any of that nature should be elsewhere in any other Court meddled with I shall only take two or three Articles together which appoint that at all Admiralty Sessions enquiries shall be made of all such as shall implead or sue any man in any other Court then the Admiralty for any matters or things there cognoscible or determinable either by the foregoing Laws or Articles or otherwise And those are the 51 52 and 53 Articles of this Inquisition which follow in these words Item soit enquis de tous ceulx q' empleâ—â—ent aueun home a la commune loy de la tre ' de chose appurtenant dancien droit a la loy marine Item soit enquis de tous juges qui 〈◊〉 et devant eulz aucuns plets apappurtenants par droiture a la court de ladmiralâ—â— Item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de seâ— mandements These Articles are not only for the enquiry of all such as have impleaded any man at the Common Law of the land for any thing appertaining of ancient right unto the Maritime Law but likewise of all such as have held before them any pleas of right belonging unto the Court of the Admiralty according to the Laws of Oleron and the several Articles of this Inquisition both settled and confirmed in the time of his Reign and to enquire of all such likewise which have at any time disturbed the Lieutenants of the Admiralty or any other of the Ministers of the Court in the due execution of their Mandats and Warrants I might here proceed further to shew that by that other Inquisition translated out of old French into Latine by Roughton and set down in the before mentioned black book of the Admiralty it likewise plainly appeareth that Contracts made at land concerning Maritime affairs were then or before that time tryable in the Admiralty Court For whether that Inquisition was taken in Edward the Third's time or before doth not appear the same bearing no date and in that regard likely to be farre more ancient but because the same is in most particulars agreeable with this Inquisition and in regard I have touched upon it already in the chapter where I have argued the self same matter from the Laws of Oleron I shall here pass it over and passe unto the other Statutes which are instanced in against the cognizance of matters of this nature in the Admiralty Court CHAP. V. The Argument deduced out of the Statute of the 15 of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs are not cognoscible in the Admiralty Court answered I Am now come unto the second Statute urged by Sir Edward Coke against the Jurisdiction of the Admiralty which howsoever he took to be plain for his purpose yet well weighed and rightly considered from the original in my judgment maketh clearly against it and confirms the construction I have made of the Statute of the 〈◊〉 of Ric. 2. in the second chapter of this Book I shall first set down the Statute it self as he rendreth it then as Poulton translateth it and lastly as the original truely hath it which is worthy the observing and then come to set forth the true meaning and sence thereof according to my best understanding And first it is by him thus rendred That the Court of the Admiral hath no manner of Cognizance Power nor Jurisdiction of any manner of Contract Plea or Querele or of any other thing done rising within the Bodies of the Counties either by Land or by Water and also of wreck of the Sea But all such manner of Contracts Pleas and Quereles and all other things rising within the bodies of the Counties either by Land or by Water as is aforesaid and also wreck of the Sea shall be tryed termined discussed and remedied by the Laws of the Land and not before nor by the Admiral nor his Lieutenant in no manner Nevertheless of the death a man and of mayme done in great Ships being and hovering in the main stream in the great Rivers onely beneath the points of the same Rivers and in no other place of the same Rivers the Admirall shall have Cognizance In the ancient Statutes which were made by way of Petition and answer Poulton in his Collection of Statutes generally setteth forth the Petition by way of Preface to the body of the Statute which he deduceth out of the answer which in all Statutes which concern not one Jurisdiction and another he hath done plainly and well enough in the most and yet not in all The same method and order he hath not observed in the Translation of these before mentioned Statutes which concern the Jurisdiction of the Admiralty wherein he or some other whom he hath followed hath not dealt so fairly in my judgement as he hath done in the translating and collecting of the rest as may well be observed by comparing them with the Originals he rendreth this Statute thus At the great and grievous complaint of all the Commons made to our Lord the King in this present Parliament for that the Admirals and their Deputies do incroach to them divers Jurisdictions Franchises and many other profits pertaining to our Lord the King and to other Lords Cities and Burroughs besides those they were wont or ought to have of right to the great oppression and impoverishment of all the Commons of the Land and hinderance and loss of the Kings profits and of many other Lords Cities and Burroughs through the Realm It is Declared Ordained and established that of all manner of Contracts Pleas and Quarrels and of all other things done rising within the bodies of Counties as well by land as by water and also wreck of the sea the Admirals Court shall have no manner of cognisance power nor jurisdiction but all such manner of Contracts Pleas and Quarells and other things rising within the bodies of Counties as well by land as by water as before and also wreck of the sea shall be tryed determined discussed and remedied by the Laws of the land and not before nor by the Admiral nor by his Lieutenant in any wise nevertheless of the death of a man and of a maim done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognisance and also to arrest Ships in the great Flotes for the great Voyages of the King and of the Realm saving alwayes to the King all manner of forfeitures and profits thereof coming and he shall also have jurisdiction upon the said Flotes during the said Voyages only saving alwayes to the Lords Cities and Boroughs their Liberties and Franchises As for the exposition of this Statute made by Sir Edward Coke I shall onlâ— leave
