I see he spareth not to do against the opinion of the world for sure I am a man may see from Dover to Callis and yet all men have accounted Callis beyond the seas from Dover and Dover beyond the seas from Callis and yet for all this if it were possible with modesty to grant him so much yet can I not grant that because the Coroner might exercise his Office in this case therefore the Admiral cannot exercise his for it is but argumentum ex contingenti non ex necessario Now for that which he hath out of Stamford to the same purpose but useth in another place of the same chapter to make his arguments seem the more in number Stamford is not so confident of the truth of this assertion as he is and puts it not as his opinion agreeing with the Record but by way of a quaere seeking only what may be inferred from that Record He in that place sets down the diversity of opinions of their Books concerning the extent of the Coroners Office and saith that Nedham saith Que Coroner ne poit inquirer das cun felony fo rs que de mort d' homme that the Coroner cannot enquire of any felony but of the death of a man and yet he saith que in Northumberland ils inquir oient de touts felonies mes cel authoritie ils maintenont per praescription c. That in Northumberland they enquire of all felonies but this authority they maintain by prescription and he saith that tit coron in Fitz. H. p. 206. present fuist devant le Coroner que un tiel prise pur felony conduct fuit ad Esglise per certem freres adjudge vois presentment eo que il ne parent inquirer de ceo ratione officii c. It was presented before the Coroner that such a one taken for felony was conveyed to the Church of certain Fryers and it was adjudged a void Presentment because he could not enquire thereof by virtue of his Office c. then he quoteth Britton fol. 3. on the contrary who saith Que il parent inquirer de rape de femme de debruser de prison quex sont autor felonies que nest mort d' homme c. That he may enquire of the ravishment of a woman and of breaking of prison which are other felonies which are not of the death of a man Then followeth that which is here urged after this uncertainty of the Coroners power thus set down Ideo quaere c. si un soit occise on rees in les bracher on sauses del meere lon homme pent veier terre ' d un part d' autor le Coron inquira de ceo nemy Admirall eo qui le pais rent been de ceo aver conusance Quod vide titulo praedicto p. 399. Issint ceo prova que per Comon ley devant le Statut An. 2 H. 4. c. 11. l' Admirall naver Jurisdiction se non sur le haut meere wherein he mis-quoteth the said Statute and doth not rightly urge the words thereof there being no such word as haut either in that Statute or in the Statute of 13 Rich. 2. of which the latter is only a confirmation with a penalty the words being only sur le meere and not sur le haut meere and from this mis-cyting he raiseth a doubt which otherwise would have been none Ideo quaere therefore seek or be advised whether or not if one be slain upon any arme of the Sea where a man may see the Land on one part and on the other the Coroner shall enquire thereof and not the Admiral because or for that the Country may take cognizance of it which saith he see in the said title p. 399. So saith Sir Edward Coke this that is deduced and drawn from this authority doth prove that by the Common Law before this Statute of 2 H. 4. c. 11. the Admiral had no Jurisdiction but upon the high sea whereas Stamfords Quaere resteth still upon this point and he declareth not his own opinion therein but leaveth this as doubtful still as he did the extent of the Coroners Office concerning Felonies before which he might very well do this being raised upon so mistaken a ground which if it had been rightly cited he might have easily determined against Mr. Coroâ—â— and have left no doubt behind him Now we may see plainly by what Sir Edward Coke saith in the first place where he voucheth this Record that the Record as I said before is very far stretcht and part which is from thence deduced and drawn very far fetcht to make seeing what is done on one part of the water and of the other to be seeing from one Land to the other this by no Logical Rule can be allowed the other may That is a seeing from Land to Land with the limitation before mentioned viz. to so to see as perfectly to discern what is done on the other part of the water Take this seeing then with that limitation without which it is as good as no seeing for a man to see and not discern what he seeth to guide and direct his Judgement helpeth that man nothing in his knowledge of what he is about to judge by his seeing as I have said before For doubtless the foundation of this opinion if it can be founded upon any reason which all opinions are pretended to be