The maritime dicæologie, or, Sea-jurisdiction of England set forth in three several books : the first setting forth the antiquity of the admiralty in England, the second setting forth the ports, havens, and creeks of the sea to be within the by John Exton ...

Whitehall Aug. 13. 1664.

Let this Book be Printed .

HENRY BENNET .

THE Maritime Dicaeologie , OR SEA-JURISDICTION OF ENGLAND .

Set forth in Three several Books .

The first setting forth the Antiquity of the Admiralty in England .

The second setting forth the Ports , Havens , and Creeks of the Sea to be within the Jurisdiction of the Admiralty .

The third shewing that all Contracts concerning all Maritime Affairs are within the Jurisdiction of the Admiralty , and there cogniscible .

By JOHN EXTON Doctor of Laws , and Judge of his Majesties High Court of Admiralty .

LONDON , Printed by Richard Hodgkinson , Printer to the Kings most Excellent Majesty , 1664.

Tudor rose

Scottish thistle

fleur-de-lis

depiction of Irish harp TO HIS ROYAL HIGHNES JAMES Duke of York and Albany , Earl of Vlster , Lord High Admiral of England and Ireland , &c. Constable of Dover Castle , Lord Warden of the Cinque-Ports , & Governor of Portsmouth , &c.

YOur Royal Highness having been graciously pleased to constitute me Judge or President of the High Court of Admiralty , I held it my duty ( according to my poor ability ) to assert the just Jurisdiction thereof , against those undue encroachments and usurpations , whereby the power of the Lord High Admiral hath been heretofore , and is at this present straightned , in decision of matters , relating to Maritime affairs ; wherefore having some time since in those sad and distracted times , bestowed some labour in searching and perusing such of the Records of our own , as well as Forreign Nations as I could meet with , wherein the just extent of the Admirals Jurisdiction is sufficiently and undeniably evidenced , together with the necessity of deciding all controversies about Maritime affairs , according to the ancient Sea customes , and the reason and directions of the Civil and Maritime Laws . I held it no less my duty to recollect the said Papers , and reduce them into some method for the clearing those objections which hitherto have been and still are made use of , either against the antiquity or extent of the Lord High Admiral his Jurisdiction in Maritime causes , or against the decision of them by the ancient Sea customes , and the rules of the Civil Law : And as I have observed this Nation hath happily flourished a long time , under that happy Government of all Land affairs by its municipal Laws , practiced in the Common Law Courts ; so hath it no less prospered and been enriched in its Navies , Trade , and Commerce under that exact Government which hath ordered and guided all Maritime businesses and Sea affairs , by the Civil and Maritime Laws and Customes ( corresponding , agreeing , and according with the Laws of Forreign Nations , being suitable to the nature and negotiations of the people that are subject to them ) exercised and practised in the High Court of Admiralty : The design therefore that I propound to my self in the publishing this Treatise , is , to shew how necessary and fitting it is , that the power and jurisdiction of this Court should be no longer subject to such interruptions ; and how expedient it now is , that the rights and privileges of the same should be observed and kept , and the Laws and ancient Customes thereof , whereby all Commerce and Navigation is upheld ▪ should be precisely and strictly preserved and maintained : That all which may appear , I have set forth the antiquity of the Lord Admirals Jurisdiction here in England , by ancient Records of the Tower : Next the Jurisdiction it self , and the extent thereof , as also the necessity and necessary use of it in divers respects . In all which I have endeavonred neither to eclipse the honour , power , or least right of the Muncipall Laws of this Kingdome , nor in any sort to detract from the renown of the Reverend and Learned Professors thereof , but hope I have manifested that the upholding of both Jurisdictions , and restraining each of them to its proper limits and confines , will be more advantagious to this Kingdome and the Inhabitants thereof , then the suffering eitber of them to swallow up or devour the other . Be pleased therefore to receive this unpolished work from the hand of your Servant as the same is dedicated unto the protection of your Royal Self .

THE CONTENTS .

The Chapters contained in the First Book of the Maritime Dicaeologie or Sea Jurisdiction . Chap. 1. THe Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Thirds time , to whose time the Statute of the 13 of Ric. 2. referreth , argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times , and from their Grants and Patents . Page 1. Chap. 2. That these High-Officers or Admirals , or Keepers of the Seas , Sea-coasts and Ports , had like power and authority in them , and over them , as the Keepers and Governours of Land-Provinces had over them ; and had their Maritime Laws for guidance of their Jurisdiction , both Civil and Criminal , as well as the other had their Land Laws for the guidance of theirs . page 10. Chapt. 3. The beginning of Sea Laws , and the further Antiquity of Admirals , and their Jurisdiction from thence argued , p. 13. Chap. 4. Of the Laws of Oleron , and the Antiquity of the Admiralty argued and inferred from the introduction of them into England p. 16. Chap. 5. The ancient Introduction of the Sea Laws argued , and inferred from the King of Englands Dominion over the British Seas . p. 21. Chap. 6. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Co●rts in deciding of Maritime Causes in those antient times . p. 25. Chap. 7. Of the Exercise of the Sea Laws by the Grecians , Athenians , Romans , Italians , Venetians , Spaniards ; and by the Admirals of Naples and Castile . p. 29. Chap. 8. Of the Admiral of France and Denmark . p. 30. Chap. 9. Of the Admiral of Scotland . p. 32. Chap. 10. From the common acceptance of the Sea Laws in other Nations is inferred the acceptance of them in England . p. 34.

The Chapters contained in the Second Book of the Maritime Dicaeologie , or Sea Jurisdiction . Chap. 1. THat the Sea-Jurisdiction and the Land Jurisdiction are , and so necessarily must be , two different and distinct Jurisdictions , having no dependancie each upon the other . Chap. 2. That the Jurisdiction of the Admiralty doth extend to all manner of Ships , Shipping , Seafaring , and Sea-tradingmen . p. 41. Chap. 3. That the Ports and Havens , and Creeks of the Sea , are within the Jurisdiction of the Admiralty . p. 52. Chap. 4. The Arguments deduced out of the Statute Law , to prove the Ports , Havens , and Creeks of the Sea , to be within the bodies of Counties , and not within the Jurisdiction of the Admiraltie , redargued . p. 57. Chap. 5. The Argument deduced from the first Judgement at the Common Law , that the Ports and Havens of the Seas are within bodies of Counties , redargued . p. 62. Chap. 6. 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 concludent Argument is deduced . p. 72. Chap. 7. The Argument deduced from two Praemunires instanced in , to be brought against the parties suing in the Admiralty for things done upon Ports , redargued . p. 73. Chap. 8. The Book-Cases and Authorities brought to prove , that the Admiral hath no Jurisdiction upon the Ports , Creeks and Havens , answered . p. 78. Chap. 9. That the Rhodian and other Maritime Laws were ordained as well for the decision of the differences happening upon the Ports and Havens , as upon the high Seas . p. 102. Chap. 10. That the Laws of Oleron , and other ancient Laws of the Sea were constituted and ordained as well for the decision of controversies happening & arising from things done upon the Ports and Havens , as from things done upon the high Seas . p. 111. Chap. 11. That by the ancient Statutes of the Admiralty settled before the last confirmation of the Laws of Oleron 12 Edw. 3. and Articles of Enquiry added thereunto , it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas . p. 115. Chap. 12. That by the Inquisition taken at Quinborough secundo Aprilis , anno 49 Ed. 3. annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports , as well as upon the high Seas . p. 120. Chap. 13. That by the ancient Statutes of Enquiry , translated out of French into Latine by Roughton , the Admirals Jurisdiction is upon the Ports and Havens , as well as over the high Seas . p. 124 : Chap. 14. That the Civil Law is used and practised in all or most Nations of Christendome . p. 129. Chap. 15. That the Traffique and Sea-trading is different from the bargaining and trading at land ; and that therefore in Foreign Nations they have their distinct Judicatories guided by the distinct Laws ; and that though the Judicatories for Land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law , yet the Civil Law is strictly used and practised in all Admiralty Courts , and is absolutely nece●●ary in the decision of all Maritime causes & Sea differences . p. 135. Chap. 16. That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius , for the determination of Maritime Causes , and divers other of the Civil Laws conducing thereunto , it doth appear that the Ports and Havens , and businesses done thereupon , are within the cognizance of the Admiralty Jurisdiction . p. 147. Chap. 17. That by the Records of the Admiralty , it appeareth that the Admiral had , and hath power and Jurisdiction upon the Ports and Havens . p. 157. Chap. 18. That by Writs de Procedendo out of the Chancery , upon Supersedeas from thence granted , the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens . p. 166. Chap. 19. That by Consultations out of the Courts of Common Law upon Prohibitions thence granted , it is clear the Admiral hath Jurisdiction upon the Ports and Havens . p. 170. Chap. 20. That the Ports , Havens , and Harbours where Ships do lye or ride at Anchor , are not within the bodies of Counties , but that the Jurisdiction which the Admiralty hath anciently had thereon , hath been by Act of Parliament reserved thereunto . p. 175.

The Chapters contained in the Third Book of the Maritime Dicaeologie , or Sea Jurisdiction . Chap. 1. THat all differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court , and the reasons thereof . page 180. Chap. 2. The Arguments deduced out of the Statute of the 13th of R. 2. cap. 5. to prove that Maritime Contracts , made at land concerning Maritime affairs , are not tryable in the Admiralty Court , answered . p. 188. Chap. 3. That by the ancient Statutes of the Admiralty , and by the Laws of Oleron , it appeareth that Contracts made at land of and concerning Maritime affairs , were cognizable and tryable in the Admiralty , both before , and even in the time of Edward the Third , whereunto the last mentioned Statute maketh reference . p. 193. Chap. 4. That by the ancient Inquisition taken at Quinborough in Edward the Third's time , it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court . p. 202. Chap. 5. The Argument deduced out of the Statute of the 15th of R. 2. cap. 3. to prove the Contracts made at land concerning Maritime affairs , are not cognoscible in the Admiralty Court , answered . p. 204. Chap. 6. The Argument deduced out of the Statute of the second of Henry the Fourth , cap. 11. to prove the Contracts made at land concerning Maritime affairs , are not cognoscible in the Admiralty , redargued . p. 216. Chap. 7. That the Admiral by these Statutes , was not barred the cognizance of Maritime Contracts , though made at land , made appear by the practice of those times , proved out of ancient Records remaining in the Tower of London . p. 220. Chap. 8. That by other Records out of the Chancery , Contracts made at land concerning Maritime Affairs are cognoscible in the Admiralty Court . p. 229. Chap. 9. That by Consultations granted from the Courts of Common Law at Westminster , after Prohibitions formerly from thence obtained , Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea , beyond the Seas , or upon the Ports and Havens , or of or concerning the same , are acknowledged to be cognizable in the Admiralty , and have been thereunto by the same remitted . p. 234. Chap. 10. That divers and several of the Laws under the Titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes ; and other Laws selected out of several other Titles , as subsidiary unto them , do set forth most exactly the determination of Controversies , which may and do daily arise from Contracts made at Land concerning matters to be done at Sea . p. 256.

ERRATA .

PAg. 7. lin. 10. pro Jesemuch lege Gernemouth . pag. ead. pro Norfolcae & Suffolcae lege Norfolciae & Suffolciae . p. 12. l. 2 , 5. & 7. pro Prince lege Province . p. 16. l. 3. pro the others lege others . p. 18. l. 40. pro find lege I find . p. ead. l. ult. pro ame●amuntis lege amertiamens . p. 19. l. 25. pro praecepti lege percepti . l. 29. pro percellas lege parcellas . l. 32. pro hinc lege huic , & l. 41. pro quandam lege quondam . p. 20. l. 37. pro our own lege their own . p. 33. l. 11. pro Covent lege Covenant . p. ead. l. penult. pro all wares lege ill wares . p. 37. l. 26. pro Admiral lege Admiralty . p. 38. l. 9. pro de tour lege de lour . p. 40. l. 5. pro did lege dit . l. 7. pro ia lege la p. 43. l. 32. pro in self lege . in it self . p. 46. l. 13. pro Admiral lege Admirals . p. 49. l. pro fidelum lege fidelem . p. 53. l. 19. pro saith lege he saith . p. 54. l. 2. pro Marrii lege Martii . p. ead. l. 13. dele & . p. 72. l. 32. pro concluded lege concludent . p. 93. l. 34. pro nostr. lege nobis . p. 94. l. 7. pro absquo compoto lege absque computo , & pro alique lege alique ▪ p. 104. l. 21. Pro resided lege reside . p. 114. l. 25. Pone verbum not . p. 126. l. 37. pro hoc lege hoc . p. 159. l. 18. pro Thamases lege Thamasis . p. ead. l. 36. Pro Courts lege Court . p. 168. l. 12. pro implitaverit lege implacitaverit . p. 194. l. 34. pro marinarum lege marinariorum . p. 231. l. 30. pro fething lege fetching . p. 232. l. 22. pro contractus lege contractis . p. 238. l. 6. pro Bodsworth lege Dodsworth p. 240. l. 38. pro implitasset lege implacitasset . p. 241. l. 4. pro accipiendum lege accipienda . p. 250. l. 9. pro secla lege secta . p. ead. l. 11. Pro coram vobis lege coram nobis ▪ p. ead . l. 17. pro panuclaneo lege pannulaneo . p. 259 l. 19. pro elegantur lege eleganter . p. ead. l. ead. pro conditionibus lege condictionibus . p. ead. l. 32. pro sect. pone § .

The Introduction .

ALthough the soil of this Kingdome of England , wherein we are so happily and in so plentifull a manner planted and settled , be so blessed with all sorts of Fruits , that it hath been accounted and esteemed as the very seat of the Goddess of Fruit : Quod solum ejus ab omni frugum genere ita beatum ut Cereris sedem fuisse , dixerit Orpheus : And been as it were the Barn and Storehouse of victuall and provision for the Western Empire ; Occidentalis Imperii quasi horreum & cella penuaria fuerit ; and doth abound with an innumerable multitude of tame and profitable Cattle , flowing with milk , and full freighted ; and laden with Wools , that it seemeth not to need the help of any other Countreys or Colonies , nor any of their Commodities : Yet let us withall consider how requisite and necessary the mutuall correspondency , Commerce and Trade hath been , and is , for the exchange of such Goods and Commodities as this aboundeth withall in so plentifull a manner , and may well spare , and others want , for those which those others abound withall in as plentifull a manner , and may spare and this wanteth ; and what plenty , store , and encrease hath arisen , and doth arise and arise and accrew to all , and how much they have been and are enriched thereby .

And it is not unknown what succour and relief this Nation , though so plentifull , hath oftentimes had and received from Foreign Nations , by the importing even of such Commodities as this Nation hath at other times abounded withall , and doth generally in a most plentifull manner abound : and the like succour no doubt other Nations have received from hence , and one from another . Hence it is that Pliny saith 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , mercium commutatio victus causa inventa fuit ; this Commerce and Trade of exchanging Commodities for Commodities was invented for mans livelihood : diversas igitur gentes commercio ita miscuit ut quod genitum esset usquam , id apud omnes gentes natum esse videretur : Commerce therefore hath so mingled divers Nations one with another , that whatsoever is begotten anywhere should seem to be brought forth everywhere .

And it is most of all to be considered , if this Correspondency , Commerce , and Trade , should not be upheld , maintained , and continued , how the Shipping , Navage , and Navigation of this Kingdome ( the wooden walls thereof ) should be sustained , since the benefit and profit raised and gained by such Commerce and Trade , is the only incitement and encouragement to Merchants and Owners of Ships to build them , and unto all Masters of Ships , Pilots , and other Mariners to sail , serve , and be employed in them , and to others to addict themselves to that course of life , to be trained and brought up therein , for the obtaining of skill , knowledge and perfection in Navigation .

And we may wel be assured , that if this benefit should cease , few or no Ships at all would be built by private men in the time of peace , and but few by the publique for the service of warre in the time of warre ; and those built in the time of peace would lie by the walls and rot , their Tackle and furniture be decayed and wasted , their Captains , Commanders and Mariners unaccustomed to the seas and navigation , or else unskilfull and unexperienced in sea affairs , by which means this Nation would lye open to the violence of other Nations who envy its prosperity .

If then the loss or discontinuance of the Trade , Traffique and Commerce of this Kingdome with other Kingdomes , Nations and Commonwealths , may prove so dangerous , how necessary will it be to keep and preserve the Laws of Nations Civil and Maritime , the very Laws of Traffique , Commerce and Trade , whereby the same ( withall requisites thereunto appertaining ) are upheld and maintained compleat and perfect , which is a point I must leave to be considered by my loving friends the Merchants of England , Owners of Ships and Vessels , and Sea-trading men that will spare but so much time as to read over this small Treatise !

THE MARITIME DICAEOLOGIE , OR SEA-JURISDICTION .

CHAP. I. The Antiquity of the Admiralty in England set forth so farre as to prove the same to have been settled and continued in and before Edward the Third's time , to whose time the Statute the 13 of Ric. 2. referreth , argued from the antiquity of the High-Officers that exercised that Jurisdiction in those times , and from their Grants and Patents .

FOR the antiquity of the Admiralty some have been of opinion , that it had its rise , and received its first beginning but in Edward the Third's time ; but from whence this opinion should arise , or what should beget the same , I know not , unless its exceeding flourishing at that time set a greater mark upon it , then all its proceedings and employments for a long time before had done .

Some have derived its original from Edward the Third , upon this ground , that he in the 49th year of his Reign , caused an Inquisition to be taken at Quinborough , by persons which he caused to be called from severall maritime Parts of this Land thither , to consider of , and agree upon such articles , as should be necessary and fit for the Enquiry , and making presentment of all such crimes and offences as should be committed upon the Seas , or upon any Port , Harbour , Haven , or Creek of the Sea , conceiving that thereupon the Admiralty Court was then set up , and not before .

To take away this last conceipt in the first place , and remove this opinion , I shall from that 49th year of Edward the Third , look backwards unto what was done in all his time , and then by degrees derive its originall farre further upwards , by so many Admirals Patents , and Records of the Tower ( which I have seen and perused ) as shall only serve to set forth , and prove the continued settlement of that Jurisdiction all his time , and from many years before without endeavouring a perfect Catalogue of all such Admirals upwards , as I find amongst those Records mentioned , and set forth , it making little to my intent , or purpose , more then to enlarge that which I study to be brief in .

But he that will be curious therein , Spelm. gloss . v●●bo Admiral . p. 16. may find as well those that were both in and before Edward the Third's time briefly set down in Sir Henry Spelmans Glossarie under the title Admiral , pag. 16. as those that have been from the said Edward the Third's time unto the 16th year of King James , from which time the rest that have been since constituted , are easily collected . Those then which serve to my purpose are these .

I finde that before the 49th of Edward the Third , Rot. ann. 45 ●d . 3. 1. part . pat. m. 1. a Patent of that Office of Admiral was granted to Guy de Bryenne ad partes Occ●●●entales , anno 45 Ed. 3.

And another to John Nevill ad partes Boreales , R●● . ann. 44 Ed. 3. pa●te paten . anno 44 Ed. 3.

And another to John Nevill and Guy de Bryenne then Knights the same year , Rot. ann. eodem & eadem parte paten . both joyned together in one Patent .

And another to Robert de Ashton ad partes Occidentales anno 43. Ed. 3. Rot. ann. 43 Ed. 3. 1. part . paten . m. 15.

And another to Nich. T●mworth ad partes Boreales anno eodem .

And another to Ralph Spignevell for the keeping the Town of Dover , Rot. an . 38. Ed. 3. 1. part . pat. 10. m. 3. 4. the Cinque-Ports , and the Admiralty , ad partes Australes , Boreales , et Occidentales anno 38 Ed. 3.

Next I shall here set forth a Patent at large , Rot. ann. 35 Ed. 3. 1 part . pat. m. 32. granted to Robert de Herle anno 35 Ed. 3. by which Patent it will plainly appear , that the Office of the Admiral was then accounted an ancient Office , and had an ancient , different , and distinct Jurisdiction from the Municipall Lawes of the Land . The Patent in the Tower Roll is thus set forth :

Rex universis et singulis Vicecomitibus , Majoribus , Balivis , Ministris , Dominis , Magistratis , et Marinariis navium , ac aliis fidelibus suis , tam infra libertates , qua extra , ad quos , &c. Salutem . Sciatis quod nos de circumspectione et fidelitate dilecti et fidelis nostri Roberti de Herle plenius confidentes , constituimus ipsum Admirallum nostrum omnium flotarum , navium Australium , Borealium , & Occidentalium , quamdiu nobis placuerit , Dantes ei plenam tenore praesentium potestatem , audiendi querelas omnium et singulorum de hiis quae officium Admiralli tangunt , & cognoscendi in causis maritimis , & justitiam fa●iendi , et excessus corrigendi , et Delinquentes juxta eorum demerita castigandi , puniendi , incarcerandi , et incarceratos qui deliberandi fuerint , deliberandi , et omnia alia quae ad officium Admiralli pertinent faciendi , et ad alios , quos ad hoc idoneos noverit , quoties idem Robertus vacare non poterit , ad omnia praemissa , et singula faciendum loco suo substituendum et deputandum prout ei melius videbitur expedire ; et ideo vobis mandamus , quod eidem Roberto , et ejus deputato , in praemissis omnibus & singulis faciendis , et exequendis , intendentes sitis , et respondentes , quotiens , et prout idem Robertus , vel ejus deputati vobis vel alicui vestrum fecerint , vel fecerit ex parte nostra ; in cujus , &c.

