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
will hereafter be disputed in which dispute the antiquity of the Admiralty will be further discovered CHAP. II. That these high Officers and Admirals or Keepers of the Seas Sea-coasts and Ports had like power and authority in them and over them as the Keepers and Governors of Land-Provinces had over them and had their Maritime Lawes for guidance of their Jurisdiction both Civil and Criminal as well as the other had their Land Laws for the guidance of theirs THe next thing I observe is that the preceding Officers which this prout hactenus led me unto are most of them rendred unto us under the titles of Custodes As Custos maritimarum partium Custos maris maritimarum partium Custos Portuum cum costrâ maris Custos marinae Custos portuum marinae most of which Officers so styled which I had formerly met with amongst the Records of the Tower I met with again in Mr. Seldens book de Dominio maris quoted out of the same Records who from thence and some other good and sound reasons there exprest inferreth Quod apertè constat Reges Angliae praefectos constituere solitos qui mare Anglicanam custodirent seu ejus custodes essent sive praefecti non aliter ac Provinciae cujuscunque terrestris They were to be keepers of the Seas in such wise as others were of every Land Province Primò autem saith he mari maritimae marinae idque ubi his vocibus non regio solùm maritima sed ipse etiam Oceanus Britannicus planè continetur quod non semper fieri fatemur praeficiebantur qui tuerentur custodirent nomine custodum ut interdum navium frequentius verò maritimae sensu jam dicto To which he addeth another further reason and saith that primaria Commitiorum Parliaementariorum ratio anno Regis Edvardi tertii decimo quarto est de treter sur la guard de la pees de la terre de la marche d' escoce de la mierâ— ut tractaretur de custodiâ pacis terrae limitis Scotici maris from whence he observeth Quod non alia tutelae maris quà m telluris seu terrestris provinciae habebatur ratio And he gathereth further ex tabulis ejusdem regis Parliamentariis seu consultationibus ordinum regni as he saith held upon the same matter ut dum de la saufegard de la terre seu custodia seu tutela telluris sive insulae de la saufegard de la mere seu de custodiâ maris consilium pariter ineunt tam hujus dominium quam illius ad regem suum pertinere à majoribus edocti manifestò testari videantur For saith he non de classe solùm agaunt quâ hostibus per mare resisteretur sed de ipso mari tuendo aequè ac de tutelâ insulae adeoque de jure in utroque regis avito defendendo where he maketh two distinct Dominions of the Land and Sea and the ancient right of either of them to be defended and kept and there sets forth divers who had the defending and keeping thereof in the second of Richard the Second and in the time of the three Henries succeeding him with many other things there worth noting and observing He observes further in the same Chapter the common and received acceptance of this terme Custos amongst the English in other Governments both of this Land and other Islands and even at that time when the name or terme of Custos maris was most frequently used and he instanceth in the Governours of Ireland in the time of King John and Edward the Third who were then severally styled Custos Hiberniae He instanceth likewise in John Duke of Bedford and Humphry Duke of Glocester who had one at one time and another at another the Government of England when King Henry the Fifth was absent in France who were called Custodes Angliae quod saith he tum in historiis tum in tabulis publicis saepissimè occurrit And likewise in Arthur Prince of Wales who was made Custos Angliae when King Henry the Seventh was gone out of England And in Peter Gaveston who was Custos Angliae Edward the Second being busied in France And also the in Governours of the Isles of Jersey and Gernsey who of antient times were Custodes of those Islands as they are now called Gubernatores Custodes and Capitanei And seeing it is so how can it be saith he that we should not think that our Ancestors used under the same notion or terme of Custos custodia the Custodes Maris and the Custodes Insulae c. Quod cum ita sit quomodo fieri potest ut non eadem notione vocabuli Custodis Custodiae majores nostros usos esse existimemus in Custodis Custodiae maris nomine quâ in Custodia Insulae caeteris jam dictis dignitatibus uti solebant sc in hisce omnibus dominium imperiumque singulare praeficientis apertissimè ita signatur includiturque adeo ut non magis authoritas in personam quae praeficitur quam rei custodiendae dominium nomine hoc planè innuatur If then there were Custodes Maris Marinae Portuum Maritimarum partium and that in such manner as of a Land Prince non aliter ac provinciae cujuscunque terrestris Then will it necessarily follow that if a Prince that ever was civilized by the dominion and rule of a Civil Governor or Governors for by such means and no other are all Nations Princes Islands and the like become civilized and ordered could not so continue civilized and ordered without Rules and Laws for every mans demeanour to be guided by That the Seas having anciently been used for Maritime affairs for free and peaceable Traffique and Commerce one Nation with another which be friends at unity and in concord and for Martial Fleets and Navies for the defence of every