Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
Whitehall Aug. 13. 1664. Let this Book be Printed HENRY BENNET THE Maritime Dicaeologie OR SEA-JURISDICTION OF ENGLAND Set forth in Three several Books The first setting forth the Antiquity of the Admiralty in England The second setting forth the Ports Havens and Creeks of the Sea to be within the Jurisdiction of the Admiralty The third shewing that all Contracts concerning all Maritime Affairs are within the Jurisdiction of the Admiralty and there cogniscible By JOHN EXTON Doctor of Laws and Judge of his Majesties High Court of Admiralty LONDON Printed by Richard Hodgkinson Printer to the Kings most Excellent Majesty 1664. TO HIS ROYAL HIGHNES JAMES Duke of York and Albany Earl of Vlster Lord High Admiral of England and Ireland c. Constable of Dover Castle Lord Warden of the Cinque-Ports Governor of Portsmouth c. YOur Royal Highness having been graciously pleased to constitute me Judge or President of the High Court of Admiralty I held it my duty according to my poor ability to assert the just Jurisdiction thereof against those undue encroachments and usurpations whereby the power of the Lord High Admiral hath been heretofore and is at this present straightned in decision of matters relating to Maritime affairs wherefore having some time since in those sad and distracted times bestowed some labour in searching and perusing such of the Records of our own as well as Forreign Nations as I could meet with wherein the just extent of the Admirals Jurisdiction is sufficiently and undeniably evidenced together with the necessity of deciding all controversies about Maritime affairs according to the ancient Sea customes and the reason and directions of the Civil and Maritime Laws I held it no less my duty to recollect the said Papers and reduce them into some method for the clearing those objections which hitherto have been and still are made use of either against the antiquity or extent of the Lord High Admiral his Jurisdiction in Maritime causes or against the decision of them by the ancient Sea customes and the rules of the Civil Law And as I have observed this Nation hath happily flourished a long time under that happy Government of all Land affairs by its municipal Laws practiced in the Common Law Courts so hath it no less prospered and been enriched in its Navies Trade and Commerce under that exact Government which hath ordered and guided all Maritime businesses and Sea affairs by the Civil and Maritime Laws and Customes corresponding agreeing and according with the Laws of Forreign Nations being suitable to the nature and negotiations of the people that are subject to them exercised and practised in the High Court of Admiralty The design therefore that I propound to my self in the publishing this Treatise is to shew how necessary and fitting it is that the power and jurisdiction of this Court should be no longer subject to such interruptions and how expedient it now is that the rights and privileges of the same should be observed and kept and the Laws and ancient Customes thereof whereby all Commerce and Navigation is upheld should be precisely and strictly preserved and maintained That all which may appear I have set forth the antiquity of the Lord Admirals Jurisdiction here in England by ancient Records of the Tower Next the Jurisdiction it self and the extent thereof as also the necessity and necessary use of it in divers respects In all which I have endeavonred neither to eclipse the honour power or least right of the Muncipall Laws of this Kingdome nor in any sort to detract from the renown of the Reverend and Learned Professors thereof but hope I have manifested that the upholding of both Jurisdictions and restraining each of them to its proper limits and confines will be more advantagious to this Kingdome and the Inhabitants thereof then the suffering eitber of them to swallow up or devour the other Be pleased therefore to receive this unpolished work from the hand of your Servant as the same is dedicated unto the protection of your Royal Self THE CONTENTS The Chapters contained in the First Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THe Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Thirds time to whose time the Statute of the 13 of Ric. 2. referreth argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times and from their Grants and Patents Page 1. Chap. 2. That these High-Officers or Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governours of Land-Provinces had over them and had their Maritime Laws for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs page 10. Chapt. 3. The beginning of Sea Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued p. 13. Chap. 4. Of the Laws of Oleron and the Antiquity of the Admiralty argued and inferred from the introduction of them into England p. 16. Chap. 5. The ancient Introduction of the Sea Laws argued and inferred from the King of Englands Dominion over the British Seas p. 21. Chap. 6. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Coâ—rts in deciding of Maritime Causes in those antient times p. 25. Chap. 7. Of the Exercise of the Sea Laws by the Grecians Athenians Romans Italians Venetians Spaniards and by the Admirals of Naples and Castile p. 29. Chap. 8. Of the Admiral of France and Denmark p. 30. Chap. 9. Of the Admiral of Scotland p. 32. Chap. 10. From the common acceptance of the Sea Laws in other Nations is inferred the acceptance of them in England p. 34. The Chapters contained in the Second Book of the Maritime Dicaeologie or Sea Jurisdiction Chap. 1. THat the Sea-Jurisdiction and the Land Jurisdiction are and so necessarily must be two different and distinct Jurisdictions having no dependancie each upon the other Chap. 2. That the Jurisdiction of the Admiralty doth extend to all manner of Ships Shipping Seafaring and Sea-tradingmen p. 41. Chap. 3. That the Ports and Havens and Creeks of the Sea are within the Jurisdiction of the Admiralty p. 52. Chap. 4. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiraltie redargued p. 57. Chap. 5. The Argument deduced from the first Judgement at the Common Law that the Ports and Havens of the Seas are within bodies of Counties redargued p. 62. Chap. 6. That from the two other Actions instanced in to be brought against the Parties suing in the Admiralty Court for a business done upon the Ports no concludent Argument is deduced p. 72. Chap. 7. The Argument deduced from two