T. R. apud Westmonasterium . per ipsum Regem 26 die Jan.

Now amongst those that have been of opinion that the Jurisdiction of the Admiralty had its beginning in Edward the Third's time , Lambard Archeion tit . Admiral pag. 42. I find Mr. Lambert to be one , who in his Archeion saith , that he thinketh that the decision of maritime causes was not put out of the Kings House , and committed over unto the Admiral , untill the time of Edward the Third ; and his reason is , for that ( as he saith ) he never heard mention of it before the second year of Richard the Second , who in his 13th year made a Statute to restrain the Admiralty from medling any further then it used to do in the time of his Grandfather Edward the Third ; where he heard mention of it in the second year of Richard the second , he mentioneth not .

But he must give me leave , ( who by this Record last mentioned , and by divers others have found mention made of it before such time as he heard mention of it , and for divers other reasons ) to believe this Court to be farre more ancient then he thought it to be .

For if this Record be well observed , it will plainly appear that the Office of the Admiralty was an ancient Office at the time of the Grant , which may easily be gathered out of these words : Dantes ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium Admiralli tangunt , &c. and likewise out of these , et omnia alia quae ad officium Admiralli pertinent , &c. from whence it appeareth that there was then a known Office of the Admiral , not then lately instituted and ordained . And it will more plainly appeare , if we look further back to the Grants and Patents made unto others throughout this Kings Reign , and other Kings Reigns before him , which being deduced out of the Tower Records , will shew this Office and Place to be of a farre greater antiquity : I shall therefore steer my course by degrees backwards towards the confines of the antiquity of this Jurisdiction , although hopeless to arrive there ; yet I shall go as farre by the antient Records as will serve for my purpose . Rot. an. 34 Ed. 3.

Next before this Robertus de Herle , John de Bello-Campo frater Tho. de Bello-Campo , Com. Warwicensis , Eques primae fundationis ordinis periscelidis constitutus fuit Admirallus ad partes tam Boreales quam Occidentales Angliae , 10. Julii anno 34 Ed. 3. qui fuit eodem tempore Dom. Gardianus quinque Portuum , constabularius Turris Lond. et Castri Dover , Rot. nn . 29 Ed. 3. et obiit in possessione dictorum munerum 2. Decembris eodem anno .

Robertus Morley , Baro de Hengham constitutus fuit Admirallus ad partes Boreales 5 Martii , anno 29 Ed. 3. & Johan . de Bello-Campo fuit eodem tempore Admirallus ad partes Occidentales qui eandem dignitatem obtinuit anno 24 Ed. 3. Rot. an . ●5 Ed. 3.

Wiliel . de Bohun Comes Northampt. constitutus fuit Admirallus ad partes Boreales 8. Martii anno 25 Ed. 3. & eodem tempore Hen. Du●● Lancast . constitutus fuit Admirallus ad partes Occidentales , & proximo sequente anno in ejus loco Tho. de Bello-Campo Comes Warwicensis .

Robertus de Ufford Comes Suffolciae , Rot. an. 20 Ed. 3. quum constitutus fuisset Admirallus ad partes Boreales 8. Maii , anno 18 Ed. 3. continuatus fuit Admirallus 23. Feb. anno 20 Ed. 3. & Rich. fil . Alani Comes Arund . qui constitutus fuisset Admirallus ad partes Occidentales 23. Feb. anno 19 Ed. 3. continuatus fuit Admirallus 23. Feb. anno 28 Ed. 3.

Robertus Morley Baro de Hengham fuit Admirallus ad partes Boreales in anno 13 Ed. 3. & in anno 16 ejusdem Regis per literas patentes constitutus Capitaneus , Rot. an. 16 Ed. 3. 1. part . paten . mem. 26. & Admirallus singulorum portuam , & locorum per costram maris versus partes Boreales quamdiu &c. T. R. apud Eltham 3. Aprilis .

Et Johannes de monte Gomeri eodem tempore constitutus fuit Capitaneus , & Admirallus , &c. tam quinque portuum , quam aliorum portuum , & locorum per costram maris versus partes Occidentales quamdiu , &c. T. R. apud Eltham 3. Aprilis .

Walterus de Manney in anno 11. Ed. 3. fuit Admirallus ad partes Boreales , Rot. an. 11 Ed. 3. 3. part . paten . ●●m. 3. ut constat , quod eodem anno idem Walter . Manney tam nuper constitutus Capitantus & Admirallus , &c. Hugonem Venables , & Michaelem Chylde conjunctim & divisim loco suo deputavit &c. et Rex ibi confirmavit T. R. apud Weston . 5 Sept.

Et eodem anno Barthol . de Burghersh fuit Capitaneus & Admirallus ad partes Occidentales .

Johannes Normico constitutus fuit Capitaneus et Admirallus omnium portuum et locorum &c. versus partes Boreales 2. Jan. anno 8 Ed. 3. Et Rogerus de Hengham constitutus fuit Capitaneus et Admirallus , Rot. an. 8 Ed. 3. 2. part . pat. m. 5. &c. tam quinque portuum , quam aliorum portuum et locorum , &c.

And in the first year of the same Kings Reign , Rot. an . 1. Ed. 3. 2. part . pat●n . m. 23. Johannes Parbroun constitutus fuit Capitaneus et Admirallus , &c. versus partes Boreales , per ipsum Regem et Consilium 21 Aprilis .

Et Wares de Valoniis versus partes Occidentales eodem die .

And these are those Admirals , but not those only ( as will hereafter appear ) to whose office and power the Patent of Robert de Herle of the 35 of Edward the Third relateth in the Dantes ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium Admiralli tangunt , et cognoscendi in causis maritimis , et justitiam faciendi , &c. et omnia alia quae ad officium Admiralli pertinent faciendi , etc. prout in dictis literis .

These had their Patents from the same King , Rot. ann. 7 Ed. 3. 2. part . paten . memb. 5. as appeareth by their Patents themselves in the Tower Rolls : Rex omnibus ad quos , &c. salutem : Sciatis quod nos de fidelitate probatâ , et circumspectione providâ dilecti et fidelis nostri Rogeri de Hengham plenariè confidentes , constituimus ipsum Rogerum Capitaneum et Admirallum , &c.

And so had the last mentioned , Rot. ann. 1 Ed. 3. 2 part . paten . memb. 23. constituted in the first year of his Reign : Rex omnibus ad quos , &c. salutem . Sciatis quod nos de circumspectione et fidelitate dilecti nobis Johannis Parbroun confidentes constituimus ipsum Capitaneum et Admirallum , &c. T. R. apud Rocksborough 2 die Jan.

And by the same Patents they have potestatem castigandi , puniendi , &c. prout justum fuerit , et hactenus consuevit , &c. in cujus , &c. T. R. apud Stanford 21 Aprilis , et mandatum est omnibus et singulis , &c.

Now to remove the first opinion , it is plain hereby that this Office of the Admiral had not its beginning in Edward the Third's time , the Patents themselves , all of them , as well these of the first year , as the other , determining the power thereby granted with prout justum fuerit , et hactenus fieri consuevit : so that it plainly appeareth by the words hactenus consuevit , that this had been a settled Office before the granting of his very Patent in the first year of Edward the Third : nor was this , and those of his time the first Patents that determined the Admirals power , with a Prout justum fuerit , et hactenus fieri consuevit .

For in the 20th year of Edward the Second I find Robertus Leybourne constitutus fuit Admirallus versus partes Boreales : Rot. an. 20 Ed. 2. paten . m. 15. Et Nicholaus Kyrel versus partes Occidentales anno 19 Ed. 2. Rot. an. 19 Ed. 2. 1. part . pat. mem. 12. both which Patents conclude with the same words ; prout justum fuerit , et hactenus fieri consuevit .

In the 15th year of the same Kings Reign Robertus Leybourn censtitutus fuit Admirallus navium Regis super mari Occidentali , Rot. claus. 15 Ed. 2. Pat. 15. Ed 2. et Robertus Battalius , ( alias Batallus ) de singulis portibus versus Austrum .

Then do I find some styled Admirals , and others styled and constituted by other titles .

As John Athy stiled by the title of Capitaneus Navigii , Rot. an. 10 Ed. 2. 1 part . pat. m 22. in the 10th year of Edward the Second .

Et Nich. Kirel constitutus fuit Admirallus , &c. versus partes Occidentales .

And in the 35th year of Edward the First , Rot. an. 35 Ed. 1 pat. mem. 38. viz. Symo de Monte acuto assignatus fuit Capitaneus et Gubernator Flotae , Navium , &c.

And in the year next preceding viz. Rot. an. 34 Ed. 1. pat. mem. 21. in the four and thirtieth year of Edward the First , Gervasius Alard constitutus fuit Capitaneus et Admirallus Flotae , Navium , quinque Portuum , et aliorum Portuum , à portu Dover per Costram maris versus partes Occidentales , usque in Cornubiam , atque totius Comitatus Cornubiae .

And Edwardus Charles versus partes Boreales usque ad villam de Berwick super Tweed , et ejusdem villae .

Johannes Botetort constitutus fuit Custos regis portuum maritimorum versus partes Boreales . Rot an. 25 Ed. 1. 1. part . pat. m 9.

Willielmus Leybourne constitutus Capitaneus marinariorum , Rot. an. 25 Ed. 1. claus. endors . m. 18. &c. Idem constitutus fuit Admirallus Angliae .

Now though Mr. Lambard did think the decision of Maritime causes was not put out of the Kings House untill Edward the Third's time , Rot. pat. 23 Ed. 1. 2 pa●t . pat. Lamb. Archeion . tit. Admiral . pag. 42. because ( as he saith ) he found no mention of an Admiral before Richard the Second's time ; yet doth it plainly appear by the beforementioned Patents , that there were several Admirals , even up unto the three and twentieth year of Edward the First . Though some of them went without that title , yet had they the same office , and the same power , which together with the prout hactenus consuevit , wherewith the before mentioned Admirals Patents are terminated and concluded , hath guided me further backwards , and led me to many others of more ancient times , that have exercised that Office under divers other titles , which bear the same signification , though not the same appellation ; nor do these former titles ( in my judgement ) seem to carry any less power and authority under them , then doth the title of Admiral , or Capitaneus et Admirallus ; but seem rather to have conveyed unto the Admirals so styled , which have succeeded in that Office , such power and authority as they have since exercised and used .

And here I shall set forth the parties that formerly bore this Office , and by what names and titles they bore the same , before the title of Admiral was added thereunto .

In the two and twentieth year of the said King Edward the First his Reign , Rot. ●●scoyn . an. 22 Ed. 1. m 8. Willielmus Leybourne constitutus fuit Capitaneus nautarum et marinellorum , quinque portuum et membrorum eorundem . Et similiter Jesemuch Bayon Hiberniae , Walliae , et omnium aliorum portuum et locorum , in quibus naves et Battalli applicant infra regnum et potestatem Regis , etc. attested by the King at Westminster the seventh of June .

In the 48th yeer of Henry the Third Tho. de Moleton constitutus fuit Custos maris , Rot. ann. 48 H. 3. 1 part . pat. m 3. portuum maritimorum et maritimarum partium : And in the same Patent , the Barons and Bayliffs of the Cinque-Ports , and all others of or belonging unto the Maritime parts , are commanded to be attending , aiding and assisting unto the said Tho. tanquam Custodi maris , et maritimarum partium ; attested by the King at Canterbury .

In the 19th year of the same Kings reign Hammon de Crevequor , et Wollerandus Tutonick habuerunt custodiam quinque Rot. an. 19 H. 3. pat. m. 14. portuum , cum costrâ maris à portu de Hastings usque ad portum de la-Pool , etc. And their Patent is attested by the King at Canterbury the 10th of February .

In the 9th year of his reign Richardus Augillan constituts fuit Custos marinae reg. Rot. an 9 H. 3. 2 part . pat. m 9. Norfolcae , Suffolcae , cum omnibus pertinentiis suis : sc. Erewell , Oreford , Dunwitch , Gernemouth , and Lynne . And the King in their Patents doth command all men belonging unto these Coasts to be attendant and obedient unto them in all things thereunto belonging . The Patent runneth in these generall words : Rex omnibus de costra maris Norfolcae , et Suffolcae , salutem : Sciatis quòd concessimus Richardo Aguillan marinam nostram Norffolcae et Suffolae cum omnibus pertinentiis suis : sc. Erewell , Oreford , Dunwitch , Gernmouth , et Linn , Custodiend . quamdiu nobis placuerit ; et ideo vobis mandamus quòd ei in omnibus , quae ad dictam marinam pertinent , intendentes sitis et respondentes . T. R. apud Westmonast. 3 die Octobris .

In the same year commisit Johanni filio Roberti & Ohoeli de Insulâ , Rot. an . eod. H 3. claus. pat. m. 15. partes & marinam Com. Northumbriae custodiend . quamdiu Domino Regi placuerit ; & mandatum est Vicecomiti Northumbriae , quòd proclamari faciat pro totam Ballivam suam , quòd omnes eis in omnibus quae ad praedictas partes & marinam pertinent , intendentes sint , & respondentes . T. R. 26. Aprilis .

In his eighth year commisit Johanni de Baosis marinam suam de Cornub. Rot. an. 8 H. 3. 3. part . paten . m. 3. & Devon . custodiend . quamdiù ei placuerit . Et mandatum est omnibus per costram maris , Cornub. & Devon . quòd ei in omnibus quae ad marinam illam pertinent intendentes sint , & respondentes . T. R. apud Lond. 7. die Septembris .

Eodem modo scribitur omnibus de costra Dorcest. Rot. an . eod. & eod. loco . pro Radulpho de Germam , qui illarum partium marinam habuit .

Richardus de Lucy dicitur habuisse marinam Angliae 29 Augusti . 2 part . pat. & m. eod. anno .

So that it appeareth that those that bore this Office of the Admirall , before that title was used , were sometimes called Capitanei Navigii , in respect of the great power they had over all manner of Shipping : for 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , navigium , with the French , Toute sorte de navire ; with the Italian , navilo , vassello ; with the German , ein jede gattung eines schiffs ; with the Spaniard , nave del navio , is omne genus navium quo navigamus , what sort of Ship soever wherewith we sail . Navigium est genus continens naves , rates , & caeteras species quibus ad navigationem utimur , saith Spieg. And thus shall we find the word used wheresoever we read it : Jamque qui aedificare velint Fabros & Architectos advocent ; Qui navigia mari concreders , gubernandi peritos qui bella moliri , armorum & militiae gnaros ; & , ne singula prosequar , ei studio quòd quis agere velit , Cic. de Nat. Deor . lib. 2. F. de verb. oblig . l. qui Romae . § 1. consultissmum rectorem adhibeat ; Cicer. de Nat Deorum . So general is the word for all manner of Shipping , that it is in that regard used for Navigation it self : Sumitur tam pro navigatione ipsa , quàm navi quacunque , saith Oldendorp . And so it is used sometimes in the Civil Law : Aliis mercibus emptis & in navem missis , ipse in Syriam per navigium proficiscatur .

Sometimes they were called Capitanei & Gubernatores Flotarum , Navium , in regard of their employment , in ordering and ruling of the Kings Fleet , employed either against an Enemy actively , or for the defence of the Kingdome whensoever disturbed by an Enemy ; and for his power in gathering together of whatsoever Ships he thought fitting for raising of Navies , or supply of the defects of those formerly raised , and the like .

Sometimes they were called Custodes Maritimarum partium , for that it was his office and duty to see all the maritime parts and borders of the Sea sufficiently provided of all things needfull and necessary for the defence of the Nation against a forrain Enemy ; and so likewise furnished with all manner of necessary provisions , for the entertainment of our own Ships , and Mariners , and reliefe of the Kings Friends which should touch there in distress , that his Subjects might receive the like upon the like occasion .

Sometime Capitanei Nautarum & marinellorum , for the power that they had over all the sea-faring men , in ordering them , and deciding differences which should fall out amongst them , or between them and others with whom they dealt , or had to do : And as a Captain and Commander ought not to suffer them to wrong any , nor to be wronged by any .

Sometimes Custodes maris & maritimarum partium , in regard they were to see to the furnishing of the Kings Ships at Sea , with Men , Victuall , Tackle , Furniture and Ammunition ; sometimes adding to the strength of the Navy , by furnishing out more Ships from the Ports to the Sea , ready provided with necessaries , such as they found fitting for that service ; and sometimes withdrawing , or ( if present in the Navy ) discharging others as occasion required . And as well to see to the ordering business upon the sea , as upon the Coasts and Borders of the sea .

Sometimes they were styled Custodes marinae Regis , in respect they had the keeping , ordering , ruling and disposing of all Maritime business , and Sea affairs , which belonged unto the King himself , and concerned his Kingdomes generall good , or his Subjects particular benefit , and quiet , either amongst themselves , or with Forreigners .

Which Title , as it was the first , I find born by the chief Officers for the ruling and ordering all Maritime affairs , within such limits as were assigned them by the King : so I conceive it comprehends as much power as the title of Admiral ; and either of these as much as any of the rest , and indeed as much as all the rest : And yet I conceive too , that any one of the rest intentionally , and as it was used , comprehended as much as either of these : But I shall not here dispute what the power , authority , or jurisdiction of any of these Officers was ( which doubtless was the same ) but shall deferre that to another head more proper for the debate .

I have here , so farre as my line would reach , and my small skill in records direct and guide me , followed the antiquity of these highest Sea-officers , wherein , without doubt , I have in my way mist many things that might have been pertinent to that I aime at : Yet have I ( as I conceive ) by records discovered a continued imployment of such Officers , without any intermission , or cessation at all of that Office , even from the latter end of King Edward the Thirds time , up to the eighth year of King Henry the Third : and so I have hitherto argued the antiquity of the Jurisdiction , from the antiquity of the Officer . What this Jurisdiction anciently was , will hereafter be disputed ; in which dispute the antiquity of the Admiralty will be further discovered .

CHAP. II. That these high Officers and Admirals , or Keepers of the Seas , Sea-coasts and Ports , had like power and authority in them , and over them , as the Keepers and Governors of Land-Provinces had over them ; and had their Maritime Lawes for guidance of their Jurisdiction , both Civil and Criminal , as well as the other had their Land Laws for the guidance of theirs .

THe next thing I observe , is that the preceding Officers , which this [ prout hactenus ] led me unto , are most of them rendred unto us under the titles of Custodes : As Custos maritimarum partium ; De dominio maris , lib. 2. c. 14. ubi citat . rot. pat. 6. Johan . Reg. m. 8. & pat. 8. Hen. 3. part. 1. m. 3. & 4. claus. 9. Hen. 3. m. 15. pat. 9 Hen. 3. part. 2. m. 9. Custos maris & maritimarum partium ; Custos Portuum cum costrâ maris ; Custos marinae , Custos portuum & marinae : most of which Officers so styled , which I had formerly met with amongst the Records of the Tower , I met with again in Mr. Seldens book de Dominio maris , quoted out of the same Records ; who from thence , and some other good and sound reasons there exprest , inferreth Quod apertè constat Reges Angliae praefectos constituere solitos , qui mare Anglicanam custodirent , seu ejus custodes essent , sive praefecti , non aliter ac Provinciae cujuscunque terrestris . They were to be keepers of the Seas in such wise , as others were of every Land Province . Primò autem ( saith he ) mari , maritimae , & marinae ( idque ubi his vocibus , non regio solùm maritima , sed ipse etiam Oceanus Britannicus planè continetur ( quod non semper fieri fatemur ) praeficiebantur qui tuerentur & custodirent nomine custodum ( ut interdum ) navium , frequentius verò maritimae sensu jam dicto . Eodem cap. ubi citat . Rot. Parl. anno 14 Ed. 3. art. 2. To which he addeth another further reason , and saith , that primaria Commitiorum Parliaementariorum ratio anno Regis Edvardi tertii decimo quarto , est ; de treter sur la guard de la pees de la terre , de la marche d' escoce , & de la mier● ut tractaretur de custodiâ pacis terrae , & limitis Scotici , & maris : from whence he observeth , Quod non alia , tutelae maris quàm telluris seu terrestris provinciae , habebatur ratio .

And he gathereth further ex tabulis ejusdem regis Parliamentariis , seu consultationibus ordinum regni ( as he saith ) held upon the same matter , Eodem cap. ubi cit . Rot. Parl. 13 Ed. 3. part. 1. art. 6 9. & 11. a Rot Parl. 20 Ed. 3. art. 21. ut dum de la saufegard de la terre , seu custodia seu tutela telluris sive insulae , & de la saufegard de la mere , seu de custodiâ maris consilium pariter ineunt , tam hujus dominium , quam illius ad regem suum pertinere , à majoribus edocti manifestò testari videantur .

For ( saith he ) non de classe solùm agaunt , quâ hostibus per mare resisteretur , sed de ipso mari tuendo , aequè ac de tutelâ , insulae , adeoque de jure in utroque regis avito defendendo , where he maketh two distinct Dominions of the Land and Sea , and the ancient right of either of them , to be defended and kept ; and there sets forth divers who had the defending and keeping thereof in the second of Richard the Second , and in the time of the three Henries succeeding him , with many other things there worth noting and observing .

