any thing done within the Realm but only of a thing done upon the Sea Here sur le meer I hope shal not be taken for super altum mare when as the Statute is so absolutely free from distinguishing any one part of the sea from the other or limiting the Admirals Jurisdiction unto one part thereof more than to another but leaveth all to his cognizance Solonc ce que ad estre dument use en temps du noble Roy Edward ail nostre sur ' le Roy quorust according to that which had been duly used in the time of Edward the Grandfather of the then King which was Edward the third Now do not I find nor do I believe that either the makers of this Exposition or their followers can find that the Admirals Jurisdiction was in any part of Edward the Third's time restrained to the main Sea by any such distinguishing between the main Sea and the Ports and Havens where all sea businesses are agitated But this I am sure of that by the Records throughout his Reign the Admirals were Capitanei Admiralli omnium portuum locorum per costeram maris as hath already been shewed as well as of the main Sea and by other more antient Records as hath been likewise shewed they were as well Custodes marinae maritimorum portuum c. as Custodes maris And it is plain that in Edward the Third's time they had plenam potestatem audiendi querelas omnium singulorum de his quae officium Admiralli tangunt and likewise cognoscendi in causis maritimis c. in causes belonging to the Sea In causis quae oriuntur ex maritimis negotiis without any limitation or restraint to one part or other thereof The second Statute is that of the 15th of R. 2. 3. which Statute hath two parts the first considereth the Admirals Jurisdiction exclusivè what things he shall not have cognizance of and it concerneth Contracts Pleas and Complaints and other things done arising within the bodies of Counties as well by land as by water and wreck of sea which will come to be treated of hereafter The second part considereth his Jurisdiction inclusivè retaining and upholding the same within the limits thereof And in regard the Sea floweth sometimes further and sometimes shorter upon the great Rivers leaving the extent of the Admirals Jurisdiction somewhat uncertain it therefore reduceth it to a certainty setting forth how farre it shall extend notwithstanding it is said in the former part as well by land as by water and distinguisheth how farre the water is to be taken to be within the bodies of Counties and how farre not which followeth in these words Nientmeyns de mort de home de maheym faitz en grosserniefs est-zantz hooranz en my le haut fil des grosses Rivers tant solent per a vale les pontz de mesme les rivers pluis proheyms meer en nul autre luen de mesmes lez rivers eit la Admirall conisance auxint darest des niefs en les grant flotes pur grants voyages du Roy de Roylme c Nevertheless of the death of a man and a maim done in great Ships being and hovering in the main stream of great rivers only Beneath those Bridges of the same rivers which are neerest to the sea and in no other places of the same rivers the Admiral shall have cognizance and also to arrest Ships in great Flotes for great voyages for the King and the Realm c. Here the Bridges next to the sea by this Statute are appointed and put for the limits to terminate each Jurisdiction the one above and the other below and I cannot think that any man can conceive that the expressing of some particulars cognizable in the Admirals Court doth restrain his cognizance unto those particulars only for certainly those particulars in the reading of this Statute must and are emphatically exprest and so understood as expressing that he shall have cognizance below those Bridges even of things of the highest nature belonging unto the cognizance of any Judge even of the death and maim of a man yea and shall have power to arrest great Ships for the Kings service and take them out of the hands and possession of the owners or freighters of them to what necessitous end soever designed no wayes at all excluding his cognizance of things of a meaner and inferiour nature but is thereby a confirmation of his cognizance in such things and the causes concerning them nam si majus est etiam minus erit cui majus convenit etiam minus is a general rule If one be stricken on the sea and dye on the land the Common-Law cannot try this murther And Mr. Sergeant Callis in his Reading giveth this reason thereof that all Tryals at the Common Law are to be by Jury which must come out of a proper County which in this case cannot be the Sea being in no County This being the reason doubtless the Ports and Havens at the time of the making of this Statute were not accompted to be within the bodies of Counties for if they had the Jury might have been summoned out of that County in whose body the Port and Haven lay whereon the death and maim of a man should happen for to have tried the same but the Ports and Havens being not within the bodies of Counties so that the death and maim of a man thereon could not be tryed by a Jury summoned out of a proper County according to the course of the Common Law therefore in express terms was the triall thereof appointed unto the Admiral who even in such cases then proceeded according to the rules of the Civil Law by which no Jury was required but so much the more exact proof The same reason then which is the reason that such an Act done at Sea could not be triable by the Law of the Land must be the reason why the like Act done upon any Port or Haven should be triable by the Civil Law and not by that Law But I shall proceed further to make it more plain that this Statute neither did nor doth limit the Admiral to the cognizance of those particulars only which are mentioned therein to be done or happen below the first Bridges upon the Ports and Havens All causes both Criminal and Civil which have arisen from things done or happening upon Ports and Havens as before so ever since the making of this Statute excepting the interruption made by this Judgement and some others which have hence sprang have been triable and tried by and before the Admirals their Lieutenants and Judges of the Admiralty Court according to the rules and grounds of the Civil and Maritime Laws as will hereafter plainly appear untill the 28th year of Henry the Eigthth in which year a Statute was made which affirmeth this very assertion quoad criminalia in these words VVhere Traytors
without legs which must necessarily fall to the ground First then that this was contemporanea expositio made within the space of twenty years next after the making of one of these Statutes will not be made good for the last of those Statutes is that of 2 H. 4. cap. 11. which was anno 1400 and the Judgement was given the 6 H. 6. Hil. which was anno 1427 and how this can be brought within the compass of twenty years which appears so plainly to be seven years without the â—ompass I know not Besides this Statute is only in confirmation of that Statute 13 Ric. 2. 5. setting a penalty of double damage unto the party grieved and ten pounds to the King upon him that shall offend against this Statute of the 13th of Richard the Second Now it is true this Judgement doth pursue this Statute in giving double damages to the Plaintiffe and the penalty of ten pounds to the King against the Defendant But the giving of these double damages and penalty is grounded upon the breach of the former Statute unto which only this hath relation and this Statute neither needed nor had it any exposition at all But the Judgement was grounded upon an Exposition made of the former Statute 13 Ric. 2. upon which if the Statute would have born any such construction the Party suing in the Admiralty contrary to that Statute in a cause of the same nature would have before the making of the Statute of the 2d of H. 4. been liable to the single damages though not to the double but the Law whereon this Exposition was made to ground this Judgment ought to have been some Law that declareth a Haven to be within the body of a County and without the Jurisdiction of the Admiralty and must needs have been before the making of this Statute if there had been any such at all which I believe can never be found or shewed For sure I am as I said before there is not one word in the Statute it self which can so much as seem to draw any man to imagine that a Haven or Port should be within the body of a County but however it is the exposition of this Statute though groundless upon which the Judgment is founded and this Statute was made eleven years before the other and then will this contemporanea expositio said to be within twenty years scarce fall to be within twice twenty years For the Statute made in the 13th year of Richard the second was made in anno 1389 and the judgment was given in anno 1427 which is full 38 years and ought not to have had an exposition put upon it clean destructive to another Statute made within two years after and in the same Kings Raign which cleareth the Admirals Jurisdiction to be over the havens and rivers beneath the first bridges nearest to the sea even of the death of a man c. which is magis contemporanea et multo stabilior expositio being made upon as good advisement as this though perhaps not upon terms of deliberation which consideration I come to consider next And I cannot conceive the advisement upon two years deliberation upon one particular point should render the determination thereof ever the more sound but rather sheweth a great deal of doubting and fearfulness to determine But it seems after two years deliberation they determined to have the Ports and Havens without any warrant of Law that Sir Edward Coke hath declared or that I can by any means find to be within the bodies of Counties And truly I think the time was short enough and their pains great enough in that space to turn so much sea or water appertaining unto the sea into land or into the heart of a County But if the foundation of this Judgement be infirme surely it will not support it being so weighty a Judgement as it is but that the same must fall to the ground and be buried in the earth or drowned in the depth of that Sea it would have dismembred of its Ports Creeks and Havens unless whatsoever a Court shall once adjudge through misapprehension or any manner of misunderstanding must ever after be observed for law which whosoever affirmeth must maintain some men to be infallible or else that one injustice may be a warrant for another But if to persist in an error be another and a greater error then surely to square justice by so crooked and untryed a rule can produce no strait or upright future judgement I must confess the judgements of such grave and learned men in such a place and authority ought much to sway with their successors in doubtful cases and one judgement ought as little as may be to thwart and cross another but not unless the same be agreeable unto justice equity right reason and binding laws constituted appointed and published by superiour powers which are alwayes to be observed CHAP. VI. That from the two other Actions instanced in to be brought against the parties suing in the Admiralty Court for a business done upon the Ports no concluded Argument is deduced TWo Actions likewise are instanced in instituted in the Court of the Common-pleas to the same purpose which can be deduced from no better reason nor founded upon any sounder ground then this first Judgement was more then that they had this for their example At exempla mala sunt reprobanda non sequenda both of them Pasch 12 H. 6. The one is an Action brought by Robert Cupper upon the before mentioned Statutes in the Court of Common-pleas against John Raymer of Norwich for that the said Raymer did sue the said Cupper in the Court of Admiralty for that he said Raymer having a Ship in portu aquae Jernemuthae infra corpus com Norf. ready for a Voyage to Zeland the said Cupper entred the said Ship lying in the said Haven and took away divers goods out of the same asserendo per praedictum placitum res illas super altum mare emersisse acsi res illae super altum mare emersissent cum non ibi sed apud Jernmutham contra formam Statutorum praedict The other was an Action between John Wydewell and the said John Raymer the same Terme in the same Court but whether there were any Judgement upon these two Actions or not or what the Judgements were is not set forth the Judgements might be given for the Defendants as well as against them for ought appears out of what Sir Ed. Coke hath set down and since he hath spared the pains to set them down I shall spare my labour for looking them out If any Judgement were given upon either which I the rather conceâ—â— there were not for that if there had been any Sir Edward Coke would not have spared to have told of them if they had been for his purpose If the Judgements were given agreeable to the former Judgement and passed by that example yet is there no better ground for the same
