direction of his Demeasnes and Receipts and the administration of Common Justice continued still in that high Court of Justice and Equity which did then and a long time after as well as before the Conquest follow the King himself and for proof thereof he quoteth Gervasius Tilburiensis who wrote many observations upon the Exchequer which he dedicated to King Henry the second and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there But because as Mr. Lambard saith some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas for all Subjects whatsoever and that for the maintenance of their assertion they do alledge the title of Mr. Glanvil's Book in part thus Et illas solùm leges continet consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium lest others should hereby be misled and for this reason think so too and so be brought to conceive that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco that the Exchequer might have the cognizance of all Causes between party and party as well maritime belonging to the Sea and Sea-affairs and from thence arising as terrene belonging to the Land and Land-affairs and from thence growing I shall here set down Mr. Lambards answer to that which is alledged for the proof and maintenance of this assertion who confidently affirmeth that the aforementioned words are not the words of Glanvil himself but of the Publisher of his Book in print which appeareth by what precedeth the words alledged in the Title viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo which saith he doth plainly shew and bewray that the Publisher spake of Glanvile as another man and which also lived not then but at another time And herein he must needs say very truly for never was there any Author of any credit that ever gave himself this or the like title or being living would say that he was juris regni antiquarum consuetudinum eo tempore peritissimus And again they have not taken in all the words of that title which do follow but have left out these viz. Et coram judiciariis ubicunque fuerint which being so the Kings Bench or Court which then followed the King must needs be herein comprehended and included and the whole title being collected thus Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile juris regni antiquarum consuetudinum eo tempore peritissimo eas solùm leges continet consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium coram Justiciariis ubicunque fuerint Then doth this title make no argument for the proof of their assertion And so I shall leave the Exchequer then only to govern and rule the Kings Revenues Demeasnes and Receipts and such matters as belong only thereunto and next cast only a glance upon the Justices in Eyre and their Jurisdiction The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes but by Bracton are called itinerantes For King Henry the Second in the 32th year of his reign divided the Realm into six parts from which the Circuits which our Judges do now ride do not much differ and to every of those parts appointed three Justices who at their appointed times kept Circuits in their several parts to them limited and held plea as well of Criminal as of Civil Causes But Justices of Assises being likewise appointed whose first office was to take Assises of Mort d'ancester and Novel Desseisins according to the customes of Normandy where it is called la Novellette and gaining a further power of taking Attaints Juries and Certificates and delivery of Gaols These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre who about that time did surcease and take leave Now could neither of these Justices the Justices in Eyre not coming every year into the Country nor the other Justices being sometimes at home sometimes in their Circuit and in their Circuit sometimes in one place and sometimes in another take cognizance or have the hearing and determining of maritime causes seafaring matters or any thing them concerning For such causes did and do require a more speedy dispatch and determination than these Justices could afford them Nam breviter summariè tales sunt examinandae causae nec ad plenissimas Judiciorum formulas recurrere oportet sed suceinctè de plano sine strepitu judiciorum solenni figurâ immo velo levato in eis procedendum est ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem transfretationem properant judicium sic properat ad navigandum transfretandum festinatio Merchants Mariners and Seamen whose business and affairs are ordered here ventulated at sea and agitated beyond the seas must have a quick and sudden dispatch of Justice that as they come in with one good wind so they may go out with another the Mariners cause admitteth no delay but must have a judge and a settled place of Judicature at all times in readiness for his dispatch for whilest his cause is pleading for his right his Ship is preparing for his Voyage to which I may well apply the verse in Virgil Interea classem velis aptare jubebat For his ditty is alwayes the same with another verse of the same Authors Rursus agam pelago ventis dare vela jubebo Neither for the very same reason if there had been no other could the Court of Common-Pleas when it was settled take cognizance of maritime causes or seafaring matters nor did the settling thereof dissettle the Marina which had at and before that time been committed unto the care and charge of several persons as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited for the Court of Common-pleas 't is plaine began not to be settled untill the ninth year of the same King if so soon for it was but that year determined that it should be so settled but the power thereof rested in the King himself and his supreme Court which constantly followed him whithersoever he removed and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place by these words Communia placita non sequantur curiam nostram sed teneantur in certo aliquo loco Now although differences and controversies of what nature soever were then perhaps neither so many nor did so frequently arise as now nor were of so great consequence and concernment as since they have been yet cannot I or any man else as I conceive think that
Professor of the Civil Law denyeth that he had any imployment or part in any Admiralty and he setteth it forth thus and saith 1. That for the redier obedience to the great Admiral of the Sea it is by common consent of Nations successively agreed that in consideration of the Admirals soveraign commandment special preferment and power over the lives of men within the Sea-flood that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds and in all seafaring causes and debates Civil and Criminal so that no other Judge of any degree at least in Scotland may meddle therewith but only by way of assistance and that must be by way of Commission and in difficult causes and he instanceth in an action intended by Antoni de la tour against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome and the 555 Chapter of the Registry of Scotland 2. He saith the Admiral is to constitute a Vice-Admiral and Captains to supply his absence at Sea as also Deputies for particular parts on the Coasts with Coroners to view the dead bodies found on Sea or found on the Coasts thereof And Commissioners or Judges General for exercising Justice in the high-High-Court on Land in causes Criminal specifying likewise the Officers thereunto belonging and these Commissioners or Judges General may sit where they please to execute Justice to imprison and relax and to command the Kings Prisons Boroughs and their Prison-Keepers to receive and keep their Prisoners 3. That his authority is distinctly acknowledged in all things pertaining to seafaring matters and therefore his Judge Deputy or Commissary is called Judge Admiral and he and none other doth sit cognost determine and administer Justice in all Civil debates between Mariner and Merchant and between Mariner and Mariner as likewise upon all Complaints Contracts Offences Pleas Exchanges Assecurations Debts Accomps Charter-parties Covents and all other Writings concerning lading and unlading of ships freights hires money lent upon casualties and hazard at Sea and all other business whatsoever amongst seafarers done on sea this side sea or beyond sea not forgetting cognition of the Writs and Appeals from other Judges and the causes of Actions of Reprizal or Letters of Marque Yea and to take Stipulations Cognizances and insinuations in the books of the Admiralty and to arrest and put in execution 4. That he is to enquire as well within liberties as without by the Oath of twelve men upon several offences 1. Of Revealers of the King and Countrey their secrets over sea in time of warre 2. Of all Pirats their Assisters and Abettors Out-treaders and Receptours 3. Of the Breakers of the Admirals Arrestments and Attachments 4. Of Goods forbidden and Merchandises not customed and yet shipped and transported 5. Of the Resisters of the Admirals Officers in executing their praecepts 6. Of the Forestallers Regraters and Dearthers of corn fish drink fire wood and victuals carried over sea 7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction as also of the Judges taking cognizance of such causes 8. Of such as give Sea-briefs Testimonials or such like over sea without power or licence from the Admiral 9. Of Transporters and Carriers of Traytors Rebels manifest Transgressors and Fugitives from Justice over sea 10. Of Freighters and Hyrers of Ships of other Nations when they may be served by their own Nation 11. Of such as cast Ballasting-sand or what else in Harbours or Channels that may defile or spoil the same 12. Of Ship or Boat-writes extorting the Leiges or Subjects 13. Of taking away the Boigh from the Anchor or cutters of Cables or other Tews 14. Of false Weights and Measures by sea 15. Of Shedders of other mens blood on Sea or any Port or River below the first Bridge next the Sea 16. Of such as have furnished Ships with all ware or gear as the Sea-men terme it whereby any are hurt lamed or maimed 17. Of Customers and Water-Bailiffs which take more Custome or Anchorage then hath been usuall 18. Of such as absent themselves from Wapen-shewing or Mustering which the Admiral may ordain twice a year in time of warre and once in two year in time of peace upon all dwellers at Ports and Harbours or within one mile near thereunto 19. Of all sorts of transgressions committed by Sea-men Ferry-men Water-men as well in Floods Rivers and Creeks from the first Bridges as on the Seas Fishers Pilots Ship-wrights and Prest-men and continuing his authority after due cognition to levy and gather the penalties and amercements of all such transgressors together with the goods of Pirats Felons capital Faulters their-Receivers Assisters attainted convict condemned outlawed or horned 20. Of Deodands viz. the thing whether Boat or Ship c. that caused the death of a man or by reason whereof a man did perish 21. Of Waif or Stray-goods Wreck of Sea Coast-goods 22. Of Shares lawfull Prizes or Goods of the Enemy Lagon Flotson and Jetson Lagon which lyeth on the Sea-ground or