must be that the witnesses being on Land on one side of the River may before the Coroner give their testimonies to the Jury of and concerning a fact which they saw and discerned to be done and how and in what manner the same was done on the other side and so ex consequenti of a fact done and how and in what manner the same was done upon the same River in what part thereof soever even in the extream part thereof towards the other side to the very bank for that a quarrel c. might or may be begun on one side or in the midst or on any other part thereof and be determined by the death of one or more on the extream part thereof toward the other side that there may be some colour to fetch a fact done upon such a River within Mr. Coroners cognizance and the rather because the witnesses upon the shore might happily be land-men which by his authority might be called to give their testimony in such a case whereas in case the like fact should happen to be committed in a Ship or other Vessel upon the Port or Haven where the witnesses present at such fact and might see and discern the same for the most part were sea-men which had recourse usually to other Ships and Vessels as well as the same where the fact was done and committed and were and might be without the reach of his power and authority or any other except the Admirals who if they were in any Ship or Vessel at an Anchor either on
this Law And these distresses happening at high Sea there is little help to be expected from any at land in gathering and preserving the Goods like to be lost but by this Title encouragement is given to such as shall help in this kind Plurimum interest peritura collegerint an quae servari possint invaserint And the Seventh Law plainly forbiddeth such as dwell upon or near the shore to take away such Goods so wrecked though stranded broken or cast upon ground within the confines of any mans ground Nam Divus Adrianus edicto praecepit ut hi qui juxta littora maris possiderent scirent siquando navi vel infixâ vel fractâ intra fines agri cujusque ne naufragia deripiant c. Yet to make the matter more clear that these Laws were collected out of the body of the Civil Law as well to direct the Judgements of Maritime Judges upon those offences and trespasses committed upon the Ports Havens Creeks and Coasts of the Seas as upon the high Seas I shall instance in an Authentick by the same Author collected out of the same Law and by him likewise commented on wherein it is expressly set forth that Ships and Vessels of what kind soever usefull for marine businesses for so much the word mavigia doth import in what place they shall come which must needs be Ports Havens and Creeks of the Sea as well as the high Sea if by any contingent accident they shall be broken or otherwise come on ground as well the Ships as the Goods of the Saylers and adventurers therein shall be preserved whole and entire unto those unto whom they belonged before such Ships or Vessels fell upon the said danger the Custom of all places whatsoever contrary to this Sanction being altogether to be set aside unless they be the Ships of Pyrats or enemies These are the words of the Authentick Navigia quocunque locorum provenerint siquo casu contingente rupta fuerint vel alias ad terram pervenerint tam ipsa navigia quam navigantium bona ipsis integra reserventur ad quos spectabant antequam navigia hujusmodi periculum incurrissent sublata penitus omnium locorum consuetudine quae huic adversatur sanctioni nisi talia sint Navigia quae pyraticam exercent pravitatem sive nobis sive Christiano nomini inimica Before I pass any further I must needs here observe the same thing that Peckius hath observed upon these words of this Law Sublata penitus omnium locorum consuetudine c. viz. Illud sane sine ullâ dubitatione dici potest quod certum sit consuetudinem contra jus naturae nullam habere potestatem That it may without any doubt be said that it is certain that a custom against the Law of nature hath no power or efficacy And further he saith in casu constitutionis nostrae omnium consensus operari quicquam non potest cum divinis naturaeque praeceptis consuetudo ejusmodi repugnare videatur In this case the consent of all men can work nothing because such a custom may be discerned to be repugnant both to the divine and natural Precepts and herewith doth Vinius learnedly concur and much blameth such as have suffered any such custome And with this Law agreeth the very first Law of another Title to the same purpose with this collected by the same Author in these words Si quando naufragio navis expulsa fuerit ad littus vel siquando aliquam terram attigerit ad dominos pertineat fiscus meus sese non interponat quod enim jus habet fiscus meus in alienâ calamitate ut de re tam luctuosa compendium sectetur