transcript thereof was ordered to be Entred in the Register of the Councel causes and the original to remain in the Councel chest 18. Feb. 1632. Sir Edward Cook concerning the answers and resolutions of the Judges to those things which he calls Articuli Cleri 3 Iacob saith That although they were not enacted by the authority of Parliament as the â—tatute of Articuli Cleri in the 9. of Edwaâ—â— 2. was yet being resolved unanimously by all the Judges of England and the Barons of the Exchequer they are for matters of Law of highest authority next unto the Court of Parliament And it may be thought that these resolutions of all the Judges touching the Jurisdiction of the Admiralty ought to be of no lower esteem the rather for that the unanimity of all the Judges to the former must be taken upon the credit alone of Sir Edward Cook but as to the latter the Evidence thereof doth appear by the joynt subscriptions of all before named which is likewise attested by Sir George Crook who was one of them who in his reports of Hillary term 8 Caroli under the title of Resolutions upon causes of Admiral Jurisdiction writes that it was agreed as followeth First if sute should be commenced in the Court of Admiralty for Contracts or other things personally done beyond the Sea no Prohibition is to be
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
but which is wholly distinct from the same In the first case he confesseth that it is necessary to allege the cause of Action to arise within the new created Jurisdiction because prima facie nay de Iure the Courts of Common Law have general Jurisdiction of those things but in the later case as of the Admiralty if the cause be Maritime there is no need to averr it to have been done upon the Sea out of any respect to the Courts of Common Law for that it doth not tend to the diminution of any of those Courts and for Confirmation thereof he affirms that the Jurisdiction of the Marshalsey stands partly upon the Statute Articuli super Chartas and the words of that Statute are as restrictive as any words of the Statutes touching the Admiralty and by the books of the Common Laws the Marshal cannot hold Plea in some cases unless both parties be of the Kings Houshold nor in any case unless one of the parties be so yet it is resolved that the Declaration is good although it be not averred therein that any of the parties be of the houshold and therefore a Fortiori it is not necessary in the Admiralty to specifie in the Libel the thing to have been done super alto mari the Admiralty Jurisdiction being more distinct from the Common Law than that of the Court of Marshalsey That the trial of Causes concerning Navigation and Trade in the Court of Admiralty is more commodious for the Subjects and Kingdome of England than in the Courts of Common Law HOw much the maintenance and advancement of Navigation and trade by Sea concerns the Kingdome and Subjects thereof Sir Edward Cook delivers who saith That Trade and Trafique is the lively-hood of a Merchant and the life of the Common-wealth wherein the Kingdome and every Subject hath interest For the Merchant is the good Bailiff of the Realm to Export and Vent the Native Commodities and to Import and bring in the necessary Commodities for the defence and benefit of the Realm So much is confirmed by several Acts of Parliament fram'd by common consent of the Kingdome The Statute of the 32. of Henry the 8. chap. 24. sets forth That it is notoriously known that the Realm of England for the most part is invironed with the Seas so that the Subjects cannot convey and transport their Wares Merchandizes and Commodities by Land but only by Ships and that the Navy and multitude of Ships of the Realm is very commodious and necessary as well for the intercourse and concourse of Merchants conveying and transporting their Wares and Merchandizes and a great defence and security to this Realm as well to offend and defend as also for the maintenance of many Masters Mariners and Seamen and also hath been the chief maintenance and supportation of Cities Towns Havens and Creeks near adjoyning unto the Sea-coasts Likewise that of the 43. of Elizabeth chap. 12. declares That it hath alwayes been the Policy of this Realm by all good means to comfort and encourage the Merchant thereby to advance the general Wealth of this Realm the Kings Customs and Strength of Shipping c. It hath been formerly observed That for the encouragement of those who maintain trade by Sea in all Nations and States there have been special Judges appointed to hear and determine causes concerning Trade and affairs of the Sea and it may be further noted that such Judges have been directed to proceed at such times and in such manner as might best consist with the opportunities of Trade and least hinder or detain men from their Imployments Amongst the Graecians as at Athens it was provided That all sutes betwixt Sea-men and Merchants should be determined in those vacations when the Seas were barred or in those Moneths when Navigation was restrained So much is confirmed by Salmatius Eo tempore quo oritur Arcturus navigationes suas ut plurimum desinebant mercatores domumque redibant Boedromion quippe mensis qui septembri respondet quo tempore ferè Arcturus oritur terminus erat navigationum Atticarum ideo ab eo mense Munichiâ—nem usque quo mense iterum se mari committebant ac vela dabunt Mercatores Athenienses in urbe desidebant lites suas disceptabant ut videre est apud Demosthenem adversus Apaturium Amongst the Romans likewise for the better dispatch of causes concerning Sea-businesses the Judges were ordered to proceed Levato velo and de plano without that Solemnity and formality which was used in ordinary Courts and Causes So in Italy Spain and France