Kingdom against an Enemy And so antiently under the dominion of Civil Princes as under their Dominion and Government of a Civil Land Province must necessarily have had settled and known Laws suited and fitted for such their Dominion and Government which could be no other then the Maritime Laws so agreeable unto Sea-affairs and so commonly and antiently accepted and agreed unto by most Nations and Kingdomes which have had such free Traffique and peaceable Commerce upon and by them one with another to guide and direct these Custodes in the ministring of Justice in Sea-businesses as well as the Governors of Land Provinces have had their Land Laws for the ministring Justice in Land-affairs Hence Spelman in his Glossarie having reckoned up all the Admirals from the eighth year of Henry the Third unto the 16th year of King James saith Nos de munere caduco aut extraordinario non agimus at de summo stationarioque magistratu qui universae marinae reipublicae praeest suoqueâ—oro amplissima jurisdictione tam in causis civilibus
of these particulars there is but a limitation of his general power there Et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest For the Argument then that is deduced from this Statute which concludeth that the limits of the Lord Admirals Jurisdiction are thereby described and by the judgement of the whole Parliament as is asserted confined unto the main sea or coasts of the sea there is no other question to be made of it then whether it shall overthrow and destroy all these Logical rules or they it Another answer may be given to this argument by distinguishing upon the word Port or Haven as it is taken in a double construction and beareth a double acceptance warranted by Mr. Serjeant Callis in his Reading at Greys-Inne 1622. upon the Statute of Sewers 23 H. 8. cap. 5. who in his first Lecture to the diversity between a Creek Haven and Port p. 24. 25. saith that a Haven properly is a safe place of harbour for Ships but may be without any priviledge at all and then maketh mention of such as are alwayes graced with legal priviledges and for this he quoteth the Statute of Magna Charta in these words Quod omnes communitates Barones de quinque portubus omnes alii portus habeant omnes libertates liberas consuetudines that all common Societies of Ports and Barons of the Cinque-ports and all other Ports may have their liberties c. which can be no otherwise understood then that thereby is meant the common Societies of Port-towns the Barons of the five principal Port-towns and all other Port-towns may have their priviledges c. so that a Port-town is ordinarily termed a Port as well as the Port it self and so is a Haven Town c. though not so properly And the words of the Statute saith he confirme my former definition of Ports to be true and this is his definition A Port is a harbour and safe arrival for Ships Boats and Ballengers of burthen to freight and unfreight them at not in so that we see that he maketh the Haven where Ships lie at anchor to be a Port and the Town whereat they lade and unlade to be a Port and so the same Author maketh costeram maris to contain the shoar and banks as well as that part of the sea adjoyning thereunto and he proveth it out of the Statute 27 of Eliz. cap 24. which Act was made for the mending of the banks and sea-works on the sea-coast And out of the 7th chapter of Macchabees where Demetrius Son of Seleucus came to a City of the sea-coast c. ut in ejus libro p. 32. so that in common acceptance the places adjoyning to the Sea-coasts for their adjacency are called and taken for Coasts as well as the Coasts themselves and the Towns or Cities adjoyning to the Ports for their adjacency are termed Ports as well as the Ports themselves and then it may very well be answered that the words in this Statute out of any Haven or Port are meant of the City or Town thereunto adjoyning and so called and this the offences in that Statute mentioned unto which this clause hath reference and relation will warrant But more I shall not say concerning this argument but shall come to that which the same Author further inferreth upon his own conclusion when as his premisses can no way be granted which is that of Job the 38th chapter the 8 10 11. verses That Almighty God as he himself out of a whirlwind spake hath shut up the sea within certain dores or bounds Quis conclusit mare ostiis quando erumpebat quasi de vulvâ praecedens Circumdedi illud terminis meis posui vectem ostia dixi Vsque huc venies non procedes amplius hîc confringes tumentes fluctus tuos Hence I do conceive that he would inferre that God then put the dores of the seas where he himself by his interpretation of this Statute would now put them between the high Seas and the Ports and Havens But then he must have said that when God put them there he then left them wide open and never shut them since for sure I am the sea was never yet shut out of the Ports and Havens if we mean the Ports and Havens where ships do ride or lye at anchor and not the Port or Haven Towns so termed by reason of their adjacency so near unto them Nor can it be allowed by what is here urged that there they were put standing wide open for he that saith posui vectem ostia saith dixi Vsque huc venies non amplius So that we see his doctrine suits not to this text but the text it self may very well serve for my purpose that God himself hath put the gates and dores of the sea and hath himself appointed its limits and bounds to be those within which it is by his own power terminated And look how farre it extendeth it self so farre it is sea and there and no where but there hath God placed these gates and dores and terminated its limits and bounds by man unalterable CHAP. V. 