He observes further in the same Chapter the common and received acceptance of this terme Custos amongst the English in other Governments , Eod. cap. ubi cit . Rot. Cart. 2. Jo. R. in dors. & Rot. pat. 17 Jo. both of this Land , and other Islands , and even at that time when the name or terme of Custos maris was most frequently used ; and he instanceth in the Governours of Ireland in the time of King John and Edward the Third , who were then severally styled Custos Hiberniae .

He instanceth likewise in John Duke of Bedford , Eod. ca. ubi cit . Th. Walsingh . an 14. ro . &c. Rot. Parl. 8 H. 5. and Humphry Duke of Glocester , who had , one at one time , and another at another , the Government of England , when King Henry the Fifth was absent in France , who were called Custodes Angliae , quod ( saith he ) tum in historiis , tum in tabulis publicis saepissimè occurrit .

And likewise in e e Rot. pat. 8 Hen. 7. part 8. Arthur Prince of Wales , who was made Custos Angliae , when King Henry the Seventh was gone out of England .

And in Peter Gaveston , who was Custos Angliae , Edward the Second being busied in France . And also the in Governours of f f Ibid ex rot. pat. 3. Hen. 3. the Isles of Jersey and Gernsey , who of antient times were Custodes of those Islands , as they are now called Gubernatores , Custodes , and Capitanei .

And seeing it is so , how can it be ( saith he ) that we should not think that our Ancestors used under the same notion or terme of Custos & custodia , the Custodes Maris , and the Custodes Insulae , &c. Quod cum ita sit , quomodo fieri potest ut non eadem notione vocabuli Custodis & Custodiae majores nostros usos esse existimemus in Custodis & Custodiae maris nomine , quâ in Custodia Insulae , & caeteris jam dictis dignitatibus uti solebant ? sc. in hisce omnibus dominium imperiumque singulare praeficientis apertissimè ita signatur includiturque , adeo ut non magis authoritas in personam quae praeficitur , quam rei custodiendae dominium nomine hoc planè innuatur .

If then there were Custodes Maris , Marinae , Portuum , & Maritimarum partium , and that in such manner as of a Land Prince , non aliter ac provinciae cujuscunque terrestris ; Then will it necessarily follow that if a Prince , that ever was civilized by the dominion and rule of a Civil Governor or Governors ( for by such means and no other are all Nations , Princes , Islands , and the like become civilized and ordered ) could not so continue civilized and ordered without Rules and Laws for every mans demeanour to be guided by .

That the Seas having anciently been used for Maritime affairs , for free and peaceable Traffique , and Commerce , one Nation with another which be friends , at unity , and in concord ; and for Martial Fleets and Navies for the defence of every Kingdom against an Enemy : And so antiently under the dominion of Civil Princes ( as under their Dominion and Government of a Civil Land Province ) must necessarily have had settled and known Laws , suited and fitted for such their Dominion and Government , which could be no other then the Maritime Laws so agreeable unto Sea-affairs , and so commonly and antiently accepted , and agreed unto by most Nations and Kingdomes which have had such free Traffique and peaceable Commerce upon , and by them , one with another , to guide and direct these Custodes in the ministring of Justice in Sea-businesses , as well as the Governors of Land Provinces have had their Land Laws for the ministring Justice in Land-affairs . Hence Spelman in his Glossarie , having reckoned up all the Admirals from the eighth year of Henry the Third , unto the 16th year of King James , saith , Nos de munere caduco aut extraordinario non agimus , at de summo , stationarioque magistratu , qui universae marinae reipublicae praeest , suoque●oro & amplissima jurisdictione tam in causis civilibus judicandis , quam in classe Regiâ gubernandâ insignitur . Spelm. ead pag. scil. 16. And further saith that we had the name of this Magistracy , viz. Custos Maris , Marinae , & Maritimarum partium from the Romans , Cicer. Ep. ad Attic. lib. 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 , Di●n . de 〈◊〉 orbis . Pliny to the Carthaginians ; Plin. lib. 7. naturalis Historiae . Rhodiae leges distin●t . 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 ; Gell. lib. 7. cap. 3. 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 . Strabo Geograph . lib. 1. 2. cap. 14. 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 . F. ad leg . Rhod. in princ . Leges nauticas dicimus quas Rhodii condiderunt ; quorum disciplinam navalem & ut Strabo ait , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 admirabilem , omnes populi libenter , etiam Romanus sequebatur . F. ad leg . Rhod. l. 9. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 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 , Constat ex legibus ipsis Rhod●is & a●is ex corpore ju●u collecti● . 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 un●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 and inferred from the introduction of them into England .

AS these Sea-laws before mentioned had their beginning , and the government by them , sprang from the Island Rhodes upon the Mediterranean Sea ; so the other Sea-laws there are extant , which had their beginning from an Island upon the great Ocean , and it is called Oleron , scituate on the sea-coast of France against the mouth of Charant , and the Maraes , nigh St. Martins , and not farre from the entry of a a Wellwood in p●ohem . Garunana .

This Island likewise consisting altogether of skilfull and experienced men , as did the other , could no more subsist or proceed happily and prosperously in their maritime affairs then could the other , without such government as the other had .

And they being not altogether ignorant of the Rhodian Laws , nor yet very perfect in them , and other new differences and controversies arising and supervening , which they could not judge or determine by the Rhodian Laws , they observed certain other Rules and Customes together with those Laws , whereby they decided such differences , and determined such debates , as fell out and happened amongst them .

Which Rules and Customes King Richard the First , in his return from the Holy-Land ( having then the power and Government over that Island of Oleron ) caused to be interpreted , setled , and published for Laws there ; and having so setled them there , and afterwards coming into England ( if we shall still doubt of the acceptance and settlement of the Rhodian Laws here , at or before that time ) yet let us not make any question but that he brought those Laws of Oleron hither with him , and here setled and declared them for Laws , for the rule and government of his maritime Subjects , and doing justice amongst all people of what Nation soever , according to those Laws , as will plainly appear out of the Roll of the Articles , upon which the Kings Justices in Edward the Third's time were to advise : where it is said thus :

Item ad finem quòd resumatur & continuatur ad subditorum prosecutionem sorma procedendi quondam ordinata & inchoata per avum domini nostri Regis , & ejus Consilium ad retinendum & conservandum antiquam superioritatem maris Angliae , & nos offic. Admiralitatis in eodem quoad corrigendum , interpretandum , declarandum , & conservandum leges , & statuta per ejus antecessores Angliae Reges , dudum ordinata ad conservandum pacem & justitiam inter omnes gentes nationis cujuscunque per mare Angliae transeuntes , & cognoscendum super omnibus in contrarium attemptatis in eodem , & ad puniendum delinquentes , & damna passis satisfaciendum : Quae quidem leges & statuta per Dominum Richardum , quondam Regem Angliae , in reditu suo à terra sancta , correcta fuerunt , interpretata , & in Insula Oleron publicata , & nominata in Gallica lingua b b Rot. de artic. super quibu● Justi●iaris Domini Regis sunt consulendi an . 12. Ed. 3. la ley Oleron .

Hence as it appeares that King Richard interpreted , declared , and published these Laws called the Laws of Oleon , in that Island ; so doth it plainly appear that he ordained and established them here , by these words : Ad conservandum leges & statuta per ejus antecessores Angliae Reges dudum ordinata : per ejus , i.e. avi sui , prius nominati ; by his Predecessors ; and it doth plainly appear by that in the close , that Richard the First must necessarily be one of them . And hence likewise it doth appear , that with the settlement of these Laws , there was likewise a settlement of a form of proceeding according to those Laws : for saith this Record in prin. Ad finem quòd resumatur & continuetur ad subditorum prosecutionem forma procedendi quondam ordinata & inchoata per avum , &c. hoc est & inchoata resumi , &c. which must be the construction , as the words following make it plain , which are ad retinendum & conservandum : for reteining and conserving denote something to be reteined and preserved that was before . Now for the publishing and settling these Laws , and ordaining a form of proceedings in the prosecution of them in Richard the First 's time , I conceive I may safely conclude an Admiral and Admiralty Court to have been settled before , and continued at the same time , unto which he added some more exact proceedings , together with these Lawes of Oleron , as several Statutes are daily added , either in affirmance , or correction of the Common Law ; and my reason is because these Laws ) without the Rhodian Laws , and those other Laws made in supplement of them ) are in no wise a complete Law for the guidance and direction of an Admiralty Court . And it may further appear , that unto the settlement of these Laws , this King himself added Ordinances of the Admiralty : one of which I shall here set down , which he made at Grymsbie . The words follow . Item c c Lib. nigr● Admir . pag 28. soit en quis de nefs , qui sont arrestees pour le service du Roy , ou pour autrè Raisonabile cause per les officiers du Roy , ou de l' admiral , & debrisent l' arrest , & per les quelles avantdictes nefs sont amenez & retainer les mariners qui sont ordinez pour la service du Roy ; & si Retraient , & encas que homme soit endite qui la debruse l' arrest en sa nef arrestee pour le service du Roy , & de ce soit convicte , per xii . il perdra sa nef si'l negrace du Roy , ou du hault Admiral , & pour ce quila este plusseurs forz debatu en Angleterre pour les arrestees des nefs quāt le Roy amande sergeants , d' armes , ou autre ministris pour arrester nefs al ceps du Roy , & les Seignieurs des nefs sont venuz devant l' admiral & allegment que leurs nefs nestorent mye arrestees ordonne estoit ou temps du Roy Richard le primer , à Grymsbie per advys de pluseurs Seigneurs du Royalme que quāt nefs seront arrestees pour service du Roy que le Roy escripra par ses lettres patentes à l' admiral d' arrester les nefs plus ou moins a la voulente du Roy & solen ce quil a besomg , & l' admiral escrivera a ses lieutenants de faire de re l' execution & la cause estoit pour ce que l' admiral & ses lieutenants sont de record , & pais l' admiral escripra au Roy ou au chancelier d' Angleterre les noms des nefs amsi arrestees assemblement avec les noms de seigneurs & maistres dicelles , & en tel cas le seigneur de lâ nef ne le mastre ne viendront pas adire que la nef nestoit mye arrestee ne a ce ne seront oyz .

The same ordinance being set forth in another ancient French coppy of Articles , wherein divers other Ordinances were likewise set forth , was by one Roughton translated into Latin in these words , viz. Item d d Lib. nig . Adm. artic. 39. pag. 157. inquirendum de omnibus navibus quae ad serviendum Domino Regi super mari arrestatae fuerint , & postea Domini , possessores sive magistri dolo & fraude à servitio hujusmodi se subtraxerint in deceptionem Domini Regis paena qui si inde postea indictati fuerint , & convicti , super hoc naves suae Domino Regi foris factae per ordinationem Domini Regis Richardi primi ; & si Domini , possessores vel magistri hujusmodi inde coram Domino Rege & Cancellario suo per aliquas allegationes se aut naves hujusmodi excusare voluerint , si Admirallus vel locum-tenentes sui per literas suas patentes de arresto hujusmodi facto fidem fecerint pleniorem , domini possessores , aut magistri praedicti nullo modo audiri debeant , seu eis fidem quovis modo adhiberi , eo quòd Admirallus & locum-tenentes sui sunt de e e Obs. quod curia admiralitatis est curia cuius acta & inactita sunt de ●ecordo . recordo .

This observation may very well be gathered from these Records that Richard the first did ( doubtless ) settle some things in this Jurisdiction , and preserved it during his time : And I may observe further , that the same were continued in the time of King John , who likewise added Ordinances unto the said Laws , as may likewise appear by the antient Articles of Enquity adjoyned unto the antient Statutes of the Admiralty , in one of which find it thus exprest . Item f f Lib. nig . Admir . pag. 31. soit enquis de gardains de poris & bailliffs de aves qui levent coustumes de nouvel & prennent oultra genses coustumes & ameiamens pour quoy marchants & mariners se retraient du pais de venir avec leurs merchandises se aucun gardain de port ou baillif deave est indite quil a alleve novelle coustume pour son singulier prouffit , ou pour le prouffit de son Seigneur , & de ce est convicte , il aura l' emprisonnement de demy an , & le Seigneur fera fin au Roy ou a l' Admiral , & Combien que gentz d' Angleterre ont mestier de vendre de ses marchandises pour ses vitailles & pour ses necessares , & les gardains des ports vouldroient prendre la coustume de toutes les marchandises qui estoient dedens la ditte nef & dire que les marchants avoient de brise la bulk de la nef dont pluseurs marchants eschuent de vendre leurs marchandises a greugneur d' ommage du peuple sur quoy le Roy Johan feist assembler les admiraulx de North & West & pluseurs autres de son conseil , & ordonna que nul marchant paieroit coustume de merchandises qui nestoient mye vendues mais de ceulx qui estoient vendues comment quilz soient mis aterre & saucun baillif face encontre il aura l' emprisonnement d'un demy an , & soite oste de son office pour tous temp● & fera fin au Roy detant commeil a ainsi malement pris .

And by Rougbtons Latine Translation out of the other antient Articles of Enquiry I find it thus set forth , viz. Item g g Li. nigro Admir . Artic. 36. pa. 155. Inquir . de portuum custodibus sive aquae ballivis , qui clamant sive incipiunt de novo novas custumas pro commodo suo proprio sive dominorum suorum , unde naves , & mercatores , portus & loca hujusmodi , una cum mercandesis relinquunt damno & jacturâ utilitatis Reipublicae . Poena qui vero Custodes sive Ballivi si indictati fuerint super hoc & convicti , imprisonamentum dimidii anni habebunt : finem nihilominus Domino Regi facturi ad valentiam in hoc casu praecepti , ei qui hujusmodi si usui suo proprio convertatur praeceptis . Sin autem ad usum dominorum suorum pervenerit imprisonamentum dimidii anni , ut praefertur subibunt , & Domini sui de fine veri valoris in hâc parte Domino Regi propter hoc respondebunt ; & nota quod liceat mercatoribus necessitate urgente , vendere percellas mercandizarum pro expensis suis , si contingat absque aliquâ custumâ ab eis petendâ vel exigendâ per ordinationem Johannis quondam Regis Angliae apud Hastings . Et si aliqui Custodes vel Ballivi contrar . hinc ordinationi fecerint , imprisonamentum dimidii anni habebunt , & perpetuò ab officio eorum hujusmodi sint suspendendi . But in King Henry the Third's time it had received so much interruption , that the vigour and force thereof was well nigh lost , insomuch that Edward the first was constrained , inchoatā formam procedendi quandam & ordinatam resumere , who likewise added certain Ordinances unto the said Laws , as you may read hereafter , which tend very much to the preservation of that Jurisdiction ; which work being not fully perfected , soon began to decay in Edward the Second's time ( whereby it may seem that that Jurisdiction never wanted Enemies ) which withdrew its strength , and abated its power , untill the necessity thereof appearing in the decay of Navigation , and thereby of Trading and Commerce ; and of want of strength in Shipping for the defence of this Kingdome against forrain Forces and Enemies , still revived it , and restored unto it what had been withdrawn from it , which was the cause ( without doubt ) that caused Edward the Third to proceed in that good work , which his great Grandfather had begun : Ad interpretandum , declarandum , & conservandum leges & statuta per avi sui antecessores Angliae Reges dudum ordinata , &c. as the aforementioned Record sets forth ; after which , in his time , it so revived and flourished , that it might very well seem a new birth , from whence some have conceived it to be the first birth , and to have its beginning there , but upon no other ground at all .

I have hitherto only endeavoured the proof the Antiquity of this Jurisdiction , which will more seasonably follow when I shall inforce the necessary use of the forementioned Laws , those which sprang from the Rhodes , suppleated out of several other titles in the body of the Civil Law ; and those which have been derived from the antient Statutes of the Admiralty , the Laws of Oleron , &c.

Which of these Laws were first introduced into this Kingdome I shall not dispute ; this I shall only say , that they altogether make an exact and complete rule for the government of all seafaring or sea-trading men , and matters , and have been here antiently and frequently used , and elsewhere , throughout most parts of Europe .

Divers others have been said ( since the making of the Rhodian Laws ) to have made new Sea Laws ; as the Rulers of Rome in 1075th year ; and since that Marseilles , Genoa , Peloponnesus , Venice , Constantinople , Constantine , and Barcellona in several years : But the Roman Empire having ( not long before that time ) been as it were rent and torne in pieces , their Laws for the Land , and Land-affairs laid aside , and their Laws for the government of the Seas quite subverted , and well nigh lost , some of these Nations were constrained to recollect and gather together such parts and parcels as could be well made up into one body again , with some small cement of our own , and might better be called a reparation of their old Laws , then a structure or edifice of new . For the rest , some say they are additional , some say explanatory to remove false constructions and interpretations , and some say both : but certainly for the most part they are but explanatory ; for the other Laws before mentioned , are accounted most authentick , and of chiefest authority throughout all , or the greatest part of Europe . But be these additional , yet the addition of Sea-laws to Sea-laws is no diminution of Sea-Jurisdiction , but rather a compleating and perfecting thereof : but the composure of new land-Laws , or if it be but the reformation of old , if those Laws look but toward the Sea , they oftentimes cause the discomposure of Sea-laws , and unless well lookt unto , the very destruction of that Jurisdiction : but of that more will appear by what shall be said hereafter .

And now before I proceed to any other argument for the proof of the antiquity of this Jurisdiction , I shall give you one reason only , which induceth me to believe , that the same was settled long before the time before mentioned , and that the Rhodian Sea-laws were here settled long before the Laws of Oleron by Richard the First ; and that is an Ordinance made by Henry the first at Ipswich , concerning the banishing a man for Felony or Trespass , which I find mentioned in an Article of the antient Inquiry of maritime offences annexed unto the antient Statutes of the Admiralty in the antient Parchment-leaved Book , called the black Book of the Admiralty , where , after the manner of such banishment is set forth , it is said : Et h h Lib. nig . Adm. pag. 27. cêste ordonnance fat faitte primerement a Gyspswiz ou temps du primer Roy Henry per les Admiralx de North & West , & autres Seigneurs adheirdantz .

CHAP. V. The antient Introduction of the Sea-laws argued , and inferred from the King of Englands Dominion over the British Seas .

THat the Kings of France have no Dominion at all over the British Seas , or any right or claim thereunto whatsoever , is made plain by what is i i Seld. de dom. maris , l. 2. c. 14. 27 , 28. set forth in the 14th Chapter of the second book De Dominio maris , written by Mr. Selden , who in his 27th and 28th Chapters of the same Book proceeds to make further proof thereof , and therein sets forth , that there being warre between King Edward the First of England , and King Philip the Fair of France , but agreed by Covenant , that all Commerce on both sides shall be free ; so that to all Merchants whatsoever there should be induciae , which were called sufferantia guerrae : and by both of them Judges were appointed that should take cognizance of all things done against these Truces , and should exercise judicia secundum legem mercatoriam & formam sufferantiae . Now it being contained in the first head of this League , that they should defend each others rights against all others , this afterwards was the ground of an action which was instituted in the same Kings time , &c. before these Cognitors chosen by both the said Princes , by the Proctors of the Prelates , Nobility , and high Admiral of England , and of all the Cities , Towns and Subjects of England , &c. unto which are joyned the Proctors of the most maritime Nations throughout Europe , as of Genua , Catalonia , Spain , Alemania , Zealand , Holland , Frise , Denmark , and Norway , and divers others subject to the Roman Empire , against Reginer Grimbald the then Admiral of France ; for that there being Warres between Philip King of France , and Guy Earl of Flanders , he had taken Merchants upon those Seas , in their voyage to Flanders , and dispoyled them of their goods , whereas the King of England , and his predecessors , as they all joyntly by libell do declare and affirme without all controversie , beyond the memory of man , have had the supreme Government of the English Seas , and the Islands thereof : Praescribendo k k Seld. de Dom. mar . lib. 2. cap. 27. juxta medium . scilicet leges , statuta atque interdicta armorum , naviùmque alio ac mercatoriis armamentis instructarum , cautiones exigendo , tutelam praebendo , ubicunque opus esset , atque alia constituendo quaecunque fuerint necessaria ad pacem , jus & aequitatem conservandam inter omnimodas gentes tam exteras quàm in imperio Anglicano comprebensas , quae per illud Transierint ; supremam ●sdem item fuisse atque esse tutelam ; merum & mixtum imperium in juredicendo secundum dictas leges , statuta praescripta & interdicta , aliisque in rebus , quae ad sumumm imperium possint attmere in locis judicatis ; Ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectare jurisdictionem ex imperio ejusmodi exercendam . And he sets forth further in the same Libel , that they do all of them together desire ut à custodiâ l l Id. eod. loco . postea . liberati , qui carceri ita traditi essent , reddita item bona nullo jure capta , jurisdictionem Admiralli Regis Angliae ( ad quem solum tam ex jure rerum ac loci , quàn personarum hujusmodi jurisdictio attinebat ) subirent . These things I have cited out of Mr. Selden not only to shew here for my purpose , that the Kings of England have had from antient times the power and dominion over the British Seas ; ( for then might I have referred the whole matter to his whole book , which doth so learnedly , so many wayes , and by so many several arguments convince in that point ) but as well to shew that the Kings of England's Admirals have likewise as antiently had jurisdiction under them , over those maritime affairs , which fell sub isto regimine & dominio .