the Judges proceed in causes concerning the Sea Summarily and in a more compendious way than other Judges use And the like as Sir Iohn Davies relates hath seemed to the wisdome of this Kingdome Our Parliaments saith He have not only made extraordinary provisions for a more speedy recovery of debts due unto Merchants for their Merchandizes than is provided by our Common Law as appears by the Statute of Acton Burnel made the 11. of Edward 1. and the Statute De Mercatoribus made the 13. of Edward 1. but also hath allowed a Court of Proceedings in cases of Merchants different from the course of our Common Law For by the Statute of the 27. of Edw. 3. cap. 2. it is declared That the proceedings in causes of Merchants shall be from day to day and from hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament That all Merchants coming to the Staple shall be ruled by Law-merchant touching all things coming to the Staple and not by the Common Law of the Land and by another Article That neither any of the Benches nor any of the Iudges of the Common Law shall have any Iurisdiction in those cases To which may be added the Statute of 32 of Hen. 8. Chap. 15. and of the 43 of Elizabeth Chap. 12. which direct That such causes betwixt Seamen and Merchants shall be ordered summarily and without delay and as in discretion shall seem most convenient All which was and may be observed in the Court of the Admiralty which in many causes proceed at any time and in all causes summarily and according to Equity but neither is nor can be observed in Courts of Common Law which are open onely in Term times and proceed in an ordinary and strict way Secondly For the advantage of those who use Navigation and Trade by Sea The Law-merchant and Laws of the Sea admit of divers things not agreeable to the Common Law of the Realm which may be better insisted on in the Court of Admiralty than in the Courts of the Common Law So much is likewise declared by Sir Iohn Davyes relating several instances to that purpose 1. If two Merchants saith he be joynt Owners or Partners of Merchandizes which they have acquired by a joynt Contract the one shall have an Action of
themselves perswaded and would perswade others to be of that opinion but it is apparent that it is not the place only but the nature of the Case happening within such a place that makes the Jurisdiction and therefore if a Contract of Marriage or a Testament be made at Sea the Admirall claimes no conusance thereof which he might do if the place alone were sufficient to give the Jurisdiction and so Godfry in his Comment upon the Customes of Normandy saith that the Iurisdiction of the Marshal of France and of the Admirall are limited to certain Causes and matters whereupon it followeth that they cannot Iudge but of things of which the Conusance belongs unto them for their Iurisdictions are not regulated onely by the Territory or place but also by the Causes and matters over which a competent power is granted unto them And so Justice Reeves in an Argument in Communi Banco delivered that he differed in opinion from the Lord Hobard and affirmed that the Cause as well as the place gave Jurisdiction for if a man upon the Sea do seal a Lease or an Obligation the Common Law shall have the Jurisdiction and not the Admiralty because the Cause is not Maritime and this he sayes agrees with the Lord Hobard himself in Bridgemans Case and Sergeant Callis in his Readings doth acknowledge That the King rules on the Sea by the Laws Imperial and the Roll of Oleron and others But that is saith he in the Causes of Shipping and of Merchants and Mariners And whereas the Sergeant sayth well and I suppose no man will deny but the Civil or Imperial Laws the Roll of Oleron and others by which I suppose may be understood the Articles of the Inquisition of Quinborough are of force in the Admiralty of England For further Illustration that there are certain Causes properly belonging to the Conusance and Jurisdiction of the Admiralty Court of England It may be more particularly deduced and shewed from these several and respective authorities And first as touching the particular Causes which may be deduced from the Civil Laws some things have been allready shewed out of what the Romans derived from the Rhodian Laws and if any will be further satisfied he may find it perspicuously declared in a Tract De Iure judicio Maritimo wherein the particular Causes not only Civil but also Criminal concerning Navigation Negotiation by Sea are summarily set down with Relation to the Text of the Civil Laws And touching the Laws of Oleron which are lesse obvious it may be observed that the particular Cases therein are as first Touching Ships hired for Sea-voyages and their proceedings in the same 1 How Masters and Mariners are to be satisfied when the Merchant provides not his goods ready to be laden at the time agreed upon 2 How the Master ought to consult with his Company before he put out of the Harbour and proceed with their advice and what he is lyable unto if he do otherwise 3 How the Master ought to make satisfaction when the Merchant is prejudiced by his stay in any place and is not proceeding in the voyage 4 How the Master in case his Ship be disabled by some misfortune may repair it or hire another or if the Merchant refuse what fraight may be demanded Secondly Touching the safe keeping and delivering of goods received into the Ships 1 How the Merchant shall be satisfied if his goods be damnified in the Ship by evill stowing or other bad usage and how the Master and Company may clear themselves 2 How the Master and Company are lyable unto the Merchant if any goods brought into the port of discharge miscarry in the unlading by occasion of the Tackling or Cordage which are found