is taken from the bottom of the Sea Flotson which is found swimming on the Sea Jetson which is cast forth of the Sea and is found on the Shoar with Anchorages Beaconages Mear-Swine Sturgeons and Whales and all fish of extraordinary greatness which have alwayes been allowed to the Admiral CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England THus have I set forth the antient original and beginning of the Sea-laws from the Rhodes so exactly by them set down according to the rules of equity that none of the Roman Emperours the Masters of Law no not Antoninus who as he accounted himself was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mundi dominus would undertake the decision of maritime causes but would refer them to the determination of the Laws of the Rhodes I have likewise set forth the common and glad acceptance of them or of what could be got of them or rather the earnest suit for them by very many other Nations the use whereof hath been most profitably continued amongst them Can it be thought then that this Nation being an Island to which Shipping and Navigation must needs be most necessary and usefull should deny or refuse these Laws so serviceable and usefull for their Maritime affairs there being no other Law here usefull for that purpose or shall it be thought that this Nation neither knew or heard of them when so many other Nations did Certainly no This Nation hath very antiently flourished by its Trade and Traffique with other Nations and hath been frequently accustomed to Navigation and Transfretation and hath had as well converse as commerce with those Nations and would as well convey those Laws hither for their common Government as transport their own Commodities thither for their private benefit which happily could not be enjoyed one without
for certain Judgement thereof is given for the Mariners Berry chief Justice of the Common-pleas The King willeth that the Peace be as well kept on the Sea as on the Land and we find that you are come hither by due-process and therefore ruled him to answer Out of which the Author observeth four things 1. That it is called the Sea which is not within any County from whence a Jury may come 2. That the Sea being not within any County is not within the Jurisdiction of the Court of Common-pleas but belongs to the Admirals Jurisdiction 3. That when the Ship came within the River then it is confessed to be within the County of Northumberland 4. That when a taking is partly on the Sea and partly in a River the Common Law shall have Jurisdiction For the first Observation which is that that is called Sea which is not in any County from whence a Jury may come I may very well grant it and he yet never the nearer the proof of that he aimeth at viz. that a Port or Haven is within any County out of which a Jury may come which is absolutely denied the reason whereof as before so shall be hereafter shewed For his second observation that the Sea not being in any County is not within the Jurisdiction of the Court of Common-pleas shall not be denyed him but I must crave leave to observe with him That notwithstanding this Ship was taken upon the Seas where there was neither Town nor Place from whence a Jury could be taken yet Berry the chief Justice took cognizance of this Cause and caused Mutford to answer And this might have served him for as good an Argument to have proved the Seas to be within the Jurisdiction of the Common Law as any that he hath used to prove the Ports and Havens to be within the bodies of Counties and out of the jurisdiction of the Admiralty For his third Observation which is that when the Ship came within the River it is confest to be within the County of Northumberland I conceive if Mutford might at the Common Law have pleaded two Pleas which in many cases is necessary and allowable by the Civil Law he would as well have denyed that ever he carried the Ship into the County of Northumberland as he did averre that he took her upon the Seas and silence is not a consent or confession where a man is tyed to one plea and hath divers to plead This therefore is neither confessed by Mutford or any else but by the Author himself and such as are of his party for Berry neither affirmeth nor determineth any such thing or causeth him to answer upon any such ground but upon this ground that the King willeth the peace to be kept as well on the sea as on the land And indeed the grounds are both kept alike to sound the cognizance of this Cause in the Court of Common-pleas whereas the King that willeth the peace to be kept as well on the seas as on the land hath provided instituted and appointed from antient and farre past times distinct Judges Justices and Officers for the keeping thereof on the one hand and on the other The Admiral his Deputies and other Justices with him appointed for the keeping thereof upon the Seas and the Judges of the Land and other Justices with them appointed for the keeping thereof upon the Land and neither have to do with the others Jurisdictions So that I cannot conceive nor can I grant chief Justice Berrys ground whereon he founded this Replevin and the taking this Cause into cognizance to be Terra firma And as for that which Sir Edward Coke would have to be the ground of this Replevin and cognition of this Cause namely because after she was taken at Sea she was carried into a Port or Haven which he accounteth to be within the body of a County If this should be allowed for a good ground then must all Reprizals taken at Sea by Letters of Marque and brought into the Port and Haven be exempted from their condemnation in the Admiralty Court for lawfull prize and may be set free by a Replevin granted from the Common Law and whatsoever fact done upon the Seas either by ship or man the ship or man repairing to Port or Haven Justice must be had against them from the Common Law So that by this construction the Admiral shall have no cognizance of piracy robberies c. committed at Sea either by the course of the Civil Law or by the course of the Law of the Land upon the before mentioned Statute of Hen. 8. but if the Pyrats or Robbers c. shall escape and bring that which they have stoln or by violence taken away c. into any Port or Haven or to land this pyracy robbery c. shall be tryed at the Common Law And as well may it be said that if they shall be taken upon the Sea and afterwards be brought into any Port or Haven or to land that then the Admirals Jurisdiction ceaseth and the tryal belongs to the Common Law So that the Admiral must go set up his Tribunal upon the high Seas as Sir Ed. Coke distinguisheth them if he will have any Jurisdiction at all And whatsoever injury shall happen to be done at Sea by one Ship unto another the Ship which did the injury by repairing to her Port or Haven shall free her self from the judgment of the Admiralty Court c. and the Common Law shall free the Judge of the Admiralty and all the Officers belonging to that Court from any further attendance there which doubtless was the aim of the Author as will plainly appear when I shall come to sum up all he would have And I wish it be not the aim of a great many still whose aim for their own ends must necessarily be destructive to a general good as shall be likewise hereafter shewn For the Fourth Observation which is that when a taking is partly on the Sea and partly in a River the Common Law shall have the jurisdiction For this partly taking on the Sea and partly on the River I must confess I know not how it can be for a Ship is either taken or not taken when she is taken at Sea or taken or not taken when she is taken upon the River unless we can say that one part of the Ship was upon the Sea and the other part of her upon the River at the very instant time of her taking But if the jurisdiction of the Admiralty may have its right we shall have no need of a Mathematitian to strike a line between the Sea and the River to make the distinction for indeed this distinction will be altogether needless But this Observation having relation to the matter of fact from whence it is drawn this meaning of taking partly on the Sea and partly on the River must be that a Ship is so taken when she is first taken at Sea and
Maritime affairs wheresoever made were then duly used in the Admiralty Court and did properly thereunto belong CHAP. III. That by the ancient Statutes of the Admiralty and by the Laws of Oleron it appeareth that Contracts made at land of and concerning Maritime affairs were cognizable and tryable in the Admiralty both before and even in the time of Edward the Third whereunto the last mentioned Statute maketh reference IF Contracts and Covenants of and concerning Maritime businesses made at land were cognizable in the Admiralty in Edward the Third's time then doth the last before mentioned limitation of the Statute of the 13th of Rich. 2. 5. continue them tryable there still taking the construction of the Statute to be with relation to the Petition or without But before that I go about to shew that they were then cognizable there I shall make it first appear that they were there triable long before his time and so come to the cognizance of them in his time In the beginning of that antient authentique book called the black Book of the Admiralty whereof I have formerly made mention in which all things therein comprehended are ingrossed in Vellam in an antient character which hath been from time to time kept in the Registry of that Court for the use of the Judges of the Admiralty successively and is as free from suspition of being corrupted or falsified as the Records of any Court whatsoever are set down the ancient Statutes of the Admiralty with directions how in what manner and of what things every Admiral shall enquire at every Port and Haven after his being made high Admiral Where amongst other things I find an Ordinance made by Edward the First at Hastings as is plain by the Ordinance it self whereby all Stewards and Bayliffs of Mannours upon the Sea-coasts are forbidden to meddle with any plea or try any cause whatsoever touching or concerning any Merchant or Mariner whether by deed or charter party of Ships or other things amounting to the summe of 20 or 40 Shillings The words are these Item ordonne estoit a Hastings par le Roy Edward le primer ses seigneurs que coment divers seigneurs avoient diverses franchises de trier plees ou Ports que leur seneschaulx ne Baliffs ne tendroient nul plee sil touch Merchant ou Mariner tant par fait come par chartre de nefs Obligations autres faitz comment la somme amont que a xx s ou a xl s saucun est endite quil a faite le contrare de ce soit convict il avera mesme le Judgement come desus est dit They that shall do to the contrary and shall be thereof convict they shall have the same Judgement as is aforesaid which is a years imprisonment set forth in the next preceding Article for a Mariners breaking an arrest made upon him for to serve the King in any Ship And the same Ordinance concludeth this Item chūn contract fait entre Marchant Marchant ou Marchant ou Mariner outre la mer ou dedens le Flod markes sera trie devant