Whensoever a Ship by wreck shall be driven upon the shore or whensoever she shall be run upon any ground i.e. either in Port Haven or elsewhere she shall belong unto her owners my Exchequer or receipt shall not intermeddle therewith for what right hath my Exchequer that it should require or seek for any small matter or trifle in so mournful or sad matter or condition I must confess that by this last observation I have made some digression from my intended purpose Yet have I not gone much out of my way nor farre about to discover what a Rock we of this Nation who pretend not onely many Customs but inforce several Patents and Grants howsoever obtained clean contrary to this Law are like to fall upon and what a wreck we are like to make of our Maritime Law whereby we uphold all our Trade Traffick and Commerce with other Nations by falling upon this Errour so strongly maintained by Sir Edward Coke that the Ports and Havens are not within the Jurisdiction of the Admiralty Court where as this Law is universally practised in all parts of the World For although by this Law and the Inquisition taken at Quinborow in the end of Edward the 3ds raign and by the Inquisition translated into Latine out of an ancient French Copy by Roughton upon any wreck stranding or running on ground of any Ship or Vessel whatsoever or wheresoever the owners are to have their Ship or Vessel or such part thereof such tackle and furniture thereof and all such Goods as are saved and can be found out entirely restored unto them Instead hereof many Lords of Mannors who perhaps had some right of claim to all or some part of Pyrats or enemies Goods so wrecked as the best Anchor and Cable c. where the rest of the Goods belonged or were confiscable either to the Lord high Admiral or supream Authority as in some cases they are to the one in some to the other will as I do already find even out of the Ships and Goods both of those of our own Nation and of our friends and those that hold good correspondencie and are in amity with us under a pretended custom contrary to all Law claim and have the same in the like maner and other customs likewise which are as contrary to the law of Nature as this And not onely so but many even of our own Nation and others of other Nations who neither are Pyrats nor enemies to this Nation but in amity and friendship therewith may have their Ships stranded or wrecked and cast away and have their Goods even snatched from them by force and violence and carried away and detained by such as can have nether pretence nor colour for such unjust and inhumane dealing contrary to the law of Nature and Nations and that Law which is elsewhere universally practiced if the current stream of Justice of the Admiralty Court in these Ports Havens Creeks and Coasts of the Seas shall be interrupted and stopped under this pretence of having no Power or Jurisdiction over them Which pressures in such extreamities if they shall fall upon those of our own Nation we shall seem even to devour and eat up one another If they shall fall upon Forraigners that are in league and amity with us this
that the said Action was brought in the said Admiralty Court contrary to the said Statutes obtained a Prohibition But in Easter Term in the 9th year of King Charles a Consultation was awarded as in the other Hence I do observe that all these Judges which granted these before mentioned Consultations have heretofote afforded the before mentioned Statutes the same interpretation that I have since gathered and in this Treatise set down viz. That a Contract whether made at land or at sea if the same doth arise from a business to be done or performed at land the same is to be tried by the Law of the land But a contract whether made at sea or at land if the same doth arise from a business to be done or performed by or at sea or beyond the sea the same is cognoscible in the Admiralty Court For upon the granting these Consultations the question was not whether either the Contracts or the Charter-parties were made at sea or at land or whether they were made in the Parish of St. Mary le Bow or St. Michael Cornhill or not but whether the same were Maritime contracts or concerned Marrtime business or not and so within the Jurisdiction of the Admiralty or not as in the first of these five last cited Consultations concerning the building of a Ship the question was not whether the contracts for the wages in building of her or the materials bought and imployed upon her the meat and drink bought and spent in the time of the building of her were made at land or not or whether the Ship her self was built at land or at sea for the case was plain in the one as well as in the other that the Ship was built at land as all Ships are upon the Stocks is no doubt at all and the