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
yet they were to be made use of only when such accidents happened and fell out upon the high Seas and that they were constituted and ordained only for such causes falling out upon the high Seas and not upon the Ports and Havens but left such causes there falling out unto the cognizance of the Common Law here in England and other municipal Laws in other Nations I shall here set down one express Law inserted amongst the rest of 〈◊〉 Sea Laws which sheweth that all these Laws were as well appointed for such causes happenning upon the Ports and Havens as they were ordained for those that fell out on the high Seas which Law maketh further provision in a cause of the like nature happenning either upon the high Sea or Port in express words and sheweth plainly too that all the rest were constituted and appointed for both which runs thus Navis onustae levandae causa quia intrare flumen vel portum non potuerit cunâ—â—onere si quaedam merces in scapham trajectae sunt ne aut extra flumen periclitetur aut ipso ostio vel portu eaque scapha submersa est ratio haberi debet inter eos qui in nave merces salvas habent cum his qui in scaphâ perdiderunt perinde tanquam si jactura facta esset Here it is manifest by this Law that if for the lightening of a laden Ship because she cannot enter into the River or Port with her burthen some of the Goods shall be put into the Ships boat least the Ship should be endangered either without the River or in the door of the Sea or Port it self and that Boat shall be drowned a consideration is to be had between those which have their Goods saved in the Ship and those that have lost their Goods in the Boat as if there had been a jacture made so that here we see the same rule holdeth for the preservation of a Ship as well within the Port or Haven or the mouth or door thereof as for her preservation upon the high Seas It may be further observed out of this Law that ostium maris and portus maris be both one and the same thing for as ostium is a door-gate or entrance so is portus a Port or Portal beginning or entrance of the Sea or into the Sea and that ostium maris is not an imaginary thing between the Sea and the Port or Haven as Sir Edward Coke would have it to be for as by saying a Port or Haven we mean but one and the same thing intimating that you may take which term you will as this Law doth in the beginning by the words flumen vel portus mean one and the same thing when it saith quia intrare flumen vel portum non potuerit c. so doth it in the next place by ostium or portus mean one and the same thing likewise when it saith ne periclitetur aut extra flumen aut in ipso ostio vel portu the aut making the disjunctive and not the vel And indeed the whole Port withal its banks is door slender enough for the keeping of the raging waves and wallowing billows of the Sea from overflowing the Land And the banks may properly enough though they be termed the Sea banks be said to be the doors of the land to keep the Sea out of it yet must the Haven or Port wherein the water floweth and and refloweth necessarily be said and concluded to be the door portal or entrance whereat all Ships and Vessels whatsoever must necessarily enter into the main Sea and this door of the Sea is as much a part of the Sea as a door of an house is a part of that house where it is the door and doth more properly belong to the Sea then to the land whereof it is no part but different and is distinct both in name and nature being two several Elements and the causes arising from things done either upon the high Seas or upon the Ports being of one and the same nature all belonging to Shipping Navigation Trading and Commerce c. they are all more properly cognoscible and tryable by one and the same Law then by two namely by the Civil and Maritime Laws then by the Civil Law and the Law of the land too For nulli prorsus audientia praebeatur qui causae continentiam dividet ex beneficii praerogativa id quod in uno eodem que judicio poterat terminari apud diversos judices voluerit ventilare poena ex officio judicis eminente ei qui contra hanc supplicaverit sanctionem And the Rules of the Civil and Maritime Laws in Cases of this nature are very many and very observable for the directions of the Judicature therein setting forth what is to be done according to the variation of the Case as the Law navis onustae before mentioned setteth forth what is to be done in case divers Goods and Merchandizes be taken out of the Ship and put into the Boat and the Boat perish so contrary if the Ship and remainder of Goods and Merchandizes remaining in her perish either upon the Sea or in the Port and the Boat arrive in safety with the Goods and Merchandizes put into her the same is to be done It is not enough to know a general Rule without its exceptions and limitations nor is it enough to know that si levandae navis gratia jactus mercium factas est omnium contributione sarciatur that an avaridge must be had upon all the Goods that are saved towards satisfaction of the owners of those Goods that were cast into the Sea but it is necessary to know in case the Avaridge be not agreed of what action those whose goods were cast into the sea have against the Master of the Ship for those goods and what action the Master hath against those whose goods were saved and what the duty of the Master is in these cases It is likewise necessary to be known and the Civil and Maritime Laws do set forth whether the Ship be lyable and ought to be cast into the Avaridge or not and whether if the Ship be worn and become worse by the tempests and storms she shall be considered therefore out of the Avaridge of the goods saved And likewise these Laws set forth what is to be done in case there be goods and merchandizes of several sorts and many passengers bond-men and free and whether goods of all sorts ought to be cast over and what is to be done in case there be goods aboard which do not burthen the Ship as Jewels precious Stones and Rings and at what proportion or rate they are to be cast into the Avaridge whether Apparel or the Passengers and Merchants wearing Rings whether the Passengers themselves and their or the Ships victualls shall be cast into the Avaridge the contribution shall be made according to weight or according to the value
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
Court upon several Contracts and Agreements made between them upon ordinary trading and bargaining within the City of London obtained a Supersedeas grounded upon the before mentioned Statutes to stay the proceedings there but upon further complaint of Sutton made unto the said Court and upon shewing that the said Contracts though there made were maritime and within the Jurisdiction of the Admiralty a Writ de procedendo was awarded commanding that the said Admiralty should proceed in the said Cause according to law and the custome of the said Admiralty Court and to do justice between the said parties notwithstanding the said Supersedeas The Writ de procedendo runneth thus Henricus ostavus dei gratiâ Angliae Franciae Rex fidei defensor Dominus Hiberniae in terra supremum caput Anglicanae Ecclesiae clarissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae sive ejus locum tenenti vel deputato salutem Cum nuper ex quodam relatu Johannis Petite de Abvile in Picardiâ Andreae Lord Daniel Lancel intellexerimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admiralitatis nostrae de diversis contractibus aliis conventionibus infra Civitatem nostram London non super altum mare fact ' emergen in placitum ad sectam Lodowici Sutton contra formam diversorum statutorum inde in contrarium factorum provisorum traxistis nos igitur statuta praedicta observari praefatos Johannem Andream Danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos Johannem Andream Danielem coram vobis in Curiâ Admirallitatis nostrae praedictae occasione in placitum non traheretis sed quod vos placito illo coram vobis in Curia praedicta ulterius tenend omnino supersederetis ipsos Johannem Andream Danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis quibusdam tamen certis de causis nos moventibus specialiter pro eo quod ex parte praedicti Lodowici nobis graviter conquerendo est monstratum quod contractus conventiones praedicti inter ipsum Lodowicum praefatos Johannem Andream Danielem habiti conventi infra jurisdictionem curiae Admirallitatis facti contracti quod praedicti Johannes Andreas Daniel pro contractibus conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in Curia praedicta minimè tractari extitissent Et ideo vobis mandamus quod in placito illo secundem legem consuetudinem Curiae Admirallitatis nostrae praedictae procedatis partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan T. meipso apud Westm xiv die Novembris Anno regni nostri vicesimo nono Horpole In the same year one Lodowick Davy sued John Turner in like manner upon several Maritime Contracts and Agreements made between them in the City of London likewise and upon the said Turners like complaint in the Chancery a Supersedeas was awarded which in the same manner and upon the same ground was dissolved by a Writ de procedendo the Writ de procedendo is the same with the other saving that they differ in the date and names c. I shall therefore spare the setting of it down In the 31 year of Henry the Eighth Myles Middleton Ralph Hall and Henry Dyconson Merchants of the City of York being sued before Robert Bishop of Landaffe and others the Kings Commissioners for his Northern parts upon Maritime businesses and contracts the said Middleton