Pirats Theeves Robbers Murderers and Confederates upon the Sea many times escaped unpunished because the tryall of their offences heretofore hath been ordered judged and determined before the Admiral or his Lieutenant or Commissary after the course of the Civil Law the nature whereof is that before any Iudgement of death can be given against the offenders either they must plainly confess their offences which they will never do without torture or pains or else their offences to be so plainly and directly proved by witnesses indifferent such as saw their offences committed which cannot be gotten but by chance at few times because such offenders commit their offences upon the Sea and many times murder and kill such persons being in the Ship or Boat where they commit their offencs which should witness against them in that behalf and also such as should bear witness be commonly Mariners and Shipmen which because of their often voyages and passages on the Seas depart without long tarrying and protraction of time to the great cost and charges as well of the Kings Highness as such as would pursue such offenders For reformation whereof be it enacted by the Authority of this present Parliament That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or Place where the Admiral or Admirals have or pretend to have power authority or jurisdiction shall be enquired tryed heard determined and adjudged in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme and condition as if any such offence or offences had been committed or done in or upon the Land and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals or to his or their Lieutenant Deputy or Deputies and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being from time to time and as oft as need shall require to hear and determine such offences after the common course of the Laws of this Land used for Treasons Felonies Robberies Murders and Confederacies of the same done and committed upon the land within this Realm This Statute plainly sheweth that before the making thereof the offences of all Traitors Pirats Theeves Robbers and their Confederates done or committed upon the Sea without distinguishing the main Sea from the Ports Creeks and Havens thereof or excluding them therefrom as well as the offences of Murderers and Meighmers of men were ordered judged and determined before the Admiral his Lieutenant or Commissary Nay by the reason given in this Statute for the alteration of this Triall the Ports and Havens do appear to be comprehended in the word Sea where it is said that many times the offenders do murder and kill such persons and the Witnesses being in the Ship or Boat where they commit their offences which should witness against them in that behalf Now surely all the said offences which were done or committed in Ships or Boats and were cognizable before the Admiral or his Lieutenant or Commissary might be and were committed as well in Ships and Boats which did ride or lie at anchor within the Havens Creeks and Ports of the Sea as upon the high Sea Yet if this be doubted what followeth in the Act will make it more plain viz. That all Treasons Felonies Robberies Murders and Confederacies hereafter to be committed in or upon the Sea or in any other Haven River Creek or place where the Admirals have or pretend to have power authority or Jurisdiction shall be enquired tryed c. So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law and that it is now enacted that hereafter the same offences committed upon the Sea may be otherwise enquired tryed c. And least any doubt should arise how farre the Sea heretofore extended therefore it is added or any other Haven River or Place where the Admiral or Admirals have or pretend to have Power Authority or Jurisdiction Again had these Havens Rivers and Creeks ever been within the bodies of Counties so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed then needed not this Statute have appointed any such tryall thereof by Jury to be chosen out of any County limited by the Kings Commission proper or not proper Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies Now if these Havens Rivers and Creeks were so farre out of the bodies of Counties that a Jury could not nor yet can be had out of a proper County but must be had out of any County by the King in Chancery appointed for the tryal of these criminal causes arising from these offences thereon committe I conceive it will seem strange that it should be affirmed that the same Havens Rivers and Creeks should be so farre within the bodies of Counties that a Jury might or may be had out of a proper County for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason whereon this Judgement was built Sir Edward Coke not seldome termeth it a Maxime in the Common Law Quòd nemo debet videri prudentior lege that no man ought to seem wiser then the Law and truly from this Maxime as he termeth it I conceive as strong a conclusion may be drawn viz. Quod hisce statutis nulli prudentiores videri deberent none ought to have seemed wiser then these Statutes themselves But indeed as this Judgement hath been by some accepted as grounded upon law so hath it been by more and those learned in the Law refused and rejected as not grounded thereon as I shall hereafter shew by Writs de Procedendo awarded out of the Chancery upon Injunctions thence granted and Consultations both out of the Kings Bench and Common-pleas upon Prohibitions thence granted upon causes of the self same nature Now I hope by what hath been said shall hereafter be shewed it plainly will appear that this first and leading Judgement was not so grounded either upon law or reason or upon so sound a foundation as that men in succeeding ages should build their judgements thereupon nor so complete or fit a guide or rule as that Lawgivers should be directed thereby although it had been contemporanea statutorum expositio made within 20 years of the making of one of the said Statutes and that upon two years advisement and deliberation as Sir Edward Coke affirmeth which Induction or minor Proposition is as infirme as the major and both will leave the conclusion to stand alone