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 OTher arguments there are by Sir Edward Coke deduced out of the Judgements and Judicial Presidents at the Common Law I shall first begin with the Judgements And the first that he urgeth is a Judgement given in the Court of Common-pleas Hil. 6 H. 6. Rot. 303. between John Burton Plaintiffe and Batholomew Put Defendant and the Case was saith he upon the Statutes of the 13 Rich. 2. cap. 5. the 15 Rich. 2. cap. 3. and the Statute of the 2 Hen. 4. cap. 11. upon which Statutes the said Bartholomew having sued the said John Burton in the Admiralty Court before Thomas Duke of Exeter then Admiral of England for that the said John Burton with force and armes the second day of September anno 1 H. 6. three ships of the said Bartholomews with his Prisoners and Merchandises to the value of 960 marks 5 s. 5 d. ob in the same ships being did take and carry away supposing by his Libel the same to be taken away super altum mare upon the high sea Judgement was given that the taking aforesaid was infra corpus comitatùs in Bristol the said ships lying in the Haven of Bristol and not upon the high sea contrary to the forme and effect of the said Statutes the parties having descended to an Issue which was found for the Plaintiffe and damages to 700 l. And this is the Judgement he quoteth Et super hoc audito tam recordo quam veredicto praedicto per curiam plenius intellect consideratum est quòd praedictus Johannes Burton recuperet versus praefatum Bartholomeum damna sua praedicta occasione attachiamenti prosecutionis vexationis
which undoubtedly they had and have as hath been shewed before And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port or any Port or Chambers of a foreign Prince other then the Ports and Chambers of that Prince against whose Subjects the same were granted And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce that such a fact was done super alto mari hoc est quoad Portus suos but in other cases for Maritime businesses done either upon the Port or contracted for upon the land it is sufficient in the first to lay in the libel that they were done infra fluxum refluxum maris and in the last infra jurisdictionem Admirallitatis as hath been already said and shall hereafter be more fully shewed For that which followeth in the next place out of Stamford I joyned it with that of the 8 Ed. 2. and have already spoken thereto Next it is said 4 5 Ph. Mar. Dyer 159. 6. by the libel in the Admiralty the cause is supposed to commence sur le haut mere infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs non super altum mare whereby saith Sir Edward Coke it also appeareth that the Lord Admirals Power is confined to the high-sea This Conclusion can no wayes be deduced out of the premisses for though by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere infra Jurisdictionem de l'Admiralty and perhaps falsly so suggested because the thing was done in some Town within the body of a County for the instance is ubi revera facta fuit in tali loco infra corpus Comitatûs which locus may be any in-land Town within any County and non super altum mare as it deduced in the libel For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs If by the Libel the cause had been supposed to have commenced in vel super tali Portu infra fluxum refluxum maris then the words of the Authority might have run thus ubi revera facta fuit in tali loco infra corpus Comitatûs non super talem portum vel infra fluxum refluxum maris aswell as non super altum mare for the words non super altum mare are onely in affirmance of the contrary to what is layed in the Libel and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel specifying and designing that very place where such a particular act was not done if so be in the Libel it had been laid that this act had been done about the mid-way between Dover and Callis and the Authority had said ubi revera facta fuit in tali loco infra corpus comitatus and not in or about the mid-way between Dover and Callis I hope no man will say that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis so that it is plain this conclusion cannot be drawn out of the authority The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea and of things done or contracted beyond the seas which I shall deferre to their proper places There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas and not to be upon the Ports and Havens which are not cited amongst his Book-cases and Authorities of Books but are cited before them one amongst the Praemunire's by him cited which I have spoken to already and the other cited amongst the Prohibitions by him cited which concern Contracts and are referred to their proper places These two I shall here insert before I proceed to the next chapter The first of them is urged out of the book of Entries fol. 23. tit Admiralty where it appeareth saith he that the taking of a Ship called the Trinity of London lying upon the River of E. in the County of Kent is not super altum mare but infra corpus comitatus