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the sea-Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the sea-Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without
to an agreement after prohibition granted when consultations would have been awarded if they had been sued for which are said to be Judgements in such Cases but a prohibition is no proof until a dispute had upon the validity and a determination thereupon no more then the bringing of an action at the Common Law and giving a Declaration without any further proceedings is a proof that what is by Declaration claimed is due or that the action was duely and legally instituted and brought CHAP. IX That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens as upon the high Seas ALl these Proofs and Authorities which I have handled in the four last and next preceding Chapters being collected and gathered into one heap as by Sir Edward Coke they are and taken by themselves do make a specious shew and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction upon the Ports Creeks and Havens of the Sea but no more then a shew or colour as appeareth to my view For the ancient constant and continued Practice of the Admiralty Court and all the Proofs Presidents and Authorities which make to the contrary of what is by him set forth being with them well weighed and considered all that he hath shewed in this particular will serve onely to prove what interruptions have been put and inrodes made upon the Admiralty Court For certainly the Proceedings Acts and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will as presidents for the Admirals Jurisdiction there amount unto a great number for those few he hath quoted against it The Jurisdiction of the Admiralty and the Jurisdiction of the Common Law having always been two distinct Jurisdictions having no dependancie each upon the other but both exercised under the Kings of England I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular which resteth in controversie between them as the practice and presidents of the other But it is like enough some will be ready to averre that the Admiralty Court is not a Court of Record and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law but it will be very unfit for me to enter into that dispute when as it is upon the matter put to the question whether it be so much as a Court at all or not For if it shall have the cognizance of scarce any cause at all as it cannot have if all be true that Sir Edward Coke would prove as I shall shew hereafter when I come to summe up all together then doth it not deserve so much as the name of a Court. This only I shall say by the way that when it was a Court or if it be a Court it hath been and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been and are and whatsoever hath in that Court been or is done being legally transmitted and certified would have carried and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever certified out of any of the Courts at Westminster and so will and doth at this present for any thing therein transacted But if I should enter upon the presidents in Civil causes which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens I should make my self an endless piece of work and when I have done those things perhaps may for all that hath been said be thought by many not to be authentique I shall therefore pass them over and come to those things which are as authentique in my poor judgement for proof of the Admirals Jurisdiction upon the Ports and Havens as any thing that hath been brought against it And I shall begin first with the Rhodian and antient Maritime Laws made ordained and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens as upon the high Seas and then proceed to other proofs By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law which give directions how to steer the Judicature of so many causes which may happen and fall out upon Ports and Havens it manifestly appeareth that things there done and controversies thence arising are properly cognizable by the Admiral no other Law having the like grounds or affording the like rules for the decision of such differences or giving such directions for the avoyding of strife in businesses of that nature To introduce them all here would make a Volumne which I Intend not and it would be too tedious a labour to effect that which so few regard namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self But why should I so highly commend that which is so much scorned either to be understood or so much as lookt after and by some condemned before it be lookt into or at all understood what it is Serjeant Callis condemneth the Imperial Law which saith he the Civilians use for that the Sea-shoar is therein held to be Common to all and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law which distinction sheweth the understanding he had in those two Laws which the world hitherto made but one And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs as he calleth them slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge or without the liberty of administring Interrogatories by the adverse party at the same time and only exprest by word of mouth and neither set down in Paper or Parchment but passeth away with every ayr were better taken and remained more perfect on record then those Paper proofs which are in such manner taken and with as much care preserved But surely in most controversies which do arise from a thing done upon the Ports and Havens it is most necessary that the proof for the decision thereof be taken by such Paper proofs sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas who cannot stay such an examination without their undoing as to be present to afford their testimony viva voce at the time of the tryall sometimes in regard necessary and requisite Witnesses are hence departed before the Suit be instituted and resided beyond the seas where their testimony must necessarily be taken by Commission which by the manner of proof made at the Common Law cannot be done so that most differences which do arise from things done upon the Ports and Havens must