or any other thing whatsoever which touch the King against Him his Crown and Regality or his Realm as is aforesaid And they which bring within the Realm or them receive or make thereof notification or any other execution whatsoever within the same Realm or without That they their Notary Procurators Maintainers Abetters Fautors and Counsellors shall be put out of the Kings Protection and their Lands and Tenements Goods and Chattels forfeited to our Lord the King that they may be attached by their bodies c. In these antient Statutes which are by way of Petition and Answer the Answer hath alwayes relation to the Petition and granteth what is therein desired sometimes less but never more by this Petition nothing is desired but the restraint of the Popes power and assumed authority in those things therein exprest nor is there any thing more in the Answer granted if these words in the genuine sence thereof be duly examined which can be no other then this If any purchase c. in the Court of Rome or elswhere from the Pope or any Power or authority derived from him viz. either in his Court at Avignon which he sometimes held there or any other Ecclesiasticall Court under his Supremacy whether beyond the Seas or in the Realm of England For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him as their supreme only or at least as well as the King and of these Courts and none other can this elsewhere be understood as will plainly also appear by the things specified in this answer to be purchased and pursued viz. If any purchase or pursue in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunications Bulls c. Now cannot these things nor could they elsewhere or in any other place besides the Court of Rome be purchased or pursued but from the Pope or his Authority in those other Courts before mentioned Again these words else where were necessarily inserted and necessarily to be understood of those Courts under the Popes authority from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise whosoever had purchased any of them elsewhere to wit in any of these other Courts under his authority and not in the Court of Rome had not been by this Statute lyable to the punishment thereof But some perhaps may say I have here purposely waved the general words which close up the particular specified things forbidden to be purchased or pursued viz. Bulls Instruments oâ— any other things whatsoever which words perhaps may seem to have relation to else where and be thought to be of so large an extent that the words else where must be stretched to all places whatsoever beyond other Courts of the Popes or under his authority But indeed I intended it not But as they are the last words which close up the particulars specified so I reserved them to the last place wherein I shall disclose and clear that doubt When several particulars then of the same nature are closed up with a general that general comprehendeth all other particulars of that nature and nothing of a different and distinct quality So here these general words or any other things whatsoever must be understood of any other thing whatsoever of the same nature with those Translations Processes c. And this is plain enough by the words themselves if seriously observed and rightly understood For take them as they run and they carry their limitation with them which bindeth them close and restraineth them unto what precedeth in the Petition And as the Court of Rome and elsewhere have relation to the Pope to the Popes Court at Rome and unto his Courts elsewhere so must these words Instruments and other things whatsoever have reference and relation thereunto And then take these words as they answer the Petition and they can bear no other sense then this viz. Whereupon our Lord the King by the assent aforesaid and at the request of the said Commons hath ordained and established that if any purchase or pursue or cause to be purchased or pursued in the Popes Court of Rome or any other of his Courts elsewhere any such Translations Processes and Sentences of Excommunications Bulls Instruments or any other things whatsoever which touch the Kings protection c. So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused against whom these Praemunires were brought for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be and hath been wrested and catcht at to diminish and straighten the Jurisdiction of the Admiralty and enlarge the already extraordinary large power of the Common Law Nor are these Interpretations or Constructions in any wise contemporary with the Statutes as Sir Edward Coke would have them but taken up a long time after and crept into their Law as heresies do into Religion by new constructions of Scripture Neither indeed can either the Judgement or any of these Praemunires instanced in be said to be contemporary with the said Statutes For further proof of this point he instanceth in four or five Prohibitions unto the Court of Admiralty for holding plea of Contracts made upon Ports or Havens and beyond the Seas But to these I shall give an answer hereafter when the Contracts made at land concerning Maritime affairs shall come to be insisted upon CHAP. VIII The Book-Cases and Authorities brought to proove that the Admiral hath no Jurisdiction upon the Ports Creeks and Havens answered CErtain Bookâ—Cases and Authorities as Sir Edward Coke calleth them are likewise urged for proof of this particular of the Admirals having no Jurisdiction upon the Ports and Havens 1. Some Books are quoted nothing being exprest what the Books say nor any argument deduced out of them to conclude the point I cannot therefore give an answer to an argument unframed nor is it proper for me my self to raise an argument out of those books and then my self to frame an answer thereunto But I will conceive those Authorities he hath quoted at large to make most for his purpose and endeavour to answer unto them He saith in tempore Ed. 1. tit Avowry 192. a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea and for carrying the same from thence into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough which is neither Town nor Place out of which a Jury may be taken for that the Coast is four miles long And also of a thing done in the Sea this Court hath no cognizace