Cantiae and therefore a Suit for the taking of that Ship lying there in the Admiralty Court before John Earl of Huntingdon Admiral of England appeareth to be against the said Statutes and yet no question that was infra fluxum refluxum maris infra primos pontes Here he saith that the taking of that Ship in that place appeareth to be against the said Statutes but mentioneth not what Statutes having quoted divers before If there had been a Judgement in the case he certainly would have added this proof to the Judgement of Burton and Putts Case and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited and the Statutes next before mentioned are the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's which must be the Statutes against which this taking must be said to appear to be by reason he saith it appeareth to be against the said Statutes which must be meant of the next mentioned preceding Statutes If then it appeareth there to be against the Statute of premunire I hope it hath already received an answer If against that of the 32 of Hen. 8. c. 14. it cannot be so as shall be shewed when we come to treat of freight and contracts where we shall have occasion to mention that Statute against his tenents The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. The River of Thames at Billinsgate saith he is not within the Jurisdiction of the Admiralty but infra corpus comitatus This followeth next after the premunires and precedeth next before the prohibitions by him quoted that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty by this Record it must appear thereby not so to be either by a premunire brought or by a prohibition granted as I conceive being inserted in that place and must have some relation either to what precedeth or what followeth If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought I can say no more to it then I have already said If by a prohibition granted onely it proveth nothing for many a prohibition hath been granted and consultations have been awarded without denial of the suggestions And oftentimes prohibitions have been granted upon such suggestions as could not be maintained but deserved consultations upon the debate thereof and sometimes the parties have come
several Counties and touched upon by the banks thereof can be said to be within the body of either of those Counties or so much as the least member part or parcel thereof or so much as properly be said to be within the skirts thereof I must confess that many particular Statutes and new Laws have been made directing such and such things to be done or not done either by Sea or upon any Port or Haven which by the Civil and Maritime Laws had not been formerly in the same manner or perhaps not so fully directed And the cognizance of such matters by the same Statutes and Laws may seem to belong unto other Courts as well as unto the Admiralty by reason whereof some have often reached at all and have strove to hold more in one hand then they could grasp in both their armes But such things both upon the Sea and upon the Ports and Havens as have been anciently determined by the Admiralty according to the Laws Civil and Maritime have not been by such Statutes or new Laws really taken therefrom nor were ever intended to be But the same have been constituted and made in affirmance of the power and authority of that Court as wel upon the Ports and Havens as upon the high Seas and have been by express words continued thereunto and the cognizance of many such matters by such new Laws appointed have been directed unto that Court I shall instance only in one Statute that sheweth the same and then leave this subject and breake my self unto another By the Statute of 32 Hen. 8. cap. 14. a rate was set what should be paid for the freight or portage of several particular sorts of Merchandizes from the Port of London to other places and from thence to London and this being a thing mutable which could not be formerly settled for a perpetual Law according to any Rules or Laws Civil or Maritime though the like had been formerly done by the Admiralty pro tempore as appeareth by the Inquisition taken at Quinborow and the other Statutes and Articles of the Admiralty before several times mentioned the cognizance of the excessive freight taken for transportation of these particular sorts of Merchandizes was by the same Statute to be taken in the Courts at Westminster As for the forfeiture of the double value of the freight so taken the one half to the King the other half to the Informer yet the excessive rates for freight in general taken for transportation of any goods whatsoever and from and to any Port or Place whatsoever having been punishable by the Admiralty that power is no more taken from that Court by this clause then the tryal of pyracy c. by the Civil and Maritime Laws is from thence taken by the Statute of H. 8. 