Third Touching this Statute it may be observed what Sir Edward Cook delivers out of Plowdens Commentaries That the Praeamble of a Statute is the Key to open the meaning of the makers of the Act and the mischiefs which they intended to remedy now in the Praeamble of the Statute it â—s suggested that the Admiral had encroacht divers Jurisdictions and Franchises belonging to the King other Lords from whence it may be conceived that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm wherein he had encroacht upon the Jurisdiction of the King and other Lords which what those things were it doth no wayes appear but it cannot be imagined or reasonably conceived that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea which never did belong to any other Courts of the King or other Lords and were formerly held proper for the conusance of the Admiral and as things were then stated could not be held encroachments So much may the rather be supposed because the Statute restraining him from meddling with things done within the Realm but only with things done upon the Sea further adds according to what hath been duly used in the time of the Noble Prince King Edward Grand-father to the King which was King Edward the Third Sir Henry Spâ—â—man writes that some men did conceive Causarum Nauticarum cognitionem forum rei maritimae quod hodie Curiam Admiralitatis vocant sub Edwardo Tertio illuxisse and it is probable that in that Kings time who did many other glorious things for the good of this Nation the Court of Admiralty received some setlement and grew more conspicuous than it was before but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First Richard the First King Iohn and Edward the First do manifest that the Court was much more antient and Sir Edward Cook to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third in whose dayes he sayes that some had dreamed that it had begun recite the antient Record De superioritate Maris before mentioned and likewise another quoted also by Mr. Seldâ—n wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges ad finem quod retineatur continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis c. that is To the end that the form of proceedings at the sute of the Subjects begun and ordained by his Grand-father King Edward the First and his Counsel for retaining and preserving the antient Soveraignty of the Sea of England and the Right of the Office of the Admiralty in the same might be resumed and continued touching the correcting interpreting and declaring the Laws and Statutes lately ordained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever passing through the English Seas and for punishing of Offences and for giving of satisfaction to such as were damnified which Laws and Statutes were corrected declared interpreted and published by King Richard the First King of England in his return from the Holy Land and were intituled Le Ley Oleron in the French tongue And it is manifest That the Law was continued all that Kings time in regard that in the 49 year of his Reign the selected Sea-men for the Inquisition at Quinborough in the conclusion say That touching some businesses proposed in the Articles of the Inquisition they know no better advise nor remedy than that which had been formerly used and practised after the manner which is conteined in the Law of Oleron All which being admitted and duly considered it may be presumed that such Causes as did originally by Civil Law belong to the Admiralty and what former Kings had antiently ordained for the regulating of the same as likewise such as were agreeable to the matters decided in the Iudgments of Oleron and what are conteined in the Inquisition taken at Quinborough in the time of King Edward the Third were within the conusance of the Admiralty Court and consequently the same are permitted to be tried and determined in the same Court by the Statute of the 13 of Rich. 2. Touching the Judgments Judicial Acts and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission it may be answered in general First That those Judgments Judicial Acts c. are in Causes of difference in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court and it is incident to all professions where there is any competition or emulation with others to incline to that which is most to their advantage Secondly Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes without any notice or respect to the Laws of the Sea or the condition of Maritime Causes the circumstances of the places being the chief Rule by which they have been framed Thirdly That many of them upon due examination may be found not so concluding as they are pretended and although much respect and reverence be due to the Authours yet we are not bound to believe that their judgments are infallible Fourthly That the Judicial proceeding as Prohibitions being the results of the former authorities they may be weighed accordingly Lastly Touching the main piece Sir Edward Cooks Articuli Admiralitatis carrying the reputation of the Resolutions of all â—â—e Judges touching the matters therein conteined it will appear that they very much differ from the Concessions of the Judges of the Kings Bench 1575 and from the Resolutions of all the Judges the 18 of February 1632 subscribed unto by them in the presence of King Charls and twenty Lords of his Counsel The particular authorities which may be collected out of Sr. Edward Cooks Notes to prove that the Admiral of England hath no conusance of things done within the Realm but only of things done upon the Sea are as followeth 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae de facto super alto Mari. 