Ship being there built it is as little doubt that the contracts were there made nnless we will suppose that which is not to be supposed viz. that the parties went to sea to bargain for the building of her at land and to bargain for materials to build her with and for meat and drink to be spent in the time of the works being in hand but the question was whether these contracts concerned a business that was maritime or not which did arise from somewhat to be done at or by sea or not and it being plain that had it not been for sea imployment none of these contracts had been made And therefore was it adjudged that these contracts did arise from businesses to be done at sea and were therefore maritime and belonged unto the maritime Jurisdiction of the Admiralty as all other contracts for victualling tackling and furnishing of Ships with either Anchors Cables or other Ropes or whatsoever other necessaries although the same were contracted for and bought at land anciently were and did belong and of right still are and do belong And as for the Contracts and Charter-parties made of letting Ships to freight it is sure enough that they are seldome or never made but at land yet are these contracts made of and concerning a Ship which at the very time of the making thereof is Aut super mare fluctuans aut ad Anchoras in quovis portu natans infra fluxum refluxm maris infra Jurisdictionem Admirallitatis either sailing upon the Seas or lying at Anchor in some Port or Haven where the Sea ebbeth and floweth within the Jurisdiction of the Admiralty And these contracts do arise from businesses to be done at sea and were therefore adjudged to belong unto the Sea Jurisdiction But perhaps it may be still objected that the Law doth allow a fiction of place for the doing of any thing and it mattereth not whether the thing was there done or not and I do agree that the Law doth allow such a fiction so that the same be within the compass of a possibility But to feign a thing impossible as to fain that Ships sail in Cheapside or elsewhere upon the dry land the Law abhorreth as I have said before And then is it more proper and more agreeable to law to feign the Charter-party that was made at land to have been made at sea which is possible then it is to feign a Ship to be at land where the Contract was made or when she was laden or furnished with either victual tackle or any other manner of provision or furniture which is impossible I shall instance only in one Contract made beyond the seas concerning sea affairs upon which a Bill obligatory was taken for the payment of a certain summe of money and the said Bill obligatory was adjudged cognoscible in the Admiralty Court and then proceed upon another argument and this appeareth by a Consultation granted out of the Court of Common-pleas in the 10th year of King James Sir Edward Coke himself being then Lord Chief Justice of the Court directed unto Sir Daniel Dunn Knight and Doctor of Laws Thomas Alport libelled in the Admiralty Court against Philip Cooper that in the Moneths of January c. Anno 1609. and in the Months of March April c. the said Philip Cooper remaining in the parts beyond the seas c. did by his Bill obligatory in the said parts beyond the seas c. lawfully make and with his own proper hand subscribed and sealed with his Seal tye and bind himself to the said Thomas Alport for the due payment of the summe of 275 l. and six shillings of lawfull money of England as in the said Libel in the said Consultation is summed up viz. Quod mens Jan. c. Anno Dom. 1609. nec non mensibus Martii Aprilis c. 1610. seu eorum aliquo praedictus Philippus Cooper dum partibus ultramarinis c. remanebat se pro debitâ solutione summae ducentarum septuaginta quinque librarum sex solidorum legalis monetae Angliae praefato Thomae Alport per scriptum suum obligat in partibus ultramarinis c. legitime factum manuque suâ propriâ subscript ejusque sigillo c. But the said Philip Cooper suggested in the Court of Common-Pleas as in the said Consultation is set forth Quod tertio die Aprilis anno Regni Jacobi Dei gratiâ Angliae c. septimo infra corpus Comitatus Civitatis London viz. in Parochia Beatae Mariae de Arcubus in Warda de Cheap et non super altum mare nec infra Jurisdictionem Curiae Admirallitatis Angliae per quandam billam suam obligatoriam sigillo suo sigillat et ut factum suum cuidam Thomae Alport tunc et ibidem deliberat gerens datum eodem die et anno obligasset se et Haeredes Executores et Administratores suos ad solvendum praefato Thomae Haeredibus Executoribus et Administratoribus suis ad omnia tempora super demand summam ducentarum septuagint ' et quinque librarum et sex solidorum legalis monetae Angliae cumque idem Philippus liber homo c. And