27. cap. 4. an 28. cap. 15. which giveth a power to that Court to try the same offences after another manner which is a thing by all of both professions acknowledged Another clause there was contained in the said Statute that if any Stranger Denizen or not Denizen should lade on board any English Bottom any of their Goods Wares and Merchandizes to be transported to any forraign Port that they should pay no other Custome or Subsidy therefore then such as the English paid But in case that they did laid their said Goods Wares and Merchandizes aboard the Ships or Vessels of Forreigners then they should pay such Custome or Subsidy as had been usually paid by Forreigners This being a thing newly by that Statute appointed and not determined formerly by the Civil and Maritime Laws whereby the Admiralty proceedeth yet was it by the same Statute provided that if there should be no such Ships or Vessels of England or Dominions of the same at or in the Port Haven or Place where the said Strangers Aliens or Denizens their Servants or Factors would freight or lade their Wares and Merchandizes toward the outward Regions that then if the said Stangers or Denizens their Factors Atturneys or Servants before he or they did lade freight or convey the said Goods Wares Commodities or Merchandises into any strange Ship or Vessel did notify and declare the same lack or want of such English Ships or Vessels unto the Lord high Admiral of England for the time being or his Lieutenant Deputy or Deputies if c. and did obtain his or their Certificate to be made under his or their Seal to whom such notice or declaration was to be made of lack and want of such English Ships and Vessels that then it should be lawfull for them to freight and lade their said Wares and Merchandises in any strange Ship or Vessel at that time being in the same Port or Haven and to pay none other Susidies or Customes therefore but as the English Merchants did use and ought to do by the Laws and Customes of England And it is enacted by the said Statute That the Owner and Owners Master and Masters and other Governour or Governours of Ships and every of them to his or their power and for as much as in him or them should be shall provide that all Wares and Merchandises which shall be by Merchants their Factors or Servants or any of them brought into any Ship or Vessel shall be honestly and in good order saved and kept And under that clause it is provided That if any Merchant Stranger or other find himself aggrieved or damnifyed by negligent keeping of the said Merchandises or Wares or by long delaying or protracting of the time in taking the Voyage by the said Owner his Factor Master or any the Mariners of the said Ship otherwise then shall be agreed betwixt the said Merchant his Factor Atturney or Servant and Master or Owner in or by the said Charter-party not being letted by wind or weather shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owner or Owners Master or Masters Governour or Governours or his or their Factor or Factors which Lord Admiral for the time being his Lieutenant or Deputy shall and may summarily and without delay take such order and give such direction therein as shall be thought to his or their discretions most convenient and according to right and justice in that behalf which is in affirmance of the Civil Laws before mentioned But Mr. Poulton rendreth this Statute obsolete And for the first part of it which setteth a rate what shall be paid for the freight or portage of Goods and Merchandises from the Port of London to other places and from thence to London I must needs agree with him that the same may or necessarily must be obsolete and out of use for that since the time of making of the said Statute the rates and prizes for Cables Anchors and other Tackle Furniture Victual and other Provisions have been much altered and encreased nor indeed are or can the Ships themselves
fuisse nullum remedium in hac parte habere potuisse dictos Willielmum Thomam in Curia Constabularii Marescalli Angliae ad respondendum sibi in causa praedicta summoneri venire fecit ac quendam libellum super actionem praedictam in eadem Curia coram dilectis fidelibus nostris Johanne Cheyne locum tenente Constabularii praedicti Willielmo Faringdon locum tenente dicti Marescalli nostri versus praedictos Willielmum Thomas adhibuit proposuit idemque Johannes Willielmus locum tenentes in causa praedicta minùs rite indebitè procedentes ac judicialiter affirmantes allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos Willielmum Snoke Thomam à cura praedicta de instantia praedicti Johannis Coppin sine causa rationabili quacunque dimiserunt deliberaverunt ipsum Johannem Coppin in quadam magna pecuniae summa argenti pro custibus ipsorum Willielmi Snokes Thomae in hac casu coram eis in eadem Curia factis per sententiam suam seu judicium condemnârunt dictos custus ad quandam summam nimis excessivam taxarunt limitarunt de quibus quidem sententia judicio condemnatione expensarum de taxatione earundem aliis gravaminibus praetensis praefato Johanni Copyn in hac parte illatis per partem dicti Johannis ad nos nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet qui quidem Johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu nobis supplicaverit ut sibi super appellatione sua praedicta certos Judices sive Commissarios dare assignare dignaremur nos supplicationi praedictae tanquam juri consonae annuentes vobis de quorum fidelitate industria fiduciam gerimus specialem commitimus vices nostras plenam tenore praesentium potestatem ac mandatum speciale ad audiendum cognoscendum procedendum in causa sive causis appellationis hujus prout dictaverit ordo juris ipsamque ipsas cum suis emergentibus dependentibus incidentibus connexis quibuscunque secundum juris exigentiam discutiend debito fine terminand ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis coram vobis judicialiter