yet they were to be made use of only when such accidents happened and fell out upon the high Seas and that they were constituted and ordained only for such causes falling out upon the high Seas and not upon the Ports and Havens but left such causes there falling out unto the cognizance of the Common Law here in England and other municipal Laws in other Nations I shall here set down one express Law inserted amongst the rest of 〈◊〉 Sea Laws which sheweth that all these Laws were as well appointed for such causes happenning upon the Ports and Havens as they were ordained for those that fell out on the high Seas which Law maketh further provision in a cause of the like nature happenning either upon the high Sea or Port in express words and sheweth plainly too that all the rest were constituted and appointed for both which runs thus Navis onustae levandae causa quia intrare flumen vel portum non potuerit cunâ—â—onere si quaedam merces in scapham trajectae sunt ne aut extra flumen periclitetur aut ipso ostio vel portu eaque scapha submersa est ratio haberi debet inter eos qui in nave merces salvas habent cum his qui in scaphâ perdiderunt perinde tanquam si jactura facta esset Here it is manifest by this Law that if for the lightening of a laden Ship because she cannot enter into the River or Port with her burthen some of the Goods shall be put into the Ships boat least the Ship should be endangered either without the River or in the door of the Sea or Port it self and that Boat shall be drowned a consideration is to be had between those which have their Goods saved in the Ship and those that have lost their Goods in the Boat as if there had been a jacture made so that here we see the same rule holdeth for the preservation of a Ship as well within the Port or Haven or the mouth or door thereof as for her preservation upon the high Seas It may be further observed out of this Law that ostium maris and portus maris be both one and the same thing for as ostium is a door-gate or entrance so is portus a Port or Portal beginning or entrance of the Sea or into the Sea and that ostium maris is not an imaginary thing between the Sea and the Port or Haven as Sir Edward Coke would have it to be for as by saying a Port or Haven we mean but one and the same thing intimating that you may take which term you will as this Law doth in the beginning by the words flumen vel portus mean one and the same thing when it saith quia intrare flumen vel portum non potuerit c. so doth it in the next place by ostium or portus mean one and the same thing likewise when it saith ne periclitetur aut extra flumen aut in ipso ostio vel portu the aut making the disjunctive and not the vel And indeed the whole Port withal its banks is door slender enough for the keeping of the raging waves and wallowing billows of the Sea from overflowing the Land And the banks may properly enough though they be termed the Sea banks be said to be the doors of the land to keep the Sea out of it yet must the Haven or Port wherein the water floweth and and refloweth necessarily be said and concluded to be the door portal or entrance whereat all Ships and Vessels whatsoever must necessarily enter into the main Sea and this door of the Sea is as much a part of the Sea as a door of an house is a part of that house where it is the door and doth more properly belong to the Sea then to the land whereof it is no part but different and is distinct both in name and nature being two several Elements and the causes arising from things done either upon the high Seas or upon the Ports being of one and the same nature all belonging to Shipping Navigation Trading and Commerce c. they are all more properly cognoscible and tryable by one and the same Law then by two namely by the Civil and Maritime Laws then by the Civil Law and the Law of the land too For nulli prorsus audientia praebeatur qui causae continentiam dividet ex beneficii praerogativa id quod in uno eodem que judicio poterat terminari apud diversos judices voluerit ventilare poena ex officio judicis eminente ei qui contra hanc supplicaverit sanctionem And the Rules of the Civil and Maritime Laws in Cases of this nature are very many and very observable for the directions of the Judicature therein setting forth what is to be done according to the variation of the Case as the Law navis onustae before mentioned setteth forth what is to be done in case divers Goods and Merchandizes be taken out of the Ship and put into the Boat and the Boat perish so contrary if the Ship and remainder of Goods and Merchandizes remaining in her perish either upon the Sea or in the Port and the Boat arrive in safety with the Goods and Merchandizes put into her the same is to be done It is not enough to know a general Rule without its exceptions and limitations nor is it enough to know that si levandae navis gratia jactus mercium factas est omnium contributione sarciatur that an avaridge must be had upon all the Goods that are saved towards satisfaction of the owners of those Goods that were cast into the Sea but it is necessary to know in case the Avaridge be not agreed of what action those whose goods were cast into the sea have against the Master of the Ship for those goods and what action the Master hath against those whose goods were saved and what the duty of the Master is in these cases It is likewise necessary to be known and the Civil and Maritime Laws do set forth whether the Ship be lyable and ought to be cast into the Avaridge or not and whether if the Ship be worn and become worse by the tempests and storms she shall be considered therefore out of the Avaridge of the goods saved And likewise these Laws set forth what is to be done in case there be goods and merchandizes of several sorts and many passengers bond-men and free and whether goods of all sorts ought to be cast over and what is to be done in case there be goods aboard which do not burthen the Ship as Jewels precious Stones and Rings and at what proportion or rate they are to be cast into the Avaridge whether Apparel or the Passengers and Merchants wearing Rings whether the Passengers themselves and their or the Ships victualls shall be cast into the Avaridge the contribution shall be made according to weight or according to the value