l' Admirall nemient ailleurs par lordonannce dudit Roy Edward ses seigneurs Also every Contract of a thing done between Merchant and Merchant Merchant or Mariner beyond the Seas or beneath the Flood mark shall be tryed before the Admiral and nowhere else by the Ordinance of the said King Edward and his Nobles And in another thick covered Book with great Brass Bosses kept in the Registry of the said Court wherein are set down some things of Antiquity and likewise some things of latter times I find this very Ordinance set down in express words agreeing both with the former part and with the Addition thereunto Wherein I likewise find an Article of Enquiry in Latine containing the whole substance of this very Ordinance in these words Item inquiratur de hiis seneschallis ballivis quorumcunque Dominorum per costera maris Dominia habentium qui tenent vel tenere usurpent aliquod placitum mercatorum vel marinarum concernens excedens summum quadraginta solidorum paena qui inde presentati fuerint super hoc convicti paenam quinque librarum judicium subibunt haec est Ordinatio Edwardi primi apud Hastings regni sui Anno secundo Item quod quilibet contractus initus factus inter Calcatorem Mercatorem Marinarium aut alies ultra mare sive intra fluxum maris vel refluxum vulgariter dictum Fludd marke erit triatus terminatus coram Admirallo non alibi per Ordinationem praedictam And by an Inquisition long since translated out of an ancient French Copy into Latine by one Roughton and Ingrossed in the said black Book I find this whole Article in the self same words save that instead of these words paenam quinque librarum judicium subibunt the words are these Eandem paenam ut super judicium subibunt which agreeth with the Ordinance it self which referreth to the punishment in the preceding Article thereunto which punishment is as is set forth before a whole years Imprisonment Now that this Ordinance and this Article onely forbiddeth Stewards and Bayliffs of Mannours for medling with such Maritime Contracts and Causes it is because that at that time there were no other Courts that could encroach upon the Admiralty for the Kings-Bench was not setled in any constant place but followed the King wheresoever he went and the Justices in Aire and Justices of Assize being Itinerantes and sometimes at home and sometimes in their Circuits and somerimes in one place sometimes in another and so in no certain place and least of all in any Ports or Haven Towns never did nor could take Cognizance of Maritime Contracts or Causes which always required a most sudain dispatch and could not expect their uncertain coming nor was the Court of Common Pleas then settled for it was resolved to be settled in some constant place but in the 9th year of Hen. the 3. all which will appear by what I have formerly set down Now that these Contracts and Covenants concerning Maritime affairs though made at Land were continued cognoscible in the Admiralty Court in Edward the 3. time as well as before will likewise plainly appear thus The Laws of Oleron which were brought into this Kingdom by Richard the 1. were absolutely and compleatly settled and established in this Nation by Edward the 3. in the 12 year of his raign as will plainly appear by that ancient Record of the Tower Intituled De Articulis super quibus c. Anno Regni Regis Edward 3. 12. which is already set down which I will here repeat because I will not turn you back to the other place being there made use of to another purpose Item ad finem quod resumatur continuetur ad subditorum prosecutionem forma procedendi quondam ordinata inchoata per avum
Court and hinder the just and due proceedings thereof suggested before the Kings Justices at Westminster that he and one William Cowick his Proctor were by the Officers of that Court cited to appear in the said Court in the said cause pretending the same to be a cause cognoscible before the said Justices and not in the Admiralty Court and obtained a Prohibition after which the Libel in the said cause being exhibited before the said Justices as likewise appeareth by the said Consultation and it being thereby plain that the same was for a Contract made concerning Sea business it is said that the Prohibition issued out unadvisedly praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram Justiciariis apud Westm improvidè emanavit and concludeth with a nolumus quod per hujusmodi malitiam suggest cognitio in praefata Curia nostra Admirallitatis taliter derogetur That the cognizance of that Court shall not be hindred by such malice or suggestion and so the cause is thither remitted by consultation bearing date the 11th of July in the 24th year of the said Henry the eighth T. R. Norwich apud Westm which Consultation was directed to Henry Duke of Richmond and Sommerset and Earl of Nottingham high Admiral of England Ireland Gascoine Normain and Aquitaine and to Arthur Plantaginet Knight Viscount Lisle the said Dukes Vice-Admiral or his Lieutenant and also to John Tregonwell Dr. of Laws Official Commissary or Judge of the High Court of the Admiralty and to Thomas Bagard Doctor of Laws his Surrogate in the said Court See the Consultation it self as it follows Henricus Octavus Dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae dilecto fideli nostro Henrico Duci Richmond Somerset Comiti Nottingham magno Admirallo Angliae Walliae Hiberniae Gasconiae Normaniae Aquitaniae Nec non Arthuro Plantaginet Militi Vicecom Lisle praedicti Ducis Vice-Admirallo sive ejus locum tenenti ac etiam Magistro Johanni Tregon-well legum Dostori in Curiâ principali Admiralitatis Angliae Officiali sive Commissario Magistro Thomae Bagard legum Doctori dicti venerabilis viri Johannis in dicta Curia Admiralitatis Surrogato sufficienter legitimè Deputato eorumque cuilibet salutem Ex parte vestra nobis est intimatum quod cum quidam Robertus Baker nuper de London Vintner in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Johannem Maynard de super quodam contractu de re facta super mare quidam tamen Johannes Gilbert Armiger in hac parte cognitionem vestram fraudulenter malitiosè satagens declinare debitum legis processum in eadem Curia nostra in parte illa impedire ac suggerens in Curia nostra coram Justiciariis nostris apud Westm ipsum Johannem Gilbert ac quendam Willielmum Cowicke procuratorem suum per vos in praedicto Curia Admirallitatis Coram vobis super praedicto placito praetenseundem Johannem Gilbert per inordinatam fatigationem in eadem Curia Admirallitatis coram vobis in dies trahi in placitum per ministros vestros ea occasione citari coram vobis comparere adinde respondere faciendum totis viribus sententiam versus ipsos Johannem Gilbert Willielmum Cowicke pro praemissis fulminare proponend placitum quod inde per legem terrae in praedicta Curia nostra coram Justiticiariis nostris apud Westm non coram vobis in dicta Curia nostra Admirallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ipsius Johannis Gilbert grave dampnum ac nostri contempt coronaeque nostrae Regiae exhaeredationis periculum ac contra legem cons regni nostri Angliae Breve nostrum de prohibitione minus rite vobis dirigi procuravit cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae Curiae nostrae Admirallitatis laesionem quia praedictum Breve nostrum de prohibitione à dicta Curia nostra coram Justiciariis nostris apud Westm nuper inde improvide emanavit prout per quendam libellum in dicta Curia nostra coram Justiciariis nostris apud Westm post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ac quia nolumus quod per hujusmodi malitiam suggestionem cognitio in praefata Curia nostra Admirallitatis taliter derogetur ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant T. R. Norwich apud Westm xi die Julii Anno Regni nostri vicesimo quarto One Richard Bell likewise sued one John Crayne in the Admiralty Court for that the said John did at Dartmouth within the Maritime Jurisdiction of the Admiralty promise and bind himself to exonerate and keep indemnifyed the said Richard for taking or restoring of a certain Ship called the Mary Fortune and the apparel of the same and the Goods and Merchandizes in her at the time of the taking of her and that he the said Richard at the time of the taking of the said Ship together with John Bell and others was present against one John Destyron and other Spaniards affirming themselves to be the Masters and Owners thereof And the said John Crane not setting forth what this Contract made at Dartmouth was for but barely suggesting that he was sued upon a Contract made at Dartmouth within the body of the County of Devon and not within the Jurisdiction of the Admiralty obtained a Prohibition But upon complaint of the said Bell setting forth from whence the Contract arose and for what the same was it was held to be within the Maritime Jurisdiction of the Admiralty and a Consultation was awarded by which it is said to be in ipsius Richardi Bell grave damnum legis libertatisque Admiralli laesionem manifestam to the grievous damage of the said Richard and manifest wrong of the law and liberty of the Admiral and further saith Et quia cognitionem Jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus vobis jam significamus c. And because we will not have the Cognizance and Jurisdiction of the Admiralty in Maritime caues to be hindered by such crafty assertions we therefore c. as in the former Consulattion I shall likewise set down this Consultation which was in the time of Henry the Eighth and so come to shew you some of those which were in the time of Queen Elizabeth Henricus octavus Dei gratiâ Angliae Franciae Hiberniae Rex fidei defensor in terra Ecclesiae Anglicanae Hiberniae supremum caput Nobili prae potenti viro Domino Johanni Vicecomiti Lysle Baroni de Malpas Somerey praeclari ordinis Garteri Militi Domino Basset Tyasse Magno Admirallo Angliae Hiberniae Walliae Villae