producentes sine dolo vel fraude odio vel favore aut alià s injustè subtraxerint veritati testimonium perhibere compellandum Et mulctae alteriusque temporalis cohertionis cujuslibet potestate ideo vobis mandamus quod vocatis coram vobis partibus praedictis aliis quos in hac parte fore videretis evocand auditisque in hujus causis appellationis earum rationibus allegationibus circa praemissa diligenter intendatis ea faciatis exequamini prout justum fuerit consonum rationi volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis aliâ—s vel alii vestrum libere procedere valeat sive valeant in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus In cujus c. T. R. apud Westm xiiii die Novembris After this and after the making of the other Statute of the 2d of Henry the fourth one Edmund Brookes Mariner brought his Action in the Admiralty Court before John Sturmister Lieutenant General of Edmund Earl of Kent Admiral of England against John Birkyrne Richard Honesse John Walls and William Burton of Kingston upon Hull Merchants Partners in a Maritime Cause of contracting and taking to freight of a certain Ship called the Laurence of Gyppelwich and the same was there proceeded in unto sentenc and sentence was given for the said Edmund Brookes against the said John Byrkyrne and Company from which sentence the said Byrkyrne and Company appealed unto the King in Chancery and there obtained a Commission of Appeal from thence directed unto John Kington and others who by virtue thereof proceeded in the said Cause unto sentence and thereby reversed the former sentence and condemned the said Brookes in expences from which said sentence the said Brookes again appealed unto the King in Chancery and obtained a Commission of Review directed unto the then Bishop of London and six Civilians to review discusse and hear the said Cause in due course of Law and to determine the same according thereunto And this last Commission of Review was granted but eight years after the making of the said Statute of the 2d of Henry the fourth and therefore the Cause must needs be instituted and begun in the first instance some years before nearer unto the time of the making of the said Statute the same having been proceeded in even unto seentences in two several instances before the granting of this Commission all which appeareth by the Commission of Review it self which is upon Record in the Tower in these words following Rex venerabili in Christo patri R. Episcopo London ac dilectis ac fidelibus suis Thomae Beauford Thomae Eppingham Magistro Thomae Field Roberto Thorley Willielmo Senenocks Johanni Oxney salutem ex parte Edmundi Brookes marinarii nobis est ostensum quod licet Magister Johannes Sturmyster nuper locum tenens generalis Edmundi nuper Comitis Cantiae nuper Admiralli nostri Angliae in quadam causa maritima quae in Curia Admirallitatis occasione affectationis conductionis sive locationis cujusdem navis Laurence de Gippelwich coram praefato Johanne tunc Judice in ea parte competenti inter praefatum Edmundum partem actricem ex una parte Johannem Birkyrne Richardum Hornesse Johannem Walas Willielmum Burton socios ut dicitur in causa praedicta Mercatores de villa de Kingston super Hull partem ream ex altera vertebatur quandam sententiam pro parte dicti Edmundi contra partem praedictorum Johannis Birkyrne c. rite legitime tulerit definitivam pars tamen eorum Johannis Birkyrne Johannis c. a sententia praedicta ad nos nostram audientiam frivole appellavit quo praetextu quidem Magister Johannes Kingston alii colore ejusdem commissionis nostrae eis ad cognoscend procedend in dicta causa appellationis praetens negotio in ea parte principali praetens directae perperam illegitimè procedentes ac dicti parti appellanti plus debito faven dictam sententiam pro parte dicti Edmundi ut permittitur latam licet nullam habuerint jurisdictionem infirmarunt cassarunt irritarunt adnullarunt ac ipsum Edmundum in expensis per partem dictorum Johannis Birkyrne Richardi Johannis c. in praedicta praetâ—â—â—sa causa appellationis negotio principali praetenso eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus
that they should altogether and without delay forbear all manner of cognizance in Civil and Maritime causes contracted in the parts beyond the seas upon the high Sea or in any place where his Admiral of England had jurisdiction or from thence proceeding against the said John Bates by what names soever called by whomsoever or in what manner soever begun or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid in like manner as before remitting the parties if they would sue to the Court of the Admiralty of England for justice to be to them there administred in that behalf The words of the Supersedeas are these Rex c. Majori Vicecomitibus Civitatis nostrae Ebor. salutem Vobis cuilibet vestrum praecipimus quatenus ab omni cognitione in causis civilibus maritimis in partibus ultramarimis vel super alto mari aut alibi ubi magnus Admirallus noster Angliae habet jurisdictionem contractus originem contrahentibus versus Johannem Bates Mercatorem cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis deliberatis per quoscunque vel qualitercunque motis seu movendis omnino indilate supersedeatis partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes Teste meipso apud Westm decimo quarto die Aprilis Anno Regni nostri trice simo