an prout ponderant an prout valent It is considered by the same Laws likewise if a Ship be taken by a Pirat whether upon the Sea or upon a Port or Haven and be redeemed whether all must contribute or not and if any thing be taken away by Theeves or Robbers whether he must lose it that did own it and if any one redeem what is so taken away whether Contribution ought to be made for the redemption And it is considered how and in what manner this Avaridge is to be made whether the goods lost are to be valued by themselves and the goods saved by themselves or whether altogether and whether goods lost are to be valued according to the price they were bought for or according to the price they might have been sold at and at whether of those two prices the goods saved are to be valued It is likewise considered whether if a Servant or Slave in the casting over board of the goods doth happen to be drowned whether any estimation be to be made of him and if any of the Passengers be not solvendo whether the payment of his share belongth to the Master or not Whether if the goods cast over board be again recovered contribution ought to be made If contribution have been made whether it be to be restored and in what way the Master ought to proceed against him that hath so received it and in what way the Contributers ought to proceed against the Master And whether goods so cast over board are to be accounted pro derelicto and so become theirs who shall afterwards possess them or not be so accounted but remain still the owners Vtrum res Domini manent an fuerint occupantis It is likewise considered by these Laws whether if the Master to avoid danger shall cut off or throw over board any of his Masts or other Instruments belonging to his Ship for preservation of his Ship and her lading contribution in this case be due Whether the consent of the Passengers and Merchants in the Ship be requisite or not And whether it must be done justi metus causâ and who is to judge thereof In like manner it is considered if the goods cast over board be afterwards regained and saved by such as for pay or reward shall adventure and take pains to effect the same si per urinatores recuperatae sint extractae and the Ship with the remainder of her lading shall afterwards be cast away whether the goods so regained shall contribute to the other afterwards cast away And if some of those goods cast away with the Ship shal in like manner be recovered whether they shall contribute unto him that made the first jacture After a jacture or casting over board if some of the goods that be saved be deteriorated damnified or made worse by these Laws it is considered whether they were so hurt by the ill stowage or by the dashing of the water at the time of the jacture or by the uncovering of them It is considered likewise whether the damage be more then the contribution will come to or the contribution will come to more then the damage is And then it is determined whether the damnified goods shall contribute or not and if they shall in what manner If a Ship be split or any otherwayes cast away whether upon the Seas or upon a Port and the goods some or all be preserved and saved it is determined whether the goods shall contribute to the loss of the Ship or not If the Masts of the Ship whether upon the Sea or upon the Port be shivered into pieces and the sails and other tacle be consumed with lightening and the goods by what means soever preserved though by obtaining new Masts new Sails and new Tacle c. these Laws determine whither the owners of the goods be to make contribution or not Hereby it is plain that the special Cases which are comprehended under one general Law or Head are very many and various and require various decisions or judgements which are upon express reasons by the Civil and Maritime Laws and Commentators upon them most exquisitely set forth as he that shall look thereinto shall find If one Ship shall fall foul upon another either upon the high Seas or upon any Port or Haven so that either or both of them have sustained hurt or damage the same Laws do most exquisitely determine between them And under this head do likewise fall very many various cases variously by those Laws determined according and agreeable to most excellent reason If the Mariners shall do damage to the Merchants Goods â—s by drawing out and drinking up their Wines c. whether they do it upon the Seas or when the Ship lyeth at Anchor upon any Port or Haven the case is the same and the Civil and Maritime Laws determine what is to be done herein Many general heads more containing under them several various particulars might be instanced in but these are sufficient to shew that the Rhodian and Maritime Laws were ordained as well for the determination of differences happening upon the Ports and Havens as upon the high Seas and have express Laws for the guiding of the judgement therein which all Nations do acknowledge and allow wherein the Common Law of England under correction is deficient CHAP. X. The Laws of Oleron and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening and arising from things done upon the Ports and Havens as from things done upon the high Seas BY a Record which I have before set down at large it appeareth that the Laws now called the Laws of Oleron were ancient Laws and anciently practised for the regulating of Maritime and Sea affairs in that Maritime Island and that those Laws were by Richard the First King of England in his return from the Holy Land corrected and interpreted and in that Island published in the French Tongue for that purpose and called la ley Oleron in that this Record saith they were by him Correcta interpretata it plainly appeareth that they were made before but whether then used in England or in that Island onely may seem doubtful however it appeareth by the Record it self that after such correction and interpretation they were likewise published in England and were ordinata in Edward the First 's time and consummated in the 12 year of Edward 3. Now these Laws being thus established do plainly shew that the Admiral had and ought to have Jurisdiction upon the Ports and Havens as well as upon the high Seas for that they do set forth what is to be determined in controversies arising as well from things done upon the one as the other I shall instance in some of them If a Ship perish in any place whatsoever whether upon Port or the main Sea the Laws of Oleron give direction what the