And also to shew that so many Nations did concurre and agree therein ; and that they had istud regimen & dominium exclusivè of the Kings of France bordering upon the same seas , and of all other Kings and Princes whatsoever ; for they all likewise joyntly agree , an usurpation , and interruption of the King of England's right of Dominion over these Seas by the King of France , in granting a Patent of the Admiralty of the Seas unto his Admiral Reginer Grimbald , and therefore all joyntly proceed in their Petition further : Vt m m Idem Eod. etiam loco . cognitorum sententia Reginerus Grimbaldus ipsa damna Actoribus resarciret , si nimirum solvendo esset ; sin minùs , tunc ut ad idem faciendum damnaretur Rex Franciae , qui ejusmodi praefecturae codicillis eum donasset : Damnis autem resarcitis , tum etiam Reginerus ob foederis violationem poenas daret , quales alios à simili facinore in posterum deterrere possent . And in the n n Vid. cap. ult. hujus libri . 28th Chapter of the same Book , the Libel is set out at large in its own language worthy the reading .

Now all these things considered , shall any man that understands that the Kings of France ( who have no Jurisdiction at all over these Seas ) have so antiently had , and continued their Admirals in such power , as the Edict by Parliament at Paris declares them to have done , so much as imagine that the Kings of England ( who have had ( from Edward the First 's time , and so long before , as that all the aforenamed Nations do joyntly acknowledge it to be then beyond the memory of man ) the sole rule and dominion of these Seas ) should not furnish this his maritimum regimen & dominium with those antient maritime Laws before spoken of ? Certainly whosoever imagineth this , concipit istud mare sine navibus , vel naves sine naucleris & navarchis fluctuantes concipit istas . If furnished with Lawes , then consequently with a Commander , Admiral , or Governor , for the dispensing and ministring of Justice amongst Sea-Traders , and seafaring-men according to those Laws , else were these constituted and appointed to that use in vain . But I may here rather from the forementioned Libel deduce a proof of the antient settlement of maritime Laws in England from the antient acknowledgement of an Admirals Jurisdiction , then the settlement of an Admiral and his Jurisdiction from a former Introduction of the maritime Laws into this Kingdome ; for an Admiral of England , and an Admirals Jurisdiction are both acknowledged by all the therein mentioned Nations , to have been from that time , ( which was anno 30 Ed. primi ) beyond the memory of man . If then the Admiral had so antiently a Jurisdiction , I must necessarily inferre from thence , that so antiently , if not somewhat before , the Laws of the Sea must be settled for his rule and guidance : For they do not say there was an Admiral , for so there might have been , and he have ruled by Arbitrary power : but they say ( as before is said ) ad praefecturam Admirallorum à Regibus Angliae constitui solitorum spectaret Jurisdictionem ex imperio ejusmodi excercendam . And in their Petition as is before exprest , they desire ut à custodiâ liberati qui carceri , traditi essent , reddita item bona nullo jure capta , jurisdictionem Admiralli Regis Angliae subirent .

Now as 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 is from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 jus , so jurisdictio is juris dicendi potestas . And as 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , likewise from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 lex ; so Juris consultus est is qui jus consuluit , sive studuit : and so juridicus quod secundùm jus est , as juridicus dies , quô ritè jus dici potest , and juridica actio , quae secundùm jus est : dicitur etiam juridicus , qui jus dicit 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , &c. At cui jus ignotum est , & ignota jurisdicendi potestas , & cui jus non est jus , non consuluit , & ubi jus non est , ibi jus dici nequit . No man can have a Jurisdiction or power of declaring the Law , or judging by the Law , to whom the Law is not known ; more especially where there is no known Law to declare or judge by . Therefore seeing the Admiral ( by common consent , and by so common a judicial acknowledgement ) so antiently had a Jurisdiction , necessarily he must so antiently have had certain known and settled Laws to declare and judge by .

I do observe likewise that all the Patents granted unto Admirals , from the 35th of Edward the Third upwards , unto the 34th of Edward the First , do conclude in binding them to the execution of their office : prout justum fuerit & fieri consuevit : And as this prout fieri consuevit led me to the more antient Patents , wherein the Officers bear not the title of Admiral , and taught me to understand that the variation of the title did not differ or alter the property in the Office , or the quality of the Officer : so this prout justum fuerit shews me as well as the Jurisdiction in the Libel before spoken of did , that the Admirals had then ; and prout hactenus shews me they had so before , a Law to rule and judge by : For though a private man , which is vir bonus , a good man which deals uprightly and punctually with all men , is usually said to be vir justus , and not improperly when we speak of a private man in his private dealings : And vir probus & sanctus , which observeth the Divine Law , is very properly called vir justus , when we speak or discourse of matters of Religion , &c. But if we speak of a man set and put in place and authority over others in Sea-affairs , we say he is vir justus , qui jus observat , & à jure non discedit ; for 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 which signifieth justus , doth as 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 and 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 do , come from 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 jus ; and so 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 from the same word signifieth legitimè , jure , & justè ; 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 signifieth jus , the Law it self .

CHAP. VI. The Antiquity of the Admiralty argued and inferred from the defect and want of ability in other Courts in deciding of Maritime Causes in those antient times .

THat in those antient times the Custodes marinae , & maritimarum partium , &c. to whose care and trust these marinae , and maritimae partes , the Seas , the Coasts and Ports of the Seas were committed , had a great power , and grand authority over all those maritime parts , whereunto they were limited , and over all Ships and Shipping , and over all things thereunto belonging , and over all persons whatsoever , who were therein concern'd within the said limits , and had powet and authority of hearing and determining of all differences and controversies , which did or might arise concerning the same , may be very well concluded upon this further ground , that no other Court in those dayes presumed ever to take cognizance of any such matters , or affairs , which I am confident of for the reasons ensuing : I hope no man will say that maritime causes were tried in the Heal-gemote , now called the Court Baron ; nor in the Hundresmote , now called the Hundred-Court , and is of the same nature with the County-Court ; nor yet in the Scyedgemote , now called the b b Lamb. Arch. Sheriffs Turne , which were the Courts then in use , and had been long before the Conquest , and do yet continue , and never did , nor do assume , nay not so much as challenge any right at all to any such power .

Nor did the Kings Court of Exchequer ( which was the first Court was settled after the Conquest ) ever c c Lamb. Arch. undertake to deal in causes of that nature ; but ( as Mr. Lambard determineth this point very well ) was only setled and appointed for causes concerning the Kings Demeasnes and Receipts . And he saith that after the Conqueror had suppressed the Forces of those that made head against him , here , he settled this Court for his Revenues , and called it his Exchequer , after the name of his Exchequer in Normandy ; but ( saith he ) it differed not a little from that ; for the Exchequer of Normandy had not only the Government of the Revenues of the Duke there , but was also the Soveraign Court for the administration of Justice amongst his Subjects until Lewis the Twelfth , King of France , anno 1499. converted it into a Parliament , consisting of a President and Councellors , and established it at Roan in Normandy , where it still continueth . But ( saith he ) this Exchequer in England had only the direction of his Demeasnes and Receipts , and the administration of Common Justice continued still in that high Court of Justice and Equity , which did then and a long time after , as well as before the Conquest follow the King himself ; and for proof thereof he quoteth Gervasius Tilburiensis , who wrote many observations upon the Exchequer , which he dedicated to King Henry the second , and be yet remaining in the receipt under the custody of the Chamberlains of the Exchequer in the black book there .

But because ( as Mr. Lambard saith ) some contended to maintain that the Exchequer was in those dayes a Court of all sorts of Pleas , for all Subjects whatsoever , and that for the maintenance of their assertion , they do alledge the title of Mr. Glanvil's Book in part thus : Et d d Glanvil . in tit . ej●sd . lib. illas solùm leges continet & consuetudines secundùm quas placitatur in Curiâ Regis ad Scaccarium , lest others should hereby be misled , and for this reason think so too , and so be brought to conceive , that before the Court of Kings-Bench or Common-Pleas were either of them settled in certo aliquo loco , that the Exchequer might have the cognizance of all Causes between party and party , as well maritime belonging to the Sea , and Sea-affairs , and from thence arising ; as terrene belonging to the Land , and Land-affairs , and from thence growing ; I shall here set down Mr. Lambards answer to that which is alledged for the proof , and maintenance of this assertion , who confidently affirmeth , that the aforementioned words are not the words of Glanvil himself , but of the Publisher of his Book in print , which appeareth by what precedeth the words alledged in the Title , viz. Tractatus de legibus de tempore Regis Henrici secundi compositus ab illustri viro Ranulpho de Glanvile , juris regni , & antiquarum consuetudinum eo tempore peritissimo ; which ( saith he ) doth plainly shew and bewray that the Publisher spake of Glanvile as another man , and which also lived not then , but at another time . And herein he must needs say very truly , for never was there any Author of any credit that ever gave himself this or the like title , or being living , would say that he was juris regni & antiquarum consuetudinum eo tempore peritissimus .

And again , they have not taken in all the words of that title , which do follow , but have left out these , viz. e e Glanv . tit. Et coram judiciariis ubicunque fuerint ; which being so , the Kings Bench or Court which then followed the King , must needs be herein comprehended and included , and the whole title being collected thus , Tractatus de legibus de tempore Henrici secundi compositus ab illustri viro Ranulpho de Glanvile , juris regni & antiquarum consuetudinum eo tempore peritissimo , & eas solùm leges continet & consuetudines secundum quas placitatur in Curiâ Regis ad Scaccarium , & coram Justiciariis ubicunque fuerint . Then doth this title make no argument for the proof of their assertion . And so I shall leave the Exchequer then only to govern and rule the Kings Revenues , Demeasnes , and Receipts , and such matters as belong only thereunto ; and next cast only a glance upon the Justices in Eyre and their Jurisdiction .

The Justices in Eyre are said by Gervase of Tilbury to be quasi errantes , but by Bracton are called itinerantes : For King Henry the Second in the 32th year of his reign divided the Realm into six parts , from which the Circuits which our Judges do now ride , do not much differ ; and to every of those parts appointed three Justices , who at their appointed times kept Circuits in their several parts to them limited , and held plea as well of Criminal as of f f Lamb. Arch. pag. 31 , 32. Civil Causes . But Justices of Assises being likewise appointed , whose first office was to take Assises of Mort d'ancester , and Novel Desseisins , according to the customes of Normandy , where it is called la Novellette ; and gaining a further power of taking Attaints , Juries , and Certificates , and delivery of Gaols . These Justices of Assise by the beginning of Edward the Third's Reign gave an end to the Justices in Eyre , who about that time did surcease and take leave .

Now could neither of these Justices , the Justices in Eyre not coming every year into the Country , nor the other Justices ( being sometimes at home , sometimes in their Circuit ; and in their Circuit , sometimes in one place , and sometimes in another ) take g g Lamb. Arch. pag. 35. cognizance , or have the hearing and determining of maritime causes , seafaring matters , or any thing them concerning : For such causes did and do require a more speedy dispatch and determination than these Justices could afford them . Nam h h Peckius in tit. 5. l. 11. de Naubrag breviter & summariè tales sunt examinandae causae , nec ad plenissimas Judiciorum formulas recurrere oportet , sed suceinctè de plano sine strepitu judiciorum & solenni figurâ ; immo velo levato in eis procedendum est . & ut 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 vela navis navigationem & transfretationem properant , judicium sic properat ad navigandum & transfretandum festinatio ; Merchants , Mariners , and Seamen , whose business and affairs are ordered here , ventulated at sea , and agitated beyond the seas , must have a quick and sudden dispatch of Justice ; that as they come in with one good wind , so they may go out with another : the Mariners cause admitteth no delay , but must have a judge , and a settled place of Judicature at all times in readiness for his dispatch : for whilest his cause is pleading for his right , his Ship is preparing for his Voyage ; to which I may well apply the verse in Virgil , i i Vig. Aeneid . 3. Interea classem velis aptare jubebat . For his ditty is alwayes the same with another verse of the same Authors , k k Id. Aen. 4. Rursus agam pelago , & ventis dare vela jubebo .

Neither for the very same reason ( if there had been no other ) could the Court of Common-Pleas , when it was settled , take cognizance of maritime causes , or seafaring matters , nor did the settling thereof dissettle the Marina , which had at and before that time been committed unto the care and charge of several persons , as appeareth by those several Records of the ninth and eighth year of King Henry the Third already cited ; for the Court of Common-pleas ( 't is plaine ) began not to be settled untill the ninth year of the same King . if so soon ; for it was but that year determined that it should be so settled ; but the power thereof rested in the King himself , and his supreme Court , which constantly followed him whithersoever he removed ; and was by Magna Charta cap. 11. that year appointed only to be settled in one particular place , by these words , l l Lamb. Archeion . Communia placita non sequantur curiam nostram , sed teneantur in certo aliquo loco .

Now although differences and controversies of what nature soever , were then perhaps neither so many , nor did so frequently arise as now , nor were of so great consequence and concernment , as since they have been ; yet cannot I , or any man else ( as I conceive ) think that they were so few , ot so mean , as that they deserved no decision or determination at all .

I cannot see then how it can be possible , but that these Custodes must necessarily have then even in those so ancient times a complete Jurisdiction for the regulating all maritime and sea affairs , and for the deciding of all maritime and sea differences , by those most exact Sea-laws , before those times so well known unto so many Forreign Nations , and by them so gladly received , and put in use and execution ; and m m Rot. an. 12 Ed. 3. valent articuli super quibus Justic . &c. sunt consulendi . doubtless not unknown here , for the reasons before exprest , together with the antient Statutes of the Admiralty , and those Laws of Oleron , which ( as it plainly appears ) were introduced by Richard the First .

CHAP. VII . Of the Exercise of the Sea-laws by the Graecians , Athethenians , Romans , Italians , Venetians , Spaniards ; and by the Admirals of Naples and Castile .

FRom the example of these Rhodians , have all or most Princes and Common-wealths in Europe obteined their Laws , continually constituted and appointed chief Captains , Commanders , Governors , or Admirals over all their Ships , sea-faring-men , and sea-affairs , to order , rule , and govern them by those Laws , and to put the same in due execution , distinctly and apart from , and in no wise mixt or intermingled with those Laws whereby they regulated their Land-men and Land-businesses .

The a a Petit. de legibus Attic. Graecians have had from antient times , and still have their several special Judges for hearing and determining of all differences happening between Merchant and Merchant , Mariner and Mariner , and between Merchants and Mariners , and between Merchants and Owners of Ships , and Owners of Ships and Mariners , and between them and all others that had to do with them in their sea-trading , and sea affairs . And these Governors of their Fleets are termed or called their 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , or chief Governors .

The b b Dem●stbents contra Apat . Zenosinem & Phormionem . Athenians have likewise antiently had the like for the same purpose , which they termed or called their Thesmothetie .

And the c c Sejus Satumius ad Se● . C. Trekel . Romans had antiently their Archigubernii , praefecti classis vel maris , for their principal Governor , Commander of their Fleet and Shipping ; but because of their great employment , sometime at Sea , sometime at Land , they had their Magisteriani , or Judiciarii ( or as d d Frecc . de officio Admiral . lib. ult. cap. de Commerciis . Freccia saith ) their Comes Commerciorum for the Judicature of all maritime causes .

And when they came to be divided into e e Vide etiam lib. 2. de naufrag . Kingdomes and Republiques , the Kingdoms had their Admirals , and the Republiques their Consuls , who had the Judicature of Freight , &c.

The f f Consol del . mar . cap. 22. Italians have their l'Aamiraglio or Amirante , and under them their li Consoli del mare , for the decision of all causes maritime .

Spain hath its g g Marisotus orbis maritim● . l. 2. cap. 27. pag. 545. Adelantado , and divers Admirals , some for Europe , some for the Indies , all of equal power .

Naples hath an h h Marisot . li 2. ca. 22 p. 506. vide Frecc . de Subsend . tit. de offic. Admir . & Franc. de ponte , de potestate proregis . Garsias mastrilli de magistrat . lib. 5. cap. 13. Admiral of great power over all seafaring men , and all such as get their living by the Sea , or are employed in building and furnishing of Ships with what necessaries soever ; and over all such as make it their Trade to take fish in the Sea , &c. And his Court is called Magna Curia , from which there lieth no appeal , only to the supreme Council ; all which he hath exclusivè to all others , both for matters Criminal and Civil . The Admiral of Castile hath supreme Authority over all that use the Seas , and hath other Judges in Port-Towns for the dispatch of all ordinary businesses concerning Freight , Avaridge , and all other maritime affairs .

CHAP. VIII . Of the Admiralty of France and Denmark .

BUt to come nearer home , the Kingdome of France hath from antient times had Admirals ; and so affirmeth that learned man a a De dominio maris lib. 2. c. 8 Mr. Selden , Seculis in vetustioribus apud Gallos fuêre quidem Admiralli seu rerum maritimarum praefecti ; ita tamen ut eorum scriptores de dignitatis initiis haud parum discrepent ; saith he , they are so antient , that their Writers cannot agree when that dignity began : Sed id plerumque aiunt , reperiri sub b b Idem ibid. ubi citat Chopp●● de dominio Franc●ae , lib. 1. tit . 15. §. 11. & Pas quier en les recerches , lib. 2. cap 14. & J. Tilium de rebus Ga●licis lib. 2. Carolo Magno Rotlandum maris Britannici ( Aremoricani ) praefectum , quem ex Eginharto vitae Caroli scriptore contemporaneo petunt : But saith he in Eginharto non maris Britannici , sed tantum Britannici littoris praefectus expressè is nuncupatur ; he was not Admiral of the British Sea , but of the British Sea-coasts or Shoar ; Quo nomine non qui mari , ut provinciae praest , sed qui littori , & dignitatis limiti designatur : For he setteth forth plainly in the same chapter , that the Kings of France had no Dominion over those Seas ; Reges vero ipsos nullum tunc habuisse in mare imperium disertè scribit Johannes Tilius Curiae Parisiensis actuarius : And there sets down Tilius his own words at large , together with divers of other proofs throughout the same chapter , which fully manifests the same .

Yet in the beginning of the c c Idem . Ibid. same chapter , he doth allow the French Admiral , or their praefectus maris copiarum , navalium in mari quocunque & nautarum regimen , & jurisdictionem in personas & res mobiles , quae sub judice veniant , pour raison ou occasion de faict de la mer ; id est , ob causam aliquam à re maritima ortam .

And in confirmation of this d d Edicts per Fontenon . Append . Hen. 3. Power and Jurisdiction , and for the more plain declaration thereof , the Office of the Admiral by the Parliament at Paris is since thus ratified , and declared in the Kings name .

1. That in all Armies which shall be raised , and set out to sea , the Admiral shall be and continue chief , and our Lieutenant General shall be obeyed in all maritime Towns or Places , which are or may be without contradiction .

2. He shall have Jurisdiction , Cognisance , and determination of all things done or committed on the Sea , or Shoars of the same ; likewise of all Acts of Merchandising , Fishing , Freighting , or letting to Freight , Sales or breach of Ships , of Contracts touching the matters aforesaid , of Charter-parties , of Sea-briefs , and of all other things whatsoever happening upon the Sea , or Shoars thereof , as our Lieutenant alone ; and to all purposes in the places aforesaid , which Jurisdiction , Cognizance , and Determination we have interdicted to all other Judges .

3. He shall have Cognizance exclusive to all others of causes Civil , and Criminal , of those who are of the Dutch Towns , of Esterlings , English , Scotch , Portugals , Spaniards , and Strangers , whether the cause of suit be betwixt Strangers only , or betwixt Strangers and our own Subjects , upon any occasion whatsoever .

He holdeth his e e Grego● . Tholos . Syntag. li. 47 tit . 3. Classan . p. 9. consid. 16. D● . Zon. ex merisot . lib. 2. cap. 15. principal Court at the Marble Table in the Palace of Paris , and appointeth Judges as his Deputies in maritime Cities and Towns , who hear and judge ordinary matters within their Circuits ; and if any business fall out worthy of greater consideration , they refer it to the Admirals principal Court .

The Admiral of Denmark is called Riiks , and hath the like power and authority the Admiral of France hath .

CHAP. IX . Of the Admiral of Scotland .

COncerning the Admiral of Scotland , we may ( I am confident ) very well believe Wellwood , who was that Countrey-man , and in his a a Wellwood . Prohem . Proheme upon his conscience , as a Professor of the Civil Law , denyeth that he had any imployment or part in any Admiralty ; and he setteth it forth thus , and saith ,

1. That for the redier obedience to the b b Wellwood , cap. 2. pag. 10. great Admiral of the Sea , it is by common consent of Nations successively agreed , that in consideration of the Admirals soveraign commandment , special preferment , and power over the lives of men within the Sea-flood , that therefore they should also have a soveraign Jurisdiction only proper to themselves over all seafaring-men within their bounds , and in all seafaring causes , and debates , Civil and Criminal ; so that no other Judge of any degree , at least in Scotland , may meddle therewith , but only by way of assistance ; and that must be by way of Commission , and in difficult causes ; and he instanceth in an action intended by Antoni de la tour , against one Christian Masters 6 Novemb. Anno 1542. and he quoteth for this example the first Tome , and the 555 Chapter of the Registry of Scotland .