Hall and Dyconson complained in Chancery and a Supersedeas was in the Kings name awarded out of the Chancery directed unto the said Bishop and the rest of the Kings Commissioners straitly charging and commanding them altogether and without delay to forbear all examination and cognizance in any Civil Causes or Maritime Affairs of or upon whatsoever Contracts Pleas or Complaints between Merchants Masters and Owners of Ships and others whatsover with the said Merchants Masters or Proprietors for any thing by sea or water in any manner whatsoever to be expedited or contracted taking their rise or original either in the parts beyond the Seas or upon the high Seas or any where else where his high Admiral had jurisdiction whether by passage or voyage at sea or whatsoever way appertaining unto or howsoever touching or concerning Maritime affairs against the said Miles Middleton Ralph Hall and Henry Dyconson by whomsoever before them or any of them moved or howsoever to be moved or attempted remitting the parties if they would sue unto his Court of Amiralty of England for justice to be to there administred according to the Maritime Laws The Supersedeas it self runneth in these words Rex c. Reverendo in Christo patri Roberto Landavensi Episcopo ac aliis Commissionariis nostris in partibus nostris Borealibus eorum cuilibet salutem Vobis cuilibet vestrum stricte praecipimus mandamus quatenus ab omni examinatione cognitione in aliquibus causis Civilibus seu negotiis maritimis de super quibuscunque contractibus placitis vel querelis inter Mercatores ac Dominos Proprietarios navium aut alios quoscunque cum iisdem Mercatoribus Dominis seu Proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis vel super altum mare aut alibi ubi magnus Admirallus noster habet jurisdictionem originem trahentibus fething their original or arising from any other place where the Admiral hath jurisdiction seu maris per transitum sive voiagium aut negotia maritima quoquo modo respicientibus vel qualitercunque tangentibus aut concernentibus versus Milonem Middleton Radulphum Hall Henricum Dyconson Civitatis nostrae Eboric Mercatores per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis aut quovismodo movendis sive attemptandis omnino indilate supers ' partes si litigare voluerint ad Curiam nostram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes T. meipso apud Westm tertio die Februarii Anno nostri tricesimo primo Afterwards in the same year in the same Kings Reign the said Bishop and the rest of the said Kings Commissioners being thus forbidden to meddle with matters of this nature one John Bates a Merchant was sued before the Major and Sheriffs of the City of York for selling and delivering xlii Fowder of Lead at the City of Bourdeanx in the parts beyond the seas and complaint being by him made in the Chancery a Supersedeas was awarded in the Kings name unto the Major and Sheriffs of his City of York charging them likewise
judicandis quam in classe Regiâ gubernandâ insignitur And further saith that we had the name of this Magistracy viz. Custos Maris Marinae Maritimarum partium from the Romans as may be gathered from Cicero in Epistol ad Attic. ubi ait vult me Pompeius esse quem tota haec maritima ora habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. speculatorem custodem CHAP. III. The Beginning of Sea-Laws and the further Antiquity of Admirals and their Jurisdiction from thence argued DIonysius ascribeth the first making of Sea-laws to the Phenicians Pliny to the Carthaginians but according to the observation of most Authors out of most ancient Monuments our Sea-laws have had their beginning and original from the Island Rhode Rhodiae leges navalium commerciorum sunt ab Insula Rhodiae cognominatae in qua antiquitùs mercatorum usus fuit an Island scituate in the Carpath Sea part of the Mediterranean which being but a small Island but yet very populous the Inhabitants yea the very Indwellers thereof chose rather to live by water then by the aire and to seek their subsistence and provide for their sustenance by constant sayling and continued navigation by which means they encreased their strength and augmented their power at Sea to the terrour of all their Enemies the hinderers of their Traffique and quelling of all Pirats the disturbers of their peace They multiplyed their riches with an infinite increase and advanced their wealth to the very height And these principal ground-works being laid and chief foundation settled that which makes principally to the purpose in hand they grew so exquisite in their Navigation so skilfull and cunning in their Traffique and so expert in the discipline of both that as time now required they framed Edicts to be instituted decreed and published to be established and observed for Laws for the guidance of all men according to the most exact rules of equity in all manner of Sea-businesses insomuch that all Cities and Nations near unto them therein sought knowledge of them and to the further encrease of their riches by a ready and willing Tribute still exchanged wealth for wisedom and thought not that they paid any what too dear for the gain of such knowledge and to be directed in the rules of such Discipline and Laws as might settle such a constant determination of every mans just right at all times in all manner of Traffique Trading and Employment upon and by the seas as the Islanders had which Laws and Discipline did afterwards spread to further Nations and the very Emperours of Rome did successively referre all seafaring Debates and Controversies to the Decrees Determinations and Judgements of the Rhodian Law Leges nauticas dicimus quas Rhodii condiderunt quorum disciplinam navalem ut Strabo ait 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admirabilem omnes populi libenter etiam Romanus sequebatur And Eudaemon Nicomediensis making his complaint to Antoninus thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Domine Imperator Antonine naufragium in Italiâ facientes direpti sumus à Publicanis Cyclades Insulas habitantibus Antoninus answereth thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego quidem mundi dominus Lex autem maris Lege id Rhodiâ quae de rebus nauticis praescripta est judicetur c. Hoc idem quoque Divus Augustus judicavit Yet be there severall other titles in the body of the Civil Law which set forth several Decrees and Laws particular to the Seas and sea-faring matters to be observed And Vlpian a Father of the Law having set down some of them gives his reason why they should be precisely kept and observed Quia saith he ad summam rem-publicam navium exercitio pertinet These Rhodian Laws what of them are left and inserted in the Pandects and their defects being supplyed by the Code and novell Constitutions and their Rents repaired by the fair Applications and candid Expositions of the old Roman Lawyers and other authentique Authors which have since wrote of matters of that nature still give the rule and guidance to all seafaring business of what nature soever throughout all or well nigh all Europe and have never been opposed obstructed or interrupted but by such as least understood them And these severally had their original from that Island of sea-faring men though they have been by successive observations collected and gathered together as most just and equal for the determination of every mans just due and right in all their Maritime affairs whether they concerned complaints offences Criminal or Civil Sales or Assecurations of Ships Accounts Covenants or Contracts by Charter-party or otherwise Exchanges Freights Hyres or Money lent upon casualty or hazard at sea Causes of Reprizals Letters of Marque or concerning lading or unâ—ading and whatsoever other things else among seafaring men either of one or several Islands or Nations done or to be done either on or at the sea concerning Sea-trade Now who shall be imagined to have the supreme governance and power over these seafaring men and the cognizance of their Maritime causes to judge them according to these Sea-laws established amongst them and duly to put them in execution Certainly these Laws were hatcht of order and could not be bred up to disorder Seamen surely had amongst them a supreme Governor one or some that swayed and ruled the rest in the composure of them and so must they necessarily have in the dispensing of them and administring justice according to them Now I hope it will not be said that the maritime and seafaring men contrived and made Laws amongst themselves which concerned themselves their Traffique and Trade and when they had done gave them over into the Land men hands which could not possibly understand the grounds and depth of them with a power to put them in execution and so give others a power over themselves which before had nothing to do with them If they would so have done which no man will judge yet it is not to be believed that in this Island of Rhodes they could which consisted generally of seafaring men Who should then be fit to be chiefest in managing these Laws but such a one as had chiefly a hand and was most dexterous in making of them so that I doubt not but that we may boldly say and conclude that as these Laws were composed gathered and collected by maritime and seafaring men so were they put in execution by the principal Governor and Ruler of them and so had they both birth and growth under the jurisdiction rule and governance of the chief Captain Commander and Governor over all these seafaring men and shipping And as Causes encreased and multiplyed so did the Laws according to the nature of the Causes and as the Causes varied so did the Laws untill they required the constant and continuall study of such as were to judge by them CHAP. IIII. Of the Laws of Oleron and the Antiquity of the Admiralty argued