quà m mesonautas and not only over these but also over all such as were imployed in their Art Trade or Occupation for and towards the building repairing fitting and furnishing of Ships for Navigation and setting them forth to sea as Ship-wrights Anchor-smiths Rope and Cable-makers and the like tam fabros anchorarios quà m naupegos prymnesia anchoralia retinacula puppis stupea sunes nauticos tam venditores quà m fabricatores c. All which were said to be de flota navium or de navigio of or belonging to the Fleet or Navage and were those oâ—â—es alii de flotâ over whom the Admirals had command power and authority besides the Mariner as is set forth in the forementioned Records And as it had been to little purpose for the Admiral to have had power over the Vessels and not over the Mariners and Seamen and others fit for that imployment so had it been to as little purpose if he had not had the same power over the Owners of them and the Merchants that employed them who otherwise would have either opposed his directing the use of them or his own using of them at all though for the service of the King and good of the Common wealth And to as little purpose had this extent of his Jurisdiction been had he not had the command over all such as were most able and skilfull to fit and furnish them for service And the constituting of a man Capitaneum Admirallum Flotae navium Capitaneum navigii Custodem marinae Capitaneum nautarum marinellorum c. doth give a very great power not particularly specified in the Grant For all men very well know that all Patents and Grants as well of Offices and Places as of Lands and other things did in antient times comprehend and contain in them very much in a very few lines and words and have been daily enlarged by particular expressions and singular specifications when as nothing more hath been granted then what was by general words granted before And the reason hath been lest some particulars in process of time might be lost for want of continual use or drawn into question and cavilled against whether used or not used Yet have I seldome met with any of these specifical Grants that do trust to such specification without the general addition omnia alia pertinentia or the like lest in their particular specifications they should lose somewhat of that which was formerly granted in general words and by some perhaps observed and known to be appertinent and belonging unto the thing granted though for some time discontinued We must not think therefore that by specifying particulars and stretching a conveyance of half a dozen lines into whole a skin of Parchment or more one foot of land is gained the more thereby for if so I might very well conceive that the seller oftentimes might by that means sell more then his own For I have often seen many more particulars specified in the Conveyance from the seller then were ever intended by the Conveyance to pass to the buyer or the seller had to sell And indeed this enlarging of Conveyances and Grants is so usuall that a man might very well conceive the Evidences being perused from the first to the last that every alienation had begot an enlargement of the estate when nothing at all hath been added thereto We must not think therefore that because there have been more particulars of the Admirals power and jurisdiction specified in the latter Grants and Patents then were in the former and more antient that therefore these latter Admirals have gained greater and larger power and jurisdiction then the former had Nor certaily can any thing be gained by specifying particulars something may be saved and somewhat may be very well lost if omnia alia save it not I will not deny but that there may be and deyly are made unto Manors Lands and Tenements many additions whereby they are much encreased And likewise to offices and other places both in extent of office and increase of fees or other profits But these additions do and alwayes will appear by the Deeds of Conveyance Grants or Patents themselves and are distinguished from the antient Manors c. and their appurtenances and from the antient offices and places their rights and profits by Et praeterea or ac etiam or ac similiter c. And where there is an addition these words or the like always are but always where these words are there is not always an addition for they are sometimes used by way of specification and sometimes instead of an et between two specifications Now in antient times the very constituting an Admiral Captain or Governour of the Fleet or Navage carried with it all the power and jurisdiction belonging unto that office or place without specifying any of the particulars and when any particular designe was in hand at the time of the constituting and making of the Captain or Admiral or whatsoever other title he bore as often such designe at that