be proceeded in according to the rules of the Civil Law and have their determination from the same or else be decided without testimony which is to judge blindfold or else to rest unadjudged and the wronged and injured party to be left remediless and unrelieved But it will be answered that in such cases they may have a Commission out of the Chancery for that purpose To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law or to the Civil and Maritime Law And then surely it must more properly belong unto that Law and that Court which can of it self without the assistance of any other Court make a compleat proceeding and tryall and give a direct judgement according to express rules of Justice in such causes then to that Court which without the assistance of another Court can do neither Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions neither hath it in as many causes any express rules to direct the Judicature thereof I shall here set down some few of those Laws which the Civil and Maritime Laws give in such Cases so farre forth onely as to shew that the Maritime Laws were ordained as well for the Ports and Havens as for the main Seas First then for the lading of a Ship which is always or commonly in a Port or Haven the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading as shall be put aboard the said Ship and who shall not sunt quidam in navibus qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diaetarii Si quis igitur ex his receperit puto in exercitorem dandam actionem quia is qui eos hujusmodi officio praeponit committi eis permittit quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant Sed si hoc non extet tamen de recepto navicularius tenebitur non debet per remigem aut mesonautam obligari sed per se vel navis magistrum This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship but likewise what things they are chargeable for and saith Quod cujusque salvum fore receperint hoc est quamcunque rem sive mercem receperint and least it might be thought that it is onely meant of Wares and Merchandizes and nothing else it explaineth it self yet further and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent veluti vestimenta quibus in nayibus uterentur cetera quae ad quotidianum usum habemus parvi referre res nostras an alienas intulimus si tamen nostra intersit salvas esse And assoon as such Merchandizes and other Commodities are put aboard the Ship whether she be upon Port Haven or any other part of the Seas he that is exercitor navis is chargeable therewith and if the same be there lost or purloined or sustain any damage hurt or loss whether in the Haven before or upon the Seas after the Ship be set forward on her voyage whether it be done by the Mariners or any other through their permission or negligence he that is exercitor navis is to make good the same For saith the Law recepit salvum fore utrum si in navim res missae ei assignatae sint an etsi non sint assignatae hoc tamen ipso quod in navim missae sint receptae videntur omnium recepit custodiam quae in navini illatae sunt Et factum non solum nautarum praestare debet sed vectorum And in these cases two several Maritime Actions do lie whereof the Agent hath his choice Dicendum duas proponi actiones exercitorias una est de recepto in simplum quae dicitur in factum altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur Et haec est in duplum sed in eam non venit factum vectorum So that the very lading of goods aboard the Ship chargeth him that is exercitor navis therewith which the Common Law doth not for he is lyable for whatsoever his Mariners shall do aboard the Ship be she in Port Haven or upon the high Seas but he is not lyable for what they shall do being at land and not aboard the Ship so that the Ship maketh distinction of Actions but maketh no distinction at all between her being upon the high Seas or upon Port or Haven Debet Exercitor omnium nautarum suorum sive liberi sint sive servi factum praestare nec immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam in ipsa nave damnum datum sit caeterum si extra navim licet a nautis non praestabit But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda and shall lose them or suffer them to be stoln from him before they shall be laden aboard the said Ship he shall be lyable to make satisfaction Idem ait etiam si nondum sint res in navim receptae sed in littore perierint quas semel recepit periculum ad eum pertinere If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship and transported in case they there perish or be otherwise damnified much more shall he be answerable for such goods and merchandizes as he shall receive or shall be laden aboard his Ship if the same perish or be damnified in or upon the Port or Haven Those Laws of the Rhodes which we find inserted into the body of the Civil Law which are the ancientest Sea-laws extant do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship and the remainder of goods and of the Avaridge payable out of the same whether the Ship be in such stress of weather upon the Ports or Havens or upon the high Seas and the rules there set down do serve as well for the one place as the other These Laws and Rules being general and not restrained to the high Seas do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved And such danger doth not alwayes fall out upon the high Seas but oftentimes upon the Ports and Havens But least this shall be thought not sufficient but that notwithstanding the generality of the Sea Laws which have provided directions sufficient for what is to be done in such cases
Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat at quod praedictus Patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat Ideo vobis mandamus quod praedictus Patricius in causa sua praedicta in praedicta Curia nostra Admiralitatis praedictae licitè procedere facere valeat quod ad praedictam Curiam nostram Admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti T. E. Anderson apud Westmon decimo nono die Junii Anno regni nostri tricesimo octavo Culwicke Scott Shortly after the granting of this Consultation by the Lord Chief Justice Anderson and before the cause could come to hearing or to be fully determined in the Admiralty Court Prideaux upon the same Suggestion procureth another Prohibition from the Lord Chief Justice Popham and thereby again stayed the proceedings in the Admiralty Court untill the 41th year of the Queen But in that year vicesimo septimo die Junii upon reexamination of the poynt another Consulation was awarded agreeable with the former and the Admiralty Court was then a second time set free to determine the Cause in these more express words Ideo vobis mandamus quod praedictus Patricius in causa praedicta quoad omnes hujusmodi res contractus praedict super altum mare vel super ejus necessaria dependentia Ita quod vos vel praedictus Patricius de aliquibus rebus contractibus infra corpus alicujus Comitatus regni nostri Angliae factis ne intromittatis c. in Curia Admiralitatis praedictae coram vobis seu aliquo vestrum licite procedere facere valeat c. Now here doth this Consultation put a plain distinction between the bodies of Counties and the Ports and Havens here called necessaria dependentia alti maris and indeed they are such necessary dependants of the Sea that they may very well nay they must be called mare the Sea though not altum mare the high Sea otherwise needless and altogether in vain was this distinction of mare altum mare of the Sea and the high Sea and main Sea if the Ports Creeks and Havens were not mare Sea and those parts of the Sea further remote from the land altum mare the high or main Sea And then let us consider that though upon every suggestion whereon a Prohibition is in such cases awarded upon the Statute of the 13th of Richard the second the words sur le meer in the same be in the Prohibition translated super altum mare yet will not those words sur le meer nor any other words in that Statute bear any such construction as by the said Statute if lookt into will appear which Statute shall be hereafter set down at large according to the Parliament Roll in the Tower And then is there nothing at all contained in that Statute which can so much as seem to limit the Admiral to the high Seas or exclude his Jurisdiction from extending to the Ports Creeks and Havens which are sea though not high sea And so the very foundation whereon all the Arguments which tend to the deprivation of the Admiral of his Jurisdiction upon the Ports and Havens are grounded is clearly taken away Patrick Landy likewise sued John Prideaux of Padstow pro tribus millibus centenis sepi libellando eundem Johannem Prideaux bona res merces praedicta ac alia bona res merces in manus possessionem sui ipsius Johannis infra fluxum refluxum maris accepisse sumpsisse eademque tunc penes se habuisse seu saltem eadem dolo alienasse c. Prideaux upon suggestion that those Goods and Merchandises were per quendam Georgium Sydenham nuper Capitaneum navis Anglicanae vocat the Black Boat apud Villam de Padstow in Comitatu Cornubiae infra corpus ejusdem Comitatus non super altum mare vendita deliberata per ipsum Johannem ibi recepta habita tenta ad vsum suum proprium conversa c. And obtained a Prohibition 12. Feb. 37 Elizab. A Consultation is awarded in the same words with the other The same Patrick Landy sued Digorius Halman in the Admiralty pro quinquaginta dycariis pellium Hibernicorum libellando quod idem Digorius praedictas quinquagintas dycarias pellium sub nomine bonorum rerum mercium in manus possessionem suas infra fluxum refluxum maris accepisset sumpissset easdemque tunc penes se habuisset saltem easdem dolo alienasset c. Digorius Halman upon suggestion that Gremfield Halse Nicholas Halse and John Hoyell alias Howele at Plymoth in the County of Devon infra corpus ejusdem Comitatus Devoniae non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium c. pro certâ denariorum summa barganizarunt vendiderunt eidem Digario Halman ac quibusdam Johanni Martin Thomae Crane praedictas quinquaginta Dicarias pellium c. And obtained a Prohibition Vicesimo sex to Maii 40 Eliz. a Consultation was awarded T. Edvardo Anderson And as before so here in this same cause and upon the same suggestion a new Prohibition was awarded by the Lord Chief Justice Popham But 26 Maii 41 Eliz. a Consultation was again awarded as in the before mentioned cause and many more I might likewise instance in and set forth both the Prohibitions and Consultations at large but that I should thereby too much enlarge this Treatise Now as by the Writs de procedendo awarded out of the high Court of Chancery upon Supersedeas in the former Chapter set down so by the Consultations upon Prohibitions awarded out the Courts of Common Law here set forth I hope it is evident enough that the Admirals Jurisdiction extendeth to the Ports and Havens and to all things done thereon Vide etiam quae sunt in cap. 9. libri tertu specificata CHAP. XX. That the Ports Havens and Harbours where Ships do lie or ride at Anchor are not within the bodies of Counties but that the Jurisdiction which the Admiralty hath anciently had thereon hath been by Act of Parliament reserved thereunto NOw seeing that the Ports and Havens whereon Ships and other Vessels do ride and lie at Anchor are not only of a different nature from the land but are absolutely consisting of the same nature with the Sea and are sometimes more drawn in and sometimes again further stretched out and are from antiquity both by antient Authors and ancient Records termed and called the Armes of the Sea as indeed most properly they still are I cannot easily be induced to think that these Ports or Havens by being only incompassed on both sides with
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
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