primo Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas and out of these words apud Civitatem Burdugaliae venditioni expositis That though by the course of the Common Law if a man do deliver certain Goods unto another man and doth intrust him with the keeping of them for his the Owners use or to be by him disposed of in one manner and he either selleth them or disposeth of them in another I do conceive he that so intrusted the other may recover of him such damage as he hath sustained by such the others sale or disposal Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas for his own use or for the use of any other particular man to whom the same are by him consigned or doth intrust him to dispose of them in any particular manner whatsoever yet he may in many cases upon certain exigencies happening sometimes sell the same sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them and no damage shall be by the course of the Civil and Maritime Laws recovered of him and herein those Laws have very many nice and curious distinctions and for this Cause when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all he presently flyeth to the Common Law where he knoweth he shall recover damage against the Master who was in no fault at all in such manner as mutinous and disobedient Mariners who have either through their misdemeanors by the Civil and Maritime Laws forfeited their wages or some part thereof or having received due correction from the Master at sea do fly to the Common Law either for recovery of their wages upon their Contract which they have no wayes deserved or do there bring their Actions of Battery against the Master when as he hath only given them such due correction as the Civil and Maritime Laws do allow that being a thing done at sea where complaint cannot be presently made or remedy had before a Magistrate as may be at land and therefore the like at land not to be allowed in both which cases they oftentimes recover and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas which cannot oftentimes be possibly done but by Commission out of the Admiralty Court which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships which if not remedied will be the utter destruction of Navigation And another thing I shall observe in general from both the two preceding Supersedeas's That all Contracts of and concerning Maritime affairs made between Merchant and Merchant Masters and Owners of Ships and Mariners or between them or any other person whatsoever and in what manner soever to be agitated or performed by sea upon the seas beyond the seas or elsewhere within the Jurisdiction of the Admiralty or taking their rise or original from thence or do in any manner of wise touch or concern the same were not permitted in those times to be examined or adjudged in any Court but the Admiralty And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes viz. that Contracts of this nature though made at land which do maris per transitum sive viagium aut negotia maritima quoquo modo respicere vel qualitercunque tangere concernere and so do arise from things done or to be done at sea and not from things done or to be done within the body of a County do de jure belong unto the Cognizance of the Admiralty and are in no wise by the said two Statutes taken from the same and if by them not taken from thence then doth not the penalty of the other praementioned Statute of Henry the fourth run upon those that do sue in the Admiralty Court in causes of this nature but only upon such as shall there sue upon Contracts made at land of or concerning things done or to be done or performed at land and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued CHAP. IX That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted I Shall here proceed to shew that the Maritime Contracts whereof I have hitherto treated in this third Book of this Treatise and particularly exprest in the Title of this Chapter have been by Consultations out of the Courts of Common-Law at Westminster after Prohibitions from thence obtained determined and adjudged to belong unto the Admiralty One Robert Baker of the City of London Vintner sued one John Maynard in the Admiralty Court upon a Contract made at land of and concerning a thing done upon the Sea as by the Consultation it self doth appear But one John Gilbert Esquire being Bail for the said Maynard endeavouring to decline the cognizance of that
reciteth the said three before mentioned Statutes Praedictus tamen Thomas praemissorum non ignarus sed machinans non solum ipsum Philippum contra debitam legis hujus regni Angliae formam et contra formam et effectum statutorum c. traxit in placitum falsè caute et subdolè libellando in Curia Admirallitatis c. cujus quidem suggestionis praetextu c. That upon the 3. of April 7 Jacobi within the body of the County of London viz. in the Parish of St. Mary de Bow in the Ward le Cheap and not upon the high Sea nor within the Jurisdiction of the Admiralty Court of England he by his certain Bill obligatory sealed with his seal as his deed then and there delivered unto one Thomas Alport bearing date the same day and year did bind himself his Heirs c. to pay unto the said Thomas his Heirs c. at any time upon demand the summe of 275 l. and 6 s. of lawfull mony of England and alleadgeth the three before mentioned Statutes and that notwithstanding the said Thomas not being ignorant