Law and Statute Laws of England take notice of the Law Merchant and do leave the caâ—ses of Merchants to be decided by the Rules of that Law which Law Merchant he saith as it is part of the Law of Nature and Nations is universal and one and the same in all Countries of the World For as Cicero saith of that Law Non erit alia lex Romae alia Athenis alia nunc alia post haec sed et omnes gentes et omni tempore una eademque Lex obtinebit whereby it is manifest that the Causes concerning Merchants are not now to be decided by the peculiar and Ordinary Lawes of every Country but by the general Lawes of Nature and Nations He sayeth further that untill he understood the difference betwixt the Law Merchant and the Common Law of England he did not a little marvell that England entertaining traffique with all Nations of the World having so many Ports and so much good Shipping The King of England also being Lord of the Sea what should be the cause that in the Books of the Common Law of England there are to be found so few Cases concerning Merchants or Ships But now the reason thereof was apparent for that the Common Law of the Land did leave those cases to be ruled by another Law Namely the Law Merchant which is a branch of the Law of Nations The Law Mariner to which happily the answer to the French Agent mentioning Antient additions of the Realm related were such things as are contained and preserved in the Antient black Book of the Admiralty as certain Royal Ordinances made by Antient Kings of the Realm 2ly The Judgements or Resolutions of Oleron in the time of King Richard the first 3ly Certain verdicts given upon an Inquisition at Quinborough in the time of King Edward the third and some other matters touching the Admiralty of England Touching the black Book of the Admiralty Mr. Selden stiles it Vetusti Tribunalis maritimi Commentarii And Codex Manuscriptus de Admiralatu And in his notes upon Fortescue he saith that there are in it worthy of Observation Constitutions touching the Admiralty of Henry the first Richard the first King Iohn and Edward the first Touching the Judgements or Laws of Oleron and the use of them in the Admiralty Court Mr. Selden where he from them argues the Soveraignty of the Kings of England in regard King Richard the first did publish the Sea Lawes in the Island of Oleron which was then in his possession sayes that they are still in force And Sir Edward Cook likewise argues that the Jurisdiction of the Lord Admirall was long before the Reign of Edward the third from the Laws of Oleron So called because they were there made by King Richard the first The Inquisition at Quinborough was taken in the year 1376. in the 49. of King Edward the third by eighteen expert Sea-men before William Nevill Admirall of the North Philip Courtny Admirall of the West And the Lord Latimer Warden of the Cinque Ports And relates as by the Title appears to the usages of former times The verdicts there given were desired to be established by the Kings Letters Patents in the Cinque Ports and Towns adjoyning to the Thames to be observed by the owners Masters and Mariners of Ships under penalties c. And Malines writes That he had seen them enrolled amongst the Records of the Tower for the Government of the Admiralty That generally where Lawes have been provided for businesse concerning the Sea as also in England several Iudges have been appointed to determine differences and redresse offences concerning the same GRegorius Tholosanus sayes Iudicum diversorum ratio eo dirigitur ut lites facilius expediantur ne immortales sint sub judicibus mole negotiorum occupatis proinde cum commercia hominum sint maximae utilitatis placuit Negotiatoribus proponi proprios Iudices and accordingly First the Grecians had their special and proper Judges appointed for those businesses So Suidas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The Natodicae were Magistrates who did Iustice to Seamen and others who trade by Sea And the Athenians had an expresse Law to that purpose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That actions concerning Seamen and Merchants should be commenced before the Iudges called The smothetae according to their Instruments of Contracts and dealings Secondly Amongst the Romans there was antiently an Officer called Praefectus Classis by Tully and Livy and Iavolenus makes mention of Seius Saturninus Archigubernius Classis Britannicae and Tacitus of Praetor Classis which name imports a power of Judicature in latter times they had also a Magistrate who was called Comes Commerciorum whose Office was to over-see matters of Commerce or Negotiation Thirdly the Roman Empire being broken into several States the lesser as Republiques had their Consuls and the greater Kingdomes had their Admiralls to order and determine those businesses The office of the Consuls is described in the Consolato Del Mare Consoli determinano â—utti le controversie c. The Consuls determine all controversies which are for Fraights for Dammages done to goods on shipbord for parts of ships to be set to sale at