and inferred from the introduction of them into England AS these Sea-laws before mentioned had their beginning and the government by them sprang from the Island Rhodes upon the Mediterranean Sea so the other Sea-laws there are extant which had their beginning from an Island upon the great Ocean and it is called Oleron scituate on the sea-coast of France against the mouth of Charant and the Maraes nigh St. Martins and not farre from the entry of Garunana This Island likewise consisting altogether of skilfull and experienced men as did the other could no more subsist or proceed happily and prosperously in their maritime affairs then could the other without such government as the other had And they being not altogether ignorant of the Rhodian Laws nor yet very perfect in them and other new differences and controversies arising and supervening which they could not judge or determine by the Rhodian Laws they observed certain other Rules and Customes together with those Laws whereby they decided such differences and determined such debates as fell out and happened amongst them Which Rules and Customes King Richard the First in his return from the Holy-Land having then the power and Government over that Island of Oleron caused to be interpreted setled and published for Laws there and having so setled them there and afterwards coming into England if we shall still doubt of the acceptance and settlement of the Rhodian Laws here at or before that time yet let us not make any question but that he brought those Laws of Oleron hither with him and here setled and declared them for Laws for the rule and government of his maritime Subjects and doing justice amongst all people of what Nation soever according to those Laws as will plainly appear out of the Roll of the Articles upon which the Kings Justices in Edward the Third's time were to advise where it is said thus Item ad finem quòd resumatur continuatur ad subditorum prosecutionem sorma procedendi quondam ordinata inchoata per avum domini nostri Regis ejus Consilium ad retinendum conservandum antiquam superioritatem maris Angliae nos offic Admiralitatis in eodem quoad corrigendum interpretandum declarandum conservandum leges statuta per ejus antecessores Angliae Reges dudum ordinata ad conservandum pacem justitiam inter omnes gentes nationis cujuscunque per mare Angliae transeuntes cognoscendum super omnibus in contrarium attemptatis in eodem ad puniendum delinquentes damna passis satisfaciendum Quae quidem leges statuta per Dominum Richardum quondam Regem Angliae in reditu suo à terra sancta correcta fuerunt interpretata in Insula Oleron publicata nominata in Gallica lingua la ley Oleron Hence as it appeares that King Richard interpreted declared and published these Laws called the Laws of Oleon in that Island so doth it plainly appear that he ordained and established them here by these words Ad conservandum leges statuta per ejus antecessores Angliae Reges dudum ordinata per ejus i.e. avi sui prius nominati by his Predecessors and it doth plainly appear by that in the close that Richard the First must necessarily be one of them And hence likewise it doth appear that with the settlement of these Laws there was likewise a settlement of a form of proceeding according to those Laws for saith this Record in prin Ad finem quòd resumatur continuetur ad subditorum prosecutionem forma procedendi quondam ordinata inchoata per avum c. hoc est inchoata resumi c. which must be the construction as the words following make it plain which are ad retinendum conservandum for reteining and conserving denote something to be reteined and preserved that was before Now for the publishing and settling these Laws and ordaining a form of proceedings in the prosecution of them in Richard the First 's time I conceive I may safely conclude an Admiral and Admiralty Court to have been settled before and continued at the same time unto which he added some more exact proceedings together with these Lawes of Oleron as several Statutes are daily added either in affirmance or correction of the Common Law and my reason is because these Laws without the Rhodian Laws and those other Laws made in supplement of them are in no wise a complete Law for the guidance and direction of an Admiralty Court And it may further appear that unto the settlement of these Laws this King himself added Ordinances of the Admiralty one of which I shall here set down which he made at Grymsbie The words follow Item soit en quis de nefs qui sont arrestees pour le service du Roy ou pour autrè Raisonabile cause per les officiers du Roy ou de l' admiral debrisent l' arrest per les quelles avantdictes nefs sont amenez retainer les mariners qui sont ordinez pour la service du Roy si Retraient encas que homme soit endite qui la debruse l' arrest en sa nef arrestee pour le service du Roy de ce soit convicte per xii il perdra sa nef si'l negrace du Roy ou du hault Admiral pour ce quila este plusseurs forz debatu en Angleterre pour les arrestees des nefs quāt le Roy amande sergeants d' armes ou autre ministris pour arrester nefs al ceps du Roy les Seignieurs des nefs sont venuz devant l' admiral allegment que leurs nefs nestorent mye arrestees ordonne estoit ou temps du Roy Richard le primer à Grymsbie per advys de pluseurs Seigneurs du Royalme que quāt nefs seront arrestees pour service du Roy que le Roy escripra par ses lettres patentes à l' admiral d' arrester les nefs plus ou moins a la voulente du Roy solen ce quil a besomg l' admiral escrivera a ses lieutenants de faire de re l' execution la cause estoit pour ce que l' admiral ses lieutenants sont de record pais l' admiral escripra au Roy ou au chancelier d' Angleterre les noms des nefs amsi arrestees assemblement avec les noms de seigneurs maistres dicelles en tel cas le seigneur de lâ nef ne le mastre ne viendront pas adire que la nef nestoit mye arrestee ne a ce ne seront oyz The same ordinance being set forth in another ancient French coppy of Articles wherein divers other Ordinances were likewise set forth was by one Roughton translated into Latin in these words viz. Item inquirendum de omnibus navibus quae ad serviendum Domino Regi super mari arrestatae fuerint postea Domini possessores
the memory of man the sole rule and dominion of these Seas should not furnish this his maritimum regimen dominium with those antient maritime Laws before spoken of Certainly whosoever imagineth this concipit istud mare sine navibus vel naves sine naucleris navarchis fluctuantes concipit istas If furnished with Lawes then consequently with a Commander Admiral or Governor for the dispensing and ministring of Justice amongst Sea-Traders and seafaring-men according to those Laws else were these constituted and appointed to that use in vain But I may here rather from the forementioned Libel deduce a proof of the antient settlement of maritime Laws in England from the antient acknowledgement of an Admirals Jurisdiction then the settlement of an Admiral and his Jurisdiction from a former Introduction of the maritime Laws into this Kingdome for an Admiral of England and an Admirals Jurisdiction are both acknowledged by all the therein mentioned Nations to have been from that time which was anno 30 Ed. primi beyond the memory of man If then the Admiral had so antiently a Jurisdiction I must necessarily inferre from thence that so antiently if not somewhat before the Laws of the Sea must be settled for his rule and guidance For they do not say there was an Admiral for so there might have been and he have ruled by Arbitrary power but they say as before is said ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectaret Jurisdictionem ex imperio ejusmodi excercendam And in their Petition as is before exprest they desire ut à custodiâ liberati qui carceri traditi essent reddita item bona nullo jure capta jurisdictionem Admiralli Regis Angliae subirent Now as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus so jurisdictio is juris dicendi potestas And as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 likewise from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lex so Juris consultus est is qui jus consuluit sive studuit and so juridicus quod secundùm jus est as juridicus dies quô ritè jus dici potest and juridica actio quae secundùm jus est dicitur etiam juridicus qui jus dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. At cui jus ignotum est ignota jurisdicendi potestas cui jus non est jus non consuluit ubi jus non est ibi jus dici nequit No man can have a Jurisdiction or power of declaring the Law or judging by the Law to whom the Law is not known more especially where there is no known Law to declare or judge by Therefore seeing the Admiral by common consent and by so common a judicial acknowledgement so antiently had a Jurisdiction necessarily he must so antiently have had certain known and settled Laws to declare and judge by I do observe likewise that all the Patents granted unto Admirals from the 35th of Edward the Third upwards unto the 34th of Edward the First do conclude in binding them to the execution of their office prout justum fuerit fieri consuevit And as this prout fieri consuevit led me to the more antient Patents wherein the Officers bear not the title of Admiral and taught me to understand that the variation of the title did not differ or alter the property in the Office or the quality of the Officer so this prout justum fuerit shews me as well as the Jurisdiction in the Libel before spoken of did that the Admirals had then and prout hactenus shews me they had so before a Law to rule and judge by For though a private man which is vir bonus a good man which deals uprightly and punctually with all men is usually said to be vir justus and not improperly when we speak of a private man in his private dealings And vir probus sanctus which observeth the Divine Law is very properly called vir justus when we speak or discourse of matters of Religion c. But if we speak of a man set and put in place and authority over others in Sea-affairs we say he is vir justus qui jus observat à jure non discedit for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth justus doth as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do come from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the same word signifieth legitimè jure justè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifieth jus the Law it self CHAP. VI. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Courts in deciding of Maritime Causes in those antient times THat in those antient times the Custodes marinae maritimarum partium c. to whose care and trust these marinae and maritimae partes the Seas the Coasts and Ports of the Seas were committed had a great power and grand authority over all those maritime parts whereunto they were limited and over all Ships and Shipping and over all things thereunto belonging and over all persons whatsoever who were therein concern'd within the said limits and had powet and authority of hearing and determining of all differences and controversies which did or might arise concerning the same may be very well concluded upon this further ground that no other Court in those dayes presumed ever to take cognizance of any such matters or affairs which I am confident of for the reasons ensuing I hope no man will say that maritime causes were tried in the Heal-gemote now called the Court Baron nor in the Hundresmote now called the Hundred-Court and is of the same nature with the County-Court nor yet in the Scyedgemote now called the Sheriffs Turne which were the Courts then in use and had been long before the Conquest and do yet continue and never did nor do assume nay not so much as challenge any right at all to any such power Nor did the Kings Court of Exchequer which was the first Court was settled after the Conquest ever undertake to deal in causes of that nature but as Mr. Lambard determineth this point very well was only setled and appointed for causes concerning the Kings Demeasnes and Receipts And he saith that after the Conqueror had suppressed the Forces of those that made head against him here he settled this Court for his Revenues and called it his Exchequer after the name of his Exchequer in Normandy but saith he it differed not a little from that for the Exchequer of Normandy had not only the Government of the Revenues of the Duke there but was also the Soveraign Court for the administration of Justice amongst his Subjects until Lewis the Twelfth King of France anno 1499. converted it into a Parliament consisting of a President and Councellors and established it at Roan in Normandy where it still continueth But saith he this Exchequer in England had only the