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Merchandises taken away the Defendant pleaded that he did take them en le haut Mer ou les Normans que la enemis la Roy and it was allowed a good Plea 3 That Fortescue who lived in the time of Hen. the Sixth saith Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent 4 That Dyer in the time of Queen Mary saith That by the Libel in the Admiralty Court the Case is supposed to commence sur le haut mer intra Iurisdictionem de l' Admiralty To these authorities may be answered in general First That
Councell Garsias Mastrilli sayes he hath all Jurisdiction both Civil and Criminal in Maritime causes exclusive to all others The King of Spain hath divers other Admirals both in Europe and the Jndies of equal power Marinus Siculus sayeth of the Admirall of Castile that he is next unto the Constable and hath supreme Authority over all that use the Sea and is held to be Lord and chief Commander of the Sea as it is also largely described in the Partidos besides for the dispatch of ordinary Maritime businesse by the same Laws Judges are appointed to reside in Port Towns and other places on the Sea Coasts which are to hear the causes of Sea-men concerning Freight of Ships and Contributions for goods cast over-board or any other matter which Judges were to proceed plainly without solemnities and with all expedition c. In France by an Ordinance of Henry the third made upon a survey of all other former Ordinances ratifyed by the Parliament of Paris The Office of the Admirall in the Kings name is thus declared 1. That of all Armies which shall be raised and set to Sea the Admirall of France shall be chief and our Lieutenant General and shall be obeyed in all Maritime Towns and places which are or may be without contradiction Secondly He shall have Jurisdiction Conusance and determination of all things done or committed on the Sea or shoars of the Seas likewise of all acts of Merchandise fishing freighting or letting to freight or breach of ships of Contracts made touching the matters afore-said of Charter parties of Sea briefs and of all other things whatsoever happening upon the Sea or shoars thereof as our Lieutenant General alone and to all purposes in the places afore-said which Jurisdiction Cognizance and determination we have interdicted to all other our Judges He shall hold his principal Court at the marble Table in the Palace at Paris and shall appoint Judges Deputies in Maritime Cities and Towns who shall hear ordinary matters happening within their Circuits and if any businesse fall out worthy of greater consideration they shall referre the same to him In Denmark the third place of dignity in the Kingdom belongs to the Admirall who is commonly called Ryâ—ks Admirall and as Morisotus writes He hath the same Right and Power as the Admirall of France In Scotland as VVellwood a Scotish man writes the Admirall and Judge of the Admiralty hath power within the Sea-flood over all Sea-faring men and in all Sea-faring Causes and debates Civil and Criminal So that no other Judge of any degree may meddle therewith but only by way of Assistance as it was found in the Action brought by Anthony de la Tour against Christian Martens 6 Novemb. 1542. The Admirall of England as Mr. Selden observes hath another manner of Right and Jurisdiction than the Admirall of France or other ordinary Admiralls for that the Jurisdiction over the Seas of England and Ireland and the Dominions and Isles of the same as a Province are committed to his Custody and Tuition as to a President to defend the same as in the Dominion of the King by whom he is Authorized The bounds of which Jurisdiction are limited and determined in those Seas and besides as the French and other Admiralls he hath the power over the Navy and the Government over the Sea-men and Jurisdiction over the persons and moveable goods which come under his Judicature pour raison ou occasion del faie de la mer which Jurisdiction hath no bounds but extends to the Mediterranean African and Indian Seas or any other far remote What Mr. Selden delivers concerning the Admirall of Englands special Jurisdiction in the first respect is confirmed by an ancient Record in French in Archivis of the Tower of