unfit Thirdly Touching the Engaging of Ships or goods in case of necessity 1 First Whether the Master wanting means to proceed in his Voyage may sell or dispose of the Ship without Commission from the Owners and how and in what case he may Engage some tackle or furniture of the Ship 2 How far in case of necessity the Master may intermeddle with the Merchants goods and if he dispose of any how he is to make accompt and give satisfaction Fourthly Touching Contributions to be made for loss upon occasion of Common danger 1 First How the Master with advice of those in the Ship or otherwise in extremity of tempest may cast out some mens goods to save themselves and the rest and how average or Contribution is to be made 2 How the Master in the tempest cuting down his Mast and casting it over Board to save the Ship and goods ought to have satisfaction from those whose goods were saved Fifthly Touching damages done by or betwixt several Ships First How and in what manner the Damage is to be born when a Ship sailing into a Port bruizes or brâ—aks another Ship riding there at Anchor Secondly How if two Ships riding at Anchor in a Haven and the water being low the Master of the one observing some danger from the Anchor of the other may give notice thereof to the Master of that ship and if he neglect to remove it may cause it to be done by his own Company and if he be hindred therein and damage done what reparation may be recovered Sixthly Touching the charge for hiring of Pilots and their duty 1 The Master being bound by Charter-party to pay Pilotage in what places and how far he is bound thereunto 2 How far the Pilot is liable to make â—atisfaction of the ships miscarriage under his charge and whether he be bound when he hath brought her into the Harbour if she miscarry by misplacing there There be many other Cases contained amongst these Judgements of Oleron but these may suffice for our purpose As the Roll of Oleron doth contain Judgements or Verdicts especially in Civil Causes which did belong to Maritime Judicature so in the Inquiâ—ition at Quinborough are presented matters Criminal and Offences concerning which antiently inquiry hath been made in the Admiralty Jurisdiction which may be reduced into these heads as First Offences against the King and Kingdome as 1 Of such as did furnish the Enemy with Victuals and Ammunition and of such as did Traffick with the Enemies without special Licence 2 Of Traytors goods detained in ships and concealed from the King 3 Of Pirats their Receivers Maintainers and Comforters 4 Of Murthers Man-slaughters Maymes and Pety-felonies committed in ships 5 Of ships arrested for the Kings service breaking the Arrest and of Sergeants of the Admiralty who for money discharge ships arrested for the Kings service and of Mariners who having taken pay run away from the Kings service Secondly Offences against the Publick good of the Kingdome as 1 Of ships transporting Gold and Silver 2 Of carrying Corn over Sea without special Licence 3 Of such as turn away Merchandizes or Victuals from the Kings Ports 4 Of Forestallers Regrators and of such as use false Measures Ballances
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
goods aboard a Ship contrary to the Charter-party without any respect to the place where it was made if no reason can be shewed that Judgment may be thought not to have been grounded so much upon reason as it was upon the common received opinion of the meaning of that Statute as it is therein related quia contractus ille apud novam Sarum factus junctus fuit Touching that of the 28. of Elizabeth whereby Glynn was condemned to Constantine for breach of Covenant in a Charter-party in the summ of 500. l. it seems a Case far more reasonable though something grievous because it is not denied but that a sute upon a Charter-party may be commenced at the Common Law upon a penalty as it seems that was for breach of Covenant in not staying at Madrill so many dayes as were limitted by the Charter-party Only that is thought no concluding argument against a sute in the Admiralty for freight grounded on a Charter-party But whereas when in the Arrest of judgment it was alleged that the Trial was not sufficient because the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had Sir Edw. Cook sayes that Sir Christopher Wray and the whole bench resolved That the Plaintiff should recover cost and dammages because the Charter-party was made at Thetford in Norfolk within the Realm it is as much as if Sir Edw. Cook had said that whether the suggestion in the issue were true or false tryed by a competent or incompetent Jury yet if the sute were brought upon a Charter-party the Conusance thereof did belong to the Common Law and whether the former Judges had proceeded well or not was not material so that what is premised formerly touching Judgments and judicial Acts in the First Chap. may from this case be excused And as touching the infinite prohibitions granted upon sutes commenced in the Admiralty concerning Charter-parties there may be something declared and made appear reasonable hereafter in an other place As to the instances of Policies of assurance held tryable at the Common Law although by the Statute of the 43. of Elizabeth it hath been shewed that the proceedings in those causes at the Common Law were altogether inconvenient to the Kingdome yet in regard Sir Edward Cooks reasons in Dowdales case for the maintaining of proceedings in such businesses may be applyed to other matters to the prejudice of the Admiralty Jurisdiction something may be observed concerning the same in Sir Edward Cooks reasons as first That the Assumpsit is the ground and foundation of the Action and that the Arrest or Imbargo in that case had been no ground of