Common Law because it is then parcel of a County and within the body of a County and with this agreeth that of the 8 of Ed. 4. 19. So note that beneath the low water marks the Admiral hath the sole and absolute Jurisdiction and between the high water mark and the low water mark the Common Law and the Admiralty shall have severally Power interchangeable as aforesaid to wit the one upon the water and the other upon the Land so it plainly appeareth by what himself hath declared that though the Land from the high water mark to the low water mark may be said to be within the body of a Country when the water is off it yet is it within the Jurisdiction of the Admiralty when the water doth overflow it And this will prove no argument at all why the Admiral should have no Jurisdiction upon the Ports and Havens but rather an argument à fortiori vel à majori ad minus that he shall there have Jurisdiction For if he shall not be excluded from his Jurisdiction in those places where the water recedeth and leaveth dry land of use and profit which may be claimed by the Lord of a Mannor as parcell of that Mannor much less can he be excluded from his Jurisdiction in the Ports and Havens from whence the water doth never clearly recede or where no man doth or can challenge any right of possession And again shall he not be excluded those places in the exercise of his Jurisdiction where seldom or never and little or nothing falleth under his cognizance And shall he be excluded those places in exercise thereof where things of the same nature and by the same Law determinable of greater consequence fall under his cognizance almost dayly and hourly If so we may very well suspect the reason and cause thereof that it came so to be not for any good intended either to the Commonwealth or good people thereof but for some private end To this he addeth that it was adjudged Paschae 17. Eliz. in the Exchequor Diggs being Plaintiff that the land between the flowing and reflowing of the Sea belonged to the Lord of the Mannor adjoyning as the Lord Dyer doth there report but to this I shall not need to strive to give any other answer then to the former To that of the 48. Ed. 3. and the 3. concerning the contract for Mariners wages I shall give an answer when I shall come to handle the other contracts made at land It is further objected that 46. Ed. 3. and the 3. tit conusance 36. an account of trespass was brought for taking of a Ship in the Haven of Hull against certain persons The Mayor and Bayliffs of Hull demanded cognizance by the Charter of the King granted unto them that the Citizens and Burgesses of Hull shall not be impleaded alibi de aliquibus transgressionibus conventionibus contractibus infra Burgum c. quam infra Burgum And the cognizance was granted which proveth that the Haven of Hull where the Ship did ride was infra Burgum de Hull and by consequence infra corpus comitatûs and determinable by the Common Law and not in the Admiralty Court Which conclusion no Logician will allow ex necessario to be deduced out of the premises vix ex contingenti nor will any Law as I conceive allow it that two contending at Law for that which belongeth to neither of them though it shall be adjudged to one of them that this shall in any wise be prejudicial to a third party that hath right thereunto but that he may by the same Law recover the same Several Cities and Boroughs especially upon the Sea Coasts do challenge several priviledges some by prescription and some by grant as is already set forth in this Chapter as Flotson at Bristoll c. and the Cinque Ports have their Admiralty Jurisdiction ab antique yet doth not this make their Ports and Havens there to be part of their Towns or make them to be within their Boroughs but within the compass of their priviledges nay it rather sheweth the contrary For things done upon their Ports they have their Admiralty and do or ought to proceed according to the Rules of the Civil and Maritime Laws Talem habent Jurisdictionem ratione Portuum non ratione alti maris and are to give Judgement according to the same Law as the Vice-Admirals of several parts do from which Judgements given in any Port-town except the Cinque Ports where the appeal lyeth onely to the Warden thereof an appeal lyeth to the high Court of Admiralty as it doth from the Vice-Admirals Court and for other businesses done within their Town they proceed according to the Common Law and they have their several distinct Officers for businesses of the one nature and the other as their water-Baliffs for the one and the land-Baliffs or Serjeants for the other and if the Ports and Havens were not within the Jurisdiction of the Admiralty I know no use that Cinque Ports or any other Ports can have of an Admiralty by themselves as absolutely and clearly the Cinque-Ports have seeing that the Lord high Admiral of England hath that Jurisdiction of the main Seas together with all Ports not so priviledged And it cannot be less necessary for all the other Ports to have all their businesses agitated therein tried by the Civil and Maritime Laws then it is for the Cinque-Ports Hull no doubt hath great and large privileges but whether they extend unto things done upon the Port or Haven there without the authority of the Admiral I know not It is like enough it may which being made known the cognizance of this cause might very well be dismist from the cognizance of the Judges and left unto the Major and Bailiffs of that Town Howsoever take it that the cause was dismist only upon that ground which is here set forth viz. that the Citizens and Burgesses should not be impleaded alibi in aliquibus transgressionibus conventionibus contractibus infra Burgum c. quà m infra Burgum This no doubt was sufficient for the Judges of the Common Law to dismisse the cause from being proceeded in before them before whom it was brought as an Action of Trespass not before the Admiral c. for that it rather belonged unto the Major of Hull then to them though indeed it perhaps belonged unto neither and hereupon the Major de facto might take cognizance though by no law or right I hope we shall not make the Judgment of evaery Major and Recorder to be a Law or President that others must be ruled by For then we may hang up the accessary and go seek the principal afterwards as they did at Grantham in Lincolnshire as I have heard But Sir Edward Coke further saith that the cognizance was granted c. I hope he meant not that it was adjudged to belong absolutely unto the Major and Bailiffs of Hull excluding