London set out at large by Sr. Edward Cook the effect and tenour whereof is That whereas during the Warrs between Philip King of France and Guy Earl of Flanders Reginerus Grimbaldus Admirall of the French Navy had spoiled the Merchants of divers Nations sailing towards Flanders in the English Seas and Commissioners being appointed by the two Kings to hear and redresse the Complaints concerning the same the Deputies of the Prelates Nobility and Commonalty of the Towns of England and of divers Maritime Countries as of Genua Catalonia Spain Germany Zeland Holland Friesland and Norway declare That the Kings of England by reason of that Realm time out of mind have been in peaceable possession of the Soveraign Dominion of the Sea of England and of the Islands therein situate by ordering and establishing Lawes Statutes and Counter-mands of Armes Vessels otherwise furnished than for Merchandising and by taking security and giving protection in all Causes needful by ordeining all other things requisite for the maintaining of Peace and Right amongst all other People as well of other Seignieuries as of their own passing through the same And all manner of Cognizance and Jurisdiction high and low touching those Laws Statutes Ordinances Countermands and all other Acts which may appertain to the Soveraign Dominion afore-said and that A. D. B. Admirall of the Sea deputed by the King of England and all other Admiralls appointed by him and his Ancestors heretofore Kings of England have been in peaceable Possession of the said Soveraign Protection together with the Conusance and Jurisdiction and all things before mentioned thereunto appertaining except in case of Appeals to their Soveraign Kings of England for default of doing Right or giving wrong Judgment and especially in making Restraint doing Justice and taking security for the peace of all manner of People bearing Arms on the Sea or Ships sailing otherwise apparelled or furnished than belongs to Ships of Merchandise and in all other points in which a man may have reasonable Cause of Suspicion against them touching Robbery or other misdemeanours Besides the Jurisdiction Extraordinary of the Admirall of England concerning Protection against depredations in the English Seas as Mr. Selden writes his Ordinary Jurisdiction is over the persons and goods moveable which come under his judicature by occasion of businesses relating to the Sea is not only agreeable to the Jurisdiction of the French and other Admiralls but is also warranted by the Kings Commissions as it is apparent by antient and later Patents granted by the Kings of England in which the Admiralls of Englands Ahthority and Jurisdiction is expressely fully declared as followeth Damus Concedimus c. We give and grant to N. the Office of our great Admiral of England Ireland Wales c. And we make appoint and ordain him Governour General of our Navies and Seas of the Kingdoms afore-said And be it further known that we of our special Grace and certain knowledge do give and grant to the same our great Admirall and Governour of our Navies all and all manner of Iurisdictions Liberties Offices Fees Profits Preheminences and Privileges Whatsoever belonging or appertaining So far is
and Weights within the Jurisdiction of the Admiralty 5 Of such as make spoil of wrecks so that the Owners coming within a year and a day cannot have their goods 6 Of such as claim wrecks having neither Charter nor Prescription 7 Of Wears Riddles Blind-stakes Water-millsâ— c. whereby ships or men have been lost or endangered 8 Of removing Anchors and cutting of Buoy-Ropes 9 Of such as take Salmons at unseasonable times 10 Of such as spoyl the breed of Oisters or dreg for Oisters and Mussels at unseasonable times 11 Of such as fish with unlawfull Nets 12 Of taking Royal Fishes viz. Whales Sturgeons Purpoises c. and detaining the one half from the King Thirdly Offences against the Admiral the Navy and Discipline of the Sea 1 Of Judges entertaining Pleas of Causes belonging to the Admiral and of such as in Admiralty Causes sue in the Courts of Common Law and of such as hinder the Execution of the Admirals process 2 Of Masters and Mariners contemptuous to the Admiral 3 Of the Admirals shares of Weifs or Derelicts and of Deodands belonging to the Admiral 4 Of Fletson Jetson and Lagon belonging to the Admiral 5 Of such as Freight Strangers bottoms where Ships of the Land may be had at reasonable rates 6 Of Ship-wrights taking excessive wages 7 Of Masters and Mariners taking excessive wages 8 Of Pilots by whose ignorance ships have miscarried 9 Of Mariners forsaking their ships 10 Of Mariners Rebellious and dis obedient to their Masters In the same antient Book of the Admiralty there is a Copy of a more antient Enquiry touching Admiral Causes wherein some things relate to Constitutions made by King Richard the first at Grimesby viz. That ships arrested for the Kings service breaking arrest shall be confiscated to