time there was which caused the change of the Admiral then was that particular power which belonged unto his office and concerned that designe specified either in the Mandate directed to all Sheriffs and other Ministers and Officers for their obedience unto him as Admiral Captain c. but in such manner as sheweth that particular to be included amongst the many other particulars granted unto him by his Patent under the general words Constituimus dilectum fidelem N. Capitaneum Admirallum flotae navium or Capitaneum Navigii c. or else that particular when any is specified in the body of the Patent with an ita quòd ut ita quòd potest hoc vel illud facere which plainly sheweth that that same particular was before amongst others granted in the preceding general words I shall here set down only one example of each King Edward the Second in the tenth year of his Reign grants a Patent of this Office to John-de Athy under these general words Rex omnibus ad quos c. salutem Sciatis quòd constituimus dilectum fidelem nostrum Johannem de Athy Capitaneum Navigii ad partes Hiberniae c. quamdiu nostrae placuerit voluntati in cujus c. Teste Rege apud Claringdon 28 die Martii per brev de privato sigillo And he giveth this Mandate upon the constituting of him Et mandatum est Vicecomitibus Ballivis Ministris omnibus fidelibus Regis Marinariis aliis ad quos c. quôd eidem Johanni tanquam Capitaneo navigii praedicti in omnibus quae ad salvam securam custodiam terrarum praedictarum pertinent consulentes sint intendentes auxiliantes quotiens opus fuerit per ipsum Johannem fuerint super hoc ex parte Regis praemoniti T. ut supra per brev de privato sigillo And having given this Command in general to all Officers quod in omnibus
then brought into some Port or Harbour which I shall leave to the judgement of the world whether this Ship was taken on the Sea or on the River or can be said to be taken partly on the Sea and partly on the River And if this shall be determined to be a taking partly upon the Sea and partly upon the River and that therefore the Common Law shall take cognizance thereof I must say as I said before the Common Law hereby shall take the whole Jurisdiction of the Admiral to it self For what ship can be taken at sea or to what end shall any ship be taken at Sea if she shall not be brought into some Port or Haven that she and her goods may be there disposed of And indeed all Ships that be there taken by Letters of Marque must be brought into Port or Haven before they break bulk And the Common Law shall hereby cast off all Rules and Laws of the Sea whereby causes of that nature have been always such interruptions excepted discussed tryed and determined between us and foraign Nations and between our own Merchants and sea-faring men and try and determine them without either Rule or Law For I could never yet find that the Common Law ever afforded either Books or Presidents to guide or direct them in the adjudging and determining of causes of that nature which is a thing most requisite and necessary the Forraigner between whom and us such cases for the most part happen expecting to have his Ship and goods confiscated and condemned or quit and restored upon the same terms and according to the same Proceedings Rules and Laws as ours are in foraign parts which the Common Law affordeth not being onely a municipal Law for the guiding and governing of the Subjects of this Nation in their land affairs at home Again I would gladly know how this Observation agreeth with Lacies Case where one was stricken on the Seas and dyed on the Land the Common Law could not try this murther and Serjeant Callis in his reading at Grays-Inn An. 1622. in prima Lectura p. 19. giveth this reason thereof because that tryal was to be by a Jury which must come out of a proper County which could not in this case because the Sea was not within any County In this case the party received a mortal wound at Sea and was brought unto Land and there dyed in the other case the Ship was taken at Sea but brought into a Haven and there unladen here the party may more properly be said to be partly killed at Sea and partly killed at Land then the Ship can be said to be partly taken at Sea and partly taken at Land and yet the Land shall not find a Jury for tryal of one but the Sea Port shall find a Jury for the tryall of the other which I shall leave to be observed upon this his fourth observation how farre the same will hold water Next he urgeth that 8 Ed. 2. tit Coron 399. it is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one Land to another And that the Coroner shall exercise his Office in this case and that of this the Country may have knowledge whereby it appears saith he that things done there are tryable by the Country that is is to say by Jury and consequently not by the Admiralty Court And after in another place of the same chapter he urgeth Stamford l. 1. part Coron fol. 51. 