made to appear for founding them upon then for the former which is but a quakemire CHAP. VII The Argument deduced from two Praemunires instanced in to be brought against the parties suing in the Admiralty for things done upon Ports redargued BUt to keep some method I must out of these things which Sir Edward Coke hath promiscuously urged against the Admirals cognizance of businesses done upon the Ports and Havens and of Contracts made upon the land for freight Mariners wages tackle furniture and ammunition and of things done beyond the seas c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the Ports and Havens and give some answer to them first and those are Praemunire's Prohibitions Book-cases and Authorities in Law and then come in the third book of this Treatise to those things which he hath urged against the Admirals cognizance of or concerning Contracts made upon the land for freight Mariners wages c. Two Praemunire's he instanceth in the one brought Mich. 38. H. 6. By John Cassy Esquire against Richard Beuchampe Thomas Paunce Esquires and others upon the Statute of 16 Rich. 2. cap. 5. for sueing in Curiâ Romanâ vel alibi of matters belonging to the Common Law for that the Defendants did sue the Plaintiffe in the Admiralty Court before Henry Duke of Excester that the said John Cassy did take and carry away certain Jewels super altum mare ubi idem Johannes Cassy bona illa apud Stratford Bow infra corpus comitatûs Middlesexiae non super altum mare cepit which saith he is so evident and of so dangerous consequence as no application shall be made thereof but I must under favour take leave to make some application and some answer likewise hereunto and shew that the urging â—oth of this and the other which he instanceth in which is a Premunire brought 9 H. 7. for a Suit in the Admiralty Court before John Earl of Oxford for taking and carrying away quandam naviculam apud Horton Key at South-Lyn c. supposing the same to be super altum mare where it was infra corpus comitatûs is no way consequent or concludent to prove the Ports and Havens to be within the bodies of Counties For the first of these it is plainly affirmed that John Cassy did take away the goods he was sued for in the Admiralty Court at Stratford Bow being a Town or Parish plainly within the body of the County of Middlesex and no Haven or Haven-Town This suggestion being proved the Admiral had no colour at all to take cognizance of this cause For the taking and carrying away of the little Ship little Barque or Boat for navicula signifieth either of the three at Horton Key at South-Lynne it concludeth nothing against the Admirals Jurisdiction upon the Haven or Port taken for the water beneath the first Bridge for a Key is often taken for the Wharfe or place whereon goods are usually landed but strictly it is taken for the very separation of the land from the water by wood or stone or both in such places as goods are usually landed at and these are the keys that lock those dores that Sir Edward Coke would have stand wide open placed by God himself to no purpose so farre within the Seas Now At Horton Key may be as well on the dry side of the Key as on the wet as well upon the land as upon the water and little Ships little Barques or Boats are oftentimes drawn up at the Keys where they arrive to be caulked and repaired and might be from thence taken and carried away perhaps from the water their accustomed Element to the fire wherewith for the most part when they escape drowning they are at last consumed when they are become unserviceable Again these two Premunire's are said only to have been brought and nothing said of the event or what was determined thereon so that here is nothing but the opinion of those that brought them and no resolution of the Judges and so these two Praemunire's conclude nothing at all But grant two suppositions neither to be granted nor supposed unless proved viz. that these two severals Acts were done or committed upon Ports and Havens and that the determination and resolution of the Judges was against the Defendants yet he that will but look may see the two foundations whereon these determinations or resolutions were or should have been built from whence this land Argument is raised to have been laid upon the sea sands too slippery a place for them to stand on the one is that before mentioned groundless supposition of the Ports and Havens being within the bodies of Counties for which no proof is offered but that some against all reason and they know not wherefore have taken them so to be The other is the Statute upon which these Praemunire's were brought which he affirmeth to be the Statute 16 Rich. 2. for suing in Curiâ Romanâ vel alibi of matters belonging to the Common Law This Statute consisteth of a Petition made by the Commons unto the King and the King's Answer thereunto as all ancient Statutes of those dayes do In the Petition is first set forth that the King and all his liege People ought of right and of old time were wont to sue in the Kings Court to recover their presentments to Churches Prebends and other Benefices of holy Church to which they had right to present c. And when Judgement was given in the same Court upon such a Plea and Presentment the Archbishops Bishops and other Spiritual persons which had the Institutions unto such Benefices within their Jurisdiction were bound and did make execution of such Judgements by the Kings Commandments of all the time aforesaid without interuption c. And in the next place they do complain that of late divers Processes had then been made by the Bishop of Rome and Censures of Excommunication upon certain Bishops of England because they had made execution of such commandments to the open desherison of the Crown c. And further complaining that also it was said and a common clamour was made that the said Bishops of Rome had then ordained and purposed to translate some Prelates of the same Realm some out of the Realm without the Kings assent and knowledge and some out of one Bishoprick into another within the same Realme without the Kings assent and knowledge and without the assent of the Prelates so to be translated which Prelates were much profitable and necessary to the King and his Realme by which the Statutes of the Realm would become defeated c. And nothing more is contained in the said Petition but what concerneth the premisses The King in his Answer doth ordain That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elswhere any such Translations Processes and Sentences of Excommunication Bulls Instruments
the Sea or on the Haven or Port by his authority might call them and have their testimony or if gone in any voyage to any forain parts might by Commssion have them examined sub mutuo vicissitudinis obtentu and receive their testimony Now this seeing being rightly thus understood the Lord high Admiral of England will not so soon nor so easily be thrust out of his Jurisdiction upon the Ports and Havens of the Sea by the Coroner of a County or by the Common Law eitheir as Sir Edward Coke by that which is deduced and drawn from this authority would have him Yet saith Sir Edward Coke this onely Authority is sufficient to over-rule all the said questions For saith he hereby it appeareth that the Jurisdiction of the Admiral is onely confined by the Common Law to the high Sea and affirmeth that it agreeth with all his former Book-cases and Acts of Parliament For the Book-cases I cannot deny but that they are much alike but all of them together not sufficient to make a sufficient proof for that which he would have and against that which is denied him For its agreeing with the Acts of Parliament I wonder he should averre it seeing this very point even in this particular concerning the death of a man upon the Ports and Havens is so clean contrary to what the Statute of 15 of Rich. 2. c. 3. in express words saith de mort de homme de maheym fitz en grosses niefs esteantz ethoverantz en my le haut fil de grosses Rivers tant solement peravale lez pontz de mesme les Rivers pluis procheyns al meer et en null autre lieu de mesme les Rivers est l'Admiral cognissance of the death of a man and of main done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridges of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiral shall have cognizance which is a thing needed not nor would have been provided for by this Statute if a Jury could have been had out of a proper County for the tryal thereof which is a thing requisite by the Common Law as in Lacyes Case twice already cited upon other occasions and as by Serjeant Callis his reading likewise in the same places So then for this particular concerning the death of a man upon a Port or Haven which is the foundation of this Argument that the Admiral should have no Jurisdiction upon the Ports and Havens it resteth onely in question whether the Statute shall over-rule Sir Edward Coke or Sir Edward Coke the Statute and ancient Law and Practice of the Admiralty This next thing he urgeth against the Admirals having Jurisdiction upon the Ports and Havens is the 43. Ed. 3. which saith he the Lord Dyer voucheth in Mich. 15. and 16. Eliz. saying quod vidi The Case is that the Abbot of Ramsey was seised of the Mannor of Brancaster in Norfolk bordering upon the Sea but more especially upon 60. acres of Marsh of the said Manor upon which the Sea did flow and reflow and yet it was adjudged parcel of the Abbots Manor and by consequence within the body of the County unto the low-water mark This argument cannot so much as seem to carry him so farre as he would have gone before for hereby he pretendeth the body of the County to reach only unto the low-low-water mark and that only by consequence which consequence will not hold For as Serjeant Callis in his Grays-Inne Reading saith p. 26. in Sir Henry Constables Case the Citizens of Bristol claimed Flotzon goods floating on the Sea by custome and in Bracton cap. 12. one alleaged to be discharged of Toll or Custome on the Seas by praescription in the Case of the Swans in Sir Edward Cokes 7th Report one prescribed to have a game of wild Swans at Abbots-beery in a Creek of the Sea which is a member or arme thereof And in Sir Henry Constables Case it is taken and received for Law that a Subjects Manor may extend to the low-water mark by praescription yet is not the Admirals Jurisdiction at all hereby taken away upon the same places For Sir Sir Ed. Coke himself in the same case declareth that the Judgements of the Common Law have been both for the Admirals Jurisdiction and the Jurisdiction of the Common Law both upon one and the same place at several times For saith he Fuit resolve per totam curiam que le soil sur que le mere flow reflow sc inter le high water mark le low-water mark poet cê parcel d' un manner d' un subject 16 El. Dier 326. 6. act issint fuit adjudge in Lacyes Case Trin. 25. El. in cest court en uncore fuit resolve quant le mere flow ad plenitudinem maris le Admiral avara jurisdictîon de chescun chose fait sur le ewe inter le high-water mark le low-water mark per le ordinarie naturall course del mare issint fuit adjudge in le dit case de Lacy que le felony fait sur le mere ad plenitudinem maris inter le high-water mark le low-water mark per le ordinarie naturall course del mare le Admiral avara jurisdiction uncore quant le mere est reflow le terr port apperteine al subject chescum chose fait quant le terr est reflow serra try al common ley car ceo donques est per cel del country infra corpus comitatus our ceo agree 8 Ed. 4. 19. issint nota que South le low-water mark le Admiral ad le sole absoâ—â—â— jurisdiction inter le high-water mark low-water mark le common ley le Admiraltie avoint divisum imperium interchangeablement come est avant dit se 〈◊〉 super â—quam l' auter super terram It wâ—â— resolved saith he by the whole Court that the soil upon 〈◊〉 the 〈◊〉 doth ebb and flow to wit between the high water 〈◊〉 and the low water mark may be parcel of a Mannor of a Subject 16 Eliz. Dyer 326. 6 acc and so it was adjudged in Lacyes Case Trin. the 25 of Eliz. in this Court and so it was resolved when the Sea doth flow unto the full height the Admiral shall have Jurisdiction of any thing whatsoever done upon the water between the high water mark and the low water mark by the ordinary and natural course of the Sea And so it was adjudged in the same Case of Lacy that a Felony done upon the Sea at full Sea between the high water mark and low water mark by ordinary and natural course of the Sea that the Admiral shall have Jurisdiction And so when the Sea returned the ground may appertain to a Subject and every thing done upon the ground when the water is returned shall be tryed at