modis eos abigere And by the same Law all Ships and Vessels of what nature condition or quality soever they be and whosoever they be may be by the power and authority of the Admitalty seized on in any Port or Haven where they ride and be taken and employed upon any service of the King and are not to be excused One Title more of the Civil Law I shall instance in which treateth of things done upon the Ports and Havens and then return to some other Arguments out of our own Presidents at home and that is the Title of the Digests Nequid in flumine publico c. where the Praetor doth interdict Nequid in flumine publico ripáve ejus facias nequid in flumine publico ripáve ejus emittas quo statio itérve navigio deterius sit fiat The Praetor forbiddeth any thing to be done or to be cast forth into a publique River or upon the banks thereof which may either hinder the lying or riding of Ships there and this Edict extendeth directly to Rivers navigable and none other which are the Ports and Havens and those other parts of the same River through which Ships and other Vessels do sail to the place of their station or anchorage Hoc interdictum ad ea tantùm flumina publica pertinet quae sunt navigabilia ad caetera non pertinet Nor doth the Praetor here forbid any publique lawfull use of these publique Streams Ports or Havens but taketh a special care that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage anchorage and lying of Ships there Non autem omni quod in flumine publico ripáve fit coercet Praetor sed si quid fiat quo deterior statio navigatio fiat and the same Law setteth forth what is accounted to be a deteriorating or making worse of the said station anchorage riding or sailing of Ships Deterior statio item iter navigio fieri videtur si usus ejus corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur proinde sive derivetur aquâ ut exiguior facta minus sit navigabilis vel si dilatetur aut diffusa brevem aquam faciat vel contra sic coangustetur ut rapidius flumen faciat vel si quid aliud fiat quod navigationem incommodet difficiliorem faciat vel prorsus impediat interdicto locus erit The Station or Anchorage and also the passage for Ships doth seem to be deteriorated and made worse if the use thereof be corrupted or made more difficult less or more shallow and more seldome to be used or shall be wholly taken away Further or if the water shall be from thence drawn and so be made less and so less navigagable or if the banks shall be taken away and the River thereby made wider and caused to spread it self more in breadth whereby the water cometh to be made more shallow or on the contrary if it shall be encroached on and so streightned that the River passeth with more strength or violence or if any thing else be done which may disaccommodate Navigation or make the same more difficult or altogether hinder it this Edict shall take place against the same From which Law many Articles of the Inquisition taken at Quinborow and of the ancient French Articles translated into Latin by Roughton set forth to be inquirable in the Admiralty are plainly derived which Articles and likewise many Statutes which forbid the same offences were enacted to make the same more notorious to the people and are only in pursuance of this Law which is the fountain from whence they flow as their original Now lest some should still strive against the stream and offer to contend that this Edict of Nequid in flumine fiat c. that nothing shall be done in any navigable River or the Banks thereof which may hinder Navigation or the station or anchorage of Ships is meant only of the River which leadeth to the Port or Haven of discharge wherein Ships do oftentimes lye at Anchor before they can come further up to be discharged in the Port. I shall further clear this point by the Interdict mentioned by Labeo in the 17th Section of the same Law where the very word Port is used Nequid in mare inve littore quo portus statio iterve navigio deterius fiat After all this perhaps some may lauch further out into the deep and say that although these Laws collected out of the Civil Law are made use of in Maritime affairs beyond the Seas and do argue their Admiralties to have jurisdiction upon their Ports and Havens yet are they of no use here for the Admiralty of England is by the Common Law of England more restrained and extendeth not unto the Ports nor hath so large a power as forreign Admiralties have Since so many Nations as are named in the Libel subsequent unto the last Chapter of the first Book of this Maritime Dicaeologie have by the same so fully acknowledged the Regimen Government and Jurisdiction over the narrow Seas to belong to to the Admiralty of England and no other Admiralty as is plainly in the same set forth Let none of this Nation for shame say that the power and authority of this Court which extendeth as farre and further then the power of any other Admiralty Courts doth shall be nothing at or near home Nor let it for shame be said that our Admiralty to which they have not only ascribed but prescribed from so antient antiquity such superiority shall not afford unto Forreigners the same Justice other forreign Admiralties afford unto this Nation But for further satisfaction to such as will be further curious I shall proceed to make further proof of this point by Presidents out of our own Courts at home CHAP. XVII That by the Records of the Admiralty it appeareth that the Admiral had and hath power and jurisdiction upon the Ports and Havens THe Statute of the 28th of Hen. 8. cap. 15. directeth that the tryal of Traytors Pyrats Theeves Robbers Murderers and Confederaters upon the Sea or in any Haven River Creek or other place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction may by virtue of a Commission under the Great Seal directed unto the said Admiral or Admirals his or their Lieutenant or Lieutenants and three or four substantial persons be made and done according to the Common course of the Laws of the Land but taketh not away the Admirals power of tryal of the same offences by the course of the Civil Law as had been formerly used but leaveth him to proceed in causes of that nature either way as the proof the fact may be most fitly had or made And this Statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the Ports Havens and Creeks of the Sea