thereof c. had brought his Suit in the Admiralty Court for the recovery of the said debt upon the said Bill obligatory contrary to the form of the Law of England and contrary to the form of the said Statutes and thereupon obtained a Prohibition But upon the 20th day of June in the tenth year of King James it being made appear by the Libell and Bill obligatory that the same was made beyond the seas in respect of a Maritime business had and done at sea the said Prohibition was released by consultation which concludeth that the Prohibition was to the grievous damage of the said Thomas Alport and manifest wrong of the Court of the Admiralty and saith the proceedings in that cause in the said Admiralty Court ought not to be delayed Et quia videtur praefatis Judiciariis pro certis caeusis ipsos specialiter moventibus quod processus in praedicta Curia Admirallitatis in praedicta causa ad prosecutionem praedicti Thomae ulterius retardari non debet Ideo vobis c. T. E. Coke apud Westm xx die Junii Anno Domini nostri Angliae Franciae Hiberniae decimo Scotiae quadragesimo quinto Crompton But it may be said that many more Prohibitions have been granted out of both the said Courts at Westminster as well in causes of this nature as in causes for things done upon Ports and Havens upon which Consultations have not been had and I doubt not but in latter times there have but it hath for the most part been when the parties have agreed and the cause compounded and so no Consultation prayed or sought for if otherwise let no man brag of that which hath been done which ought not to be done But another cause may be given and that is this that the Civilian not being suffered there to plead the right of Jurisdiction belonging to the Admiralty the same hath not been undertaken by any practicers in those Courts and if undertaken yet pleaded but coldly against the Jurisdiction of their own Courts Howsoever I do conceive that the Procedendoes out of the Chancery and the Consultations out of the Kings Bench and Common Pleas which I have in this and the second Book of this Treatise set forth though I might have instanced in very many more will be sufficient to determine the right of Jurisdiction as well in causes of the one nature as of the other against the said several Courts from whence such Supersedeases and Prohibitions were granted I will not say but that the Admiralty Court may sometime have intermedled with Contracts made at land arising from businesses done or to be done or performed at land which is here in England as it were to take Cattle from a Pasture and put into the sea to feed And in such cases I doubt not but a Prohibition may lye which shall not be dissolved by Consultation But by Prohibitions to take businesses of the Ports and Havens or Contracts made at land concerning Maritime affairs from the Admiralty to be determined by the Common-Law of the land is to take fish out of the sea to be kept alive and fed upon pasture or in some Forrest or Park at land For I shall in the next Chapter out of many shew you some few of those exact rules the Civil Law hath to proceed by in causes of this nature besides the Laws I have before mentioned which the Common-Law hath not CHAP. X. That divers and severall of the Laws under the titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes and other Laws selected out of several other titles as subsidiary unto them do set forth most exactly the determination of Controversies which may and do daily arise from Contracts made at land concerning matters to be done at sea NOw concerning this matter I may rather referre the Reader unto Peckius himself Vinius and other Authors writing thereon then to spend any great labour about it but whilest he hath this book in his hand let him cast his eye upon some few of a great number of such Contracts made at land concerning businesses to be done at sea which are exactly determined by these Laws and are used and held absolutely necessary in all forreign Maritime Judicatories and not by any the rules of their Municipal Laws which as they are little or nothing different in their proceedings from the proceedings of the Civil Law so are they farre less different in their determinations from the determinations of that Law then our Municipal Laws be As in the first of these Titles If Mariners before they receive goods on board do contract with the Loader ut recepta restituant Quaeritur utrum Nauta an Exercitor navis pro restitutione conveniatur Quaeritur etiam an Exercitor Magister aut Nà uta ex contractu teneatur de rebus non ostensis Ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione Quaeritur etiam utrum nautae ex sola emissione teneantur Ac etiam an nautae de facto vectorum teneantur Quaeritur etiam quae quando actio detur subsidiaria protestatio an requirat consensum adversarii Ac an in scriptis fieri debet Quaenamque sit vis protestationis Cum quolibet nautarum sit contractum an detur actio in exercitorem Ac quid si nauta per Magistrum navis conductus in nave deliquerit an in exercitorem detur actio Magister navis per exercitorem conductus an alium substituere potest Mutuum dans in navis usum an caeteris creditoribus praefertur quando quare an quando navis per aversionem conducitur Dominus an quando quare invitus ignorans de peculio teneatur Merces an pro naulo contracto cum magistro sint obligatae Quaeritur etiam quando argumentum Ã