the same land should be in the very next year viz. in the 7th year of the same Kings Reign reconverted into sea Yet is there a great deal more colour for an Action to lye at the Common Law for forestalling in a Port or Haven then for the beforementioned Judgement but upon another ground then that which Sir Edward Coke would have to be the ground namely because a Port or Haven is within the body of a County which is this Though the forestalling be an act done upon the Port or Haven yet is it the forestalling of a Market which is kept at land so that act done upon the Port or Haven hath relation unto the Market which is at land And so the act done upon the Port or Haven may be said to arise from the Market which is at land and within the body of a County and that act upon the Port to be a forestalling of that Market which is at land Just as a Contract made at land for transporting goods by sea is an act done upon the land but hath relation to a thing done at sea and so the Contract though made at land is a thing that doth arise from a thing done or to be done at sea and doth not arise from a thing either done or to be done at land within the body of any County And therefore is this Contract tryable in the Admiralty and not at the Common Law And this agreeth with the Statute of the fifteenth of Richard the Second the Statute being truly examined which I shall plainly shew when I come to speak of Contract Yet may not this construction of the forestalling upon the water be allowed for this is no Contract made for the performance of any act or thing at land positive and therefore ariseth not from any act or thing to be done at land but is a Contract which doth privatively debarre a further act to be done at land And besides this is a compleat act having reference to nothing more yet to be done but the bargain is made the comomodity bought and all is done therefore is this forestalling triable in the Admiralty Court and there punishable as will hereafter appear by what I shall shew in several chapters of this second book In the next place it is objected that the 19 H. 6. 7. it is said that the Statute doth restrain that the Admiral shall not hold plea of any thing rising within any of the Counties of this Nation but Executions he may make upon the land this Statute which this Authority citeth must be the same before mentioned Statute of 15 Ric. 2. therefore I will say nothing to this here more then that Sir Edward Coke doth hence inferre that though it be said in the 22 ass pl. 93. that every water which flows and reflows is an arme of the Sea yet it followeth not saith he that the Admiral shall have Jurisdiction there unless it be out of every County or else such a place whereof the Country cannot take knowledge as it appeareth in the book of E. 2. before cited But how this hath any reference to that of the Statute to serve for his purpose I know not The last thing against that which is said 22. ass pl. 93. he would prove by that of 8 Ed. 2. before cited which I have answered already It is argued out of Fortescue cap. 32. fol. 38. that the Admirals Jurisdiction is confined to the high Sea for that he there saith Nam si quae super altum mare extra corpus cujuslibet comitatus regni illius fiant quae postmodum in prohibito coram Admirallo Angliae deducantur per testes illa juxta legum Angliae sanctiones terminari debent which saith Sir Edward Coke proveth by express words that the Jurisdiction of the Admiral is confined to the high Sea which is not within any County of the Realm If Fortescue had said much more then here he doth to have afforded him a better foundation for his Argument then this which he hath said doth I should not have much marvelled at it For he that conceived that if Adam had not sinned in Paradise all the World had been governed by the Common Law perhaps might in his time think it meritorious to reduce as much of the World as he could to the subjection of that Law But truly out of what he saith here Sir Edward Cokes conclusion is not Logically to be deduced For to say that because Fortescue saith that the Admiral hath Jurisdiction upon the high Sea which is out of any County of the Kingdom that he hath no Jurisdiction elswhere is no better an Argument then to say that Sir Edward Coke was Lord of the Mannor of N. and therefore he could have no Land elswhere For Fortescue doth not speak this exclusive to any other part of the Admirals Jurisdiction Nor by saying Quae super altum mare extra corpus cujuslibet comitatus regni illius fiant doth he averre quod aliquis portus maris est infra corpus alicujus Comitatûs If this Answer doth not satisfie adde the Answer to the next Objection to it The next Objection is deduced out of the 2 Rich. 2. fol. 12. quod Hibernici sunt sub Admirallo Angliae de re facta super altum mare Which saith he agreeth with the former viz. that the Jurisdiction of the Admiral is super altum mare And no doubt but it is but it doth not therefore follow that it is nowhere else Now this very authority sheweth the true use and ground of this distinction of super altum mare and super portum maris which is this The Admiral of England hath Jurisdiction super altum mare quo ad Hibernicos Hibernici sunt sub Admirallo Angliae de re sacta super altum mare non super portum Hibernicum nisi per appellationem And so it is between England and other Nations adjoyning to the Brittish Seas For the Kings of England have ab antiquo had the dominion of those Seas as is sufficiently demonstrated and proved by that learned Gentleman Mr. Selden by exceeding many Arguments throughout his whole Book de Dominio maris called Mare clausum which I have toucht upon before but though the King of England had the dominion of those Seas yet had those Nations Admirals who had the Jurisdiction of and over all business done in and upon their own Ports so that the Admiral of Englands Jurisdiction Respectu Regis Angliae Dominii maris is said to be super altum mare quo ad alias omnes nationes But as had his Power from the King so hath he Power Authority and Jurisdiction as over the Sea so over the Ports and Havens of the Sea belonging to this Nation aswell as the Admirals of France and the Admirals of other Nations had and have over the Ports and Havens belonging to their several Nations
certain Laws concerning the Admiralty Court and seafaring matters in old French all which are yet extant in the old authentique Black Book of the Admiralty before mentioned I shall only set down what doth shew the Jurisdiction of the Admiral to be upon the Ports and Havens the Inquisition first setteth forth who was then Warden of the Cinque-Ports who Lord Admiral and who were the Inquisitors in these words Cest l' Inquisition pris a Quenesburgh per commandement de nostre sieur Roy Edward le tiers puis la conquest d' Angleterre la 2d jour dauril lan de son regne quarante neuâ—me devant William sire de Latymer Chamberlain d' Angleterre gardenn des aul ports Mr. William de Nevill Admirall de nostre dit sur le Roy es parties du North pour mettre en certam les points apres ascriptz en maner comme ilzont este usez doncien temps par les surementz de Robert Loundeneys Robert Henry William Passelewe de Wychelsey Symon Colerede de Boure Thomas Moys de Sandwitz Bartheu Stigan de Standford John Martyn de Grenewiz Thomas Hering Richard Thebande de Gravesend John Burgeys leisne John Burgeys a puisne de Fobbing Hammond Lovetost John Snell de Bellingham Thomas Spring de Remham Thomas Rame Richard Lyne William Jankyn Richard Lorbyn de Queneburgh pour mesmes le points de sor mais tenir firmement continuer selon le voier dit apres escript So that by this last clause it appeareth that these Laws were thenceforth to be firmly held and continued which do thus present themselves Et primier dient les avant ditz furer perâ—es serements que se c. It is plain by the 17 Ordinance that if a Mariner do hire himself to a Master of a Ship in any Port or Haven and shall afterwards before the Ship goeth out of the Haven on her Voyage forsake and leave her he shall be punished by the Admiral The Law runneth thus Item que touts maners de mariners que sont retenuz avec aucun Seigneur de nef pour liu servir A Bordeaulx au ailleurs pur Rainsonnable salaire ainsi comme a este use en divers ports par tout le Royalme c. se aucun manner se voide daucun e nef en tel cas il sera gre vosement amerciez selon la discretion de l' Admiral fera gre au posseseur de la nef Hereby it is manifest that the Admiral hath jurisdiction upon the Ports otherwise he could not punish the Mariner for his forsaking the Ship there before her going to sea And the case is the like in respect of the payment of Lodmanage which being a thing proper to a Port or Haven is according to the Laws of Oleron to be decided by the Admiral as hath been already shewed is by these Laws again appointed in these words Item endroit Lodemanage dient les avant ditz jurez que leur semble in cest cas elz ne scavent meilleur advys ne remedie mais que ce soit de sorce usez c. fait par main'e quest continue en la loyd ' Oleron And these were established for Laws against which if any do offend the Admiral doth justice in such manner that others may be thereby warned not to offend against them as appeareth by the last of them which saith thus Item ordonne estoit que ce aucune nef biens merchandises c. and concludeth with this Clause Et se aucumy soit trouve rebelle encontre aucun des ditz pointz quil soit ainsi justise constraint per l' Admiral quantres y prengnout exemple de luy redoublet le plus datempler ou aler en contre cest ordonnance ou aucun point contenue en icells Here unto these Laws and Ordinance are likewise as unto the antient Statutes of the Admiralty before mentioned adjoyned divers Articles inquirable presentable and punishable in the Admiralty Court many of which as did the others do plainly shew that the Admiral hath Jurisdiction upon the Ports and Havens Some of them here I shall likewise set down It soit enquis de tous petites fellonies emblants en ports ou sur la mer dedens nefs ou batealx or ou argent ou de brusent coffres emportant ce qui est dedens icelles ou emblest amrous ancres ou autres apperilz de nefs ou bateaulx ou emblet ou coupent sur la mer Rees ou levant Taws Other Articles I find here as in the former to enquire of such as found either Waifs Flotson Jetson or Lagon viz. either Ships Vessels or Boats of any sort whatsoever upon the Seas or Sea-Ports forsaken and lost by the owners Goods lost by Shipwrack and found floating or swimming upon the top of the waters Goods cast out of a Ship being in danger of wreck and beaten to the Shore by the waters or cast on the shore by the Mariners or Goods lying in the bottom of the Sea or Port there likewise left and lost by the owners as Iron Gold Silver Anchors c. whereof the Admiral hath not had his share Here likewise as of all the former is contained that Article against Weirs Kidles Blind-stake Water-mills c. which do an noy the great Streams and Channels of Havens or Ports which followeth in these words Item soit enquis de tous ceulx qui foustinent sur les gros streams channels des Havens ou Ports Weres Kedylles Blindstakes Watermilles ou autres instruments en aueant ance des Ports per les quelz nefs ou batean out este periz ou homme mort Amongst these Articles also one enquireth of such as have found any one dead upon the Sea or in any Ports within the Jurisdiction of the Admiralty and hath found upon him any Gold Silver Jewel or any other Commodity of value and hath not rendred it to the Admiral or his Lieutenant as a Deodand Item soit enquis de ceulx qui ont trouve sur aucun homme mort trouve sur la mer ou en Ports dedens le Jurisdiction de Admiralte or argent ou autre Jovell ou chose de value le navy rend a l' Admirall ou son Lieutenant commeâ—dedant car ce appertient a l' Admiral pour disposer pour lame de homme mort By these Articles are likewise to be enquired of the death of a man in any Ship Vessel or Boat c. And of the maime sheding of blood within the Jurisdiction of the Admiralty and divers other such like matters c. And so for Ships Barges and Ballengers arrested for the Voyages of the King or Admiral and breach of the Arrests and the like for Mariners By these Articles likewise are to be enquired of all such as do drag for Oysters Muscles c. in unseasonable times