wheresoever contracted for in these and divers other like cases the Judgement of that Law cannot be agreeable unto the rules and grounds of the Maritime Laws If a Mariner be hyred by the moneth and doth serve several months in the Ship and afterwards desert or leave the Ship and run away upon Action brought for his wages the Judgements of the two Laws will be clean contrary If the Mariner without leave of the Master lie on shore and the Ship or goods be damnified or the Voyage protracted or if the Ship be not well moored so that for default thereof she be damnified or if the Mariner take up clothes or borrow money of his fellow and put the same in the Pursers book upon Action brought for his wages the Judgements of the two Laws will differ If two be they Merchants Owners Mariners or Furnishers of Ships c. and those either English or Foreigners or the one English and the other a Foreigner do for Freight Tackle or Furniture of Ships c. or by other Commerce in their seafaring business become indebted each to other upon Action brought by either of them the Maritime Law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time and alloweth him compensation which the Municipal Law alloweth not but concludeth that stoppage is no payment by which Law if exercised in business of this nature the absent might recover much against the party present and he be constrained to wait his opportunity for the recovery of what is due to him from him that hath recovered against him to the lessening of his Stock and great hinderance of his Trade And in like manner the Non-solvent might recover much against the Solvent and he nothing at all against the Non-solvent which would be very much inconvenient to all seatrading men and a thing not known abroad Now these Maritime Laws for Maritime businesses are all grounded upon strong reasons which if they could be here at large particularly set forth yet would they not take away the reason whereon the Municipal Laws for Land affairs are grounded in regard different Judgements in different things do arise from different grounds of reason so that the Judgements upon businesses agitated upon the Land may be grounded upon reason and yet will not that reason hold to ground the like Judgement upon in business at Sea or upon the great waters those being accommodated with many advantages and helps in their agitation and petformance of which these are altogether destitute And this will introduce a second reason why the welfare of the Merchants and other seafaring men cannot be maintained without the settling and upholding of these Maritime Laws for decision of differences and controversies in maritime affairs which is because these Laws are suitable thereunto and compleat to determine all differences in businesses of that nature which as I conceive the Municipal Laws of the Land are not For Maritime causes especially those for wages must have a quick and sodain dispatch of Justice the Mariners as they come in with one good wind so must they speedily go out with another and not wait Westminster-Hall Termes to the loss of a whole Voyage such their imployment being their whole livelyhood Nor must they commence every man a Suit according to his particular contract to the expence of as much if not more then his wages come to but must as the Martime Laws allow them commence their Action in one joint Petition to a Judge at all times settled in a readiness and in a constant place of Judicature where and to whom they may make their present addresses for dispatch according to such Laws as they are used unto wheresoever they come If the Mariner must have such dispatch against the Master then must the Master have the like against the Merchant for his freight out of which he is to pay the wages and the Merchant the like against the Master and Owners of the Ship for damages done to his goods at sea all which is speedily tryed at one and the same time by the maritime Laws which upon full hearing alloweth compensation and every one hath at first his own according to proof or confession upon their personal answers and no more otherwise if the Mariners shall by several Tryals at the Common Law recover their full wages of the Master and be gone and then the Merchant recover against him likewise or against the Owners of the Ship perhaps as much or more then their freight amounteth unto for damage done unto his Goods perhaps by the Mariners who are gone and not to be met with again and be put afterwards to sue for their freight this will soon cause the owners of Ships to lay their Vessels by the walls or if the Mariners shall recover their wages of the Masters or Owners and be gone and then the Owners shall recover their freight against the Merchants whose goods are damnified or spoiled by the Mariners and not by default of the Ship or by default of the Ship and not by any neglect or fault of the Mariners or by both and he then put to a tryal to recover by Jury the damage he hath sustained he is like to have but little or no redress If the Mariner shall have his dispatch and be gone which he must have or be undone and the Merchant wait his Tryal from Terme to Terme at the â—ommon Law then by reason of the absence of the Mariners can neither the Owner prove the damage to be done by meer casualty or stress of weather at sea which he is not lyable to make satifaction for nor can the Merchant prove the insufficiency of the Ship in which case the Owner is to make satisfaction besides many inconveniences more which might be reckoned Thus is not the one Law only suitable and agreeable to maritime affairs and the other unsuitable and disagreeable thereunto but the one is likewise perfect and compleat for deciding of all controversies thence arising the other imperfect and in no wise compleat for that purpose in my judgment For Bills of Bumery or Bottomry for many reasons most usefull and absolutely necessary in sea trade they are likewise triable only by the Maritime Laws and can be no wayes tryable at the Common Law wheresoever made by reason the Ship only is lyable to payment which may be arrested according to the Maritime Laws either at the main Sea or upon any Creek Port or Haven adjoyning upon the land which cannot be done by the Common Law as I humbly conceive So likewise contracts de nautico foenore pecunia trajectitia or nautica usura wheresoever made are tryable by the Civil and Maritime Laws and not by the Common Law of England and the Civil Law hath several Titles concerning these particulars as in the Digests the Title de nautico foenore in the Code the same Title in the Novel Constitutions the Title de nauticis usuris