2. He saith c c Idem . Ibid. the Admiral is to constitute a Vice-Admiral , and Captains to supply his absence at Sea , as also Deputies for particular parts on the Coasts , with Coroners to view the dead bodies found on Sea , or found on the Coasts thereof ; And Commissioners or Judges General for exercising Justice in the High-Court on Land , in causes Criminal , specifying likewise the Officers thereunto belonging , and these Commissioners or Judges General may sit where they please , to execute Justice , to imprison and relax , and to command the Kings Prisons , Boroughs , and their Prison-Keepers , to receive and keep their Prisoners .

3. That d d Id. cap. eodem pag. 11. his authority is distinctly acknowledged in all things pertaining to seafaring matters , and therefore his Judge , Deputy , or Commissary is called Judge , Admiral ; and he and none other doth sit , cognost , determine , and administer Justice in all Civil debates between Mariner and Merchant , and between Mariner and Mariner : as likewise upon all Complaints , Contracts , Offences , Pleas , Exchanges , Assecurations , Debts , Accomps , Charter-parties , Covents , and all other Writings concerning lading and unlading of ships , freights , hires , money lent upon casualties and hazard at Sea , and all other business whatsoever amongst seafarers done on sea , this side sea , or beyond sea , not forgetting cognition of the Writs and Appeals from other Judges , and the causes of Actions of Reprizal or Letters of Marque .

Yea , and to take e e Id. ca. eod. p. 12 ubi citat diplomata Admiral . in utroque regno & librum de officio Admir . Angl. Stipulations , Cognizances , and insinuations in the books of the Admiralty , and to arrest and put in execution .

4. That he is to enquire as well within liberties , as without , by the Oath of twelve men upon several offences .

1. Of Revealers of the King and Countrey their secrets over sea in time of warre ,

2. Of all Pirats , their Assisters and Abettors , Out-treaders and Receptours .

3. Of the Breakers of the Admirals Arrestments and Attachments .

4. Of Goods forbidden , and Merchandises not customed , and yet shipped and transported .

5. Of the Resisters of the Admirals Officers in executing their praecepts .

6. Of the Forestallers , Regraters , and Dearthers of corn , fish , drink , fire , wood and victuals carried over sea .

7. Of Pleaders before other Judges then the Judge Admiral in causes pertaining to his Jurisdiction , as also of the Judges taking cognizance of such causes .

8. Of such as give Sea-briefs , Testimonials , or such like , over sea without power or licence from the Admiral .

9. Of Transporters and Carriers of Traytors , Rebels , manifest Transgressors , and Fugitives from Justice over sea .

10. Of Freighters and Hyrers of Ships of other Nations , when they may be served by their own Nation .

11. Of such as cast Ballasting-sand , or what else in Harbours or Channels that may defile or spoil the same .

12. Of Ship or Boat-writes extorting the Leiges or Subjects .

13. Of taking away the Boigh from the Anchor , or cutters of Cables or other Tews .

14. Of false Weights and Measures by sea .

15. Of Shedders of other mens blood on Sea , or any Port or River below the first Bridge next the Sea .

16. Of such as have furnished Ships with all ware , or gear , as the Sea-men terme it , whereby any are hurt , lamed , or maimed .

17. Of Customers and Water-Bailiffs , which take more Custome or Anchorage , then hath been usuall .

18. Of such as absent themselves from Wapen-shewing , or Mustering , which the Admiral may ordain twice a year in time of warre , and once in two year in time of peace , upon all dwellers at Ports and Harbours , or within one mile near thereunto .

19. Of all sorts of transgressions committed by Sea-men , Ferry-men , Water-men , as well in Floods , Rivers , and Creeks , from the first Bridges , as on the Seas , Fishers , Pilots , Ship-wrights , and Prest-men , and continuing his authority , after due cognition to levy and gather the penalties and amercements of all such transgressors , together with the goods of Pirats , Felons , capital Faulters , their-Receivers , Assisters , attainted , convict , condemned , outlawed , or horned .

20. Of Deodands , viz. the thing , whether Boat or Ship , &c. that caused the death of a man , or by reason whereof a man did perish .

21. Of Waif or Stray-goods , Wreck of Sea , Coast-goods .

22. Of Shares , lawfull Prizes , or Goods of the Enemy , Lagon , Flotson and Jetson : Lagon , which lyeth on the Sea-ground , or is taken from the bottom of the Sea : Flotson , which is found swimming on the Sea ; Jetson , which is cast forth of the Sea , and is found on the Shoar , with Anchorages , Beaconages , Mear-Swine , Sturgeons , and Whales , and all fish of extraordinary greatness , which have alwayes been allowed to the Admiral .

CHAP. X. From the common Acceptance of the Sea-laws in other Nations is inferred the Acceptance of them in England .

THus have I set forth the antient original and beginning of the Sea-laws from the Rhodes so exactly by them set down , according to the rules of equity , that none of the Roman Emperours , the Masters of Law , no not Antoninus , who ( as he accounted himself ) was 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , mundi dominus , would undertake the decision of maritime causes , but would refer them to the determination of the Laws of the Rhodes .

I have likewise set forth the common and glad acceptance of them , or of what could be got of them ; or rather the earnest suit for them by very many other Nations , the use whereof hath been most profitably continued amongst them .

Can it be thought then that this Nation being an Island ( to which Shipping and Navigation must needs be most necessary and usefull ) should deny or refuse these Laws , so serviceable and usefull for their Maritime affairs , there being no other Law here usefull for that purpose ? or shall it be thought that this Nation neither knew or heard of them , when so many other Nations did ?

Certainly no : This Nation hath very antiently flourished by its Trade and Traffique with other Nations , and hath been frequently accustomed to Navigation , and Transfretation , and hath had as well converse as commerce with those Nations , and would as well convey those Laws hither for their common Government , as transport their own Commodities thither for their private benefit , which happily could not be enjoyed , one without the other . If not so , yet let no man say that the two famous antient Universities of the Land , wherein there be so many Colleges , and houses of antient foundation , in which have been by the Founders themselves , so many Fellow-Ships , Scholar-ships , and places founded , settled , and employed properly and solely for Students in the Civil and Maritime Laws , or the Laws proper and necessarily usefull for Navigation and Maritime affairs , being so scattered , ( or I will rather say decently , as flowers strewed ) and disperst through the whole body of the Civil Law , the subject whereon those Students were to spend their daily labour , pains , and employment , could possibly be long ignorant of those Laws , that these so many forenamed nations had so long and so well known ?

What if known by this Nation , was there yet any use made of them in it ? That they were known by what hath been said or considered , cetainly I cannot have so ill a conceipt of my Country men , the antient Inhabitants of this Nation , as to think them so long ignorant and unskilfull of those antient Laws of the Sea , and Laws so necessary for maritime affairs , as some would make them to be ; much less will I think the Government of this Nation to be without so good order and justice in any particular , as not to settle these Laws once known for the government of its maritime matters ; nor will I imagine the maritime men to be so dull or stupid , as not gladly to embrace the settlement of such Laws as tended so much to their quiet , and advance of their profit , being to trade and commerce with such as used , in this particular , no other Laws but these .

Again , shall we say that so many Nations , some so remote , and some so near home as France , but over against us , and Scotland even within the same Island , all governed by the Civil Laws , or Municipal Laws thence derived , and by them regulated and guided as the Sea Laws are , and keep the pathes and very footsteps thereof in their proceedings , as the Sea Laws do ; have with so much eagerness pursued and sought for these Sea Laws , and with so much chearfulness embraced , and continued them ; and that this Nation that is invested in a Law particular and municipal , which doth in no wise so much as challenge or claim any derivation from , or dependency of the Civil Law , but is altogether different and disagreeable thereunto in its proceedings , and oftentimes in its determinations , and hath no foundation or grounds whereon the dicisions of sea-controversies can be built , should without the knowledge and practise of these Civil and Maritime Laws , deal and trade with such as do live under them , and are guided by them ? surely no , so many inconveniences , distractions & distempers by reason of the variousness of two Laws , both in proceedings , & oftentimes in determinations , would long agone have destroyed all our Commerce and Traffique with these other Nations , and so consequently have dispoiled us of our Navigation and Shipping , the principal safeguard of this Land .

Nay , I am so farre from doubting the acceptance of these Maritime and Sea Laws , here in England , as well as in other Nations , that I am confident they were here settled before they were settled in divers of those Nations before mentioned : For I must not so much as think , or have the least conceipt that England ever borrowed any thing at all from those Articles which are cognoscible in the Admiralty of Scotland . But I may very well believe that those Articles of Scotland were borrowed from some of the three antient Records of the Admiralty of England : ( For so are all things by the Admiral , Judge , or Lieutenant decreed , and registred by an Ordinance of Richard the First , made at Grimsby , styled and said to be ) which are , with very many other antient things , comprised in the black Book of the Admiralty , which are therein ingrossed in an antient Character upon Vellam , one of which immediately followeth the antient Statutes of the Admiralty , and is there set down in old French , as the said Statutes are , and conteineth 38 Articles .

A second is a Latin Copy translated out of another antient French Record , by Roughton , and in an antient Character in the same manner , inserted into the same book , and containeth 52 Articles .

The third is the Inquisition taken at Quinborough , the 2. of April in the 49th year of the Reign of Edward the Third ; at which time , and to which place he caused several maritime and seafaring and sea-trading men of the best judgement and knowledge in sea-affairs of most of the maritime parts of England to be summoned , and there before W. Nevel Admiral of the North , Philip Courtney then Admiral of the West , and William Lord Latimer Chamberlain of England , and Warden of the Cinque-Ports , to meet together , and consider of all such points and matters as had antiently and usually been observable , inquirable , and punishable in the Admiralty , upon which inquisition 81 Articles were concluded on , which are likewise ingrossed ( they being more particular than the former ) in old French , in the said antient black Book of the Admiralty : But these ( as the Scottish Articles ) do concern only matters to be proceeded against criminally , and not matters of Trade , Traffique and Commerce , and damages susteined at Sea , or in Ports , havens , &c. whereof I shall come to treat in the second Book ; yet do these several Records in several Articles set forth in what manner such as shall sue or implead any Merchant , Mariner , or seafaring man for any Contract maritime , whether made by Charter-party or otherwise , or for any thing whatsoever done of , or concerning any Ship or other Vessel in any other Court then the Admiral , shall be proceeded against , as I shall more particularly hereafter set forth : But my chiefest reason that the Civil and Maritime Law-Courts were here settled in England ; before they were settled in divers of those other Nations , is for that this Nation hath had the Dominion over the British Seas , and their High-Admirals their Jurisdiction over those Maritime Affairs , which fell sub isto regimine & dominio , so antiently , as that in Edward the Firsts time the same was acknowledged by very many other Nations to have been then beyond the memory of man , as I have before set forth in the a a Sup. cap. 5 5th chapter of this Book , where I take my authority from an antient Record of the Tower in nature of a Libel , intituled De superioritate maris Angliae , & jure officii Admiralitatis in eodem ; as is in the same 5th chapter exprest . The Record it self I was a long time since shewed by my old friend Mr. Collet , who for a long time had the keeping of the Tower Records under several men , unto whose care and custody the same were committed ; and afterwards I met with the same in Mr. Seldens Book , b b Seld de dom. maris . li. 2. c. 26. De Dominio maris , which I had not before read over ; and after that I found the same set forth by c c Coke Jurisdic . Court . c. 22. Sir Edward Coke in his Jurisdictions of Courts ; yet I will not send the Reader thither to seek it , but for his readier perusal I shall again set forth the same here , and therewith terminate and end this first Book of my Maritime Dicaeologie of England . The words of the Record are these .

A vous Seignieurs Auditors Deputes per le Rois de Engliterre , & de France a redresser les damages faits as gents de tour royalmes & des auters terres subgits a lour seignuries per mer & per terre entemps depees & trewes . Monstrent les procorours des Prelats & Nobles , & del Admiral de la mier d'Engliterre , & de Cominaltes des Cities & des Villes , & des Merchants , Mariners , Messagiers , & Pelerins , & des toutes aultres du dit Royalme de Angliterre , & des aultres terres subgits a la Seignurie du dit Roy d'Engliterre , & daillours sicome de la marine de Genue , Cataloigne , Espaigne , Alemaigne , Zeland , Hayland , Frise , Dennemarch , & Norway , & de plusours aultres lieux del Empier , que come les roys d'Engliterre per raison du dit Royalme du temps dont il ny ad memoire du contrarie eussent este en paiceable possession de la Soveraigne Seignurie de la mier d'Engliterre & des Isles esteaunts enycele per ordinance & establicement des lois , estatuts , & defenses & d'armes & des vesseaux autrement garnies que vesseaux de merchandise & de seuerte prendre & sauve de gardes doner en tous cas que mestier serra & par ordinance entre tout manere des gents taunt dautre seignurie come de lour de propre de tous aultres faitz necessaries a la garde de pees droiture & equitie par elonques passants & per souveraigne garde & toute manere de conisance & justice haulte & basse sur les dites lois , estatuts , ordinances , & defenses , & pur toutes autres faits queux a le government de souveraigne Seignurie appertenir purrentes lieux avandits . Et A. de B. Admiral de la dit mier deputey per le Roy d'Engliterre , & tous les aultres Admirals par mesme celus Roy d'Engliterre & ces Ancesters iades royes d'Engliterre eussent est en paisiable possession de la dit souveraigne garde ove la conisance & justice & touts les aultres appurtenances avant ditz forprise en case dappele & de querele fait de euxa lour souveraignes roys d'Engliterre de defalte de droit on de malvais judgement , & especialment pur empechement metre & justice faire seurte prendre de la pees de tout manere de gents usants armes en la dit mier ou menans niefs aultrement apparreilles ou garnies que nappertient au nief de marchants , & en touts aultres points en queux homme poit avoir reasonable cause de suspition vers eux de robbery , ou des aultres mes faitz . Et come le maistre de niefs du dit roialme d'Engliterre en absence des dits Admirals eussent este en paisable possession de conustre & juger des touts faits en la dite mier entre touts manere de gents felone les lois estatuts & les defenses , franchises & custumes .

Et come en le primer article de lailliance nadgaires faite entre les dites Roys en les traites sur le darreine pees de Paris soient comprises les paroles que sensident en une sedide annexe a yceste .

Primerment il est traite & accorde entre nous & les messagers & les procurours de surdiz en nom des dits Rois que yceux Roys serront lun a lautre desores en avant bons , verrois & loyaux antyes & eydans countre tout homme sauue lesglise de Rome en tiels manere que si ascun ou plusours quicunquez ilz fuissent voloient deponticer , emphescher , ou troubler les dits Roys en franchises & liberties , priviledges es droits , es droitures , ou es custumes de eux & de lour royalmes quils serront bons & loyaux amys & aydans countre toute homme que puisse venire & morir a defendre , gardi & maint●ir les franchises , les liberties , les privileges , les droitz , les droitures , & les custumes de susdites , except le dit Roy d'Englitere Monsieur John Duc ele Braban en Brabant & ses heires descendus de lui & de la fille le Roy d'Englitere , & except pur le dit nostre Seignior le Roy de France excellent Prince Dupert Roy d'Alemaigne , ses heires Roy d'Alemaigne , & Monsieur Johan Counte de Henan en Henan , & que lun ne serra en consaile ne en aide ou lautre perde vie , membre , estate ne honour temporel . Monsieur Reymer Grimbald maistre de la navie du dit Roy de France que se dit estre Admiral de la dit mier deputey person Seignior avant dit pur sa guerre con●re les Flemings apres le dite alliance faite & affirmee contre le forme & la force de mesme lalliance & lintention de ceux qui la firent loffice del Admirall en la dite mier d'Englitere par commission du dit Roy de France torseous ement emprist & usa un an & plus en pernant le gents & Merchants du royalme d'Englitere & daillours per la dite mier passaints ovesque lour biens & les gents ainsi prises livera a la prison de son dit Seigniour le Roy de France lour biens & marchandizes a les resceivors per mesme celvy roy de France a ceo deputey en les ports de son dit royalme come a luy forfait & acquis fist amener per son juggement & a gard , & la prise & detenue des dites gents ove lour dites biens & marchandises & son dit juggement , & a gard sur la forfaiture de eaux & acquest ait justifie devant vous Seigneurs Auditors en escripts per my lautoritie de sa dite commission sur l'Admiralte avantdite per lui ainsi usurpe & per une defense communement fait per le Roy d'Englitere per my son poer lelon● la forme de le tiers article de lalliance avantdite qui contient les paroles desusecripts en requerant que de ceo●ill en fusse quitz & absoluts en grand damage & prejudice du dite Roy d'Englitere & des Prelats & Nobles & aultres desusnomes . Purquoy les dites procurours & les noms de lours ditz Seigniours a vous Seigniours Auditors avantditz pryent que deliverance dewe & hastine des dites gents ovesque lour biens & marchandises ainsi prises & detenues faicets estre fait al Admiral du dit Roy d'Englitere a qui la conisance de ceo apertient de droit sicome dessus est dit , ainsi quils sauns disturbance de vous & d' aultre puisse de ceo conoistre & faire ceo que apertient a son office avant dit . Et que le dit Monsieur Remeyr soit condempne & distreint a faire due satisfaction a touts les dits damages seavant come il purra suffire & en sa defalte son dit Seignior le Roy de France per que il estoit deputey al dit office , & que apres dewe satisfaction faitz as dits damages le did Monsieur Reymer soit si duement punis par le blemissement de la dite alliance , que ia punission de luy soit as autres example par temps a venir .

Item in alio Rotulo annexo .

Item , A la fin que venes & consideres les formes des proces & les letters ordenees per les consaillers le Aiel nostre Seignior le Roy , &c. especialment a retinir & maintenir la souveraign que ses dits ancesters Roys d'Englitere loloyent avoir en la dite mier , d'Englitere quant al amendment declaration & interpretation des loix per eux faites a governer touts maneres des gents passants per la dite mier . Et Primerement a son Admiral & as Maisters & Mariners des niefs de Cync ports d'Englitere , & des autres terres annexes a la corone d'Englitere emendant asa armee en la dite mir pur retinir & maintenir la garde des lois avantditz , & la punission de touts faitz al encountre en la mier susdite .

Libri primi finis .

THE MARITIME DICAEOLOGIE , OR SEA-JURISDICTION THE SECOND BOOK .

CHAP. I. That the Sea Jurisdiction and the Land Jurisdiction are , and so necessarily must be , two different and distinct Jurisdictions , having no dependance each upon the other .

ALthough the exact time of the beginning or first settlement of the Jurisdiction of the Admiralty Court here in England be not by me in the preceding book so clearly set forth as some might have expected , yet is some foundation thereof deduced from such hight of Antiquity , as that I cannot but hope that the Jurisdiction it self will for that cause , and what shall be shewed in this ensuing Treatise , deserve a continuance to posterity . And although in the precited antient Records , we find not the same title of that Office observed , and kept , yet may we very well perceive the same Office to have been preserved , exercised , and executed , though under several titles . And we find that in Edward the First 's time ( as plainly appears by the before quoted a a Cap. ult. prim . lib. Libel , and other before cited Records ) the same was exercised under the title of the Admiral : And doubtless that title was long before that time known to belong unto the chief Captain , Commander , or Keeper of the Fleets , Ports , and Seas , and hath been so used by many other Nations in Europe . However the diversity of names neither extinguisheth the nature of the Office , nor doth so much as make any distinction between the one and the other person so diversly named , whilst they both bear one and the same signification .

But here I shall proceed next to distinguish this Jurisdiction from the Land Jurisdiction , and shew that the Land Jurisdiction and Sea Jurisdiction are ( and must necessarily so be ) two absolute , different and distinct Jurisdictions , having no dependency one upon the other .

And first these two Jurisdictions are absolutely different and distinct in respect of the parties which exercise them ; the one being exercised in the active and directive part by the Admirals , Captains , and Governors of the Seas , Sea-coasts , Ports , and Shipping , which have all or most of them from antient times been Equites Aurati , descended from Royal Bloud : Noble-men , or descended from Nobility , as b b Spelm. verbo Admirallorum series . Sir Henry Spelman saith . The judicial part by the Judges of the High-Court of the Admiralty , and Vice-Admirals Courts , learned and well verst in the Civil and Maritime Laws , juxta illud venerabilis ejusdem c c Spelm. verb. Admir Gallic . p. 16. & supra cap. 2. lib. 1. sub fine . Spelmanni verb. Admirallo Gollico pag. 16. Nos enim , &c. de quo vide supra cap. 2. lib. 1. sub fine . The other exercised by the learned Judges of the Land in the Courts at Westminster , and within the Bodies of the several Counties of the Nation in their several Circuits ; the Judges of one Circuit having no authority or power over the other , nor having any thing to do to intermeddle with the other in their Circuits .

Secondly , the Court of the Admiralty hath from antient times been styled Suprema Curia suae Majestatis Admiralitatis Angliae ; so that the same hath antiently been styled the Kings Court , as well as his Courts at Westminster . But from the one Jurisdiction there lyeth an immediate appeal unto the supreme authority in Chancery , which Court appointeth Judges Delegates by Commission under the Great Seal ( upon the apprehension of an illegal sentence ) who are assigned and appointed Judges for further hearing , deciding , and adjudging of the said sentence and cause of appeal , according to the rules of the Civil Law .

In the other there lies a Writ of Error from the Common-Pleas to the Kings-Bench , and from that Bench to the Judges of all the three Benches in the Exchequer Chamber .