and such as do destroy the Fry of Fish and of such Mariners as do violence to the Owner of the Ship contrary to the Laws of the Sea and Statutes of Oleron such Mariners as disobey the lawfull commands of their Master such Masters as keep not their Mariners in order and peace according to the Laws of Oleron and likewise of Loads-men and Loads-manage And here particularly is to be enquired of such as do claim propriety in any Port or Haven which belongeth unto the King without Charter or Prescription to the disinheritance of the King Item soit enquis se aucun clame properte en port ou commers qui attient a â—â—stre sur le Roy ne la my par chartre ou praescription en disheritance du Roy. And in this respect as well as others is the Admiral called Custos portuum Custos maritimarum partium c. Here again as by the former Articles are Forestallers and Regraters as is before mentioned to be enquired of and so are Weights and Measures and the abuses of water Officers By another Article here are Fishermen to be enquired of which take Salmons out of season in any Arme of the Sea as Thames Trent c. specifying some particular Arms of the Sea and concluding withall in general so that by Arms of the Sea in these Laws exprest Ports and Havens must needs be meant the same things which Sir Edward Coke under the same notion would have to be within the Bodies of Counties and out of the Jurisdiction of the Admiralty which we see plainly did thereunto belong in far more ancient times then any of his proofs and authorities are of to the contrary and these are the words of the Article Item soit enquis de poissonners que prennent saulmons bors de saison aux bras de mer cestassavoir Thames Trent Deve Derwent Agre Reme Humbre autres riviers q'l conq's ou destroint fry de saulmont en aucun temps de lau For any one to remove an Anchor of any Ship or Vessel without warning given to the Master or some of his Company by which means the Ship doth perish or any man is slain or cut the Boy from the Boy-rope so that the Anchor is lost are offences against the Laws of Oleron presentable before the Admiral or his Lieutenant and punishable according to those Laws Here likewise is an Article agreeable with the former amongst those adjoyned unto the old Statutes concerning Shipwrights wages Divers other Articles there be which concern other matters belonging to the Jurisdiction of the Admiralty some of which might have been likewise deduced into proof for the Admirals Jurisdiction upon the Ports but I conceive these will be sufficient to convince any indifferent man that he had Jurisdiction there in Edward the Thirds time and by those that are adjoyned to the ancient Statutes of the Admiralty and introduction of the Laws of Oleron it will appear that he had Jurisdiction there long before Unto these Articles are joyned several Admonitions drawn into several Articles for the due observance of these Articles and putting them in Execution And next unto them is set forth the manner of proceeding according to the Maritime Laws both in causes Civil and Criminal CHAP. XIII That by the aucient Statutes of Enquiry translated out of French into Latine by Rowghton the Admirals Jurisdiction is upon the Ports and Havens aswell as over the high Seas WElwood in his Proeme to his Abridgement of the Sea Laws maketh mention of the Inquisition taken by 18 most famous persons for skill in seafaring matters assembled at Quinborough and the Articles there agreed on out of which I have cited some in the foregoing chapter and he saith that Thomas Roughton afterwards turned them into Latine and entitled them Articles De officio Admiralitatis Angliae But I do not find that the Articles which Roughton translated out of French into Latine were the Articles agreed on at Quinborough for the Articles of Quinborough set not down the penalties upon the breach of every particular Article but referre the punishment to the former ancient Statutes and Articles of the Admiralty and the Laws of Oleron whereas those translated by Roughton do besides at the Inquision of Quinborough there were by those exquisite skilfull men in Maritime businesses both at home and abroad several Sea Laws or Statutes agreed on and by the King confirmed which I find not translated by Roughton where he averreth such his translation of Articles out of the French tongue into the Latine and calleth them Statutes in regard the penalty of all or most of them are therein determined and appointed which his averrement is in these words at the end thereof Haec statuta fuerunt translata per me Thomam Roughton à linguâ Gallicanâ in Latinam signum meum manuale in testimonium ejusdem hic apponendo Now in this averrement there is no mention of the Articles of Quinborough besides those and these agree not in method nor in number Nor are these the translation of those ancient Articles adjoyned unto the ancient Statutes of the Admiralty which have the penalty upon the breach of every of them set down in them as these have for they have neither the same method nor the same division these being divided into 50 Articles those but into 38. Yet are not these Articles in any one particular contrariant or repugnant one unto another but so agreeable in matter of substance that that agreement amongst them may stand for a true confirmation and a strong corroboration both of the justice equity and authority they carry along with them and also of the credit that is to be given to them They all so agreeing as I have said these must needs prove the same thing that the others have done namely the Admirals Jurisdiction to be upon the Ports and Havens I shall set down some few of these in their own language to shew this agreement and so pass to a yet further proof of this particular But I shall first observe that as heretofore I have shewed that the Admirals anciently have had joyned unto their Patents for that place whereof they were Admirals a special Precept to all Sheriffs Mayors Bayliffs Constables Headboroughs c. commanding them to be obedient unto the Admiral and his Lieutenants and to be aiding and assisting unto them when they should be thereunto required so by the front of these Articles or Statutes the Admiral is directed to grant his Warrant to the Bayliffs of the Port if it be a liberty as well as to his Marshall for the summoning of a Jury to make enquiry according to these Articles of all such offences as are committed contrary thereunto which Articles are there said to concern the Maritime Law and these are the words of that direction Inprimis cum veneris ad portum per costeras maris si sit in
villâ quae habet libertatem fiat Warrantum Mariscallo Curiae ac Ballivis libertatis quod venire faciant xxiiij probos legales de viceneto illo viz Mercatores Marinarios alios per quos rei veritas melius sciri poterit inquiri ad inquirendum in Curiâ Admiralli certis tida loco tenenda per eorum sacramentum fideliter praestandum quicquid eis constare poterit super certis articulis legem maritimam tangentibus super quibus erant ad tunc onerati pariter jurati And the penalties of the breach of Articles first mentioned are as these are in case the party be convict and that by express words sil est de ce convicte c. as will appear by some of those I have before cited and as will here appear by some of those I am about to cite si indictatus convictus Whence I gather that which will clearly overthrow the very foundation whereon many of Sir Edward Cokes arguments are grounded viz. that wherean inquiry may be made by Jury there the Admiral hath no Jurisdiction which we plainly see is not so The first of these Articles with a nota is the same with that which precedeth the first mentioned Articles which is against such as shall discover the Kings Counsel or his fellow-Jurats and the penalty is the same here with that there which is a very terrible punishment but I am not about to set forth what the penalty or punishment of the breach of every Article is It is enough for my purpose that the Articles do some of them plainly shew that the Admiralty Jurisdiction is not limited to the high Seas as Sir Edward Coke would have it and that by this first Article as well as by many more For certainly whether a Jurate doth disclose the Kings counsell or his Fellows either at Sea or Land or upon Port or Haven in these Maritime matters it is inquirable in the Admiralty Court and there punishable for it is a ridiculous thing to set a penalty or punishment different from all punishments of the Common Law as this is upon any offence and not to have power to inflict it upon the party so offending unless he go to the sea to disclose and discover that whch he hath already done or might have done at land And this likewise will check the opinion of those that hold that whatsoever is done at land howsoever it concern Maritime affairs is cognoscible at the Common Law and not in the Admiralty but of that in its due place I shall here only set down as I said before some few of those Articles which shew the Admiralty Jurisdiction to be upon the Ports and are agreeable with the former which I have before mentioned The sixth Article doth enquire of such as have taken up any Weife Jetson Flotson or Lagon out of the Sea or any great River and have not satisfied the Admiral for his share this is punishable though it were Weife Jetson Flotson or Lagon in any great River or Port. The words of the Article are these Inquiratur si quis reperit super mare sive in grossis rivis naves ferrum plumbum seu aliqua alia bona fluctuantia vel in profundo jacentia quorum nemo est possessor quae vulgariter appellantur Flotteson Jetteson Lagon Domino Admirallo non satisfecit pro parte Dominum Admirallum contingente viz. de medietate qui secus fecerit si super hoe indictatus convictus fuerit c. partem suam amittit nichilominus cum Admirallo secundum discretionem suam finem in hac parte faciendo ad valentiam bonorum inventorum The seventh Article inquireth of Mills Kiddles or other things in the Sea or great Rivers hurtfull to Ships or Navigation and how the causers of them are to be punished the Article runneth thus Inquiratur si quis in grossis rivis levavit molendina Kydell seu aliqua alia instrumenta quae navigantibus seu navibus Communiter sunt nociva Quod si de hujusmodi molendinis