breach of a Law so general may be a cause of the breach of such league and amity or at least of the begetting of Letters of Reprizal on their part against our Merchants and owners of Ships which is Prima species belli by which way of their reparation the Subjects of this Nation are like to pay at least three fold for the damage done by such wicked and mischievous people and not by themselves But here an Objection will arise viz. that by the express words of a Statute of the Land made in the 15th year of the raign of Richard the 2. the Admiral is to have no Cognisance Power nor Jurisdiction of wreck of the Sea To which I answer that by wreck of the Sea in this Statute mentioned is as I conceive and under correction onely meant and intended such things as are cast out of the bowels of the Sea and by the waves thereof driven on shore and upon the reflux thereof left upon the Land wherein no man hath any property or to which no man can make any claim this is properly called wreck of the Sea which belongeth properly to the King and by his grant unto the Lord High Admiral But in case any Ship or other Vessel shall be wrecked at Sea or in any Port Haven or Creek or upon or near any Coast neither the Ship nor Vessel nor any of the Goods thereunto belonging howsoever found therein or found floating upon the water or driven on shore or dry land are wreck of Sea though the Ship be usually said to be a Ship wrecked and the Goods said to be wreck but indeed are bona sparsa ex naufragio Goods scattered and thrown over board through ship-wreck or fear or danger of ship-wreck wherein the owners of them have a just property and may make their claim thereunto at any time within a year and a day and ought to recover and have the same again by the Laws of the Sea and therefore hath that Law exactly set forth how and in what maner such as shall either by violence or by stealth or howsoever take and carry away or conceal any such Goods from the lawful owner and proprietor thereof ought to be punished and make satisfaction for such their offence committed against the Law And as that Law doth distinguish those things which be ex naufragio from wreck of the Sea as plainly it doth so doth it distinguish the offence of taking away such Goods at the very time of the shipwreck from the offence in some time after the same as is plain by the Laws before quoted in this Chapter But since the making of this Statute in regard of the differences which did arise and which did grow about such Goods whether the same were wreck of Sea which belonged unto the King or derelicts Ships or Goods forsaken and given over for lost or Flotson that which after a wreck was found floating upon the water and by no man claimed or Jetson that which was thrown over board to disburden and lighten the Ship for preservation thereof and of mens lives and the rest of the Goods or Lagon that which was found in the bottom of the Sea or any great river beneth the first bridges within the low water mark all which belonged to the Kings of England who have usually granted the same which belonged unto themselves unto the said Lords Admirals amongst the other things before mentioned as doubtless they may do the same being confirmed unto themselves by the Statute and unto their own use and the said Admirals have constantly had the same and the benefit thereof Another Title there is amongst the said collected Titles de Naviculariis seu naucleris by the Laws whereof it doth likewise appear that the Admiral hath Jurisdiction upon the Ports and Havens The first of them saith thus Nullam vim oportet naucleros sustinere delegatas species annonarias transferentes nec concussiones nec aliquod genus incommodi sed venientes ac remeantes omni securitate potiri decem librarum auri mulcta proponenda his qui eos inquietare tentaverint No force or violence or any manner of disturbance or hinderance shall be offered unto the Masters of Ships or Mariners which are appointed by their Prince to transport any Goods or Commodities for the publique use or benefit under the pain of ten pounds to be imposed upon such as shall adventure to molest or disquiet them Now I hope no man will say that this extendeth not to such force violence or molestation as shall be offered unto them upon any Port or Haven either before their setting sail to sea or in any Port or Haven of their discharge or in any Port or Haven they shall by storm or stresse of weather be driven into And this Priviledge saith Peckius is no small benefit unto them for they can neither be arrested nor deteyned nor compelled to pay any Custome or Tribute Quod privilegium quae praerogativa utilitas meherule modica non est etenim nec arestari ut dicunt nec detineri nec ad vectigalium solutionem compelli possunt which certainly sheweth that this Law extendeth to the Ports and Havens upon which all Arrests of Ships or other Vessels or Mariners are for the most part made and all compulsion to the payment of Tribute or Custome used or exercised If this be not enough take the last Law of the same Title and Peckius thereupon in these words Judices qui onusta navigia cum prosperior flatus invitat sub praetextu hyemis immorari permiserint unà cum municipibus corporatis ejusdem loci fortunarum propriarum feriantur dispendiis naucleri praeterea paenam deportationis accipiant si aliquid fraudis eos admisse fuerit revelatum Such Judges as shall permit or suffer such Ships or Vessels so laden with Commodities for the publique use and service of the Common-wealth having a good wind to stay or demore in any Port or Haven under the pretence of Winter shall together with the Burgers or chief of that place bear or pay the loss or damage thereby sustained And the Masters of those Ships which shall be found guilty of such offence or fraudulent in that way are to be punished with banishment Now no man will doubt but that this stay or demorage which is thus strictly to be lookt after by the Admiralty Judge under such a pain or penalty and so severely to be by him punished is such stay or demorage as is made in the Port or Haven and not upon the high Seas And Peckius saith in express words if they shall stay or demore in the Port or Stations for Ships at such time it is the office of the Judges by all wayes or means to drive them out or compel them to go on upon that Voyage they are designed Quinimo si tempore ad navigandum idoneo suspensâ navigatione in portu stationibúsve haererent Judicis erit officium omnibus