The Appeal from the Admiralty is for the rectifying of the Sentence , as well as of the proceedings , which appeal the Forraigner must be allowed , otherwise he will complain at home of injustice done here , and so proceed to the course of obtaining Letters of Reprisal for his satisfaction , whether the first sentenc was good or not , upon this ground only , that he had not the due course of Law allowed him , for the tryal of that Sentence which was first given against him .

The Writ of Error reverseth the Judgement , though never so just , if an error be found in the proceedings ; but reverseth not the Judgement , though the same seem never so erroneous to him against whom it was given , if no error be found in the proceedings .

Thirdly , they are absolutely different and distinct in regard of the different and distinct subjects the Judges of them do handle and are busied about ; they of the one being busied and occupied in the ordering and disposing of all businesses upon the Coasts and Havens of the Seas , tending to the preservation of this Nation from forraign Invasion , and keeping thereof in safety and quiet ; and in the building , repairing , tackling , and furnishing , or causing the building , repairing , tackling , and furnishing of all manner or sorts of Ships , Boats , or Vessels whatsoever for that purpose , and keeping the dominion over the British Seas , and in the otherwise ordering and directing of all manner of Ships , and Shipping , and seafaring Men , and all manner of Trading , Merchandising , Traffique , and Commerce thereby , or therewith : and in hearing , deciding , and adjudging all differences , debates and controversies arising from things done , or to be done at Sea , or in any Port , Harbour , or Creek thereof , either between the King or the Lord High-Admiral , and any party , or between party and party , Forraigner or others , whether Criminal or Civil .

Those of the other Jurisdiction being employed in ordering of all things for the good peace and quiet of this Kingdome within self , and in the hearing and determining of all offences , debates and differences arising , or growing from any thing done , or to be done within the several bodies of the Counties thereof , whether they be Criminal or Civil , whether they concern Estates real or personal ; whether they be between the King , and any other party , or between party and party , which are tryable by the said Law .

Fourthly , they are different and distinct , in respect of the rules the Judges proceed unto judgement by , those of the one Jurisdiction proceeding according to the rules of the Civil Law , known and used by all or most Courts and Judicatures in Christendome .

Those of the other proceeding according to Rules and Laws municipal , known only unto themselves , and such as are well skilled and verst in the same , and are Inhabitants and Subjects of this Nation .

To set forth the differences between these two Jurisdictions in their proceedings , was to undertake the setting down of the whole proceedings in all several causes , tryable both in the Admiralty , and the Common-Law Courts ; the one of which ( with some pains ) I might very wel do ; but the other belongs not to me to undertake : yet so much I know of them , as that I am sufficiently informed in my judgement , that they are exceednigly different even in their proceedings .

Fifthly , they are different even in the Laws themselves , whereby the Judges are guided to their determination , and directed in their giving of judgement ; those of the one Jurisdiction determining according to those Civil Laws , which are Maritime , and still retained , and kept in use in most Nations in Europe , adjoyning thereunto those few and short Laws of Oleron , with some other customary Laws of the Seas , which are commonly accepted and known , where such Judicatories are kept and held ; and are expresly declared and published by several Maritime Writers . Those of the other judging according to a municipal Law , fitted , prepared , and composed only for Land affairs , and indeed only for the Land affairs of this Kingdome by the advice of such as have had the best judgement in those Land affairs .

And as these are different and distinct from the Civil and Maritime Laws , which have been composed by the advice of such as have had frequent Traffique , Trade , and Commerce at sea , and by that means have had best knowledge and judgement in sea affairs : So indeed in the same manner are the Civil Laws which have been composed and established in other Nations by such as have been of best experience in businesses of the Republique , for the guiding and governance thereof distinguished and kept apart from those other Civil Laws which are Maritime . Infra li isto 2. cap. 14. & 15.

The absolute necessity of keeping these two Jurisdictions thus distinct one from the other , you shall have fully set forth in the 14. and 15. chapters of this second Book , wherein is shewed the use and practice of the Civil Law in most forraign Nations , and that the same is absolutely necessary to be used and practised in all Admiralty Courts , unto which two chapters I especially referre the Reader .

CHAP. II. That the Jurisdiction of the Admiralty doth extend to all manner of Ships , Shipping , Seafaring and Sea-trading men .

SEeing then that the Admiralty is a distinct Jurisdiction from the Land Jurisdiction ; in the next place the bounds and limits thereof are to be considered , and those will best appear by the before mentioned Records , of the Patents and grants of that Jurisdiction .

First then , that this Jurisdiction extendeth to all manner of Ships and Shipping , ( I conceive ) will not be denyed ; for it is plain by the Records already quoted , that the Kings had in those antient times their Admirals as well for the Northern Seas and Coasts as the Western ; yea , and sometimes several Admirals for one of these Coasts , as in the twentieth year of Edward the second , quidam a a Rot. an . 22. Ed. 2. memb. 7. habuerunt custodiam costerarum maris inter Toffe & Thaw , & quidam aliarum ; and in the tenth year of the same Kings reign , one W. 〈…〉 had the same power ab ore aquae Thamesis usque Ipswic . and Johannes de Thorpe ab Ipswic . usque Linn .

Shall we think then that this King had in those times ( when shipping was farre more scarce then it hath been since ) in each of these Coasts , and in every of these particular places within these Coasts ( where he had Capitaneum & Admirallum flotae suae ) a Fleet consisting of his own particular Ships , which he called flota nostra , which required a Captain and Admiral to govern them ? Certainly no , but all Ships , Boats and Vessels whatsoever belonging unto sea , tam remiculi , quàm corbitae sive gauli ; tam naves frumentariae sive onerariae , quàm naves praesidiariae : tam Beucentauri , quàm naves praetoriae sive Navarchae , &c. were all comprehended under flota navium . And this is plain , for that these Governors were sometimes stiled b b Sup. cap. 1. lib. prim . Capitanei navigii , as well as Capitanei & Admiralli flotae navium : And that navigium signifieth all manner of shipping , I have already shewed . And likewise very many of the antient Patents expresly run flotae nostrae omnium navium ; I shall instance only in one or two , as in that of the 8 Ed. 3. which runneth thus : Rex omnibus ad quos , &c. salutem ; Sciatis quod nos de fidelitate probatâ & circumspectione providâ dilecti & fidelis nostri Rogeri de Hengham plenariè confidentes , constituimus ipsum Rogerum Capitaneum & Admirallum flotae nostrae omnium navium , &c. tam quinque portuum quam aliorum portuum & locorum per costeram maris versus partes , &c.

And in that of the first of Edward the Third , in these words , Rex omnibus ad quos , &c. salutem : Sciatis quod nos de circumspectione & fidelitate dilecti nobis Johannis Parbroun confidentes , constituimus eum Capitaneum & Admirallum flotae nostrae omnium navium magnae Jernemouth , & omnium aliorum locorum , &c. per costeram maris versus partes Boreales quamdiu nobis placuerit , &c.

So that these who were Admirals of the Kings Fleet , were Admirals of all Ports , and Admirals of all Ships of all Ports .

And as it extendeth to all manner of Shipping , so doth it extend unto all manner of Shipmen : for to little purpose was it for the Admiral to have had power and authority over the wooden Vessels , if they had not had power over all the Seamen and Mariners in them , yea , and over all others that belonged thereunto , or had to do therewith , or were skilled therein . For by almost all the beforecited Patents they had not only potestatem super omnes & singulos marinarios , but also super omnes de flotâ , of or belonging to the Fleet , Navage , Ships , or Shipping , as well the owners of them , the Merchants and Traders with them , and Imployers of them , as the Mariners of what degree soever , sailing in them , or in any wise belonging to them , tam mercatores & exercitores , quàm proprietarios ; tam naucleros , quàm helciarios ; tam gubernatores , quàm diaturios ; tam proretas , quàm mesonautas : and not only over these , but also over all such as were imployed in their Art , Trade , or Occupation , for and towards the building , repairing , fitting and furnishing of Ships for Navigation and setting them forth to sea , as Ship-wrights , Anchor-smiths , Rope and Cable-makers , and the like , tam fabros anchorarios quàm naupegos , prymnesia anchoralia , retinacula puppis stupea , & sunes nauticos , tam venditores , quàm fabricatores , &c. All which were said to be de flota navium , or de navigio ; of or belonging to the Fleet or Navage ; and were those o●●es alii de flotâ , over whom the Admirals had command , power , and authority , besides the Mariner ; as is set forth in the forementioned Records . And as it had been to little purpose for the Admiral to have had power over the Vessels , and not over the Mariners and Seamen , and others fit for that imployment ; so had it been to as little purpose , if he had not had the same power over the Owners of them , and the Merchants that employed them , who otherwise would have either opposed his directing the use of them , or his own using of them at all , though for the service of the King , and good of the Common wealth . And to as little purpose had this extent of his Jurisdiction been , had he not had the command over all such as were most able and skilfull to fit and furnish them for service .

And the constituting of a man Capitaneum & Admirallum Flotae navium , Capitaneum navigii , Custodem marinae , Capitaneum nautarum & marinellorum , &c. doth give a very great power not particularly specified in the Grant .

For all men very well know , that all Patents and Grants , as well of Offices and Places , as of Lands and other things , did in antient times comprehend and contain in them very much , in a very few lines and words ; and have been daily enlarged by particular expressions , and singular specifications , when as nothing more hath been granted , then what was by general words granted before : And the reason hath been , lest some particulars in process of time might be lost for want of continual use , or drawn into question , and cavilled against , whether used or not used .

Yet have I seldome met with any of these specifical Grants that do trust to such specification , without the general addition , & omnia alia pertinentia , or the like , lest in their particular specifications they should lose somewhat of that which was formerly granted in general words , and by some perhaps observed , and known to be appertinent , and belonging unto the thing granted , though for some time discontinued .

We must not think therefore that by specifying particulars , and stretching a conveyance of half a dozen lines into whole a skin of Parchment or more , one foot of land is gained the more thereby : for if so , I might very well conceive , that the seller oftentimes might by that means sell more then his own . For I have often seen many more particulars specified in the Conveyance from the seller , then were ever intended by the Conveyance to pass to the buyer , or the seller had to sell . And indeed this enlarging of Conveyances and Grants is so usuall , that a man might very well conceive ( the Evidences being perused from the first to the last ) that every alienation had begot an enlargement of the estate , when nothing at all hath been added thereto .

We must not think therefore , that because there have been more particulars of the Admirals power and jurisdiction specified in the latter Grants , and Patents , then were in the former and more antient ; that therefore these latter Admirals have gained greater and larger power and jurisdiction then the former had .

Nor certaily can any thing be gained by specifying particulars ; something may be saved , and somewhat may be very well lost , if & omnia alia save it not .

I will not deny but that there may be , and deyly are made unto Manors , Lands , and Tenements , many additions , whereby they are much encreased .

And likewise to offices and other places , both in extent of office , and increase of fees , or other profits : But these additions do , and alwayes will appear by the Deeds of Conveyance , Grants or Patents themselves , and are distinguished from the antient Manors , &c. and their appurtenances ; and from the antient offices and places , their rights and profits , by Et praeterea , or ac etiam , or ac similiter , &c.

And where there is an addition , these words or the like always are ; but always where these words are , there is not always an addition ; for they are sometimes used by way of specification ; and sometimes instead of an et , between two specifications .

Now in antient times , the very constituting an Admiral , Captain , or Governour of the Fleet or Navage , carried with it all the power and jurisdiction belonging unto that office or place , without specifying any of the particulars ; and when any particular designe was in hand at the time of the constituting and making of the Captain or Admiral , or whatsoever other title he bore ( as often such designe at that time there was , which caused the change of the Admiral ) then was that particular power which belonged unto his office , and concerned that designe , specified either in the Mandate directed to all Sheriffs , and other Ministers and Officers for their obedience unto him , as Admiral , Captain , &c. but in such manner as sheweth that particular to be included amongst the many other particulars granted unto him by his Patent , under the general words , Constituimus dilectum & fidelem N. Capitaneum & Admirallum flotae navium , or Capitaneum Navigii , &c. or else that particular , when any is specified in the body of the Patent with an ita quòd , ut ita quòd potest hoc vel illud facere ; which plainly sheweth that that same particular was before amongst others granted in the preceding general words . I shall here set down only one example of each . King Edward the Second in the tenth year of his Reign , grants a Patent of this Office to John-de Athy under these general words .

Rex omnibus ad quos , &c. salutem : Sciatis c c Rot. an. 10 Ed. 2. secu●da parte pat. m. 22 quòd constituimus dilectum & fidelem nostrum Johannem de Athy Capitaneum Navigii ad partes Hiberniae , &c. quamdiu nostrae placuerit voluntati , in cujus , &c. Teste Rege apud Claringdon 28 die Martii per brev. de privato sigillo .

And he giveth this Mandate upon the constituting of him , Et d d Rot. eodem memb. eadem . mandatum est Vicecomitibus , Ballivis , Ministris , & omnibus fidelibus Regis Marinariis , & aliis ad quos , &c. quôd eidem Johanni , tanquam Capitaneo navigii praedicti , in omnibus , quae ad salvam & securam custodiam terrarum praedictarum pertinent , consulentes sint , intendentes & auxiliantes , quotiens opus fuerit , & per ipsum Johannem fuerint super hoc ex parte Regis praemoniti . T. ut supra per brev. de privato sigillo .

And having given this Command in general to all Officers , quod in omnibus consulentes sint , intendentes & auxiliantes ; yet lest they might perhaps not understand one particular of extraordinary great power to be comprehended in the Admirals Patent under these general words , constituimus Capitaneum Navigii , by another Mandate he declareth that he had made him Captain of the Navage , and thereby given him this power ; and these are the words of the Mandate .

Rex omibus Ballivis , Ministris , fidelibus suis , ad quos , &c. salutem . e e Rot. eodem memb. eadem .

Cum constituerimus dilectum & fidelem nostrum Johannem de Athy Capitaneum navigii ad partes Hiberniae , &c. dedimus ei potestatem ad eligendum homines sufficientes , ad arma potentes , prout sibi viderit expedire ad morandum secum in navigio praedicto pro defensione & salvatione terrarum praedictarum , & ad puniendum illos , quos in hâc parte contrarios invenerit , & rebelles ; & ideo vobis , & cuilibet vestrum firmiter injungendo mandamus , quod eidem Johanni in praemissis omnibus & singulis intendentes sitis & auxiliantes , quotiens & quando per ipsum super hoc fueritis ex parte nostrâ . praemoniti .

T. ut supra per breve de privato sigillo .

Now by the repetition of the Patent it self here , wherein not one word of this particular is exprest , and by these words , dedimus potestatem , &c. we have given him power , is plainly set forth and shewed , that this particular amongst others was granted under those words , Constituimus Capitaneum Navigii . But I shall proceed to another example , where another particular is specified in the body of the Grant , with an ita quod , after the Constitution it self , which likewise sheweth that that particular was comprehended in the very constitution , and granted before in the general words : And this is a Patent granted in the 22 year of Edward the First , which followeth in these words .

Rex , &c. f f Rot. Vescoyn . an . 22. Ed. 1. memb. 8. universis & singulis Vicecomitibus , Ballivis , Ministris , & fidelibus suis , ad quos , &c. salutem : Sciatis quòd constituimus dilectum & fidelum nostrum Willielmum Leybourne Capitaneum nautarum & marinellorum nostrorum , quinque portuum & membrornm eorundem , & similiter Jernemouth , Bayon , Hiberniae , Walliae , & omnium aliorum portuum , & locorum , in quibus naves sive battelli applicant infra regnum & potestatem nostram . Et etiam militum & aliorum fidelium nostrorum quicum ipso per praeceptum nostrum in flota navium , ipsorum nautarum & marinellorum per partes maritimas , & costeras maris contra inimicos nostros sunt profecturi . Ita quòd idem Capitaneus per se & alios , quos per literas suas patentes sigillo suo signatas , assignare , deputare , destinare voluerit , capere possint , & secum ducere homines idoneos & potentes ad arma , naves , bargeas & battallas , victualia & alia quae ad expeditionem eorundem necessaria fuerint , & etiam quòd capere possint armaturas per visum dicti Capitanei , ab illis a quibus idem Capitaneus eas viderit capiendas , dum tamen hujusmodi victualibus & aliis necessariis , quae ad eorum , Capitanei nautarum & marinellorum sustentationem sic capita fuerint , satisfacient illis a quibus ea ceperint , juxta rationabile pretium eorundem , & de armaturis similiter , vel sufficientem securitatem inveniant de ipsis armaturis restituendis . Et ideo vobis omnibus & singulis mandamus , & in fide quà nobis tenemini praecipimus firmiter injungentes , quòd praedicto willielmo tanquam Capitaneo praedictorum nautarum , & marinellorum , militum & alorum praedictorum , & aliis quos idem Willielmus per literas suas patentes assignaverit & destinaverit , sicut praedictum est , in praemissis omnibus & singulis , sitis intendentes , respondentes , auxiliantes , & obedientes , prout vobis scire faciet ex parte nostrâ In cujus , &c. bas literas nostras fieri fecimus patentes quamdiu nobis placuerit duraturas . T. R. apud Westm. 7 Junii .

Et g g Ibidem . mandatum est Vicecomiti Northumbriae quòd praedicto Willielmo tanquam Capitaneo praedictorum nautarum , marinellorum , militum & aliorum praedictorum & aliis quos idem Willielmus per literas patentes suas assignaverit & designaverit , sicut praedictum est , in praemissis omnibus & singulis , sit intendens , respondens , auxilians & obediens , prout eidem Vicecomiti scire faciet ex parte Regis .

T. R. apud Westm. 8. die Junii . Eodem modo mandatum est . Vicecom . Ebor. Vicecom . Lincoln . Vicecom . Norfol. & Suffol . Vicecom . Essex . Vicecom . Cant. Vicecom . Sussex . Vicecom . Southampton . Vicecom . Somers . & Dorcest. Vicecom . Devon . Vicecom . Cornub. Vicecom . Gloucest . Vicecom . Lancast . Roberto de Tybotot Justic . West-wall . vel ejus locum tenenti . Roberto de Staundon Justic . North-Wall . et ejus locum tenenti . Reginaldo de Grey Justiciario Cestren , et ejus locum tenenti .

The Record sets forth first the Grant in general , which is comprised in the former words thereof , viz. Constituimus ▪ Willielmum Leybourne Capitaneum nautarum et marinellorum nostrorum , militum , &c.

Then it is declaratorie , and specifieth some particulars of his power , which are comprehended under those general words of the Grant , which being not often used or put in execution , might cause some to doubt whether ever they have been used at all or not ; and so to question whether such particulars were comprehended in the Grant by those general words or not , being things of so great and high authority and power : Therefore are these words ita quòd inserted , which do not import the concession of any further power or authority then what was granted before : but in all manner of reading they intimate that by the consequent words is understood or shewed either some inherent or adherent power , property , or quality , which is comprehended under the precedent words .

It rests then that these specifical words inserted in this Patent , are only declaratory , that such power and authority doth belong unto that great Officer and Governor of the Seas , by virtue of such his Office : for though first the imployment begets the Officer , and so consequently the Office ; yet when it is become an Office , the very constituting of the Officer , and granting of that Office , is the granting of all the imployment that hath belonged thereunto .

These last cited Records do manifest the great power and authority which the great Officers of the Seas had , and hath over all manner of Shipping , Ships , Boats , and Barges whatsoever , within the limits of his Jurisdiction , and over all manner of men , ammunition , victual , tackle , and furniture thereunto belonging ; and the power and authority he had and hath over all Sheriffs , Bailiffs , and other ministerial Officers , who were and are to be attendant , aiding , assisting , and obedient unto his and his Deputies Commands , in the execution of the Office , of so great power and trust ; yea , and they were and are to be so attendant , and obedient , in regard and respect of the Office it self ; for the Records do run with an ideo , therefore : As Constituimus N. Capitaneum & Admirallum , &c. vel similiter : Ideo vobis mandamus , &c. quod praedicto N. Capitaneo , &c. in omnibus et singulis sitis intendentes , &c.

The Governor of the Seas having then with the assistance and obedience of these other Officers , had so strong a power , and full authority and jurisdiction from the King himself , over all these things : who else could have any thing to do therewith , or with any differences , debates , controversies , or whatsoever else arising from , or concerning the same ?

CHAP. III. That the Ports and Havens , and Creeks of the Sea , are within the jurisdiction of the Admiralty .

IT is affirmed by some , whereof that most famous Lawyer Sir Edward Coke is one , that the Ports , Creeks , and Havens of the Sea , are within the bodies of the Counties , and are not within the Jurisdiction of the Admiralty . His bare assertion in his own learning may ( I confesse ) very well pass for authority ; but in the decision of this matter , between that Jurisdiction he himself exercised according to the municipal Laws of this Nation , and whereof he himself was a Professor , and a Judge ; and that other Jurisdiction exercised by a Professor of another Law so distinct and different from his , viz the Civil and Maritime Laws ; he hath in my judgement , shewn himself extremely partial , and much different in opinion from some others which sate in his place before him , as I shall plainly shew hereafter : And I must confess it sounds very strangely in my ears , to hear that which hath ever since the Sea was called the Sea , been called an arme of the Sea , now called an arme of the Land , or an arme of a County , or the part of the body of a County ; much less then will it sink into my understanding how it comes to be in the body or heart of a County , when for the most part it separateth one County from another . But it hath been an antient assertion and observation , that where any land or ground is gained from the sea in one part , or on one side thereof , the sea doth gain as much upon the land in some other part , or on the other side thereof : And so it seems the sea hath gained upon the land of all or most other Nations on the other side , and beyond the seas , insomuch that their Admiralties swell , and the sweetness of that gain and profit they reap by Sea-trade and Commerce with other Nations , hath caused them to add daily new priviledges thereunto , rather then to diminish or take away any of the old . And England instead of what the sea hath gained upon the land of other Nations , hath gained upon the sea ; and being less considerate or carefull of the commodity and gain the Sea-trade and Traffique bringeth it in , had once well-nigh quite destroyed that antient Jurisdiction , which is not yet quiet , but continually spurned and kickt at : for put all that together which Sir Edward Coke would prove , and some that have followed him would approve , and they would leave the Admiralty very liitle or no Jurisdiction at all , and but little more then a bare and naked title , as shall hereafter be shewed .