apud Turr. London 8. Decembris And another of the first of Edward the Third which runneth thus Warrosius de Valloignes constituitur Capitaneus Admirallus flotae navium c. tam quinque portuum quà m aliorum portuum locorum per costeram maris versus partes Occidentales quamdiù c ut supra The two former Records were one of them in the Reign of King Henry the Third the other in the Reign of Edward the First and these two are one of them in the Reign of Edward the Second and the other in the first year of Edward the Third And indeed most of the Records which are in the Reign of these four Kings viz. Henry the Third and the 3 Edwards which concern the grant of this great Office are of the same nature with these four and run in such like or in the very same words with these but more especially and most frequently agreeable to these two last and so do most of those Grants which were in Henry the Fourths time as may appear where I have set them down in order And these may bear a double construction and two several sences and meanings but not so different but that the best of them that can be made for the Quoter of them will serve to confute and destroy his new-set-up opinion and assertion Take this construction first and read them in this sence Constituitur Capitaneus Admirallus flotae omnium navium c. Capitaneus Admirallus tam quinque portuum quà m aliorum portuum Capitaneus Admirallus omnium aliorum locorum per costeram maris That he is Captain and Admiral of the Fleet of all Ships Captain and Admiral as well of the Cinque Ports as of all other Ports and Captain and Admiral of all other places by the Sea-coasts towards the Western parts And the first two Records of these four by him cited for concordancy and agreement sake do warrant this construction and that the same may be made of the words as without any incongruity or trespass at all upon Priscian so without any falsehood at all of the matter For the first two Records the one giving the Admiral Custodiam omnium portuum totius costerae maris And the other making him Custodem Regis portuum maritimorum do warrant the truth thereof And then are these two last a confirmation of the two first and argue the same thing besides what else may be gathered out of them against the truth of that assertion For certainly he that had Custodiam portuum and was Custos Regis portuum had the rule governance and ordering of all things in or belonging unto those Ports and that by way of Judicature according to the Civil and Maritime Laws for it 's plain by the Libel Sir Edward Coke himself hath set down which I formerly quoted that these Admirals in these times had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jurisdictionem sive potestatem audiendi determinandi causas secundum jus as I have said before or take the words as they run in the Patents themselves viz. Rex omnibus ad quos c. salutem Sciatis quod nos de fidelitate probatâ circumspectione providâ dilecti fidelis nostri N. plenariè confidentes constituimus ipsum N. Capitaneum Admirallum flotae nostrae omnium navium c. tam quinque portuum quà m aliorum portuum locorum per costeram maris versus partes c. And afford them what construction can possibly be strained out of them to save this assertion harmless yet will it thereby be scattered and torn all to pieces Take it then in this construction viz. We make him Captain and Admiral of our Fleet of all Ships of all Ports as of or belonging to all Ports c. Will any man say that he that is Admiral of all these Ships that belong unto these Ports is not Admiral of them whilest they lye or ride at Anchor within those Ports and are not riding super alto mari and that he hath not the rule governance and command over them whilst they lie there If so let him say likewise he hath no power governance or command over them untill he find or take them upon the main sea which Ships he never took out of any of those Ports or any other The Admiral therefore must have jurisdiction and power upon the Creeks Ports and Havens or else his power at sea will come to little or nothing I shall give you here but one instance which will shew the necessity of his having jurisdiction upon the Ports and Havens as well as upon the high seas If one Ship shall do damage to another either upon the main Sea or upon any Creek Port or Haven the damages must be sued for in the Admiralty Court and judgement given according to the Maritime Laws which prescribe every Ship her rule how to steer her course both going out to Sea or coming home from Sea or riding at Sea which plainly demonstrateth which Ship was in fault by which the Judgement must be regulated for which the Common Law hath no rules at all nor can any action properly by the rules thereof be commenced at that Law for these damages For that the Owners damnified can very hardly arrest all the Owners of the other Ship which did the damage nor indeed can any of those Owners by that Law as I have been by some of the learned of that profession informed be lyable to such arrest but the Master only who if solvent will not come on shore but take his imployment in some other Ship outward bound if not solvent the arrest will be to little purpose so that the remedy lyeth only against the Ship by the Civil and Maritime Laws according to the course thereof which proceedeth in cases of this nature by way of several defaults c. which either will bring in the Owners to answer the Action or make the Ship lyable to make satisfaction for the damage done in so much as she is worth which course of proceedings the Common Law hath not CHAP. IV. The Arguments deduced out of the Statute Law to prove the Ports Havens and Creeks of the Sea to be within the bodies of Counties and not within the Jurisdiction of the Admiralty redargued HAd this been but a bare assertion that the Ports Havens and Creeks of the Sea are within the bodies of Counties and not within the Jurisdiction of the Admiralty more needed not I conceive have been said then what hath been already said in the former chapter But the Arguments that are used for proof thereof will necessarily require a farre larger discourse for answer thereunto and further confirmation of the contrary For here I am to encounter a great Antagonist the forementioned Sir Edward Coke sometime Lord chief Justice of the Kings Bench a man most famous for his knowledge and pains in the Laws of this Nation whose memory undoubtedly is still not
appellant distributis And after other additions made thereunto by Charles the Great Son of the said King Pipin Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum domus regiae ut sic centenarum judicum numerum tenens illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent creavit There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House that it keeping the number of an hundred Judges it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth Nay the dignity the precedency and placing of the Counsellors of this great Councell is derived from the authority of the Civil Law as is plainly set forth in the said Montanus upon the Authority of the Parliament of France and Boerius his additions thereon who both quote the Civil Law for the same and so is likewise the very authority of the Councel from thence derived as by the said Authors doth likewise appear And shall we now say that this great Court or Councell and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law and say conceive or think that their judgements and determinations of Controversies c. there given and made are not according and agreeable to the same Law If I should here endeavour to set forth those several Authors and Writers upon the Civil Law which have as I said before in the several Nations of Christendome in all the several Ages and Centuries of years which have been ever since the Compiling that Body even unto this time written and commented thereon and those which have wrote the Decisions Determinations Judgements Objections and other Law books grounded upon the same and which cite them for their authority and proof of what they conclude I should extend this Chapter to a whole Book or Volumne and but shew the Civilian and such as have been verst in Law Libraries what they have seen already and but tell others of those things which they will neither search for nor endeavour to see And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty but before I can return to steer a right course thither it will be necessary first to shew that the Civil Law is likewise necessarily practised used and exercised in all Admiralty Courts and there binding and of authority to direct the Determinations Sentences and Judgements decisorie in Maritime and Sea affairs between party and patty be they forreigners or others and then to shew that by those Laws so exercised and practised in those Cours as well as by the other Laws already set forth it doth appear that the Ports and Havens and all things done thereou are within the Jurisdiction of the Admiralty CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law yet the Civil Law is strictly used and practised in all Admiralty Courts and is absolutely necessary in the decision of all Maritime and Sea differences SUch as were apt to believe that the Civil Law was and is abolished in all forreign Parts and no use made thereof in the rule and governance of land affairs would very hardly without the removal of that misapprehension have been perswaded that the same was of any use in their Admiraly Courts in sea businesses I must therefore in the next place shew that he which understandeth only the Rhodian Laws the Laws of Oleron and the Inquisitions and Statutes before mentioned which the Civilian must needs most perfectly do the first being a great part thereof inserted in the very body of the Civil Law and the other from thence derived cannot without much reading and knowledge in other parts of that Law be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party and between the supreme Authority and those that are