an Action if there had been no Assumpsit neither could the Assumpsit have produc'd an Action if there had not been an Arrest But what was the nearest and immediate ground of the Action without doubt the Arrest And what was chiefly in question not the Assumpsit for it was taken for granted that that was done in London but it was the Arrest which as it was declared was in issue And it is likely that the Common Law which intended a Trial of the Vicinage intended it of the thing or matter which was in issue to be tried But he further argues That the Trial must be of necessity where the Assumpsit is made for otherwise there could have been no Trial at the Common Law which might have savour'd of some reason If possibly there could have been no Trial in any other Court but the Cause being Maritime and amongst Merchants it might more properly have been tried in the Admiralty or in the Assurance Court without a Jury or Trial of Twelve men by witnesses as Fortescue acknowledgeth Thirdly touching that of the Book of 48. of Edward the 3. where it is said That if a Mariner make Covenant only to serve in a Ship on the Sea yet if the wages be not paid they shall be demanded in that Court by the Common Law not by the Law Mariner the occasion was that an action of debt being bâ—ought at the Common Law upon an Obligation dated at Harflet in Kent whereas in truth it was made in Normandy and the consideration was Service done in Warr in France thereupon one of the Judges said That the summ demanded growing due for Service done in Warr the Cause ought to be tryed in the Constable and Marshals Court Another as it seems willing to retain the cause said tâ—at he hired a man to go in a message to Rome although the service were done in another Realm yet what was due by covenant might be recovered in that Court Another said if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded by the Common Law c. So that it is plain it was not a Resolution of the Court but a fuit dic as they say and one mans opinion by way of argument to another purpose And the ground thereof might be that if it were in issue whether such a Covenant were made it might be tryed at the Common Law but it doth not conclude but that if the Question were whether the service in the Ship were performed on the Sea it might more properly be tryed in the Admiralty Court For confirmation on this point First To the 4. Request of the Judge of the Admiralty to the Lord Chief Justice of the Kings Bench 12. May 1575. viz. That the Judge of the Admiralty may have and enjoy the knowledge of the breach of Charter-parties made between Masters of Ships and Merchants for voyages to be made to the parts beyond the Sea according as it hath been accustomed time out of mind and according to the good meaning of the Statute of 32. Hen. 8. chap. 14. though the same Charter-parties be made with in the Realm The answer is This is agreed upon for things to be performed upon or beyond the Seas though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. chap. 14. Secondly it was agreed unto by all the Judges and Attorney General before the King and his Counsel That if a Sute be before the Admiral for Freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Sea although the Charter-parties happen to be made with in the Realm and although the money be payable within the Realm so as the penalty be not demanded a Prohibition is not to be granted But if the Sute be for the penalty or if the Question be made whether the Charter-party were made or not or whether the party did release it is to be tryed by the Kings Court at Westminster So that at first it be denied upon Oath that a Charter-party was made or a denial upon Oath tendred to which it may be added that it was there further agreed That if Sute shall be made in the Court of Admiralty for building
the Admiralty according to the Statutes It is further confirmed by a manuscript Copy of the Statutes in French in the Library of Merton College in Oxford in which are these words Niene meyns de mort de omme de mayheme engrosses neifs estants oâ—erantâ—s a my le haut fio des grosses reviers tant seculament par-avali des pounts des mesmes les riviers L'n Admiral coâ—usance The second Statute that may be applied to this purpose is that of 5 Elizabeth Chap. 5. which relating to divers things made offences by that Statute ordains that all and every of the said offences done on the main Sea or Coasts of the Sea being no part of the bodies of any Counties of the Realm and without the Precinct Liberty and Iurisdiction of the Cinque Ports and out of any Haven or Pier shall be determined by the Lord Admiral Touching this Statute it may be observed That the end thereof was according to the Title for the maintenance of the Navy and as for a mean to that end for the imploying of English shipping especially for the bringing in of Fish for which purpose it provides That Wednesdayes should be held Fish-dayes That none shall demand toll of Fish brought in Subjects ships That no Herring unsalted should be bought out of strangers bottoms besides that no Wares should be carryed from Port to to Port and that no Wine nor Woad shall be brought in but in English ships of which businesses it might be more fit for the Officers of Corporate Sea-Towns to enquire than for the Admiral which the Parliament understanding might without prejudice to his Jurisdiction in other matters except from him touching offences of that kinde the enquiry within Havens and Piers. Besides whereas Sir Edw. Cook recites the words That all such Offences shall be tryed before the Admiral the words of the Staâ—ute are before the Lord Admiral of England or his Lieutenant or Deputy or Deputies and other Iustices of Oyer and Terminer according to the form