an outcry for Commissions given to Masters and Mariners for Debts contracted by Masters for the necessary use of the Ship for things promised or undertaken betwixt Merchants and Mariners for goods taken up at Sea and generally for all other Contracts and businesses which are declared amongst the Customs of the Sea Fourthly The Venetian State being a Seigniory when any great War is expected or undertaken have their General or Supreme Commander of the Navy who is of as high an esteem as any Magistrate of the City having absolute power over all Officers aud others of the Navy at other times the Legatus classis or Vice-General hath the power of disposing of the Navy and over the Captains of the Gallies and other persons of the Navy They have besides four Consuls who Judge and determine all matters concerning Negotiation and Trade Fifthly Admirals in Europe had their beginning as most affirm in the time of Constantine the Emperour and that in Magna Graecia which is now the Kingdome of Naples where the dignity of Admirall is the third place to wit after the Vice Roy and Constable To whom belongeth the Building Repayring and keeping of the Ships Royal and setting out of the Fleets for Warre with the Kings consent He hath also Jurisdiction Civil and Criminal amongst Commanders Officers and others employed about the Navy and all others who get their lively-hood by the industry and art of the Sea which are held to be such which transport in Ships and adventure their Estates by Sea as also such that make it their Trade to take Fish or do build Ships This Court is called Magna Curia and from it there lyes an appeal only to the supreme
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
to be performed either upon the Seas or beyond the Seas yet is the same to be tryed and determined by the ordinary course of the Common-Law and not in the Court of the Admiralty And therefore when that Court hath incroached upon the Common-Law in that case the Iudge of the Admiralty and Party suing there have been Prohibited and often times the party condemned in great and grievous dammages by the Laws of the Realm That the Clause of non obstante statuto which hath foundation in his Majesties Prerogative and is current in all other grants yet in the Lord Admirals Patent is said to be of no force to warrant the Determination of the Causes committed to him in his Lordships Patent and so rejected by the Judges of the Common-Law Without all question the Statutes of 13 R. 2. Cap. 3.15 R. 2. Cap. 5. 2 H. 4. Cap. 11. being Statutes declaring the Iurisdiction of the Court of the Admiral and wherein all the Subjects of the Realm have interest cannot be dispenc'd with by any Non obstante and therefore not worthy of any answer but by colour thereof the Court of the Admiralty hath contrary to those Acts of Parliament incroached upon the Iurisdiction of the Common-Law to the intolerable grievance of the Subjects which have oftentimes urged them to complain in your Majesties Courts of Ordinary Iustice at Westminster for their relief in that behalf To the end that the Admiral Jurisdiction may receive all manner of impeachment and interruption the Rivers beneath the first Bridges where it ebbeth and floweth and the Ports and Creeks are by the Judges of the Common Law affirmed to be no part of the Seas nor within the Admiral Jurisdiction and thereupon Prohibitions are usually awarded upon actions depending in that Court for Contracts and other things done in those places notwithstanding that by use and practice time out of mind the Admiral Court have had Jurisdiction within such Ports Creeks and Rivers The like answer as to the first and it is further added that for the Death of a man and of Mayhem in those two cases onely done in great Ships being and hovering in the main stream only beneath the points of the same Rivers nigh to the Sea and no other place of the same Rivers nor in other causes but in those two onely the Admiral hath cognisance But for all Contracts Pleas and Quereles made or done upon a River Haven or Creek within any County of this Realm the Admiral without question hath not any Iurisdiction for then he should hold plea of things done within the body of the County which are tryable by the verdict of Twelve men and meerly determinable by the Common-Law and not within the Court of Admiralty according to the Civil Law for that were to change and alter the Laws of the Realm in those cases and make those Contracts Pleas and Quereles tryable by the Common-Laws of the Realm to be drawn ad aliud examen and to be sentenced by the Iudge of the Admiralty according to the Civil Laws and how dangerous and penal it is for them to deal in these cases it appeareth by Iudicial Presidents of former ages See the answer to the first Article That the agreement made in Anno Dom. 