And it would have sounded as strangely to me to have heard of ships lying and riding at Anchor within the body of a County , but that I have heretofore often heard of their often riding and lying at Anchor in Parochiâ Sanctae Mariae de Bow in Wardâ de Cheap .

The Arguments that are by him used for the proof of this particular , that the Ports and Havens are within the bodies of Counties , are confounded with those whereby he endeavoureth to prove the Admiralty to have no Jurisdiction within those Ports , Havens and Creeks ; and what is used for the proof of the one , is used for the proof the other , and will come to be considered altogether . Yet when he hath used all his arguments to prove these his assertions , out of his ingenuity confesseth the antiquity of this Jurisdiction to be fetched from far more antient times , then the reign of a a Coke Jurisdict. of Courts ; cap. 22. Edward the Third , in whose dayes ( as saith ) some have dreamed it began . And for proof hereof he sets down word for word ( as he saith ) the Libel , ( which I have before quoted out of the Tower Roll , and is likewise quoted by Mr. Selden ) of Edward the Firsts time .

And after that , b b Idem . Ibid. to shew that of antient times there were several Admirals , for that ( as he affirmeth ) the wisdome of those dayes would not trust one man with so great a charge , nor any man to have a certain estate in an Office of so great trust , he sets forth several of those Records which I have cited before out of the Tower Rolls , for proof of the antiquity of that Jurisdiction , none of them serving at all to his former purpose , but some of them may very well serve against it ; as that of the 15th year of Henry the Third ; which he setteth forth thus .

Petrus Ryvale Capitaneus Pictaniae habet ad totam vitam suam custodiam omnium portuum , & totius costerae marinae Angliae , excepto portu de Dover , qui est in custodiâ c c Rot. an . 15. H. 3. Huberti de Burgo .

So that he reckoneth this man amongst the Admirals , ( as indeed he could do no less , he having that office and place ) and he doth acknowledge , that by his Patent he had , custodiam omnium portuum & totius costerae marinae . Now to have custodiam portuum , and to have no Jurisdiction or power in portibus , can in no mans judgement seem less then a plain contradiction .

And in like manner he quoteth another of the 25th of Edward the First to the very same purpose , which runneth thus .

Johannes Botetort , custos Regis portuum maritimorum , versus partes d d An. 25 Ed. 1. prima parte pat. m. 9. Boreales , 25 Marrii . Now will any man say that John Botetort was the Kings Keeper of his Maritime Ports , and yet averre that they are no part of his Jurisdiction , or affirme that he had nothing to do therein or therewith ? Surely they be called portus maritimi , which are Ports belonging to the Sea , and Ports so far from being within the bodies of Counties , that they do not so much as belong thereunto ; they are portus maritimi , Ports of the Sea , or belonging to the Sea , or which warranteth our vulgar language , the Sea-ports , and are not part of either Land or County , or of or belonging thereunto , and are absolutely and properly the Homogeneal parts of that Homogeneum totum , the Sea , and and no Heterogeneal parts of the Land , as the fresh water Rivers springing out of the land , and contained in the bodies of the Counties thereof , are .

He instanceth in another Record of the 10th of Edward the Second ( as he saith ) but indeed is the 19th , which he setteth forth in these words .

Nicholaus Kyriell e e An. 19 Ed. 2. 1. parte pat. m. 12. constituitur Admirallus flotae omnium navium , &c. tam quinque portuum , quàm aliorum portuum & locorum per costeram maris versus partes Occidentales , quamdiù Regi placuerit . Teste Rege apud Turr. London 8. Decembris .

And another of the first of Edward the Third , which runneth thus .

Warrosius de Valloignes constituitur Capitaneus & Admirallus flotae navium , &c. tam quinque portuum , quàm aliorum portuum & locorum , per costeram maris versus partes f f An. 1 Ed. 3. 1. part . paten . m 21. Occidentales , quamdiù , &c ut supra .

The two former Records were , one of them in the Reign of King Henry the Third , the other in the Reign of Edward the First ; and these two are one of them in the Reign of Edward the Second , and the other in the first year of Edward the Third : And indeed most of the Records which are in the Reign of these four Kings , ( viz. Henry the Third , and the 3 Edwards ) which concern the grant of this great Office , are of the same nature with these four , and run in such like , or in the very same words with these but more especially , and most frequently agreeable to these two last ; and so do most of those g g Supra lib. 1. cap. 1. Grants which were in Henry the Fourths time , as may appear where I have set them down in order .

And these may bear a double construction , and two several sences and meanings , but not so different but that the best of them that can be made for the Quoter of them will serve to confute and destroy his new-set-up opinion and assertion .

Take this construction first , and read them in this sence , Constituitur Capitaneus & Admirallus flotae omnium navium , &c. Capitaneus & Admirallus tam quinque portuum quàm aliorum portuum , & Capitaneus & Admirallus omnium aliorum locorum per costeram maris : That he is Captain and Admiral of the Fleet of all Ships ; Captain and Admiral as well of the Cinque Ports , as of all other Ports , and Captain and Admiral of all other places by the Sea-coasts towards the Western parts .

And the first two Records of these four by him cited for concordancy and agreement sake , do warrant this construction ; and that the same may be made of the words , as without any incongruity or trespass at all upon Priscian , so without any falsehood at all of the matter : For the first two Records , the one giving the Admiral Custodiam omnium portuum & totius costerae maris : And the other making him Custodem Regis portuum maritimorum , do warrant the truth thereof : And then are these two last a confirmation of the two first , and argue the same thing , besides what else may be gathered out of them , against the truth of that assertion . For certainly he that had Custodiam portuum , and was Custos Regis portuum , had the rule , governance and ordering of all things in or belonging unto those Ports , and that by way of Judicature , according to the Civil and Maritime Laws : for it 's plain by the Libel , Sir Edward Coke himself hath set down which I formerly quoted , h h Sup. lib. 1. cap. 5. mentionat . in ipsissimis verbis repetit . that these Admirals in these times had 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , Jurisdictionem sive potestatem audiendi & determinandi causas secundum jus , as I have said i i Sup. lib. 2. cap. 1. & lib. 1. cap. 1. before ; or take the words as they run in the Patents themselves , viz. Rex omnibus ad quos , &c. salutem . Sciatis quod nos de fidelitate probatâ & circumspectione providâ dilecti & fidelis nostri N. plenariè confidentes , constituimus ipsum N. Capitaneum & Admirallum flotae nostrae , omnium navium , &c. tam quinque portuum quàm aliorum portuum & locorum per costeram maris versus partes , &c. And afford them what construction can possibly be strained out of them to save this assertion harmless , yet will it thereby be scattered and torn all to pieces .

Take it then in this construction , viz. We make him Captain and Admiral of our Fleet of all Ships of all Ports , as of or belonging to all Ports , &c. Will any man say that he that is Admiral of all these Ships , that belong unto these Ports , is not Admiral of them , whilest they lye or ride at Anchor within those Ports , and are not riding super alto mari ? and that he hath not the rule , governance , and command over them whilst they lie there ? If so , let him say likewise he hath no power , governance , or command over them untill he find or take them upon the main sea , which Ships he never took out of any of those Ports or any other .

The Admiral therefore must have jurisdiction and power upon the Creeks , Ports and Havens , or else his power at sea will come to little or nothing . I shall give you here but one instance which will shew the necessity of his having jurisdiction upon the Ports and Havens as well as upon the high seas .

If one Ship shall do damage to another either upon the main Sea , or upon any Creek , Port , or Haven , the damages must be sued for in the Admiralty Court , and judgement given according to the Maritime Laws , which prescribe every Ship her rule , how to steer her course , both going out to Sea , or coming home from Sea , or riding at Sea ; which plainly demonstrateth which Ship was in fault , by which the Judgement must be regulated , for which the Common Law hath no rules at all , nor can any action properly by the rules thereof be commenced at that Law for these damages : For that the Owners damnified can very hardly arrest all the Owners of the other Ship which did the damage : nor indeed can any of those Owners by that Law , as I have been by some of the learned of that profession informed , be lyable to such arrest , but the Master only ; who , if solvent , will not come on shore , but take his imployment in some other Ship outward bound ; if not solvent , the arrest will be to little purpose : so that the remedy lyeth only against the Ship by the Civil and Maritime Laws , according to the course thereof , which proceedeth in cases of this nature by way of several defaults , &c. which either will bring in the Owners to answer the Action , or make the Ship lyable to make satisfaction for the damage done , in so much as she is worth ; which course of proceedings the Common Law hath not .

CHAP. IV. The Arguments deduced out of the Statute Law , to prove the Ports , Havens , and Creeks of the Sea , to be within the bodies of Counties , and not within the Jurisdiction of the Admiralty , redargued .

HAd this been but a bare assertion , that the Ports , Havens and Creeks of the Sea are within the bodies of Counties , and not within the Jurisdiction of the Admiralty , more needed not ( I conceive ) have been said then what hath been already said , in the former chapter : But the Arguments that are used for proof thereof , will necessarily require a farre larger discourse for answer thereunto , and further confirmation of the contrary . For here I am to encounter a great Antagonist , the forementioned Sir Edward Coke , sometime Lord chief Justice of the Kings Bench , a man most famous for his knowledge and pains in the Laws of this Nation , whose memory undoubtedly is still not undeservedly honoured : yet though my encounter be upon this disadvantage , I doubt not but to give satisfaction to a Judge indifferent between both Jurisdictions and Professions , as well in this point , as in some other things by him asserted .

For the proof of this point , he first asserteth the Statute of the fifth of a a Eliz. 5. c. 5. Elizabeth , cap. 5. which ( saith he ) describeth particularly the limits of the Lord Admirals Jurisdiction , in these words : All and every such of the said offences before mentioned , as hereafter shall be done on the main Sea , or coasts of the Sea , being no part of the body of any County of this Nation , and without the Precinct , Jurisdiction and Liberty of the Cinque-ports , or without any Haven , or Pear , shall be tryed and determined before the Lord Admiral , &c. So as ( saith he ) by the judgement of the whole Parliament , the Jurisdiction of the Lord Admiral is wholly confined to the main Sea , or Coasts of the Sea , being no parcel of the body of any County of this Nation .

In answer hereunto , I do deny that these words in this Statute do prescribe particularly the limits of the Lord Admirals Jurisdiction , if he mean his whole Jurisdiction in general : but I will confess they do prescribe him certain limits , quoad the increase of his Jurisdiction , by making the particular acts before mentioned in the Statute , to be offences , and punishable , and do declare that his , and the Warden of the Cinque-ports Jurisdiction upon the main Sea , shall be increased , by having granted unto them the cognizance of such of the before mentioned offences , as should be committed thereupon , and do restrain his Jurisdiction within the Ports and Havens to what formerly it had , without having any increase thereof by the Cognizance of such the before mentioned offences , as should be committed thereupon ; and this appeareth plainly out of the words by himself recited , viz. All and every such of the said offences before mentioned shall be triable thus and thus , not having any relation unto any offences , or causes triable , either before the Admiral , or cognoscible by any other Judge .

And indeed if we look backward to those offences before mentioned in the Statute , which can be committed in or about the Havens or Ports , we shall find that they are not of the nature of such Civil and Maritime causes , or offences , as are subject unto that Jurisdiction of the Admiralty . The particulars are these .

1. That any Subject may carry Sea-fish forth of the Realm in any of the Queens Subjects Ships , without paying Custome .

Now we know very well that the paying of Custome in every Port Town belongeth to a peculiar Office for that purpose , and the Admiral neither doth , nor did for many years meddle therewith .

2. That no person in any Port , City , Town , Market , or other place , shall set price , make restraint , take or demand Toll , or Tax of any Sea-fish to be brought into this Nation , being taken and brought in in Subjects Ships .

Here Port is taken for the Port-town , or Haven-town : for the prising , taxing , and tolling of Commodities is done upon the land , after the goods are unladen , and not whilest they are aboard the Ship or Vessel , and therein so stowed , as that they can neither be numbred , weighed , nor viewed . And the Port Town is here only collectively named with other Cities , Towns , Markets , and Places , ( as appeareth plainly by the words of the Statute , as they run together ) to include all sorts of Towns ; nor doth , or ever did the Admiral any more meddle with the prising , taxing , or tolling of Commodities within any such Towns , more then he doth or did with the Customes thereof .

3. That no Pourveyors should take any Sea-fish , brought in such Ships , under the forfeiture of the double value .

4. That no man shall buy of any Stranger , or out of any Strangers Bottom any Herring , or other Sea-fish not salted , packed or casked , under pain of the forfeiture of the fish so bought , or the value thereof .

5. That no Wares may be carried from any Port of this Realm to another .

6. That all Codd and Lings be brought into this Realm loose , and not in barrels .

7. That no Wine be brought forth of France , nor any Wood brought into England but in English bottoms , all under pain of forfeiture : And being so , they are by this Statute become to be of the nature of prohibited Commodities ; for discovery whereof , there be in all Ports certain Searchers appointed which bring the same under forfeiture ; and the Admiral deals not therewith , but only with such prohibited Commodities as are prohibited to be transported beyond the seas , and are de facto so transported , having escaped the Searchers hands . And in such cases the Admiralty hath the power of punishing such as have so offended ; for that the fact cannot be made appear but by examination thereof by way of Commission out of the Admiralty in the place where the said goods were unladen and landed .

The restraint therefore upon the Admiral and Warden of the Cinque-ports by this Statute in these cases , is , lest they , having Jurisdiction as well upon the Havens and Ports of the sea , being parts and members thereof , as upon the main sea , should ampliare jurisdictionem , and take the cognizance of these things to their Courts , and abridge the Customers and searchers of that power which belongeth unto their offices and places .

And indeed this restraint in this Statute upon the Lord Admiral , the Judge of the Admiralty Court , and their Surrogates , and upon the Lord Warden of the Cinque-ports and his Lieutenants , is a strong argument that in other matters they have full power , governance , and cognizance upon the Ports and Havens as well as upon the main sea ; otherwise needed not these particular offences to have been excepted from their power and cognizance there : and this exception of these particulars from their cognizance there , concludeth other things in general there done to belong thereunto : For quicquid accipitur in particulari , praesumitur esse in generali : The Admirals cognizance upon the Ports and Havens is by this Statute excepted from these particular offences there done , and is therefore presumed to be full in other general offences thereupon committed , and not otherwise excepted therefrom . And other rules there be that confirme this Argument , as that , Id à quo fit exceptio , fit universale , ut possit distribui : These particular offences are excepted from the Admirals cognizance upon the Ports and Havens : and therefore his cognizance there must be universal ; so that from that universal cognizance there , these particulars may be excepted and divided . And , Id quod excipitur , seu subjectum exceptum , debet contineri sub excipiente , seu eo à quo excipitur : and again : Quod excipitur debet esse angustius eo à quo excipitur .

And further , the restraining of the Admirals Jurisdiction from medling with these particulars , upon the Ports and Havens , doth not restrain his power from medling with other matters or offences done , and committed thereon ; for the barring of his cognizance of these particulars there , is but a limitation of his general power there ; Et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest .

For the Argument then , that is deduced from this Statute , which concludeth that the limits of the Lord Admirals Jurisdiction are thereby described , and by the judgement of the whole Parliament ( as is asserted ) confined unto the main sea , or coasts of the sea , there is no other question to be made of it , then whether it shall overthrow and destroy all these Logical rules , or they it . Another answer may be given to this argument , by distinguishing upon the word Port or Haven , as it is taken in a double construction , and beareth a double acceptance , warranted by Mr. Serjeant Callis in his b b Callis in ●ect . apud Hosp . Gran super stat. 23 H. ● . ca. 5. an. 1622. Reading at Greys-Inne 1622. upon the Statute of Sewers 23 H. 8. cap. 5. who in his first Lecture , to the diversity between a Creek , Haven and Port p. 24. 25. saith that a Haven properly is a safe place of harbour for Ships , but may be without any priviledge at all : and then maketh mention of such as are alwayes graced with legal priviledges ; and for this he quoteth the Statute of Magna Charta , in these words : Quod omnes communitates & Barones de quinque portubus , & omnes alii portus , habeant omnes libertates & liberas consuetudines : that all common Societies of Ports , and Barons of the Cinque-ports , and all other Ports may have their liberties , &c. which can be no otherwise understood , then that thereby is meant the common Societies of Port-towns , the Barons of the five principal Port-towns , and all other Port-towns may have their priviledges , &c. so that a Port-town is ordinarily termed a Port , as well as the Port it self ; and so is a Haven Town , &c. though not so properly . And the words of the Statute ( saith he ) confirme my former definition of Ports to be true ; and this is his definition ; A Port is a harbour , and safe arrival for Ships , Boats , and Ballengers of burthen to freight and unfreight them at , not in : so that we see that he maketh the Haven where Ships lie at anchor , to be a Port , and the Town whereat they lade and unlade , to be a Port ; and so the same Author maketh costeram maris to contain the shoar and banks , as well as that part of the sea adjoyning thereunto : and he proveth it out of the Statute 27 of Eliz. cap 24. which Act was made for the mending of the banks and sea-works on the sea-coast . And out of the 7th chapter of Macchabees , where Demetrius Son of Seleucus came to a City of the sea-coast , &c. ut in ejus libro p. 32. so that in common acceptance the places adjoyning to the Sea-coasts for their adjacency , are called and taken for Coasts , as well as the Coasts themselves ; and the Towns or Cities adjoyning to the Ports , for their adjacency , are termed Ports as well as the Ports themselves : and then it may very well be answered , that the words in this Statute , out of any Haven or Port , are meant of the City or Town thereunto adjoyning , and so called : and this , the offences in that Statute mentioned , unto which this clause hath reference and relation , will warrant . But more I shall not say concerning this argument , but shall come to that which the same Author further inferreth upon his own conclusion , when as his premisses can no way be granted ; which is that of Job the 38th chapter , the 8 , 10 , 11. verses , That Almighty God ( as he himself out of a whirlwind spake ) hath shut up the sea within certain dores or bounds : Quis conclusit mare ostiis , quando erumpebat quasi de vulvâ praecedens ? Circumdedi illud terminis meis , & posui vectem & ostia , & dixi , Vsque huc venies , & non procedes amplius , & hîc confringes tumentes fluctus tuos .

Hence I do conceive that he would inferre , that God then put the dores of the seas , where he himself by his interpretation of this Statute would now put them , between the high Seas and the Ports and Havens . But then he must have said , that when God put them there , he then left them wide open , and never shut them since ; for sure I am the sea was never yet shut out of the Ports and Havens , if we mean the Ports and Havens where ships do ride , or lye at anchor ; and not the Port or Haven Towns so termed , by reason of their adjacency so near unto them . Nor can it be allowed by what is here urged , that there they were put standing wide open : for he that saith posui vectem & ostia , saith & dixi , Vsque huc venies , & non amplius .

So that we see his doctrine suits not to this text ; but the text it self may very well serve for my purpose , that God himself hath put the gates and dores of the sea , and hath himself appointed its limits and bounds to be those , within which it is by his own power terminated .

And look how farre it extendeth it self , so farre it is sea ; and there , and no where but there , hath God placed these gates and dores , and terminated its limits and bounds by man unalterable .

CHAP. V. The Argument deduced from the first Judgement at the Common Law , that the Ports and Havens of the Seas are within bodies of Counties , redargued .

OTher arguments there are by Sir Edward Coke , deduced out of the Judgements and Judicial Presidents at the Common Law . I shall first begin with the Judgements . And the first that he urgeth , is a Judgement given in the Court of Common-pleas ; Hil. 6 H. 6. Rot. 303. between John Burton Plaintiffe , and Batholomew Put Defendant ; and the Case was ( saith he ) upon the a a Coke Jurisd. of Courts ca. 22. Statutes of the 13 Rich. 2. cap. 5. the 15 Rich. 2. cap. 3. and the Statute of the 2 Hen. 4. cap. 11. b b Stat. 13 R. 2. cap. 5. 15 R. 2. ca. 3. & 2 H. 4. ca. 11. upon which Statutes the said Bartholomew having sued the said John Burton in the Admiralty Court before Thomas Duke of Exeter , then Admiral of England , for that the said John Burton with force and armes the second day of September anno 1 H. 6. c c an. 1 H. 6. three ships of the said Bartholomews , with his Prisoners and Merchandises , to the value of 960 marks 5 s. 5 d. ob . in the same ships being , did take and carry away , supposing by his Libel the same to be taken away super altum mare , upon the high sea , Judgement was given that the taking aforesaid was infra corpus comitatùs in Bristol , the said ships lying in the Haven of Bristol , and not upon the high sea , contrary to the forme and effect of the said Statutes ; the parties having descended to an Issue , which was found for the Plaintiffe , and damages to 700 l. And this is the Judgement he quoteth , Et super hoc audito tam recordo quam veredicto praedicto , & per curiam plenius intellect . consideratum est , quòd praedictus Johannes Burton recuperet versus praefatum Bartholomeum damna sua praedicta occasione attachiamenti prosecutionis , & vexationis , quàm missarum & custagiorum ad septuaginta libras per juratores praedictos superius assess . in duplum per Statutum , &c. Quae damna in duplo se extendunt ad mille & 400 l. Et idem Barthol . poenam decem librarum erga Dom. Regem nunc per statutum incurrat & capiatur , &c. querens remittit 400 l.