of the Statute of the 28 Hen. 8. for Causes of Piracy So that it concerns not the Admiral in his ordinary capacity but as he is chief in that Commission And whereas Sir Edw. Cook from this concludes That by the Judgement of the whole Parliament the Jurisdiction of the Admiral is wholy confined to the Sea and Coasts of the Sea being no parcel of the County how strongly soever he conceives it under favour it is no good argument to infer from these new created offences of which he is to enquire in an extraordinary way that he hath no Jurisdiction in other matters which did formerly belong unto him especially touching Navigable Rivers of which in this Statute there is no mention nor exception Moreover whereas the Judgement of the Parliament in this Statute is so confidently urged for the limiting of the Admirals Jurisdiction it is deâ—â—red that to the points in question two other Statutes the one long subsequent to that of Rich. 2. the other not long preceding that of the 5 of Queen Elizabeth may be taken into consideration The first is that of 28 Hen. 8. Chap. 15. concerning the trial of Piracies and other crimes committed within the Admirals Jurisdiction wherein it is declared That all Treasons Felonies Murthers Robberies Confederacies committed in or upon the Sea or in any other Haven Creek or place where the Admiral or Admirals have or pretend to have Iurisdiction shall be enquired tried heard or adjudged by the Admiral and others appointed by the Kings Commission under the Great Seal in such shires and places of the Realm as shall be limited in the Commission as if any such offence had been committed upon the Land c. The end of this Statute was that whereas Piracies and other offences committed within the Jurisdiction of the Admiralty were formerly tryed according to the Civil Law and Offenders could be convicted onely by confession of the parties and proofs by Witnesses to reduce the Trial of the same to the course of the Common Law by a Jury of Twelve men by which Statute although the Manner of the trial of Offences were altered yet the Limits of the Admirals Jurisdiction are allowed to extend not onely to the Sea but to Havens Creeks and places where the Admiral or Admirals have or pretend to have Jurisdiction And in the Commission of Oyer and Terminer grounded on that Statute the places of Offences committed to be heard and determined before the Admiral and others are thus described Tam in aut super mari aut aliquo portu rivo Aqua dulci Creca seu loco quccunque infra fluxum maris ad plenitudinem a quibuscunque primis pontibus versus mare quam super littus maris alibi ubicunque infra jurisdictionem nostram Maritimam aut limites Admiralitatis Regni nostri Dominiorum nostrorum By which words not onely power is given to hear and determine offences in those places but it is likewise declared that those places do belong to his Majesties Maritime Jurisdiction and of his Admiralty The second Statute is that of the first of Elizabeth Chap. 17. made for the preservation of Spawn and fry of Fish and the remedies thereof being provided it is ordained That the Lord Admiral of England and the Lord Mayor of London for the time being and all and every other which lawfully have or ought to have any conservation or preservation of any Rivers streams or waters shall have power to enquire according to that Act which plainly shews that the Parliament then conceived that the Admiral of England had power and Jurisdiction to some purposes in Rivers and Streams salt and fresh otherwise he had not been named in the first place amongst those who had right of conservation of the same The Jurisdiction of the Admiralty as to publick offences and causes criminal since the Statute of 15 Rich. 2. hath been so well settled by the Statute of 28 Hen. 8. that there can be little occasion of difference touching those matters betwixt the Courts of the common Law and the Court of the Admiralty yet Sir Edw. Cook having unnecessarily collected many other legal authorities which may be applied to maintain that by the Common Law the Admirals Jurisdiction did not extend to Ports and Navigable Rivers it may not be amiss to examine the grounds and weight of the chiefest of them which may be reduced to two heads First such as shew that Havens and Navigable Rivers are within the bodies of Counties and that the common Law hath held plea of things done in them Secondly That the Courts of common Law have punished such as have sued in the Admiralty Court for things done in Ports and Navigable Rivers Touching the first these Authorities might be intended First That in the time of Edw. the first a Replevin was brought for the taking of a ship on the coasts of Scarborough in the Sea and carrying her into the County of N. The
in those times Saeculis priscis antequam summorum Admirallorum authoritas c. In ancient times before the Authority of the high Admirals of England was sufficiently established by our Kings and so distinguished that the Government of the Sea did wholy belong unto ihem the Sheriffs had some Authority in the Sea adjoyning to the County which did appear in that they did execute the Kings Precepts upon the Sea and convey the Kings ships from one Port to another through the Seas which was done about the time of Hen. the 3. and of Edw. â—he 1. but in subsequent times it was never â—eard of postquam omnimoda Maris custodia c. after that all manner of guarding the Sea c. was by our Kings reâ—erred to the high Admiral and to them â—nely and their Deputies which now belonâ—s â—nto them by right unquestionable In â—hich times if the Coroner did exercise is office where at this time he cannot â—or the reason aforesaid it may be â—ranted but no good argument can be â—rawn from those times to