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain execution of Admiral Jurisdiction is not observed as it ought to be The supposed agreement mentioned in this Article hath not as yet been delivered unto us but having heard the same read over before his Majesty out of a paper not subscribed with the hand of any Iudge we answer that for so much thereof as differeth from these Answers it is against the Laws and Statutes of this Realm and therefore the Iudges of the Kings Bench never assented thereunto as is pretended neither doth the Phrase thereof agree with the Termes of the Laws of the Realm Many other Grievances there are which in discussing of these former will easily appear worthy also of Reformation This Article is so General as no particular answer can be made thereunto onely it appeareth by that which hath been said That the Lord Admiral his Officers and Ministers principally by colour of the said void non obstante and for want of Learned advice have unjustly incroached upon the Common Laws of this Realm whereof the marvail is the lesse for that the Lord Admiral his Lieutenants Officers and Ministers have without all colour encroached and intruded upon a Right and Prerogative due to the Crown in that they have seized and converted to their own uses Goods and Chattels of infinite value taken by Pyrats at Sea and other Goods and Chattels which in no sort appertain unto his Lordship by his Letters Patents wherein the said non obstante is contained and for which he and his Officers remain accountable to his Majesty And they now wanting in this Blessed time of Peace causes appertaining to their natural Iurisdiction they now incroach upon the Iurisdiction of the Common-Law lest they should sit idle and reap no profit and if a greater number of Prohibitions as they affirm have been granted since the great benefit of this happy Peace than before in time of hostility it moveth from their own encroachments upon the Iurisdiction of the Common Law so that they do not onely unjustly incroach but complain also of the Iudges of the Realm for doing of Iustice in these cases The particular Authorities promiscuously alleged by Sr. Edward Coke are distinctly inserted in the Chapters following in such places as they seem to concern THE JURISDICTION of the Admiralty of England Asserted That in all places where Navigation and Trade by Sea have been in use and esteem and particularly in England special Lawes have been provided for Regulating the same LA Mer a ses loix comme la terre The Sea saith Godfrey a learned Author hath its lawes as well as the Land And it is certain that Navigation was no sooner invented and men had experience of the commodity proceeding from Negotiation by Sea but they established lawes for the maintaining and regulating the same So much may bee confirmed by what is observable from the use and practice First of those Nations and States which border on the Mediterranean Seas and secondly of those which confine on the Western Ocean and the Seas Northward Touching the first Amongst the Grecians the Inhabitants of the â—sle of Rhodes have been most eminent for their policy in the affaires of the Sea Cicero saith Rhodiorum usque ad nostram memoriam Discipliplina navalis gloria remansit And Constantinus Harmenopulus a famous Judge at Thesolonica and Conservatour of the law there gives that credit to their Lawes that he affirmes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. All businesse concerning Navigation and all causes concerning things done at Sea are decided by the Rhodian Lawes
for the Lawes of the Rhodians are of all Sea-Lawes the most antient Those Sea-Lawes of the Rhodians or some part of them are extant published in Greek and Latine by Symon Schardius and Marquardus Freherus and out of them related by Marisotus in the first part of his Orbis maritimus The Romans who in the beginning of their Republique received their Lawes of the Twelve Tables from the Athenians under the Empire when their State was at the heighest and abundantly furnished with Lawes for other matters in the time of Tiberius Claudius admitted the Rhodian Lawes for the regulating of the affaires of the Sea whereupon when one Eudaemon a Merchant of Nicomedia complained to the Emperour Antoninus that he with others had suffered Shipwrack and were spoyled of their goods by certain Officers of the Islands called Cyclades the Emperour answered him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that indeed he was Lord of the World that is to say of the Land or Continent but that the businesse and rights of the Sea had a speciall Rule set down in the Rhodian Lawes to which he did referr them These Rhodian Lawes as Mr Selden observes were afterwards inserted into the body of the Civil Laws by the Emperour Iustinian and others and were in high esteem both in the Roman Greek Empire The titles to which they are reduced in the Civil Law are collected by Petrus Peckius who hath commented upon them and are likewise set forth by Morisotus and as they were in use in the Greek Empire they are set out by Leunclavius amongst the Basilica or Laws from Rome received at Constantinople The wisdome and equity of the Roman Civil Laws in Processe of time have been received and allowed in all Nations and states of Europe for the regulating and determining of