juste in ipsius Edmundi dispendium non modicum gravamen unde per partem praedicti Edmundi sentientis se ex praemissis sententiis expensarum condemnatione indebite pergravari ab eisdem sententia expensarum condemnatione ad nos nostram audientiam est appellatum sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum plenius poterit apparere idem Edmundus nobis supplicavit ut in dicta causa appellationis suis procedere sibi justitiam in hac parte facere digneremur Nos supplicationi praedictae annuentes vobis c. quorum alterum vestrum vos praefatum Episcopum Thomam Field c. I shall instance only in one more one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston as Master and Owner of half of the said Vessel and the said Cause was proceeded in before Henry Bole Lieutenant-General of the Admiralty Court which Cause was from him appealed unto the King in Chancery and a Commission in the eleaventh year of Henry the fourth being but nine years after the making the said Statute and the Cause in the first instance must needs have been begun some good space of time before that The Commission of Appeal runneth thus Rex dilectis fidelibus suis Richardo Rochefort Chivaler ' Magistro Henrico Ware Magistro Richardo Brinkley Magistro Thomae Field salutem Sciatis quod â—um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti quinque librarum praeâ—â—â—â—â—ffrectamenti medietatis cujusdam navis vocat ' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom possessorem ejusdem medietatis aliis pertinen partem actricem prosequentem ex parte una Thomam Jonesson Thomam Rafin de villa praedicta partem ream defendentem ex parte altera quae coram Henrico Bole locum tenen general curiae Admirallitatis Angliae c. Now for the three Records instanced in by Sir Edward Coke and brought out of the Courts of the Common Law against the Admirals Jurisdiction upon the Ports and Havens and in matters of contracts upon businesses to be agitated at sea I have shewed four out of the Chancery which was then as by his own setting forth appeareth the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law for thus he saith Sundry Towns of the West part praying remedy against the Officers of the Admiralty for holding plea of matters determinable by the Common Law which they pray may be revoked the Kings Answer was The Chancellor by the advice of the Justices upon hearing of the matter shall remit the matter to the Common Law and grant a Prohibition And as these Records are of farre greater antiquity then those by him instanced in so are they farre more contemporary with the said Statutes and therefore by his own rule of farre greater authority Besides these three Records by him instanced in do but de facto set forth what was done and that but as those three several times in those Courts sed quo jure non arguitur But it may be very well apprehended that in 27 years after the making of the last of those Statutes and 37 after the making of the first of them the Petitions upon which those Statutes were grounded and from whence they must receive a right construction began to be forgotten but after the same were revived and brought again into remembrance and Admiralty Court had no more such interruptions but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former when the said Petitions whereunto the Answers have or ought to have reference were as it were again quite out of remembrance For if from the time of the making of those Statutes untill the time of the last of the Judgments instanced in all the particular Actions that have been brought and â—â—â—tences that have been given in the Admiralty for things done upon the Ports and Havens against the cognizance of which causes one of these Judgements is brought and all the Actions brought and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea against which the other two Judgments are brought should be set forth I might boldly say there would be many hundreds for one and I might very well and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong nay by those Records of the Admiralty and the constant the continued and the general practice and usage of taking cognizance of Causes of this nature it plainly appeareth that the Jurisdiction thereof anciently did and still doth belong unto that Court for in land businesses whose land or soil shall we judge that to be but his who hath generally continuedly and constantly reapt the Crop and not his who hath at some times come by and taken up a a Shock or two and so done as much as he which reapt where he never sowed which he must needs do which is neither verst nor skilled in jure scripto in that Law which is positively set down for that purpose but shall judge thereof at randam and will so do because others have done so before him nor under correction can it be held to be any good rule of Justice to judge by president for if one man or more have judged unjustly and not according to law I would not have it said that he which knoweth the law is notwithstanding bound to judge as the other did because he hath a president for it But I shall pass them presidents over and as I have in the second book of this Treatise shewed you that even by Records out of the Chancery and Common Law things done upon Ports and Havens are cognizable in the Admiralty Court so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated or to be agitated at sea CHAP. VIII That by other Records out of the Chancery Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court ONe Lodowick Sutton sued John Pettite of Abville in Picardy Merchant Andrew Lord and Daniel Lancel in the Admiralty Court upon several Maritime Contracts made between them in the City of London the said Pettite Lord and Lancel upon their complaint made in Chancery that they were sued in the Admiralty