the times â—ollowing when the Admiralty Jurisâ—iction was better settled Thirdly The authority of the Marsh grounds over which the Sea did flow and reflow adjudged to be within the Mannor of Brancaster in the time of Edw. the 3. whence it is concluded to be within the County is taken up by Sir Edw. Coole upon the credit of Dyer But Sergeant Callis in his Readings cites the Record in this manner Contra Abbot de Ramsey de quodam processu facto versus dictum Abbot ad ostendendum quare sexaginta acrae Marisci in manum Domini Regis non debent seiziri Et Abbas respondet quod ipsa tenet Manerium de Brancaster quod scituatum est iuxta Mare quod est ibidem Mariscus qui aliquando per Fluxum Maris minoratur aliquando per Fluxum Mardo augetur c. By which it is apparent that those grounds were claimed by that King as waste and floted grounds and no parcel of the Mannor which the Abbot did justifie and howsoever they might be part of the County yet they could not be places concerning which there might grow any question of Jurisdiction for although they were subject to flowing and reflowing of the Sea yet they were not either fit for the sayling nor arriving of Ships and admitting that some thing may be inferreâ— from thence to prove that places where the Sea floweth may be within the bodies of Counties yet it doth not wholy exclude the Admiral from having Jurisdion by Sir Edw. Cooks learning in Sir Henry Constables Case where he sheweth That it hath been resolved by the whole Court that the soyl over which the Sea doth flow and reflow inter le High-water mark and the Low-water mark the Land may be parcel of a Mannor of a subject and yet it was resolved That when the Sea did flow ad plenitudinem the Admiral should have Jurisdiction of any thing done upon the water betwixt the High-water mark the Low-water mark by the ordinary and natural course of the Sea and when the Sea doth reflow the Land may appertain to a subject and then any thing done upon the Land shall be tried at the Common Law for it is then parcel of the County whereupon he makes an observation That beyond the Low-water mark the Admiral alwayes hath Jurisdiction and betwixt the High-water mark and the Low-water mark the Common Law and the Admiralty have divisum imperium interchangeably and why the same should not hold as well in Arms of the Sea as in the open Sea may deserve some consideration Fourthly The allowance of the Common Law of the Haven of Hull to be within the Burrough in respect of an Action of Trespass determinable at the Common Law for the reasons before shewed in general it doth not hinder but that in the same place if damage be done by one ship to another remedy may be given according to the Judgements in the Roll of Oleron and so in respect of the place though not of the cause the Common Law and the Admiralty may have conjunctum imperium occasionally Secondly There remain those Authorities which shew that the Courts of Common Law have punished and restrained such as have sued in the Admiralty for things done in Havens and Navigable Rivers as by actions of double Damages Praemuniries and Prohibitions Touching the first it is related That 6 Hen. 6. Iohn Burton in the Common Pleas recovered against Bartholomew Putt for double damages 1400 l. for that the said Putt had sued Burton in the Admiralty for entring and taking away three ships with Merchandises and Prisoners with force of Arms Super Alâ—um mare whereas the taking thereof was in the Haven of Bristol intra corpus Comitatus Again That the like Action 12 of Henry 6. was brought by Robert Cupper against Iohn Reyner who had sued him in the Admiralty Court for entring his ship in the Haven of Yarmouth infra Corpus Comitatus Norf. Secondly Concerning Praemunires it is said That 38 of Hen. 6 one was brought by Iohn Cassy against Richard Beauchamp and Thomas Paunce for that they sued him in the Admiralty Court for taking away certain Iewels super Altum mare whereas he took them apud Stratford-Bow infra corpus Comitatus Middlesexiae Again That in the 9 of Hen. 7. a Praemunire was brought for a Sâ—te in the Admiralty Court for taking and carrying away Quandam naviculam apud Horton Key at South Lynn supposing the same to have been done super altum mare It cannot be denied but that these Authorities especially contain forcible Arguments and fit to fright men from suing in the Admiralty Court but how reasonable it may be considered Touching the Action of double Damages in the leading Case of Burton against Put the point of Issue was as it may be supposed whether the thing done in the River of Bristol were done within the body of the County and eight Terms as Sir Edw. Cook relates were spent in deliberation of the Case which argues that the Judges could not easily agree upon the same and happily the reason was because the Statute of Henry 4. for double Damages relates onely to that of the 13 of Richard the 2. chap. 5. and the Action was layed upon that of the 15 Richard the 2. chap. 3. Touching things done within the Bodies of Counties it being not proper to extend a penal Law from one Statute to another and how rightly it was so adjudged may be better considered and it may be thought upon why that being a leading Case and having received so long deliberation the Reasons of the Resolutions of the Judges are no way published It may be farther noted as to our purpose that the taking of Ships in the Haven of Bristol was done with force of Arms which made it more than an ordinary business of which the Admiral claimeth the Conusance in such places but was of the condition of