the King and by King Iohn at Hastings That no private man should appropriate to himself the benefit of any salt waters by Meers Ridles and the like and that the same should be pulled down And the fishing cryed common to all people was likewise ordered by King Iohn This may suffice to confirm that there were certain special Causes both Civil and Criminal which did antiently belong and properly to the Conusance of the Admiral and to shew that his Jurisdiction was not wholly confined onely to the Sea That the Iurisdiction of the Admiral of England as it is granted by the King and is usually exercised in the Admiralty Court may consist with the Statutes and Laws of this Realm FIrst it appears by antient Record of the time of King Edward the first De superioritate Maris That it was acknowledged by the Deputies of the Parliament of England and of divers other Nations That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas by prescribing Laws and Statutes for the preserving Peace and Justice and by exercising all kind of Authority in matters of Judicature and all other things which may concern his Soveraignty in the same which being granted his power to depute a Magistrate or Officer to those purposes with so much of his authority as he shall think fit cannot be denied Secondly That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral is agreeable to Commissions antiently granted and which have been passed from time to time by the Kings learned Counsel and by the Lord Chancellor or the Lord Keeper for the time being who have thereunto set the Great Seal and that the authority and Jurisdiction of the Constable and Marshal is designed by St Edward Cook by referring to Grants of those Offices antiently made by many several Kings with exception onely to one irregular precedent in the time of King Edward the fourth Thirdly That Mr. Selden shews that all the Patents of the Office of the Lord Admiral from the beginning of Queen Mary's time to the time of King Charles have been conceived after one and the same form and tenor as of Edward Lord Clintâ—on afterwards Earl of Lincoln under King Philip and Queen Mary of Charles Howard Lord Effingham afterwards Earl of Nottingham under Queen Elizabeth of Charles Duke of York after King Charles under King Iames and of George Duke of Buckingham under King Iames and King Charles to which may be added the Patent of Algernon Earl of Northumberland under King Charles the first and of Iames the most Illustrious Duke of York under King Charles the Second Fourthly That the Lord Admiral and his Deputies proceeding according to his Commission is expresly allowed by King Philip and Queen Mary where they by a Statute restraining the exportation of Corn without Licence make a special provision That that Act shall not be prejudicial or hurtfull to the Lord Great Admiral of England for the time being or to the King and Queens Majesties Iurisdiction of the Admiralty but that the said Lord Admiral or his Deputies shall exercise use and execute all kinds of Iurisdiction belonging to the Sea according to his or their Commissions which provision although it seems to have been made in respect of that Statute yet it shews what respect the King and Queen intended to their Lord High Admiral their own Admiralty Jurisdiction in all matters belonging to the Sea and to the Commission by them granted Against the Jurisdiction of the Admiral as is granted by the King and as it is exercized in the Court it is pretended in general That it is not agreeable First To several Acts of Parliament Secondly To divers Judgments Book-Cases and Judicial proceedings to which may be added the Resolutions of the Judges upon the complaint of the Admiral in Sir Edward Cooks Articuli Admiralitatis All which more specially may be reduced to three heads First Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm Secondly Where he meddles with other things done within the Bodies of Counties and Thirdly With such things as are made or done beyond the Sea The Acts of Parliament are First The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm Secondly That of the 15. of the same King chap. 3. which declares that he hath no Jurisdiction within Bodies of Counties Thirdly That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourthly That of the 5 of Elizabeth which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers The First of these being more general may in this place be considered the rest being more particular may in discussing of some other particular points to which they are appliable be examined That of the 13 Rich. 2. chap. 5. ordains that the Admirals and their Deputies shall not meddle of any thing done within the Realm but only of things done upon the Sea as it hath been used in the time of King Edward the