made to appear for founding them upon then for the former which is but a quakemire CHAP. VII The Argument deduced from two Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued BUt to keep some method I must out of these things which Sir Edward Coke hath promiscuously urged against the Admirals cognizance of businesses done upon the Ports and Havens and of Contracts made upon the land for freight Mariners wages tackle furniture and ammunition and of things done beyond the seas c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the Ports and Havens and give some answer to them first and those are Praemunire's Prohibitions Book-cases and Authorities in Law and then come in the third book of this Treatise to those things which he hath urged against the Admirals cognizance of or concerning Contracts made upon the land for freight Mariners wages c. Two Praemunire's he instanceth in the one brought Mich. 38. H. 6. By John Cassy Esquire against Richard Beuchampe Thomas Paunce Esquires and others upon the Statute of 16 Rich. 2. cap. 5. for sueing in Curiâ Romanâ vel alibi of matters belonging to the Common Law for that the Defendants did sue the Plaintiffe in the Admiralty Court before Henry Duke of Excester that the said John Cassy did take and carry away certain Jewels super altum mare ubi idem Johannes Cassy bona illa apud Stratford Bow infra corpus comitatûs Middlesexiae non super altum mare cepit which saith he is so evident and of so dangerous consequence as no application shall be made thereof but I must under favour take leave to make some application and some answer likewise hereunto and shew that the urging â—oth of this and the other which he instanceth in which is a Premunire brought 9 H. 7. for a Suit in the Admiralty Court before John Earl of Oxford for taking and carrying away quandam naviculam apud Horton Key at South-Lyn c. supposing the same to be super altum mare where it was infra corpus comitatûs is no way consequent or concludent to prove the Ports and Havens to be within the bodies of Counties For the first of these it is plainly affirmed that John Cassy did take away the goods he was sued for in the Admiralty Court at Stratford Bow being a Town or Parish plainly within the body of the County of Middlesex and no Haven or Haven-Town This suggestion being proved the Admiral had no colour at all to take cognizance of this cause For the taking and carrying away of the little Ship little Barque or Boat for navicula signifieth either of the three at Horton Key at South-Lynne it concludeth nothing against the Admirals Jurisdiction upon the Haven or Port taken for the water beneath the first Bridge for a Key is often taken for the Wharfe or place whereon goods are usually landed but strictly it is taken for the very separation of the land from the water by wood or stone or both in such places as goods are usually landed at and these are the keys that lock those dores that Sir Edward Coke would have stand wide open placed by God himself to no purpose so farre within the Seas Now At Horton Key may be as well on the dry side of the Key as on the wet as well upon the land as upon the water and little Ships little Barques or Boats are oftentimes drawn up at the Keys where they arrive to be caulked and repaired and might be from thence taken and carried away perhaps from the water their accustomed Element to the fire wherewith for the most part when they escape drowning they are at last consumed when they are become unserviceable Again these two Premunire's are said only to have been brought and nothing said of the event or what was determined thereon so that here is nothing but the opinion of those that brought them and no resolution of the Judges and so these two Praemunire's conclude nothing at all But grant two suppositions neither to be granted nor supposed unless proved viz. that these two severals Acts were done or committed upon Ports and Havens and that the determination and resolution of the Judges was against the Defendants yet he that will but look may see the two foundations whereon these determinations or resolutions were or should have been built from whence this land Argument is raised to have been laid upon the sea sands too slippery a place for them to stand on the one is that before mentioned groundless supposition of the Ports and Havens being within the bodies of Counties for which no proof is offered but that some against all reason and they know not wherefore have taken them so to be The other is the Statute upon which these Praemunire's were brought which he affirmeth to be the Statute 16 Rich. 2. for suing in Curiâ Romanâ vel alibi of matters belonging to the Common Law This Statute consisteth of a Petition made by the Commons unto the King and the King's Answer thereunto as all ancient Statutes of those dayes do In the Petition is first set forth that the King and all his liege People ought of right and of old time were wont to sue in the Kings Court to recover their presentments to Churches Prebends and other Benefices of holy Church to which they had right to present c. And when Judgement was given in the same Court upon such a Plea and Presentment the Archbishops Bishops and other Spiritual persons which had the Institutions unto such Benefices within their Jurisdiction were bound and did make execution of such Judgements by the Kings Commandments of all the time aforesaid without interuption c. And in the next place they do complain that of late divers Processes had then been made by the Bishop of Rome and Censures of Excommunication upon certain Bishops of England because they had made execution of such commandments to the open desherison of the Crown c. And further complaining that also it was said and a common clamour was made that the said Bishops of Rome had then ordained and purposed to translate some Prelates of the same Realm some out of the Realm without the Kings assent and knowledge and some out of one Bishoprick into another within the same Realme without the Kings assent and knowledge and without the assent of the Prelates so to be translated which Prelates were much profitable and necessary to the King and his Realme by which the Statutes of the Realm would become defeated c. And nothing more is contained in the said Petition but what concerneth the premisses The King in his Answer doth ordain That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elswhere any such Translations Processes and Sentences of Excommunication Bulls Instruments