Kydellis aut instrumentis in nocumentum ut praefertur scituatis domino Admirallo per inquisitionem constiterit extrahi dēant penitus destrui transgressores qui in hoc casu super hoc finem cum domino Admirallo facturi sunt The tenth Article is against such as being arrested to serve the King break the Arrest who surely are both arrested and do break the Arrest either at land or upon the Port and not upon the high Seas and how such are to be punished which the Article sheweth thus Inquiratur si arrestatus ad serviend Regi fregit arrestum hujusmodi transgressor stat in gratiâ regiâ sive Admiralli sui utrum voluerint committere Carceribus mancipandum vel finem facere in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum The twelfth Articles is against such as do take Oysters and Muscles in prohibited times of the year and such as do at any time of the year fish with Nets of too narrow a mash in great Rivers and destroy small Salmons and other fry of Fish who are to be punished as this Article sheweth Inquiratur de his qui capiunt ostria seu musculos inter primum diem Maii Festum exaltationis Sanctae Crucis etiam de his qui quocunque tempore anni per retia nimis stricta in grossis rivis deflruunt salmunculos seu alios pisces nimis juvenes omnes isti in hac parte indictati sive officio Admiralli detecti sive aliqualiter accusati finem facient secundum discretionem Admiralli c. The fourteenth Article doth most manifestly shew the Admirals Jurisdiction upon the Ports and Havens for it setteth forth the punishment of such as do hinder or resist the Admiral or his Lieutenant freely to determine decide correct and put in execution all transgressions batteries felonies and other causes whatsoever happening upon the Sea or upon whatsoever Rivers waters or Rivolets of the Sea unto the first Bridge according to the custome and Law Maritime in these words Inquiratur de his qui impediunt vel resistunt domino Admirallo seu ejus locum tenenti batterias felonias alias causas quascunque super mare infra quoscunque rivos aquas sive riviculos maris usque ad primum pontem emergentes terminare decidere corrigere executioni demandare libere possunt quia omnes isti sunt rebelles tanquam rebelles sunt puniendi The sixteenth Article is against forestallers in Ports and Havens and setteth the penalty and punishment of such offenders and in what case such shall be freed thus Inquiratur de his qui ingressu portûs vel infra portum forinstallant emunt victualia in grosso ad damnum comitatus vicinum indictatus super hoc convictus c. imprisonamentum dimidii anni habebit praeterea finem faciet domino
nor the Laws of the Sea any more apt to rule the business of the Land then a horse is fit for a sea Voyage or a ship for a land Journey And then cannot Justice be said to be her self whilest she shall do right in one thing and wrong in another or whilest she should render that which is just in one matter when it is required and can afford no help at all in another when it is expected Justice saith Cicero est habitus animi communi utilitate servatâ suum cuique tribuens Justice doth every man right still preserving the common good I will not here say how slowly Justice hath oftentimes put right forwards and as it were but soared in a circle by one wings striving to out-fly the other But here I will say that he that will make most haste to his journeys end and setteth his best leg forward if that leg shall not cease to kick the other for making no more haste or shall by that or such other means lame it because it self would get both the credit and profit of the journey that leg must necessarily but hop instead of running or walking and cannot come so soon to its journey's end if ever it come there And one leg being lamed if the crutch that should supply it be applyed unto the other that is not lame the body will walk no whit the better and if one Wing be pluckt and those Feathers imped into or added unto the other the Bird will fly no whit the faster If one of these two Jurisdictions the two Wings which Justice hath to support her self should be bereaved of its power and proper priviledges though the same should be taken and assumed unto the other which enjoyeth all its own before Justice could proceed no whit more duly but much more prejudiciously to some or other For as I said before the Laws of the Sea are so different from the Laws of the Land that they will not serve to each others purpose And indeed they must necessarily so be for the traffique and commerce in Maritime affairs by transportation at Sea is in its own nature as different from the trade of bargaining and chaffering in Land businesses as is the fluid element of water from the solid element of earth For as the water doth admit of some mixture of the earth and yet still remaineth water and the earth doth admit of some mixture of water and yet remaineth earth though not in their absolute purity yet in such sort as that the one may properly enough be termed water and the other earth In like manner doth the trafficking and commerce in Merchandizing affairs admit in some sort of the like covenanting and contracting as the land Trade and bargaining doth but yet remaineth a seafaring Traffick and Commerce and the land-Trade and bargaining doth likewise in some sort admit of the like bartering and exchanging of Goods and commodities as the Traffiick and Commerce in Merchandizing affairs doth but yet remaineth a land bargain In the same manner do the Laws which regulate the one and the Laws which rule and dispose the other admit of some mixture each with other both in respect of their manner of proceedings to judgement and sometimes in regard of their concurrency in the Judgement it self where the nature of the causes differs not and yet the one remaineth the maritime Law or Law of the Sea and the other the Law of the Land Now if of these two different Elements of Water and Earth whereunto I have resembled the difference between the Traffick and Commerce in Merchandizing affairs by Sea and the Laws thereunto belonging and the land Trade and Laws which concern the same there should be such an equal mixture that the same could neither be said to be water nor earth but a mixt Body equally composed of both then would the same be fit for neither man nor beast to walk or tread on nor Ship or other Vessel to float or sayl on In like manner if these Laws purposely composed for the decision of Maritime controversies and the Laws established for determination of land differences should be promiscuously applyed to the decision or used for the determination of both and by that means such a mixture thereof made that the same could neither be termed the Laws of the Sea nor the Laws of the Land then would the same neither serve for the Government of the one nor the other For although the seafaring Commerce and land-trade have some resemblance as I have said in respect of the like contracting and bartering yet are the Goods and Wares so bartered and contracted for by way of Merchandizing of various sorts and the lading and stowing of them in Ships done or to be done after many various manners and wayes according to the nature of them and many differences there are in the manner of the Master of the Ship or Skippers acceptance of them according to the condition and quality of the Goods so received and acknowledged by his Bills of lading and severall are the consignments made of them the same being sometimes laden by Factours and consigned to their principals for their own proper use and accompt sometimes for the accompt of their correspondents c. And likewise much variety and difference is there in hyring and taking of Ships and Vessels to freight for the transportation of such Goods Wares and Merchandizes the Merchants having sometimes Ships and Vessels of their own which they sometimes freight wholly themselves sometimes joyntly with others Sometimes the Merchant hyreth or taketh a ship or Vessel to freight which hath sometimes but one sometimes many owners Sometimes he taketh her to freight of the owner sometimes of the Master appointed over her by the owners Sometimes he hyreth her by the Moneth sometimes for a whole voyage which voyage is sometimes from one Port unto another from that to a second and so to a third c. And sometimes the Ship maketh no Port but is lost or perished sometimes in the high Sea sometimes in the Port or Haven out of which she is to set sail sometime in the Port or Haven of her discharge Sometimes She maketh one Port sometimes two sometimes more and yet is cast away before she come to her last Port of discharge sometimes in the same Sometimes such Goods and Merchandizes are damnified through the wastfulness of the Master sometimes of the Mariners sometimes through their carelesness in stowage of them sometimes by reason of ill packing or making them up or putting such as are liquid in ill or leakie Casks c. Sometimes they are damnified by storm or tempest or stress of weather which is sometimes such as that the Master is constrained to cast over board divers of the Goods for preservation of the rest and saving both ship and men's lives and sometimes he is constrained to cut down the masts of his Ship as hath been said before in this Second Book Sometimes they are
wheresoever contracted for in these and divers other like cases the Judgement of that Law cannot be agreeable unto the rules and grounds of the Maritime Laws If a Mariner be hyred by the moneth and doth serve several months in the Ship and afterwards desert or leave the Ship and run away upon Action brought for his wages the Judgements of the two Laws will be clean contrary If the Mariner without leave of the Master lie on shore and the Ship or goods be damnified or the Voyage protracted or if the Ship be not well moored so that for default thereof she be damnified or if the Mariner take up clothes or borrow money of his fellow and put the same in the Pursers book upon Action brought for his wages the Judgements of the two Laws will differ If two be they Merchants Owners Mariners or Furnishers of Ships c. and those either English or Foreigners or the one English and the other a Foreigner do for Freight Tackle or Furniture of Ships c. or by other Commerce in their seafaring business become indebted each to other upon Action brought by either of them the Maritime Law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time and alloweth him compensation which the Municipal Law alloweth not but concludeth that stoppage is no payment by which Law if exercised in business of this nature the absent might recover much against the party present and he be constrained to wait his opportunity for the recovery of what is due to him from him that hath recovered against him to the lessening of his Stock and great hinderance of his Trade And in like manner the Non-solvent might recover much against the Solvent and he nothing at all against the Non-solvent which would be very much inconvenient to all seatrading men and a thing not known abroad Now these Maritime Laws for Maritime businesses are all grounded upon strong reasons which if they could be here at large particularly set forth yet would they not take away the reason whereon the Municipal Laws for Land affairs are grounded in regard different Judgements