Defendant although he pleaded that the thing was done on the Sea was overruled to answer from whence amongst other things Sr Edw. Cook makes a special observation That when the taking of a thing is partly on the Sea and partly on the Land the Common Law shall have the Jurisdiction Secondly That in the time of Edw. the 2. It was held That where one may see what is done on one part of the water and on the other it was held no part of the Sea and that the Coroner shall exercise his office in this case and of this the Country may have knowledge Thirdly That in the 43 of Edw. the third sixty Acres of Marsh ground over which the Sea did flow and reflow were adjudged parcel of the Mannor of Brancaster belonging to the Abbot of Ramsey and by consequence were within the body of the County to the low water mark Fourthly That in the 46 of Edw. 3. an Action of Trespass being brought in the Kings Court against certain persons of Hull for taking a ship in the Haven of the Town the Mayor and Bailiffs demanded Conusance by Charter of the King by which it is granted that the Citizens and Burgesses of Hull should not be impleaded Alibi de transgressionibus infra Burgum quam infra Burgum which was allowed and the Haven lying within the Burrough by consequence was within the County How far these Authorities conduce to the proof of the head proposed may be doubted but as to the ground of the head it self which is so much insisted on That where the Courts of Common Law have Conusance the Court of Admiralty can have no Jurisdiction under favour it is insufficient for in the same place several Courts to several purposes may have distinct Jurisdictions Robberies and divers other Offences committed in forests are prosecuted before the ordinary Justices and yet the Justice in Eyre concerning vert venison and other things retains his special Jurisdiction In France as Sanction writes the Lords of mannors adjoyning to Navigable Rivers have several rights of fishing and other commodities by the Kings grant or by prescription and if they be disturbed they may have their remedies in the Ordinary Courts of Justice but as touching the free use of the Rivers in respect of Navigation and that which concerns the Publique the special Officers called the Masters of the Waiters whose Authority in this Kingdome belongs unto the Admiral have the charge thereof and if any Impediments be given or Annoyances done in those respects it belongs to their Jurisdiction and power to reform the same Touching the particulars and first of that of the Replevin in the time of Edw. 1. concerning a Ship taken in the Sea and brought into a River and the defendants being over-ruled to answer the Reason was as Berry the Chief Justice said because the King would have the peace kept as well by Sea as by Land Mr. Selden in his notes upon Fortescue recites the case more fully and gives another reason viz. That William Crake de Holtham was summoned to answer a complaint of Robert de Beause for taking away a Ship of the value of 40. l. on the Sea near Scarborough to which it was pleaded by the Counsel that the Plaintiff did count or declare of a thing taken on the Sea out of any County So that if the matter were put in issue before the Country it could not be resolved what Sheriff should summon the Country and that the Admiral was appointed by the King to hear and determine sutes of things done on the Sea c. Whereunto Berry Chief Justice of the Common Pleas answered we have a general power throughout all England but of the power of the Admirals of which you speak we know nothing neither will we assign our power to them without commandment from the King touching which you shew nothing Haward said The place is so near that if a man had killed one there he should have been taken and brought to the Land and hanged as well as if the fact had been commited on the Land Mettinggam said more we tell you that we have power of things done on the Sea as upon the Land and therefore we order you to answer The reason which Mr. Selden gives was because in those times the Common Law had Conusance of things done on the British Sea within the view of the Land although afterwards it kept its limits infra corpus comitatus Leaving the Sea wholly to the Admiral So that according to the Verse sometimes applyed by Sir Edward Cook Iudicâ—s officium est ut res ita tempora rerum Quaerere the case adjudged in the time of Edw. â— can be no president for subsequent times when the Admiralty Jurisdiction was better settled and so it falls out with Sir Edw. Cooks observation upon that case viz. That when the taking of a thing is partly in the Sea and partly in a River within the County the common Law shall have the Jurisdiction because that in later times it hath been resolved otherwise as in the Mayor of Harwich his case which was That the Vice-admiral of England having seized a Mast floating on the Sea caused certain Fisher-men to draw it to shore at Harwich in Suffolk where the Mayor then claiming Admiralty Jurisdiction likewise seized it for which he being sued in the Admiralty Court of England moved for a Prohibition