6. to this very purpose the reducing which together can be no wrong to his Argument but rather a strengthening for vis unita fortior and so undertake the answering of both together And this is that which he saith Stamford saith If one be slain upon an arme of the Sea where a man may see the land of one part and of the other the Coroner shall enquire of this and not the Admiral because the Country may take cognizance and doth vouch the said authority of 8 Ed. 2. whereupon he concludeth in these words So this proveth that by the Common Law before the Statute of 2. H. 4. the Admiral had no Jurisdiction but upon the high Sea which only authority saith Sir Edward Coke is sufficient to over-rule all the said questions for saith he hereby it appeareth that the Jurisdiction of the Admiral is only confined by the Common Law to the high Sea and agreeth with all the Book-cases and Acts of Parliament For the first 8 Ed. 2. which saith that it is no part of the Sea where one may see what is done on one part of the water and on the other that is indeed to be on the one side of the River and see discern what is done on the other and that must be so to see and discern that he may perfectly judge of the action yea and certainly of the party acting too else can this seeing be to no purpose And hereby it may appear that the Admiral had in those times Jurisdiction upon all ebbing and flowing Rivers so farre as they continued of such breadth that one standing on the one side of the River could not see nor discern what was done and by whom on the other side So that his Jurisdiction in some places extendeth farre above the first Bridges for what man is so quick-sighted that standing on the one side of the Thames above the Bridge can so discern as to judge of the actions of men on the other and who and what manner of men they are For to see and not so exactly and judiciously discern in the adjudging of such actions is as much as not to have seen at all But this being too ambiguous and uncertain a distinction between the Sea Jurisdiction and the Land by reason of the different breadths in one and the same River and the different apprehension of things by several mens eyes and difference of the aire at several times being sometimes thick and cloudy sometimes serene and clear The next Bridges unto the Seas have been alwayes held the most certain distinction between them But indeed this Record is stretcht further and indeed so farre that it is impossible it should hold for by Sir Edward Coke it is thus set down It is no part of the Sea where one may see what is done on one part of the water and of the other as to see from one land to the other as if there was no difference between seeing what is done on the one part and the other and seeing from one land to the other Here to make sure work with the Ports and Havens and to bring them within the compass of the Coroners Office he will bring the main Sea his altum mare likewise within the compass thereof For he that will make that to be no part of the Sea where one may see from one land to the other must needs make France and England to be one Continent which
ce que ad estre duement use en temps du noble Roy ail nostre quorust doth no ways at all take away the Admirals or the Court of the Admiralties Cognizance of any thing whatsoever was cognoscible before them in Edward the 3s time and so consequently doth it not take away the Cognizance of Contracts for freight nor wages nor are they any of the encroachments complained of in the Petition whereunto that Statute is an answer And divers other Judgments there be amongst these Laws of Oleron which determine Contracts made between the Masters of Ships and Pilots or Loads-men whether the same be made at land or elsewhere for the conducting of Ships into Ports and Havens or from one Port or place to another I shall only quote some two or three of them and leave the rest Item se ung lodeman prent charge sur luy de amaner une nef en aucun port avient quen sa defaulte la nef soit perie c. marchandises endomagees c. Item estably est pour custume de mer que se une nef est perdue par la defaulte de une lodeman c. Vng bachellor est lodeman de une nef est love alamener jusquis au port ou len la doit discharger c. And some others there be of the same nature And the ancient Statutes of the Admiralty and Laws of Oleron before mentioned established by the said King Edward the Third in the 12 year of his Reign as is before declared having settled the cognizance of such Contracts and Maritime Causes in the Jurisdiction of the Admiralty he granteth the same to his Admirals by their Patents as appeareth by that Patent