in different things do arise from different grounds of reason so that the Judgements upon businesses agitated upon the Land may be grounded upon reason and yet will not that reason hold to ground the like Judgement upon in business at Sea or upon the great waters those being accommodated with many advantages and helps in their agitation and petformance of which these are altogether destitute And this will introduce a second reason why the welfare of the Merchants and other seafaring men cannot be maintained without the settling and upholding of these Maritime Laws for decision of differences and controversies in maritime affairs which is because these Laws are suitable thereunto and compleat to determine all differences in businesses of that nature which as I conceive the Municipal Laws of the Land are not For Maritime causes especially those for wages must have a quick and sodain dispatch of Justice the Mariners as they come in with one good wind so must they speedily go out with another and not wait Westminster-Hall Termes to the loss of a whole Voyage such their imployment being their whole livelyhood Nor must they commence every man a Suit according to his particular contract to the expence of as much if not more then his wages come to but must as the Martime Laws allow them commence their Action in one joint Petition to a Judge at all times settled in a readiness and in a constant place of Judicature where and to whom they may make their present addresses for dispatch according to such Laws as they are used unto wheresoever they come If the Mariner must have such dispatch against the Master then must the Master have the like against the Merchant for his freight out of which he is to pay the wages and the Merchant the like against the Master and Owners of the Ship for damages done to his goods at sea all which is speedily tryed at one and the same time by the maritime Laws which upon full hearing alloweth compensation and every one hath at first his own according to proof or confession upon their personal answers and no more otherwise if the Mariners shall by several Tryals at the Common Law recover their full wages of the Master and be gone and then the Merchant recover against him likewise or against the Owners of the Ship perhaps as much or more then their freight amounteth unto for damage done unto his Goods perhaps by the Mariners who are gone and not to be met with again and be put afterwards to sue for their freight this will soon cause the owners of Ships to lay their Vessels by the walls or if the Mariners shall recover their wages of the Masters or Owners and be gone and then the Owners shall recover their freight against the Merchants whose goods are damnified or spoiled by the Mariners and not by default of the Ship or by default of the Ship and not by any neglect or fault of the Mariners or by both and he then put to a tryal to recover by Jury the damage he hath sustained he is like to have but little or no redress If the Mariner shall have his dispatch and be gone which he must have or be undone and the Merchant wait his Tryal from Terme to Terme at the â—ommon Law then by reason of the absence of the Mariners can neither the Owner prove the damage to be done by meer casualty or stress of weather at sea which he is not lyable to make satifaction for nor can the Merchant prove the insufficiency of the Ship in which case the Owner is to make satisfaction besides many inconveniences more which might be reckoned Thus is not the one Law only suitable and agreeable to maritime affairs and the other unsuitable and disagreeable thereunto but the one is likewise perfect and compleat for deciding of all controversies thence arising the other imperfect and in no wise compleat for that purpose in my judgment For Bills of Bumery or Bottomry for many reasons most usefull and absolutely necessary in sea trade they are likewise triable only by the Maritime Laws and can be no wayes tryable at the Common Law wheresoever made by reason the Ship only is lyable to payment which may be arrested according to the Maritime Laws either at the main Sea or upon any Creek Port or Haven adjoyning upon the land which cannot be done by the Common Law as I humbly conceive So likewise contracts de nautico foenore pecunia trajectitia or nautica usura wheresoever made are tryable by the Civil and Maritime Laws and not by the Common Law of England and the Civil Law hath several Titles concerning these particulars as in the Digests the Title de nautico foenore in the Code the same Title in the Novel Constitutions the Title de nauticis usuris
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
Out of the grounds of this Argument might be deduced a far larger debate which by reason of the many differences between the Civil and Common Law in this point would be too tedious I shall therefore insist no longer thereupon but come to the latter part of this Statute viz. Nevertheless of the death of a man and a maihme c. which had been more properly inserted amongst the particulars which concern the Admirals Jurisdiction upon the Ports and Havens but being here by Sir Edward Coke enforced all together I cannot here let it pass without the observation due unto it He as I shewed before in this chapter rendereth this part of the Statute thus Nevertheless of the death of man and a maihme done in great Ships being and hovering in the main stream of great Rivers only beneath the points of the same Rivers and in no other place of the same Rivers the Admiral shall have cognizance excluding him from his power of the death of a man and a maihme c. of arresting Ships in the great Flotes for the great Voyages of the King or of the Realm within the Ports and Havens which both the original Statute and Poulton's Translation alloweth him as appeareth by what is already set down in this Chapter And this only cognisance of the death of a man and a maihme by this his rendring of the Statute he will allow the Admiral only beneath the points of these great Rivers which the original setteth down Pontz and Poulton's Translation rendereth Bridges All that is beneath the points of great Rivers it is well known and hath always been accompted the main Sea so that by this construction of this part of the Statute he hath limited the Admirals Jurisdiction to the death of a man only and a maihme and arresting of great Ships c. and that upon the main Sea only and will not allow him either Contracts or Covenants made at land of or for businesses there done nor the cognizance of any thing done upon the Havens but howsoever after this his construction of this word he presently with one and the same breath somewhat contradicts himself for in his very exposition of this clause he saith thus This latter clause giveth the Admiral jurisdiction in case of death and maihme with neither of which we ever meddle but with all other things happening within the Thames or any other River Port or Water which are within any County of the Realm so that the cognisance of this death and maihme which before was allowed the Admiral only beneath the points is now acknowledged never to have been meddled with at all by the Judges of the Land though done upon the Thames or any other River or Port but only other things there happening but how duly that was done hath been before examined upon his very proposal of these two Statutes and what he promiseth shall appear afterwards he apprehended that all men must needs grant which proveth farre otherwise that the Admiral hath no jurisdiction or power upon the Ports and Havens more then what this Clause giveth him and therefore saith he this Clause giveth the Admiral further jurisdiction in case of death or maihme and indeed by these words Nevertheless of the death of a man and a maihme doen beneath the bridges It may at the first reading seem that the Admiral should be before forbidden to meddle with the cognizance of any thing else there and that the cognizance of these things should only be reserved unto him which withall would seem very strange and therefore more duely weighed and considered this word Nevertheless doth not restrain the Admiral to these particulars only viz. the death of a man and a maihme and arresting of Ships c. but the Statute ordaining immediately before that all Contracts Pleas and Quarrels and all other things arising within the bodies of Counties as well by land as by water shall be tried by the Law of the Land lest the waters beneath the first Bridges should be taken to be within the bodies of Counties and the Admiral by the words as well by land as by water should be excluded from his cognizance of things there done under that General of as well by land as by water falleth this exception or limitation Nevertheless beneath the Bridges next unto the Sea pluis procheyn al meer by them distinguishing the waters within the bodies of Counties from those that are not within the bodies of Counties the Admiral shall have cognizance of matters even of the highest nature and greatest concernment even of the death of a man and a maihme arresting of Ships c. not exclusivè excluding him from the cognizance of matters of an inferiour quality and nature for by the Arugument à majore ad minus he that hath power in the weightiest affairs hath certainly power in matters of less consequence and smaller concernment and it doth seem strange to me that any man should think that the makers of this Statute whom Sir Edward Coke affirmeth to be curious therein should trust the Admiral with the cognizance of the death of a man and a maihme c. where they should not trust him with the sinking or maihming of a Ship or Vessel ot of the cognizance of the pilferings or stealing of a Cable or some such petty trifle and it may as well be said that the Admiral by this Statute hath power to arrest Ships in the great Flotes for the great Voyages of the Common-wealth but he hath no power to arrest the Ships Guns Boats Tackle or Furniture or that when he hath arrested such Ships he hath no power to press Mariners or to take up Victual Tackle Furniture or Ammunition for them and how agreeable to reason whereon all Laws ought to be grounded this is I leave it to the judgement of all men and though this arresting of Ships may be said to be of no matter of cognizance yet is there the same reason of the one there is of the other Yet of matters cognoscible by the Admiral it may be questioned why these two particulars namely the death of a man and a maihme should only be specified and nothing in general be exprest for the cognizance of other things there done if the same were intended him Ratio est in promptu Sir Edward Coke could not say nor can I believe any man else or shew that before the making this Statute the Common-Law Courts ever took cognizance of any matters concerning Ships or other Vessels their Tackle Furniture Ammunition or whatsoever else to them belonging or appertaining but alwayes left them to the cognizance of the Admiral as matters belonging to the Sea and so proper to the Sea Jurisdiction but for the death of a man and a maihme which oftentimes happen above the first Bridges where Ships neither do nor can come conveniently whereof the Common Law had cognizance and not distinguishing of such death or maihme whether the same