but the Judges were of opinion that it did beâ—ong to the Admiral of England and denied a Prohibition because the â—eizure at Sea and drawing to shore at Harwich was one continued act and â—herefore the drawing it to shore at Harâ—ich gave no right to the Mayor of Harwich The like may be gathered â—rom a Resolution in communi banco 40 Eliza. viz. An Inhabitant of Plyâ—outh being Owner of a ship joyned in the furnishing and victualling her and sent her to Sea in which imployment the Captain of the ship by Piracy took a French mans ship laden with salt and brought her into Plimouth and sold his salt to the Owner whereupon the French men sued the Plimouth-man being Owner in the Admiralty Court for the Ships goods and upon suggestion that part of the wrong was done upon the Land a Prohibition was awarded but after a long debate a Consultation was granted because the first wrong was done upon the Sea Secondly Touching the Coroners exercising his Office in the time oâ— Edw. 2. in an Arm of the Sea wherâ— one might see what was done on onâ— side and on the other whereupoâ— Standford concludes that by the Comâ—mon Law before the Statute of thâ— 2 Hen. 4. or rather of 15 of Rich. 2. thâ— Admiral had no Jurisdiction but on thâ— high Sea which onely Authority saitâ— Sir Edward Cook was sufficient to overrulâ— all Questions It may be observed whaâ— was delivered in the precedent Case concerning those times and it may bâ— further noted what Mr. Selden writes 〈◊〉 the power and authority of the Sheriffs
of Common Law by witnesses which saith he cometh to pass because in those parts there be no neighbours by whose oaths Juries of twelve men may be made as in Contracts and other cases arising within the Realm is accustomed to be done To avoid the Admirals Jurisdiction in holding Pleas of Contracts or things done beyond the Sea Sir Ed. Cook affirms that Bargains and Contracts so made wherein the Courts of Common Law cannot administer Justice did belong to the Constable and Marshal for the Jurisdiction of the Admiral is wholy confined to the Sea which is out of any County whence it may be gathered that as to this point he intends for Authorities the Statutes of the 13 of Richard 2. which sets forth the Jurisdiction both of the Constables and Marshals Court as also of the Court of the Admiralty That concerning the Constable and Marshal is as far from the purpose as it was from Sir Edward Cooks thought to give any addition of power to that Court The Act declares That to the Constable and Marshal it belongs to have Conusance of Contracts and Deeds of Arms out of the Realm whence it is inferred that therefore out of the Realm the Admiral shall have no Conusance of Contracts or matters concerning Navigation and Trade It may be better argued from that Act That as the Parliament allowed to the Constable and Marshal Jurisdiction in Causes of Arms and Warr arising both within and without the Realm which cannot be determined by the Common Law so it did intend Causes of Navigation and Trade arising either within or beyond the Seas to be tried by the Admiral The nature and the Quality of the business more Conducing to the point of Jurisdiction than the Circumstances of the place where it happens The Statute which allows the Admiral to meddle with things done upon the Sea by Sir Edward Cooks leave doth not confine his Jurisdiction to the Sea in respect of â—ny place beyond the Sea It is rather â—retended to debarr him from medling with things done within the Realm which notwithstanding it being formerly shewed that the Admiral may â—old plea of Maritime Causes arising â—rom Contracts made within the Land 〈◊〉 may be less needfull to labour to prove â—hat it doth not hinder him from taking Conusance of Sutes concerning Navigation and Trade arising from Contracts made and businesses done beyond the Sea The other Authorities which may be collected to prove how the Admiral hath no Jurisdiction of things done beyond the Sea are a writ in the Register and Fitz Herbert and a number of Prohibitions That of the Register is If goods be taken from an English-man in Spain or beyond the Sea and the party cannot obtain Justice there he shall have a writ of the Sheriff to arest the Bodies of the offenders and to seize their goods to the value which proveth saith Sir Edwarâ— Cook that the Admiralty cannot hold plea thereof for that the party hath remedy at the Common Law That Argument is as good as if he had said There lies a writ of Withernam at the Common Law therefore no Letters oâ— Reprisalls can be granted in the Admiralty It stands with great reason that iâ— a Subject be spoiled of his goods in anoâ—ther Realm and can have no remedy there that the party or the goods belonâ—ging to him being found within the Juâ—isdiction of the Common Law they â—hould be made lyable to satisfaction And why should it be thought unreasoâ—able that upon the like occasion if the â—arty or his goods be found within the