employed by that authority and such as are in subjection to the same much less to judge and determine such causes therein according to law and justice For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome whereby men are made happy in possessing and enjoying their own and defending themselves against wrongs and injuries offered by others hath two wings duas volatiles habet alas she hath two wings wherewith she soars aloft and stretcheth her self unto and spreadeth her self over both sea and land she hath two Jurisdictions the one fitted with Laws most apt and proper for distributing of right in all land businesses the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs and yet how different and distinct soever these two Jurisdictions are each from other as I have set forth more at large in the first chapter of this second Book yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law and are from thence furnished and fitted with different and distinct Laws whereby they keep up and carry justice upright between them both and by the one extendeth her directions unto the business of the land and by the other reacheth forth her proceed and effects unto the affairs of the sea Which two wings if taken off Justice must needs fall flat to the ground and can by no other means so expand her self as to extend either her directions unto the one or reach forth such her effects unto the other Secundis alitibus procedere nequit she cannot go on prosperously or happily to execute or performe her own proper office either upon the one or upon the other Nay if either of these two wings should be taken off or but joynted implumed or bereaved of those feathers nature at first gave it though the other should be preserved and kept never so compleat and perfect yet could Justice by the perfection of that one wing but hover and heave her self upwards on one side whilst the defect in the other would pull her downwards and the one side falling to the ground the other must necessarily follow If the power and privileges of either of these Jurisdictions should be decayed or but impaired though the other should be left never so entire yet could not the effects of Justice in the one supply the defects in the other For the Laws of the Land are no more fit to regulate the Affairs of the Sea
damnified in the lading of them sometimes in the unlading of them sometimes in the Ship sometimes in the Lighter c. Sometimes they are damnified by one Ship or Vessel falling fowl on another and that sometimes by the negligence or carelesness of the Master or Mariners of either of them sometimes of both sometimes of neither but through the extreamity of the weather or through the darkness of the season happening either by mist or night c. which could not be helped or prevented by either the care or diligence of the Masters or their Mariners Sometimes the Ship by such means is damnnified onely and not the Goods Sometimes the Goods and not the Ship Sometimes both Ship and Goods Sometimes the like falleth out for want of a Pylot Sometimes through the ignorance and unskilfulness of such Pylot c. I might here instance in very many more particulars wherein this Commerce which consisteth in shipping and merchandizing voyages and affairs doth differ from other trades used and occupied in land business those being farre more perillous and dangerous then these and being likewise far more subject to depredations Pyratical robberies and spoils then these All which differences must needs introduce a Law for the regulating the various and divers controversies that must needs arise by reason thereof farre different and distinct from that Law which ruleth and guideth the determinations of such controversies and debates which happen in land businesses not subject to such or the like casualties dangers and damages arising from so divers various and different causes all which do aâ—ter the very Judgements and determinations according to their different qualities respects and conditions which Law as I have said before for the community of Traffick and Commerce and holding correspondency therein and obtaining the same Justice by each Nation from other must continue certain and unalterable when as the other may suffer alterations additions or diminutions It remaineth therefore here to shew that besides the Laws of Oleron c. and the Title ad legem Rhodiam de jactu before mentioned which is inserted in the Body of the Civil Law that there are several other Titles and Laws incorporated in the same Body proper and peculiar for the Decision and Determination of Maritime controversies which are not at all excercised or used in the Decision of the differences in land businesses nor any ways proper for them although many of the other Titles and Laws which are for land businesses are made use of in the proceedings and sometimes in the determinations of Maritime causes and that neither those general Laws which serve for both nor these particular Laws which serve for marine causes onely are either abolished taken from or disused in the Admiralty Courts in foraign parts but that the same are of most especial use in the same For proof hereof I might cite the Disputations Decisions Determinations and Judgements of divers and very many if not of all and all manner of causes set forth in several Authors of several Nations in several ages and times even to this present age which are all grounded upon the same Laws and do cite and quote the same for their their foundation and proof of what they conclude and determine as I have said before But no man can conceive that this Collection of so many Causes out of so many several Volumns could be contained in one so small as I intended this And some and those not a few would think it a vain and needless work to jumble so many Authors together to no other purpose then to confute so plain an errour as no man that hath been at all verst in the proceedings of foraign judicatures can be induced to believe I shall therefore instance only in some few particular Writers of these latter times of most common use and most generally known I shall step no further back then unto Peckius sometime Principal of the Juridical Order in the University of Lovain in France who collected and gathered together several titles by him pickt out of the body of the Civil Law which principally belonged unto Maritime affairs and wrote a Comment upon the same which was there printed in the year of our Lord God 1556 above a hundred years since for the use of such as were employed in the Judicature or practice in the Law in Admiralty Courts concerning Marine businesses in which Commentary he doth not only cite divers other Civil Law Authors but likewise enforceth extendeth and limiteth the understanding and construction that is to be made of the several Laws compâ—ehended under those several titles by other particular Laws set forth under several other titles within the very body of the Civil Law as necessarily he must do having not taken in all those titles which concern the business as himself confesseth in the very title of his Book which he saith is Commentaria in omnes penè Juris Civilis titulos ad rem nauticam pertinentes a Commentary upon almost all the Titles of the Civil Law which concern Maritime Affairs But indeed they are not near all if we consider the divers particular Lawes which concern the same and are intermixt with other Laws under other titles and some titles he meddleth not with which wholly concern such matters and nothing else nor doth he at all treat upon any other Laws which concern such affairs and are made use of in all Admiralty Courts together with the Civil Law Wherefore Vinius a learned Civilian of the Low Countries made an additional Commentary upon the same titles of the Civil Law and upon the Commentary of the said Peckius and set forth the same which was printed at Leyden in Holland in the year of our Lord God one thousand six hundred forty seven wherein he undertaketh not only to explicate and unfold those titles of the Civil Law which principally concern Maritime affairs as Peckius had done before but also to adjoyn thereunto the Laws of Wisbaith the Laws of Oleron the Laws set forth in the Book de Consulatu maris and likewise the Maritime Law of the Rhodes Jus navale Rhodiorum quod ad finem tomi secundi Juris Graeco Romano relatum est a Marquardo Trahero V. CL. as he himself saith that his said Work might be usefull to all Nations in their Judgments and Determinations in all manner of Controversies and therefore saith thus Cum in animo haberem locos juris nostri qui ad rem nauticam pertinent non explicare tantùm verum etiam cum generis ejusdem institutis moribus aliorum populorum conferre atque ad usum quendam accommodare communem c. Now although that for the due administration of Justice in an Admiralty Court the learning in and knowledge of the Laws in these last mentioned Books be very requisite that the same justice which one Nation affordeth to another may be by that other rendred unto that Nation again and it obtain the same yet is the learning and
in an other manner then the same would have been by such Mercatorian or Nautical Judges and that the Subject of this Nation thereby hath gained that Justice and Right at home which might otherwise perhaps have been hazarded abroad But I intend not to stuffe or fill up this short Treatise which I intended should have been farre shorter when I first took it in hand with Packets of Letters received from several Forraign Judicatures and the answers thereunto returned which will hardly or not at all be understood by such as are not already convinced of that which they should be here set down to prove Nor will I here set forth how farre those Mercatorian Courts though assisted by Civilians through their over-powering of their said Assistants have fallen short of those which have been and are wholly regulated and governed by Civilians as well in point of proceedings as in point of the distribution of Justice But I will here take occasion to set forth some inconveniences not a little destructive only to Trade Traffique and Commerce and so to the Merchant himself but also to Shipping and Navigation it self which might and doubtless would happen if the dicision and determination of Maritime Causes should be left unto or settled upon Merchants and Owners of Ships to judge according to their own skill and observations without that Jus scriptum that written Law which passeth is allowed and practised in all Admiralties of Europe wherein they cannot be so well verst as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof I shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same Law in all Nations in Maritime Causes for one Nation 's rendring of the same Justice to another that it doth from thence receive which is the chiefest thing that maintaineth the Community of Traffique and Commerce which cannot possibly be done if the same should be rendred by the various fancies of men in no wise guided by any certain forme or rule but by that thing then which nothing can be more uncertain which men call opinion