businesses at Sea as it plainly appears in all Authors of several Nations who have written of or handled matters of that nature To which have been added diverse Ordinances and Constitutions of their own for confirmation of those Laws and supply where it seemed necessary So the Provinces and places bordering on the Mediterranean Seas according to former usages and customs and upon new emergent occasions established several orders and constitutions for Maritime businesses which some eminent persons residing at Amalphia a Town in the Kingdome of Naples reduced into a Monument called Tabula Amalphitana of which Marinus Frecria writes In succeeding times Maritime businesses were not determined onely by the Rhodian Laws but suites and controversies touching matters of the Sea were determined by the Law which is contained in the Table of Amalphia unto this â—ay The like was done by the people of Venice Morea or Peloponnesus Rome Genua Marsellis Aragon Barcelona c. of all which places the Constitutions are comprehended in the Book called Il Consultate del Mare of which it is related in a distinct Chapter Questi sono buoni stablimenti these are the good Constitutions and Customs which belong unto the Sea the which wise men passing through the World have delivered to our Ancestors Touching the Nations confining on the Western and Northern Ocean It appears likewise That in Spain there were special Laws and Ordinances provided for the businesses of the Sea for occasions both of War and Peace as in the Partidas of Alphonsus the ninth under the Title of De los navios and under the Title De la guerre per la mer and under the Title De los navios in the Recopilation of Philip the 2d which are illustrated by the Comment of Alphonsus Azevedo and others So the French for maritime affaires have divers Edicts or Ordinances which are stiled Reglements sur la fait de Admiralty which were established by Charls the sixth Lewis the twelfth Francis the first and lastly by Henry the third most fully upon review of all former Acts which were afterwards ratified by the Court of Parliament at Paris But for ordinary matters of Navigation and Trade at Sea the Laws or Judgements of Oleron which is an Island situate at the mouth of the River Charenton near the Coast of Aquitain are of special Observation in that Kingdone as appears by an Antient Record extant amongst the Royal Edicts Entituled Droits et preminences del Admirall wherein it is declared That the Admirall ought to do justice to all Merchants according to Rights judgements c. and usages of Oleron And Grotius affirms That as the Rhodian Laws in the Mediterranean Seas were reputed as the Lawes of Nations so in France are the Laws of Oleron and sayeth further in that place That in what esteem the Laws of Oleron have been in France the same have Leges Wisbuiences amongst the Nations beyond the Rhine which if Welwood mistakes not are the same with the Laws of Oleron Translated into Dutch for the use of the Sea Coasts in those parts Malines in his Lex Mercatoria sets forth a Catalogue of the Laws of the Hanse Towns And Loccenius in his Preface to his Book de Iure Maritimo mentions jus nauticum Suesicum and Leges Wisbuiences which he sayeth are observed both in the Hanse Towns and in the Northern Kingdomes and also the Ordinances of the Hanse Towns themselves and of the Belgick Common-wealth It is likewise apparent that the Kingdome of England is not destitute of special Laws for the regulating of Sea businesses which are distinct from the Common Laws of the Realm as namely the Civil Law and others of which the Books of Common Law take notice by the names of Ley Merchant and Ley Meriner Touching the Civil Law how it is observed in the Admiralty of England Sir Edward Cook shews in his Comment upon Littleton where he mentions divers Laws which are in use in this Kingdome And Mr. Selden in his dissertation ad Fletam sayes Iuris Civilis vel Caesarij usus ab antiquis seculis etiam num retinetur in foro Maritimo seu curia Admiralitatis And accordingly in the time of King Edward the sixth when Monsieur Villandry being imployed for the King of France upon occasion of some differences hapning betwixt the Subjects of England and of France concerning Sea businesses Signified that the King his Master was desirous that the Ordinances and the Customs of England might be reduced into one form without any difference betwixt them and the French answer was made That the English Ordinances for Marine affairs were no other than the Civil Laws and certain antient Additions of the Realm wherein they could not conceive any reason or convenience of change The Law Merchant is likewise mentioned and allowed by Sir Edward Cook in his Comment upon Littleton as a Law distinct from the Common Law of England And so doth Mr. Selden mention it in his notes upon Fortescue And Sir Iohn Davis more fully ownes it in a Manuscript Tract touching Impositions where he affirms That both the Common
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
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