â—urisdiction of the Admiralty the Subâ—ect should have remedy there But this Authority concerns not Contract or barâ—ains made beyond the Sea Besides how far this writ agrees with â—he Common Law it may be consideâ—ed in regard Mr. Selden writes in Triâ—unalibus nostri Iuris Municipalis c. in â—ur Courts of Common Law the Juâ—â—sdiction hath been ever held to be such â—â—at according to the strict Laws antiâ—â—tly practis'd an Action could not be â—ought upon a business hapning elseâ—here than within the Kingdome as for â—any Ages since it hath been held that â—â—e Action ought to be rejected unless â—â—e ground of it be arising from someâ—â—ing done within the Body of a Counâ—â— And Sir Edward Cook recites divers â—â—thorities by which the same is mainâ—â—in'd as agreeable to the Common Law â—â—t this Law he allows where the â—â—ings were totally done out of the â—â—alm and Implies that it is otherwise where the Contract is made in oâ— Realm and the performance ought to bâ— in another for then sayes he as to thâ— present purpose of necessity the Conuâ—sance must be where the Contract waâ— made for otherwise there can be no triâ—al had at the Common Law and that iâ— is most reasonable that it should be so because the Contract is the ground anâ— foundation of the debt But now in casâ— a Contract be made in partibus exteris transmarinis whereby payment or perâ—formance is to be made within thâ— Realm notwithstanding the Contract bâ— the ground and foundation yet the Juâ—risdiction follows the place of paymenâ— and performance and no doubt for thâ— same reason because otherwise theâ— could be no pretence for a trial at thâ— Common Law so that the Rule is fraâ—med to the building and not the buildinâ— to the Rule The last Argument is that divers Proâ—hibitions have been granted upon sutâ— brought in the Admiralty for thinâ— done in partibus exteris transmarinâ—â— and the first is as ancient as the 36. Hen. 8. But upon what Contracts buâ—â—â—nesses or occasions those sutes weâ— grounded and Commenced it is not â—pecified and to conclude this point as the former First the third request of the Judge of the Admiralty in the year 1575. viz. That the Judge of the Admiralty according to such ancient order made by King Edw. 1. and his Councel and according to the Letters patents of the Lord Admiral for the time being and allowed of other Kings of this Land ever since and by Custom time our of memory of man may have Cognition of all contracts and other things arising as well beyond as upon the Sea without â—et or prohibition The answer is that it â—s agreed upon by the Lord Chief Iustice and â—is Collegues Secondly All the Judges before the King and his Councel Octavo Caroli aâ—reed That if sutes shall be commenced â—n the Court of Admiraly for Contracts â—ade or other things done beyond the â—ea or upon the Sea no Prohibition is â—o be awarded Concerning the Concessions of the â—udges of the Kings Bench and the Reâ—olutions of all the Judges alleged for â—â—e Confirmation of the precedent Asâ—ertions it may be noted That touching the former by them are intended certain Answers of the Chief Justice and other Judges of that Bench to the Requests of the Judge of the Admiralty in the year 1575. of which mention is made in the complaint of the Admiral 7. Object wherein it is set
forth That the Agreement made in anno Domini 1575. between the Judges of the Kings Bench and the Court of Admiralty for the more quiet and certain Execution of Admiral Jurisdiction was not observed to which Sir Edward Cook answers that that supposed agreement had not been delivered unto them but having heard the same read before his Majesty out of a Paper not subscribed with the hand of any Judge they answer that for so much thereof as differs from their present Answers it was against the Laws and Statutes of the Realm and therefore the Judges of the Kings Bench never assented thereunto as it is pretended neither doth the phrase thereof agree with the Terms of the Laws of the Realm It is not probable that Dr. Dunn then Judge of the Admiralty would have produced such an Agreement to the Judges before the King but that he had some ground for the same which being supposed it may as well inferr that those Concessions were agreeable to the Laws and Statutes of the Realm because those Judges did assent unto them as that they did not assent because they were not agreeable to the same And it may as well be doubted whether those things wherein those Answers at that time did differ from the Resolutions of all the Judges in the 8. of King Charls were agreeable to the Laws and Statutes of the Realm as it is confidently affirm'd that wherein those Concessions did differ from those Answers were against the same wherein the phrase of the Requests and Answers is not agreeable to the terms of the Common Law is not so much considerable as how the matters therein contained may consist both with Law and Equity and to that end