tot capita tot sententiae And then I will further say that for the reason before set down in this Chapter the Mariner who cometh in with one good wind and goeth out with another and must opportunè vela ventis applicare upon any controversie or difference arising upon or about the payment of his wages cannot have so sodain and quick dispatch or determination thereof by such Mercatorian or Nauticall Judges who have other affairs and businessss to attend as by those who make the decision and determination of Maritime Causes their whole work and attend wholly upon the same every day of the week both Terme and Vacation Again it is considerable what justice the poor Mariner could expect or should be like to have if the determination and adjudication of their wages should be left unto Merchants and Owners of Ships as some men would have it out of whose freight the same ought to be paid and would be as it were parties in all Causes of that nature and if the Cause should not at one time be their own yet must it and would it assuredly be at another and so at all times would it be their own case though not their own cause and very seldome would it be that it should not be their own cause there being so many Merchants that are Owners of Ships and so many Owners of every Ship of any burthen considerable and every Part-owner of one Ship for the most part Owner or Part-owner of more if not of very many so that for the most part some or other of the Judges themselves would be absolutely concerned in the matter of difference depending before them and the poor Mariner left to their good will and pleasure for his wages and recompence for his pains impended and his time spent in their service which would be a means to dishearten and discourage all Mariners for serving in English Bottoms whensoever imployment should be offered them elsewhere Again in the commixture and joynt Trade of Merchants one with another having their complices copartners in all or most of their trading and merchandizing affairs and such their trading and dealing each for other and in each others name that it might and oftentimes would fall out that when a man conceived that he had commenced a Suit against his adversary and whom he had dealt and traded with he should in conclusion find that he had commenced the same against one or more of his Judges that were to judge and determine his Cause or rather the same might fall out so to be and not be at all discovered Much more I could say to this purpose but I hasten to return to that which I principally intended to set forth in this Chapter namely to shew by some few Authors of very many that much of the Civil Law it self is of use and in force in all Admiralty Courts as well as any other Maritime Laws And as I last instanced in Vinius I shall in the next place instance in the Authors by him mentioned namely Benvenutus Straccha who writeth de mercaturâ sive mercatore de contractibus mercatorum de mandatis de sponsionibus de nautis navibus navigatione de navibus iterum iterumque de navigatione de conturbatoribus sive decoctoribus quomodo in causis mercatorum procedendum sit de adjecto Of Merchandizes and Merchants and of their Contracts Mandates Warrants and Bargains or promises of Mariners Ships and Navigation joyntly of Ships severally and of Navigation by it self of Bankrupts and failing Merchants in what manner Merchants Causes are to be proceeded in and of Factors or Substitutes c. which Book was printed and set forth within this last Century of years And I do earnestly desire those that hold the Civil Law useless in these affairs and in the Courts designed for determination of differences happening therein but to look into the before mentioned Book together with Grotius de jure Belli Pacis Gentilis Loccenius who are latter Writers being all easily to be had and they shall find the very Text of the Civil Law and Commentators thereon not only out of these before mentioned selected Titles but out of divers others cited and quoted for authority in all the several points the said Authors do handle or treat of which I hope will be sufficient to convince any judicious man and sufficiently perswade him that the Civil Law it self is of most exquisite use in all Admiralty Courts CHAP. XVI That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes and divers other of the Civil Laws conducing thereunto it doth appear that the Ports and Havens and businesses done thereupon are within the Cognizance of the Admiralty
wheresoever contracted for in these and divers other like cases the Judgement of that Law cannot be agreeable unto the rules and grounds of the Maritime Laws If a Mariner be hyred by the moneth and doth serve several months in the Ship and afterwards desert or leave the Ship and run away upon Action brought for his wages the Judgements of the two Laws will be clean contrary If the Mariner without leave of the Master lie on shore and the Ship or goods be damnified or the Voyage protracted or if the Ship be not well moored so that for default thereof she be damnified or if the Mariner take up clothes or borrow money of his fellow and put the same in the Pursers book upon Action brought for his wages the Judgements of the two Laws will differ If two be they Merchants Owners Mariners or Furnishers of Ships c. and those either English or Foreigners or the one English and the other a Foreigner do for Freight Tackle or Furniture of Ships c. or by other Commerce in their seafaring business become indebted each to other upon Action brought by either of them the Maritime Law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time and alloweth him compensation which the Municipal Law alloweth not but concludeth that stoppage is no payment by which Law if exercised in business of this nature the absent might recover much against the party present and he be constrained to wait his opportunity for the recovery of what is due to him from him that hath recovered against him to the lessening of his Stock and great hinderance of his Trade And in like manner the Non-solvent might recover much against the Solvent and he nothing at all against the Non-solvent which would be very much inconvenient to all seatrading men and a thing not known abroad Now these Maritime Laws for Maritime businesses are all grounded upon strong reasons which if they could be here at large particularly set forth yet would they not take away the reason whereon the Municipal Laws for Land affairs are grounded in regard different Judgements in different things do arise from different grounds of reason so that the Judgements upon businesses agitated upon the Land may be grounded upon reason and yet will not that reason hold to ground the like Judgement upon in business at Sea or upon the great waters those being accommodated with many advantages and helps in their agitation and petformance of which these are altogether destitute And this will introduce a second reason why the welfare of the Merchants and other seafaring men cannot be maintained without the settling and upholding of these Maritime Laws for decision of differences and controversies in maritime affairs which is because these Laws are suitable thereunto and compleat to determine all differences in businesses of that nature which as I conceive the Municipal Laws of the Land are not For Maritime causes especially those for wages must have a quick and sodain dispatch of Justice the Mariners as they come in with one good wind so must they speedily go out with another and not wait Westminster-Hall Termes to the loss of a whole Voyage such their imployment being their whole livelyhood Nor must they commence every man a Suit according to his particular contract to the expence of as much if not more then his wages come to but must as the Martime Laws allow them commence their Action in one joint Petition to a Judge at all times settled in a readiness and in a constant place of Judicature where and to whom they may make their present addresses for dispatch according to such Laws as they are used unto wheresoever they come If the Mariner must have such dispatch against the Master then must the Master have the like against the Merchant for his freight out of which he is to pay the wages and the Merchant the like against the Master and Owners of the Ship for damages done to his goods at sea all which is speedily tryed at one and the same time by the maritime Laws which upon full hearing alloweth compensation and every one hath at first his own according to proof or confession upon their personal answers and no more otherwise if the Mariners shall by several Tryals at the Common Law recover their full wages of the Master and be gone and then the Merchant recover against him likewise or against the Owners of the Ship perhaps as much or more then their freight amounteth unto for damage done unto his Goods perhaps by the Mariners who are gone and not to be met with again and be put afterwards to sue for their freight this will soon cause the owners of Ships to lay their Vessels by the walls or if the Mariners shall recover their wages of the Masters or Owners and be gone and then the Owners shall recover their freight against the Merchants whose goods are damnified or spoiled by the Mariners and not by default of the Ship or by default of the Ship and not by any neglect or fault of the Mariners or by both and he then put to a tryal to recover by Jury the damage he hath sustained he is like to have but little or no redress If the Mariner shall have his dispatch and be gone which he must have or be undone and the Merchant wait his Tryal from Terme to Terme at the â—ommon Law then by reason of the absence of the Mariners can neither the Owner prove the damage to be done by meer casualty or stress of weather at sea which he is not lyable to make satifaction for nor can the Merchant prove the insufficiency of the Ship in which case the Owner is to make satisfaction besides many inconveniences more which might be reckoned Thus is not the one Law only suitable and agreeable to maritime affairs and the other unsuitable and disagreeable thereunto but the one is likewise perfect and compleat for deciding of all controversies thence arising the other imperfect and in no wise compleat for that purpose in my judgment For Bills of Bumery or Bottomry for many reasons most usefull and absolutely necessary in sea trade they are likewise triable only by the Maritime Laws and can be no wayes tryable at the Common Law wheresoever made by reason the Ship only is lyable to payment which may be arrested according to the Maritime Laws either at the main Sea or upon any Creek Port or Haven adjoyning upon the land which cannot be done by the Common Law as I humbly conceive So likewise contracts de nautico foenore pecunia trajectitia or nautica usura wheresoever made are tryable by the Civil and Maritime Laws and not by the Common Law of England and the Civil Law hath several Titles concerning these particulars as in the Digests the Title de nautico foenore in the Code the same Title in the Novel Constitutions the Title de nauticis usuris