that they should altogether and without delay forbear all manner of cognizance in Civil and Maritime causes contracted in the parts beyond the seas upon the high Sea or in any place where his Admiral of England had jurisdiction or from thence proceeding against the said John Bates by what names soever called by whomsoever or in what manner soever begun or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid in like manner as before remitting the parties if they would sue to the Court of the Admiralty of England for justice to be to them there administred in that behalf The words of the Supersedeas are these Rex c. Majori Vicecomitibus Civitatis nostrae Ebor. salutem Vobis cuilibet vestrum praecipimus quatenus ab omni cognitione in causis civilibus maritimis in partibus ultramarimis vel super alto mari aut alibi ubi magnus Admirallus noster Angliae habet jurisdictionem contractus originem contrahentibus versus Johannem Bates Mercatorem cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis deliberatis per quoscunque vel qualitercunque motis seu movendis omnino indilate supersedeatis partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes Teste meipso apud Westm decimo quarto die Aprilis Anno Regni nostri trice simo primo Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas and out of these words apud Civitatem Burdugaliae venditioni expositis That though by the course of the Common Law if a man do deliver certain Goods unto another man and doth intrust him with the keeping of them for his the Owners use or to be by him disposed of in one manner and he either selleth them or disposeth of them in another I do conceive he that so intrusted the other may recover of him such damage as he hath sustained by such the others sale or disposal Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas for his own use or for the use of any other particular man to whom the same are by him consigned or doth intrust him to dispose of them in any particular manner whatsoever yet he may in many cases upon certain exigencies happening sometimes sell the same sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them and no damage shall be by the course of the Civil and Maritime Laws recovered of him and herein those Laws have very many nice and curious distinctions and for this Cause when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all he presently flyeth to the Common Law where he knoweth he shall recover damage against the Master who was in no fault at all in such manner as mutinous and disobedient Mariners who have either through their misdemeanors by the Civil and Maritime Laws forfeited their wages or some part thereof or having received due correction from the Master at sea do fly to the Common Law either for recovery of their wages upon their Contract which they have no wayes deserved or do there bring their Actions of Battery against the Master when as he hath only given them such due correction as the Civil and Maritime Laws do allow that being a thing done at sea where complaint cannot be presently made or remedy had before a Magistrate as may be at land and therefore the like at land not to be allowed in both which cases they oftentimes recover and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas which cannot oftentimes be possibly done but by Commission out of the Admiralty Court which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships which if not remedied will be the utter destruction of Navigation And another thing I shall observe in general from both the two preceding Supersedeas's That all Contracts of and concerning Maritime affairs made between Merchant and Merchant Masters and Owners of Ships and Mariners or between them or any other person whatsoever and in what manner soever to be agitated or performed by sea upon the seas beyond the seas or elsewhere within the Jurisdiction of the Admiralty or taking their rise or original from thence or do in any manner of wise touch or concern the same were not permitted in those times to be examined or adjudged in any Court but the Admiralty And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes viz. that Contracts of this nature though made at land which do maris per transitum sive viagium aut negotia maritima quoquo modo respicere vel qualitercunque tangere concernere and so do arise from things done or to be done at sea and not from things done or to be done within the body of a County do de jure belong unto the Cognizance of the Admiralty and are in no wise by the said two Statutes taken from the same and if by them not taken from thence then doth not the penalty of the other praementioned Statute of Henry the fourth run upon those that do sue in the Admiralty Court in causes of this nature but only upon such as shall there sue upon Contracts made at land of or concerning things done or to be done or performed at land and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued CHAP. IX That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea beyond the Seas or upon the Ports and Havens or of or concerning the same are acknowledged to be cognizable in the Admiralty and have been thereunto by the same remitted I Shall here proceed to shew that the Maritime Contracts whereof I have hitherto treated in this third Book of this Treatise and particularly exprest in the Title of this Chapter have been by Consultations out of the Courts of Common-Law at Westminster after Prohibitions from thence obtained determined and adjudged to belong unto the Admiralty One Robert Baker of the City of London Vintner sued one John Maynard in the Admiralty Court upon a Contract made at land of and concerning a thing done upon the Sea as by the Consultation it self doth appear But one John Gilbert Esquire being Bail for the said Maynard endeavouring to decline the cognizance of that