it may not be amiss to recite them as they are extant in several Manuscripts in which are collected things of those times remarkable both concerning the Ecclesiastical Courts and the Court of Admiralty as followeth 12. Of May 1575. The Requests of the Judge of the Admiralty to the Lord chief Justice of her Majesties Bench and his Collegues with their Answers to the same That after Judgement or Sentence given in the Court of Admiralty in any cause or Appeal made from the same to the high Court of Chancery it may please them to forbear the granting of any Writ of Prohibition either to the Judge of the said Court or to her Majesties Delegates at the sute of him by whom such Appeal shall be made seeing by choice of Remedy in that way in reason he ought to be contented therewith and not to be relieved any other way It is agreed by the Lord chief Justice and his Collegues that after Sentence given in the Delegates no Prohibition shall be granted And if there be no Sentence if a Prohibition be not sued for within the next term following Sentence in the Admiralty Court or within two terms after at the farthest no Prohibition shall pass to the Delegates That Prohibitions hereafter be not granted upon bare Suggestions or Surmises without summary Examination and Proof made thereof wherein it may be lawfull to the Judge of the Admiralty and the party defendant to have Counsel and to plead for the stay thereof if there shall appear cause They have agreed that the Judge of the Admiralty and the party defendant shall have Counsel in Court and to plead to stay if there may appear evident cause That the Judge of the Admiralty according to such an antient Order as hath been taken by King Edward the first and his Councel and according to the Letters Patents of the Lord Admiral for the time being and allowed by other Kings of the Land ever since and by custom time out of Memory of man may have and enjoy cognition of all Contracts and other things rising as well beyond as upon the Sea without let or Prohibition This is agreed upon by the said Lord Chief Justice and his Collegues That the said Judges may have and enjoy the knowledge of the breach of Charter-parties made betwixt Masters of Ships and Merchants for Voyages to be made to the parts beyond the Sea and to be performed upon and beyond the Sea according as it hath been accustomed time out of mind and according to the goodâ— meaning of the Statute of 32. of Henry 8. chap. 14. though the same Charter-parties be made within the Realm This is likewise agreed upon for things to be performed either upon or beyond the Sea though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. cap. 14. That Writs of Corpus cum Causa be not directed to the said Judge in causes of the nature afore-said and if any happen to be directed that it may please them to accept of the Return thereof with the Cause and not the Body as it hath alwayes been accustomed If any Writ of this nature be directed in the causes before specified they are content to return the Bodies again to the Lord Admirals Gaol upon Certificate of the cause to be such or if it be for contempt or disobedience to the Court in any such cause Touching the Resolutions of all the Judges 8. Caroli it may be considered That in the presence of the Kings Majesty and twenty three Lords and others of his Majesties Councel they were subscribed unto by all the Judges viz. Thomas Richardson Robert Heath Humphrey Dawenport Iohn Denham Richard Hutton William Iones George Crook Thomas Trevor Iames Weston Robert Barkley Francis Crawly and also by Henry Martin Judge of the Admiralty and William Noy the Attorney general and the Transcript thereof was ordered to be Entred in the Register of the Councel causes and the original to remain in the Councel chest 18. Feb. 1632. Sir Edward Cook concerning the answers and resolutions of the Judges to those things which he calls Articuli Cleri 3 Iacob saith That although they were not enacted by the authority of Parliament as the â—tatute of Articuli Cleri in the 9. of Edwaâ—â— 2. was yet being resolved unanimously by all the Judges of England and the Barons of the Exchequer they are for matters of Law of highest authority next unto the Court of Parliament And it may be thought that these resolutions of all the Judges touching the Jurisdiction of the Admiralty ought to be of no lower esteem the rather for that the unanimity of all the Judges to the former must be taken upon the credit alone of Sir Edward Cook but as to the latter the Evidence thereof doth appear by the joynt subscriptions of all before named which is likewise attested by Sir George Crook who was one of them who in his reports of Hillary term 8 Caroli under the title of Resolutions upon causes of Admiral Jurisdiction writes that it was agreed as followeth First if sute should be commenced in the Court of Admiralty for Contracts or other things personally done beyond the Sea no Prohibition is to be