of those Municipal Laws the old should be decided no more are those controversies which do arise concerning maritime and sea affairs to be determined by those Municipal Laws but by their Maritime Laws by which they trade one Nation with another and which are generally the same and not Municipal as is before more fully set forth For further satisfaction vide caput 10. hujus libri tertii CHAP. II. The Arguments deduced out of the Statute of the 13 R. 2. c. 5. to prove that Maritime Contracts made at land concerning Maritime Affairs are not tryable in the Admiralty Court answered FOr the taking away the cognizance of Contracts made at land concerning Maritime affairs from the Admiralty Court the Statute of the 13 of R. 2. c. 5. the 15 of R. 2. c. 3. and the 2 of H. 4. c. 11. are urged by Sir Edward Coke in his before mentioned 22th Chapter of his Jurisdiction of Courts I shall take them in order The first of them he rendreth thus that the Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England but only with things done upon the sea according to that which hath been duly used in the time of the noble King Edward Grandfather to Richard the second by which saith he it is manifest that the Jurisdiction of the Admiralty is only confined to things done upon the Sea And truly taking only these words it may very well seem so to be Sed tota lex in omnibus suis partibus diligenter prospicienda est incivile est inquit Celsus nisi tota lege prolecta de una aliqua particula ejus proposita judicare vel respondere Take we then the Statute wholly as it is set down in the Parliament Roll in the Tower and then to the best of my understanding we shall find that the mis-translation hath bred a mis-construction and wrong interpretation thereof These antient Statutes were made by way of Petition and Answer and so remain still upon the Roll here is set down only the Answer to the Petition but not one word of the Petition to which the answer hath relation Et cum non sit satis ad investigationem Juris si verborum superficiem teneamus sed interius respicienda est mens legislatoris quâ ratione motus fuerit ad statuendum aliquid ut affirmat Oldendorpius loco praecitato Certè nullo modo sunt vestiganda jura si verborum omnium ne quidem superficiem istam aut teneamus aut habeamus nec quovismodo est intelligenda mens legislatoris quâ ratione motus fuit ad hoc statuendum dum abscondita sit petitio super quâ fundatur statutum Scire leges inquit Celsus non hoc est verba eorum tenere sed vim potestatem habere l. scire leges F. de legibus Quedcunque igitur negligere est legum vim potestatemque destruere I shall therefore first set down both the Petition and answer as I find them in the Tower Roll and then under correction examine the true construction and interpretation of them according to the best of my ability The words are these Item prient les comes que come les Admirals lour Deputies tiegnent lour Sessions en diverses places deins le Royalme si bien deins franchises come de hors accrochant au eux plus grant poaire que a lour office nappertinent en pre judice nostre sieūr ' le Roy le come ley du Royalme grant enblemishment de plusours diverses Franchises en destruction empourissiment del ' comen people que plese ordaine establer lour poaire en cest persent Parlament quils ne sic mellent nempriegnent sureux connisances de nulls contracts covenances regraters c. que con ques les quex divent purrant estre termines devant auter Jugges nostre sur le Roy deins les quatre miers Dengleterre deins Franchise de horse c. R. le Roy voit que les Admirals lour Deputies ne soi mellent de sore ena vant de null chose fait deins le roylme mes solemet de chose fait sur le meere solonc ce que ad estre duement use en temps du Noble Roy Edward aiel nostre sūr le Roy quorest The first part of the Petition having set forth that the Admirals keeping their Sessions in divers places in the Realm as well within the Liberties as without had incroached to themselves greater power then belonged unto their Office c. Then so much of the prayer of the Petition as is granted consisteth in these words Quils ne sic mellent nem pregnent sur eux conisances de nulls Contracts covenances regrates c. que con ques les ceux divent purrant estre termines devant autres Jugges nostre sur le Roy deins les quatre miers dengleterre deins Franchise de horse They pray that the Admirals may not so meddle or encroach upon the Cognizance of Contracts Covenants Regraters c. determinable before other the Kings Judges within the four Seas of England within franchise and without the rest of the Petition is not granted but tacitely denied and this part is thus answered by the King Le Roy vort que les Admirals lour Deputies ne soi mellent c. This Sir Edward Coke positively without any relation to the Petition rendreth in the words before set down viz. The Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England but onely with things done upon the Sea which Poulton more truly rendereth thus but still without relation to the Petition that the Admirals and their Deputies shall not meddle from henceforth of any thing done within the Realm but onely of a thing done upon the Sea rendring of for with which is the more proper signification of de and will as I conceive bring home the true construction of the Answer with relation to the Petition to which it hath and necessarily must have reference It hath been affirmed unto me by some professors of the Common Law that the King upon a Petition never grants more then is desired by the Petition and that that which is granted more then is desired is void in Law but that I leave to the determination of such as are of their own profession but the same thing hath been noted unto me as a rule from many expert Recordmen more especially from my old deceased friend Master W. C. not long before his death then above 80 years of age viz. that the King in Parliament never granted more then was askt many times less who affirmed that this in his younger time he had taken for a rule from those that were then ancient But this Answer here being set down positively alone without the Petition or any relation thereunto hath as it seemeth to me