those matters which belong unto him onely upon the Sea the other Cases of double Damages for ought appears to the contrary might be for matters of Trespass committed likewise by Force and Arms. Touching Praemunires brought for suing in the Admiralty Court Sir Edw. Cook saith That they being brought upon the Statute of the 16 of King Rich. 2. for suing in Curia Romana aut alibi are so evident and of so dangerous a consequence as no application shall be made thereof And for the dangerous consequence it is most true for that the penalty intended in that Statute extends to the imprisonment of the person during pleasure and the loss of all his goods and of the profits of his Lands during life and for the application which he forbears it may be conceived that his meaning was that the Admiral or his Judge might be made liable thereunto but for the Evidence that by Curia Romana aut alibi the Court of Admiralty should be understood under his favour it is not so clear nor if the Statute be well considered can it with any reason be maintained the word Alibi or elsewhere in that Statute was in truth intended of Avignion in France or some other place to which the Pope and his Court in those times did usually remove and that Statute being intended to exclude the forein authority of the Pope it might be thought necessary to debar the people of this Kingdome from having intercourse to the Popes Consistory whether at Rome or any where else and when the Popes authority and his Laws were in force in this Kingdome and no way depending upon the Crown the word Alibi or elsewhere was held to extend to Bishops Courts if they medled with temporal causes belonging to the Kings Courts especially if they took upon them to reverse or disparage Judgements given in the Courts of Common Law but how the word Alibi should be applied to the Kings Court of Admiralty never relating to any Forein power and proceeding onely by those Laws which are allowed by the King to be in force in that Court it is a mystery beyond any ordinary imagination It may be further noted that although it be said that the two Praemunires were brought upon such occasions yet it doth not appear that any Judgement was given upon either of them Lastly For confirmation and conclusion of this Point it may be added that before the King and his Councel it was likewise agreed unto by all the Judges That the Admiral may inquire of and redress all Annoyances and obstructions in Navigable Rivers beneath the first Bridges that are any impediment to Navigation and passage to and from the Sea and also try all personal Contracts and injuries done there which concern Navigation upon the Sea and that no Prohibition is to be granted in such Cases That the Admiral of England may hold Plea of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea TO maintain that the Court of Admiralty may hold Plea of Contracts and other things done beyond the Sea It is alleged First That by an Ordinance made by King Edward the first and his Lords at Hastings which is extant in the antient Book of Admiralty it was ordained that Charum Contract c. That every Contract made between Merchant and Merchant or betwixt Merchant and Mariner beyond the Sea or within the flood-mark shall be tried before the Admiral and no wayes elsewhere Secondly It may be taken into consideration That such businesses amongst Merchants and Seamen are to be determined according the Civil Law and equity thereof as also according to the customes and usages of the Sea Mr. Selden in his Notes upon Fortescue observes out of Bartolus Quod in Curia mercatorum debet judicari ex aequo bono omissis juris solennitatibus which the Admiralty Judges may and do observe but the Courts of Common Law hold they must do otherwise Malines relates an instance of a Merchant-stranger who having sold Commodities to three several Merchants of London took one Bond of them all for the payment of 300 l. and one of them breaking and being imprisoned he was contented to compound with him for the fifth part of his Debt or for 20 l. in lieu of a 100 l. conceiving him as a third party to be liable for no more and having received that summ gave him a release and afterwards the two other parties neglecting to pay him their parts he was advised to sue them at the Common Law where he was given to understand That if a man release one of his debtors who is bound with others by way of acquittance they are all released and acquitted thereby which was contrary to the rule of Equity and that simplicity and just dealing which is expected amongst Merchants which do not admit that a mans action should operate beyond his intention and that a favour yeelded to one in necessity should not extend further to his prejudice in respect of those which were in better condition Thirdly to the like purpose it is observed that in Contracts and Bargains betwixt such persons those solemnities are not required which are necessary in Deeds at the Common Law as of signing sealing and delivering to make their Bills and Obligations of force and the bearers of such Bills according to the course of Merchants shall be admitted to demand and recover without Letters of Attorney Fourthly It is considerable that Instruments made beyond the Sea have usually Clauses relating to the Civil Law and to the Law of the Sea Malines shews That when two or three take up money at interest and all binde themselves as Principals generally according to the Civil Law and custome of Merchants every person is bound but for his own part and therefore where it is intended that for the better security every man should be bound in solidum in the instrument of the Contract ther is a declaration and renunciation made of all privileges and especially of those which are called Exceptio divisionis ordinis excussiones and beneficii Epistolae divi Adriani In Wests Presidents concerning Merchants affairs there are the like forms as where a man obligat se haeredes Executores suos omnia bona mobilia immobilia praesentia futura tam ultra quam citra mare ubicunque existentia renuncians omnibus singulis exceptionibus c. and amongst the rest he declares the form of a gneral procuration to sue for Debts in a Forein Country wherein it is specified that power is given ad Libelles Petitiones c. articulos dandum datisque respondendum ad Lites contestandum de calumnia vitandâ— juramentum in animam constituentium praestandum all which are as strange to the Law of this Land as the places from whence they proceed Fifthly For that as Fortescue affirms Contracts and Bargains made amongst strangers in another Realm must be proved otherwayes than in the Courts