Quaeritur etiam utrum literae cambii paratam habeant executionem quod etiam determinatur per nota per Jasonem in L. elegantur ff de conditionibus indebiti quod etiam per Bald. consil 60. lib. tertio et text in l. si ex cautiam C. de non numerat pecunia Matthaeus de afflict in constit causas promagistro Justiciario Col. 6. Multaeque aliae hac de re exsurgunt quaestiones quae per jus civile authores super eodem conscribentes deceptantur determinantur Si unus ex nautis mercator fuerit vel ut mercator cum magistro navis contraxerit in mercibus suis in nave oneratis damnum passus est utrum sibi tenebitur exercitor quod per dict Julium Ferret d. li. 1. n. 38. expeditur Mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit juxta L. hujus ff qui potiores in pignore habeantur Et postmodum mulier peperit in navi Quaeritur an teneatur pro partu solvere naulum quod per L. sed adde sect si quis mulierem ff locati per Bartol ibidem per L. haec mori ff qui potiores in pignore habeantur directe concluditur Quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur versute res resurripuit alienas Et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit quae per exactissimam Julii Feretti de re navali distinctionem juxta L. sed ipsi ff naut caup determinatur l. 1. n. 34. Et utrum cum plures competant actiones tentata sive electa una ad aliam redire poterit actor Et quid si ad diversa plures competant actiones quae per L. quod in haeredem ff de tributoria actione c. dijudicantur Per L. 3. ff Naut caup Stab Gloss ibidem de dolo lata levi levissima culpa tenentur exercitores sive magister navis inde quaeritur utrum idem sunt vel unus pro alio ponatur quod cum deciditur per L. 2. ad L. Rhod. de jactu L. primam § 2. naut caup ac etiam quid de illo statuendum qui stat in navi navigandi causa Et cum per praedict L. 3. naut caup determinatur quod in casu naufragii in casu Pyratarum incursu in casu fortuito non tenetur exercitor Quaeritur utrum furtum latrocinium sit inter casus fortuitos numerandum inter illos ponendum et computandum Et quinam alii numerent casus fortuiti quae dirimuntur per § sed istae Instit de action sect 1. Instit quibus recontrahitur obl L. 3. § Item si servus ff naut caup per Angelum de Aretio super D. Loc. Quaeritur ex d. illa L. 3. Naut caup utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor quod dirimitur per Bartol in d. L. 3. ff naut caup c. Per legem primam L. cum navarcarum C. de naviculariis li. 10. nauta cogatur navigare Quaeritur igitur an nauta teneatur ex jussu inimici navigare vel in sua navi recipere inimicum suum de jure quod ex Gloss super D. L. 1. ff nautae caup dirimitur Now have I not here rendred or set forth the determinations of these few questions which I have here nominated they being not considerable without the rest which taken altogether with their divisions distinctions decisions and determinations would make by themselves a whole Tract de jure Admirallitatis which would be a Book to little or no purpose nor receive any welcome unless this which is de ejus Jurisdictione may first receive some entertainment which how necessary and advantagious the same may redound unto this Kingdome I shall leave to the consideration of him that hath or shall throughly read this Maritime Dicaeologie THis small Treatise which I have written in Vindication of the Jurisdiction of the Lord High Admiral of England c. I doubt not but will receive this Addition of Advantage as to tend likewise to the vindication and clearing of the honour and reputation of those Reverend and Learned Judges of the Land the two Lords Chief Justices the Lord Chief Baron and the rest of the then Judges their Associates together with the Attorney General whose Judgements and Justice have been blemished and unworthily aspersed by some of their own Profession in saying those Reverend Judges were questioned in Parliament for setting their hands unto an Agreement made before his Majesty of Blessed Memory Charles the First between them his Judges of the Land and Sir Henry Martin Judge then of his High Court of Admiralty purporting in substance the matter of this Treatise It 's true I have heard that some of the Puisne Lawyers and young men of that Profession sitting in the Long Parliament would have attempted such an undiscreet and unparelleld act but by the gravity and wisdome of others more learned in that Profession then themselves were disswaded from it Yet if they had I doubt not but he that reads this Treatise will find sufficient reasons to justify their assent to that agreement and that it contained nothing but what they might and ought to do notwithstanding the Judgements of their Predecessours or Successours Others do not forbear or stick to say this Subscription to this Agreement was an extrajudiciall act and so takes not the effect of a Law either to bind them or their Successours as though the place and formality of sitting upon the Bench were of the essence of a true and just opinion and the Judges being called and convened by special summons before his Majesty that their Judgements and Opinions there delivered in matters propounded debated and argued were of less force and validity and more extraneous to reason then if they were judicially sitting Which is an opinion that I cannot conceive any man of sound judgement can adhere unto and therefore I shall conclude this Treatise with that judgement given by those twelve Learned and Reverend Judges of the Land with the consent of that famous Man Mr. Noy his Majesties Attorney General At Whitehall 18 February 1633. Present The KING' 's MOST EXCELLENT MAJESTY The Lord Keeper And 23 Lords of the Councel THis day his Majesty being present in Councel the Articles and Propositions for accomodating the differences concerning Prohibitions agreed unto and subsigned by all the Judges and his Majesties Attorney-General were Read and Ordered to be entred in the Register of Councel Causes and the Original to remain in the Conncel Chest If Suit shall be Commenced in the Court of Admiralty upon Contracts made or other things personally done beyond or upon the Seas no Prohibition