before mentioned granted unto Robert Herle in the 35 of his Reign But as it seemeth some in those times having opposed or at leastwise afterwards interrupted this settlement the same King caused an Inquisition to be made at Quinborough the second day of April in the 49th year of his Reign before William Latimer Chamberlain of England and Warden of the Cinque Ports and William Nevill his Admiral of the North by near twenty of the most able and best skilled seafaring men of several Port Towns of this Nation of and concerning the ancient customes of the Admiralty to be held firme and continued according to their Verdict as I have at large set forth in the twelfth chapter of the second book of this Treatise I shall therefore proceed to shew that by the said Inquisition it plainly appeareth that Contracts made at land of and concerning Maritime affairs were in Edward the Third's time cognoscible and tryable in the Admiralty Court CHAP. IIII. That by the Antient Inquisition taken at Quinborough in Edward the Third's time it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court IT hath been an antient Rule or Maxime amongst Merchants Owners of Ships Masters of Ships and all sorts of Mariners and Seamen that Freight is the Mother of Wages therefore are the Mariners wages to be paid out of the freight the Ship hath earned and the damages done to the Merchants goods by the Mariners or sustained through their negligence is to be paid out of the freight and what is so paid out of the freight is to be deducted out of their wages and by this rule all are necessarily cognoscible in one and the same Court or Judicature and the damage done at sea being cognoscible in the Admiralty and no where else that cause must necessarily carry the other two along with it both which are likewise there tryable both for this and divers other reasons in the first chapter of this third Book exprest But I am likewise here to shew that by the Inquisition taken at Quinborough in Edward the Thirds time for direction of the Admiralty Jurisdiction as is already set forth the same were both then and before cognoscible in the Admiralty Court By the 14th Article of that Inquisition if a Ship be let to freight for several prices or rates of affreightment the whole freight shall be cast up rateably and the Mariners paid out of the whole so that the Admiralty is to take cognizance of the several Contracts of affreightment made by the Merchants before the lading of their goods and to cause the Mariners to be paid their wages they had contracted for before their entring into their service on Shipboard according to the said agreements of affreightment the words of the Article are these Item se une nef soit affreta a divers pris de fretters lentier de tout laffret sera accompte ensemble les portages paiez aux mariners selon lafferaÌ„t du fret de chuÌ„n tonnel lun acompte coÌ„e dit est droittement avec quis lautre Divers rules there are in the Maritime Laws for direction whether and when Mariners are to have their wages contracted for when not when all when some part thereof and what part thereof which are guided by the rates of payment of freight I shall instance but in one more out of this Inquisition and that shall be out of the very next article to that before set down which followeth in these words Item une nef soit affrettee deurs quilque ' lien quae soit ait certain jour limite de paiement de son fret en endenture ou autrement les Mariners scront paiez de la moitie de lieurs louyers a la charge de la nef de lautre moitie quant mesme la nef sera venus en lien de sa discharge se le maistre ou le seigneur de la nef ny veult come dit est avoir la nef lostel de leure serout ilz paiez quant la moitie du dit fret est receu It being plain then that this Inquisition was in Edward the Third's time taken for the direction of the Judicature of the Admiralty it is as plain by these Articles that in his time the Admiral had cognizance of Contracts made for freight of Ships and Mariners wages wheresoever the said Contracts were made and then the Statute of Richard the Second cap. 13. being shut up with this clause of Solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre doth no wayes take away the cognizance thereof from the Admiralty which is a thing I cannot too often repeat Neither resteth this Inquisition here but what matters were cognoâ—cible and to be determined before the Admiral by the Laws which I have in the former chapter quoted out of the Laws of Oleron and by divers others of them as well as those there quoted and by divers other Articles in the foregoing part of this Inquisition being then fully settled and established It is towards the latter end of this said Inquisition provided and care is thereby taken that neither those matters nor