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
there is no President that ever any man sued for Freight at the Common Law which argues much difficulty in that way as probably the performance of the Voyage being to be maintained by such proofs as cannot be produced in those Courts And whereas it is affirmed That infinite Prohibitions have been granted in causes commenced in the Admiralty upon Charter-parties it must follow that thereby was occasioned infinite loss to the Owners of the Shipping it being most probable by what hath been observed That the cause for Freight being stopped in the Admiralty there was no means to recover the same in the Courts of the Common Law For that is a certain Rule That that Merchant which declines that Court knows he is in no danger elsewhere and it falls out many times That for long Voyages great summs are due for Freight and Merchants not alwayes having good success are sometimes put to their shifts but how far it stands with the dignity of the High Courts to countenance or in truth afford protection to such shifts we leave them to consider but no man can conceive otherwise than that those courses must needs more weaken the Shipping of the Kingdome than divers Ordinances and Constitutions intended for the maintenance thereof can possibly advance the same Besides the decay of Shipping these things conduce to the impoverishing of Mariners who are the life of Shipping for Freight is said to be the mother of wages and the Owner losing his Freight the Mariner cannot so well obtain his wages and in consequence must betake himself to some other course of life The like inconvenience falls out in Trade and Commerce when Prohibitions are granted for Contracts or things done in partibus exteris transmarinis The Merchant if he can avoid the Admiralty where he must answer upon Oath and proof may be made by Commission thinks himself secure from any danger at the Common Law And although it may be supposed that remedy may be given in the Chancery yet howsoever it is possible it is not usual for that Court to send Commissions into Forein parts and the pretence is for the right of Jurisdiction in the Kings Courts of the Common Law without respect to the Chancery to which sir Ed. Cook seems to be no great friend FINIS Articuâ—i Admiralitatis The processe and proceedings in this Court are in the name of the Lord Admiral The Title of the Complaint Objâ—ct 1. Answer Object 2. Answer See hereafter in the proof by Judgements Judicial Presidents Object 3. Answer 8 Eliz. Cap. 5. Object 4. Answer Object 5. Answer 13 R. 2. Cap 3.15 R. 2. Cap. 5. 2 H. 4. Cap. 11. Object 6. Answer Object 7. Answer Object 8. Answer Assert 1 Commene sur les Cutumes de Normandy Te dâ— Vâ—â—ces Orat. pro Lege Mamlia Proâ—heioâ— l. 2. lâ— 11. L. Deprecatio D. de l. Rhod D Dominio Maris l. 1. c. 10. Orbis maritâ—â—i lib. 1 c. 30. Tract de Navigat et mercatura Dâ— Sulseudis Tâ—t de Officio Admâ—â—alli Praefat del Cont. solato de c. 44. Partid 5. et 9. Fontavon Les Edicts de Flance Tom. 3. Arâ—â—â— 19. Flores â—â—ar sae ad â—â—deprecatio A bridg of Sea Laws c. Part. 1. c. ad Sect. 3. c. 8. Sir Iohn Hayward in the life of Ed. 6. ad Sect. 3. c. 32. p. 39. Offic. 3. De Dom. Maris l. 2. c. 28. ad cap. 32. De Dom. Maris p. 254. Coment on Liltt Sect. 234. Part. 1. c. 17. Assert 2 Syntag. l. 47. c. 37. Petit de Legib. Atticis in Verrem 7. Decad. 3. l. 3. l. 46. ad Senatus Trebes l. Lib. 14. 1 ult C. de Commercijs cap. 20. Morisonis l. 2. c. 27. Sansovinus lib. 17. Chassan Catal. p. 9. cons. 26. Freeca de offic Admir Moris l. 2. c. 22. Edit per Fontan Tit. 2. c. 14. Abrigd c. 1 De Dem. Maris l. 2. c. 27. Iurisdictiones p. 142 Selden l. 2. c. 16. Assert 3 Tit. de Varlâ—t Gâ—omat verb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iac. Godefred Comment ad 1. Deprecatio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 33. Cap. 24. Partid 5. 9. Tit. de Vareos Lenthal alii contr D. Will. Russel alii Assert 4 Iurisd of Courts c. 6. F. 127. De Dom. Maris l. 18 c 17. â— 2 Phil. Mar. Iurisd of Courts p. 330. Gloss. â— Admiral Iurisd of Courts p. 142. Ibid. 144. Lib. 2. c. 16. Assert 5 Notes upon Fortâ—â—cue B 6. p 29. v. 557. Lex Mercat p. 1. cap. 21. P. 1 cap. 24 D. lib. tit 2. C. lib. 4. t. 33. D. Vsâ—ris cap 2. Comment in Littleton Sect. 43. Iurisdict of Courts p. 330. Artic. 49. De Vusuris c. 2. l. exigere D. de Iudiciis Donatio in Matrimonium Sect. 136. P. â— c. 24. Assert 6 l. 39. D. de verb. signif De Dominio Maris lib. 2. cap. 18. Iurisdict of Courts p. 283. lib. 2. de Eaux Forests art 1. cap. 1. cap. 32. p. 31. Lib. 2. c. â—4 p. 188. Assert 7 B. b. p. 3. p. 157. P. 1. c. 13. P. 1. c. 13. 8 Carol. Sir Christopher Wray L. chief Iustice Dr. Davy Lewis Iudge of the Admiralty 1 Request Answer 2 Request Answer 3 Request Answer 4 Request Answer 5 Request Answer Stat. 1. c. 2. Assert 8 Cook 4 Reports p 29.3 H 6 14 â— 1â— H. 7.9 E. â— p. 28. p. 15. Assert 9 Comment upon Magna Chart. Fol. 28. Sholes syntag 47. â—it 37. Petitus de Legibus Atticis l. 5. tit â— C. de Naufragiis l. 5. ibi Cujacius