And he saith that it appeareth by the Record , that this being the first Case that can yet be found , that received judgement in the Court of Common-pleas upon the said Statutes , and that the same depended in advisement and deliberation eight Terms , whereby it plainly appears ( the time being computed from the making of the said Statutes , whereon this Action was grounded to the time of the Judgement 6 Hen. 6. ) that the Courts of Common-law had not for above 20 years after the making of these Statutes , ever medled with causes of this nature . Nor can it ( I am confident ) be found that cases of this nature , were any of those cases wherein the Admirals had encroached upon the Common-law , before the making of the said Statutes ; and what ground these Statutes then gave them for this Judgement , I could wish he had reported with the Judgement it self . The Statutes I have endeavoured ( to the utmost of my weak skil ) to examine one by one , but cannot find that in such cases as this the Admiralty was by them in any wise prohibited to proceed : of which Examition of mine , I shall hereafter render the best Accompt I can , more especially when I come to treat of Contracts made at land of and concerning maritime and sea affairs ; d d Infra lib. 3. cap. 2. but I must here in the first place examine the observations by Sir Edward Coke himself gathered out of this Judgement .

From the whole he gathereth these four observations .

1. That it is contemporannea expositio , being made within 20 years of the making of one of the said Statutes ; and he saith that contemporanea expositio est optima .

2. That albeit the said three Ships , with the Prisoners and Merchandizes in them , lay in the Haven inter fluxum & refluxum aquae , and infra primos pontes , yet that the Haven is infra corpus Comitatûs , and that for taking of the Ships , with the Prisoners and Merchandizes in the same , no Suit ought to be had in the Admiralty Court , but at the Common Law .

3. That the Court of Admiralty hath no Jurisdiction , but super altum mare , which is not within any County ; for the Record saith ( as he averreth ) that the said three Ships , with the Prisoners and Merchandizes in the same , did lie infra Comitat. Bristoliae , & non super altum mare , as the Plaintiffe in the Admiralty Court supposed the same to be .

4. That this Judgement so solemnly , and with such advisement given , if it were alone , were sufficient to give full satisfaction in this point : for , saith he , Judicium est tanquam juris dictum , & judicium pro veritate accipitur .

I conceive that by two of these four observations ( the first and the last ) he endeavoureth to prove that this Judgement is a good Judgement , which ought to be observed ever after for Law ; which if he hath thereby proved , the two other ( the second and third ) may be deduced into some conclusion , otherwise not . He then that will examine the argument comprehended in these two observations , must deduce it thus ( or else he shall find no argument therein at all ) viz. a Judgement given per contemporaneam expositionem of a Statute or Statutes made within twenty years after the making of one of them , and that solemnly upon two years advisement given , is a good Judgement ; which ought ever after to be observed for Law . But this Judgement was given by a contemporary exposition of the said Statutes , made within twenty years after the making of one of them , and that solemnly with advisement by the space of two years ; therefore this Judgement is to be observed for Law ever after : then will the other two observations be easily deduced into a conclusion ; otherwise not . But I must crave leave that without offence I may call into question the truth of the premisses , out of which this conclusion is deduced .

First then , whether a Judgement given per contemporaneam expositionem of a Statute made within the space of twenty years next before such interpretation or exposition ( though solemnly advised on by the space of eight Terms , which is two whole years ) must necessarily be ever after observed for law , is that which first cometh in question . Under correction I conceive that neither the time of such interpretation or exposition-making , nor the deliberate advisement thereupon , conclude this necessity , that the Judgement thence proceeding must be ever after observed , nay , I conceive it ought not ever after , or at all to be observed , unless such exposition be grounded upon both law and reason , or at least one of them .

This is said to be the first and leading Case , and so the first exposition of those three before mentioned Statutes made to this purpose : and therefore the law and reason whereupon such exposition had its ground and foundation , might very well have been expected to have been there by him set down , where the Judgement it self is urged ; but finding neither , I have according to my weak abilities endeavoured to search both or either of them out ; But indeed am so thick-sighted , that I can find out neither the one nor the other to warrant the same .

The Statute of the 5 Eliz. 5. before d d Supra cap. 4. hujus 2. lib. Super eod. cap. mentioned and urged for the proof of this assertion might , had it been made before this exposition of the other three , have set some colour thereon , but no more then a colour : for there is nothing therein contained substantial , that could have afforded this interpretation of the other three ; but coming after this interpretation , this interpretation hath lost that colour , and is left upon the Statutes themselves ; wherein I for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation .

The first of them is that of the 13 Rich. 2. 5. which Statute hath relation unto a Petition upon which the interpretation thereof ought to be grounded , according to the manner of making Acts in those dayes ; which Petition in other Acts is inserted as a preamble to the Act it self ; but in this is premised only in part , and that not truly rendred by the Translation ( as shall appear when we come to treat of Contracts made at land for e e Infra lib. 3. cap. 2. sea affairs ) the Statute it self runneth thus .

Le Roy voit que les Admiralls & lour deputees ne sic mellent de sore ana vant de nul chose fait deins le Roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre s●r ' le Roy quorust .

The Kings pleasure is that the Admirals and their Deputies shall not from henceforth so meddle ( viz. as is complained of in the Petition ) of 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 & f f Supra cap. 3. hujus secundi lib. & cap. 1. lib. primi . 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 g g Rot. an . 35. E. 3. prima parte pat. m 32 praecitat . in cap. 1. lib. primi . 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 h h Infra lib. 3. cap. 5. 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 * * For the word only is not to be referred to any thing but to the first bridges , and not the precedent words and things . 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 h h Lacyes Ca●● 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 i i Inf●a cap. 9 , 10 , 11 , 12 , 13. hujus lib. 2. & cap. 1. lib. 3. ac etiam cap. 3. & 4. ejusdem libri 3. 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 , Pirats , Theeves , Robbers , Murderers , and Confederates upon the Sea , many times escaped unpunished , because the tryall of their offences heretofore hath been ordered , judged , and determined before the Admiral , or his Lieutenant , or Commissary , after the course of the Civil Law , the nature whereof is , that before any Iudgement of death can be given against the offenders , either they must plainly confess their offences ( which they will never do without torture or pains ) or else their offences to be so plainly and directly proved by witnesses indifferent , such as saw their offences committed , which cannot be gotten but by chance at few times , because such offenders commit their offences upon the Sea , and many times murder and kill such persons , being in the Ship or Boat where they commit their offencs , which should witness against them in that behalf and also such as should bear witness be commonly Mariners , and Shipmen , which because of their often voyages and passages on the Seas , depart without long tarrying and protraction of time , to the great cost and charges as well of the Kings Highness , as such as would pursue such offenders . For reformation whereof be it enacted by the Authority of this present Parliament , That all Treasons , Felonies , Robberies , Murders and Confederacies hereafter to be committed in or upon the Sea , or in any other Haven , River , Creek , or Place where the Admiral or Admirals have or pretend to have power , authority or jurisdiction , shall be enquired , tryed , heard , determined and adjudged in such Shires and Places in the Realm , as shall be limited by the Kings Commission or Commissions to be directed for the same in the like forme , and condition , as if any such offence or offences had been committed or done in or upon the Land , and such Commissions shall be had under the Kings great Seal directed to the Admiral or Admirals , or to his or their Lieutenant , Deputy , or Deputies ; and to three or four such other substantial persons as shall be named and appointed by the Lord Chancellor of England for the time being , from time to time , and as oft as need shall require , to hear and determine such offences after the common course of the Laws of this Land used for Treasons , Felonies , Robberies , Murders , and Confederacies of the same done and committed upon the land within this Realm .

This Statute plainly sheweth , that before the making thereof , the offences of all Traitors , Pirats , Theeves , Robbers and their Confederates , done , or committed upon the Sea , without distinguishing the main Sea from the Ports , Creeks , and Havens thereof , or excluding them therefrom , as well as the offences of Murderers and Meighmers of men were ordered , judged , and determined before the Admiral , his Lieutenant or Commissary : Nay , by the reason given in this Statute for the alteration * * Or rather addition'd to the manner of tryal ; for the other manner of tryal is not taken away by this . of this Triall , the Ports and Havens do appear to be comprehended in the word Sea , where it is said that many times the offenders do murder and kill such persons , and the Witnesses being in the Ship or Boat , where they commit their offences , which should witness against them in that behalf . Now surely all the said offences which were done or committed in Ships or Boats , and were cognizable before the Admiral or his Lieutenant or Commissary , might be , and were committed as well in Ships and Boats , which did ride or lie at anchor within the Havens , Creeks , and Ports of the Sea , as upon the high Sea . Yet if this be doubted , what followeth in the Act will make it more plain , viz. That all Treasons , Felonies , Robberies , Murders , and Confederacies hereafter to be committed in or upon the Sea , or in any other Haven , River , Creek , or place where the Admirals have , or pretend to have power , authority or Jurisdiction , shall be enquired , tryed , &c.

So that we see here the same criminal offences acknowedged to have heretofore been tryable by the Civil Law , and that it is now enacted , that hereafter the same offences committed upon the Sea , may be otherwise enquired , tryed , &c. And least any doubt should arise , how farre the Sea heretofore extended , therefore it is added , or any other Haven , River , or Place , where the Admiral or Admirals have or pretend to have Power , Authority , or Jurisdiction .

Again , had these Havens , Rivers , and Creeks ever been within the bodies of Counties , so that a Jury might have been had out of a proper County for the Tryall of these offences thereon committed , then needed not this Statute have appointed any such tryall thereof by Jury , to be chosen out of any County limited by the Kings Commission proper or not proper . Nor assuredly would this Stature have given the cognizance of these offences committed within the bodies of Counties to the Lord Admiral and his Deputies .

Now if these Havens , Rivers , and Creeks were so farre out of the bodies of Counties , that a Jury could not , nor yet can be had out of a proper County , but must be had out of any County by the King , in Chancery appointed , for the tryal of these criminal causes , arising from these offences thereon committe , I conceive it will seem strange that it should be affirmed that the same Havens , Rivers , and Creeks should be so farre within the bodies of Counties , that a Jury might , or may be had out of a proper County , for the tryal of such Civil causes as might or may arise from Civil matters thereon had or done ; so that I cannot by the uttermost of my endeavour find out the foundation either of law or reason , whereon this Judgement was built . Sir Edward Coke not seldome termeth it a Maxime in the Common Law , Quòd nemo debet videri prudentior lege , that no man ought to seem wiser then the Law : and truly from this Maxime ( as he termeth it ) I conceive , as strong a conclusion may be drawn , viz. Quod hisce statutis nulli prudentiores videri deberent , none ought to have seemed wiser then these Statutes themselves . But indeed as this Judgement hath been by some accepted as grounded upon law , so hath it been by more , and those learned in the Law , refused and rejected as not grounded thereon , as I shall hereafter shew , by Writs de Procedendo , awarded out of the Chancery upon Injunctions thence granted , and Consultations both out of the Kings Bench and Common-pleas , upon Prohibitions thence granted upon causes of the self same nature .

Now I hope by what hath been said , & shall hereafter be shewed , it plainly will appear , that this first and leading Judgement was not so grounded either upon law or reason , or upon so sound a foundation , as that men in succeeding ages should build their judgements thereupon , nor so complete or fit a guide or rule , as that Lawgivers should be directed thereby ( although it had been contemporanea statutorum expositio , made within 20 years of the making of one of the said Statutes , and that upon two years advisement and deliberation , as Sir Edward Coke affirmeth ) which Induction , or minor Proposition , is as infirme as the major , and both will leave the conclusion to stand alone 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 ●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 a a L. 1. ad Senat . C. Maced . 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 conce●● 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 , 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 ●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 , or any other thing whatsoever , which touch the King , against Him , his Crown and Regality , or his Realm , as is aforesaid : And they which bring within the Realm , or them receive , or make thereof notification , or any other execution whatsoever , within the same Realm or without , That they , their Notary , Procurators , Maintainers , Abetters , Fautors , and Counsellors , shall be put out of the Kings Protection , and their Lands and Tenements , Goods and Chattels forfeited to our Lord the King , that they may be attached by their bodies , &c.

In these antient Statutes , which are by way of Petition and Answer , the Answer hath alwayes relation to the Petition , and granteth what is therein desired ; sometimes less , but never more : by this Petition nothing is desired but the restraint of the Popes power , and assumed authority in those things therein exprest ; nor is there any thing more in the Answer granted , if these words in the genuine sence thereof be duly examined , which can be no other then this . If any purchase , &c. in the Court of Rome , or elswhere from the Pope , or any Power or authority derived from him , viz. either in his Court at Avignon , which he sometimes held there , or any other Ecclesiasticall Court under his Supremacy , whether beyond the Seas , or in the Realm of England : ( For we well know that in those dayes the Pope did challenge a power over the Ecclesiastical Courts here as subjected unto him , as their supreme only , or at least as well as the King ) and of these Courts and none other can this [ elsewhere ] be understood , as will plainly also appear , by the things specified in this answer , to be purchased and pursued , viz. If any purchase or pursue in the Court of Rome , or elsewhere , any such Translations , Processes , and Sentences of Excommunications , Bulls , &c. Now cannot these things , nor could they elsewhere , or in any other place besides the Court of Rome , be purchased or pursued , but from the Pope or his Authority in those other Courts before mentioned . Again , these words [ else where ] were necessarily inserted , and necessarily to be understood of those Courts under the Popes authority , from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise , whosoever had purchased any of them elsewhere , to wit in any of these other Courts , under his authority , and not in the Court of Rome , had not been by this Statute lyable to the punishment thereof . But some perhaps may say , I have here purposely waved the general words , which close up the particular specified things forbidden to be purchased , or pursued , viz. Bulls , Instruments , o● any other things whatsoever , which words perhaps may seem to have relation to [ else where ] and be thought to be of so large an extent , that the words [ else where ] must be stretched to all places whatsoever , beyond other Courts of the Popes , or under his authority : But indeed I intended it not . But as they are the last words , which close up the particulars specified , so I reserved them to the last place , wherein I shall disclose and clear that doubt .

When several particulars then of the same nature are closed up with a general , that general comprehendeth all other particulars of that nature , and nothing of a different and distinct quality . So here these general words [ or any other things whatsoever ] must be understood of any other thing whatsoever of the same nature with those Translations , Processes , &c.

And this is plain enough by the words themselves , if seriously observed , and rightly understood . For take them as they run , and they carry their limitation with them , which bindeth them close , and restraineth them unto what precedeth in the Petition .

And as the Court of Rome and elsewhere , have relation to the Pope , to the Popes Court at Rome , and unto his Courts elsewhere , so must these words [ Instruments , and other things whatsoever ] have reference and relation thereunto . And then take these words , as they answer the Petition , and they can bear no other sense then this , viz.

Whereupon our Lord the King by the assent aforesaid , and at the request of the said Commons , hath ordained and established , that if any purchase or pursue , or cause to be purchased or pursued in the Popes Court of Rome , or any other of his Courts elsewhere , any such Translations , Processes , and Sentences of Excommunications , Bulls , Instruments , or any other things whatsoever , which touch the Kings protection , &c.

So that upon the matter Sir Edward Coke here doth but tell us how these parties were accused , against whom these Praemunires were brought ; for certainly this Statute in a right construction could not be applyed against them for suing in the Admiralty Court . And his instancing herein plainly carraigneth the Judgement which he before used for an argument against the Admirals Jurisdiction upon Ports and Havens , and indeed may sufficiently serve to shew how groundlesly a word in a Statute may be , and hath been wrested and catcht at , to diminish and straighten the Jurisdiction of the Admiralty , and enlarge the already extraordinary large power of the Common Law . Nor are these Interpretations or Constructions in any wise contemporary with the Statutes ( as Sir Edward Coke would have them ) but taken up a long time after , and crept into their Law , as heresies do into Religion , by new constructions of Scripture : Neither indeed can either the Judgement , or any of these Praemunires instanced in be said to be contemporary with the said Statutes .

For further proof of this point , he instanceth in four or five Prohibitions unto the Court of Admiralty , for holding plea of Contracts made upon Ports or Havens , and beyond the Seas . But to these I shall give an answer hereafter , when the Contracts made at land concerning Maritime affairs shall come to be insisted upon .

CHAP. VIII . The Book-Cases and Authorities brought to proove , that the Admiral hath no Jurisdiction upon the Ports , Creeks , and Havens , answered .

CErtain Book●Cases and Authorities ( as Sir Edward Coke calleth them ) are likewise urged for proof of this particular , of the Admirals having no Jurisdiction upon the Ports and Havens .

1. Some Books are quoted , a a The Register ; but quoteth not what place . T. N. B. fol. 81. 〈…〉 F. nothing being exprest what the Books say , nor any argument deduced out of them to conclude the point : I cannot therefore give an answer to an argument unframed , nor is it proper for me , my self to raise an argument out of those books , and then my self to frame an answer thereunto . But I will conceive those Authorities he hath quoted at large , to make most for his purpose , and endeavour to answer unto them .

He saith in tempore Ed. 1. tit . Avowry 192. b b Temp. E. 1. tit . Avowry 192 a Replevin was brought for the taking of a Ship in the Coast of Scarborow in the Sea , and for carrying the same from thence , into the County of N. Mutford the Plaintiffe counteth of a taking on the Coast of Scarborough , which is neither Town nor Place out of which a Jury may be taken , for that the Coast is four miles long .

And also of a thing done in the Sea this Court hath no cognizace , for certain Judgement thereof is given for the Mariners . Berry chief Justice of the Common-pleas ; The King willeth that the Peace be as well kept on the Sea as on the Land ; and we find that you are come hither by due-process ; and therefore ruled him to answer .

Out of which the Author observeth four things .

1. That it is called the Sea , which is not within any County , from whence a Jury may come .

2. That the Sea ( being not within any County ) is not within the Jurisdiction of the Court of Common-pleas , but belongs to the Admirals Jurisdiction .

3. That when the Ship came within the River , then it is confessed to be within the County of Northumberland .

4. That when a taking is partly on the Sea , and partly in a River , the Common Law shall have Jurisdiction .

For the first Observation , which is , that that is called Sea which is not in any County from whence a Jury may come ; I may very well grant it , and he yet never the nearer the proof of that he aimeth at , viz. that a Port or Haven is within any County out of which a Jury may come , which is absolutely denied ; the reason whereof , as c c Sup. cap. 5. ●ujus lib. 2. before , so shall be hereafter shewed .

For his second observation , that the Sea not being in any County , is not within the Jurisdiction of the Court of Common-pleas , shall not be denyed him : but I must crave leave to observe with him , That notwithstanding this Ship was taken upon the Seas , where there was neither Town nor Place from whence a Jury could be taken ; yet Berry the chief Justice took cognizance of this Cause , and caused Mutford to answer : And this might have served him for as good an Argument to have proved the Seas to be within the Jurisdiction of the Common Law , as any that he hath used to prove the Ports and Havens to be within the bodies of Counties , and out of the jurisdiction of the Admiralty .

For his third Observation , which is , that when the Ship came within the River , it is confest to be within the County of Northumberland : I conceive , if Mutford might at the Common Law have pleaded two Pleas , which in many cases is necessary , and allowable by the Civil Law , he would as well have denyed , that ever he carried the Ship into the County of Northumberland , as he did averre that he took her upon the Seas : and silence is not a consent , or confession , where a man is tyed to one plea ; and hath divers to plead : This therefore is neither confessed by Mutford , or any else , but by the Author himself , and such as are of his party : for Berry neither affirmeth nor determineth any such thing , or causeth him to answer upon any such ground , but upon this ground , that the King willeth the peace to be kept as well on the sea as on the land : And indeed the grounds are both kept alike to sound the cognizance of this Cause in the Court of Common-pleas , whereas the King , that willeth the peace to be kept as well on the seas as on the land , hath provided , instituted and appointed from antient , and farre past times , distinct Judges , Justices and Officers for the keeping thereof on the one hand , and on the other : The Admiral , his Deputies , and other Justices with him appointed for the keeping thereof upon the Seas ; and the Judges of the Land , and other Justices with them appointed for the keeping thereof upon the Land ; and neither have to do with the others Jurisdictions : So that I cannot conceive , nor can I grant chief Justice Berrys ground , whereon he founded this Replevin , and the taking this Cause into cognizance to be Terra firma . And as for that which Sir Edward Coke would have to be the ground of this Replevin , and cognition of this Cause , namely because , after she was taken at Sea , she was carried into a Port or Haven , which he accounteth to be within the body of a County : If this should be allowed for a good ground , then must all Reprizals taken at Sea by Letters of Marque , and brought into the Port and Haven , be exempted from their condemnation in the Admiralty Court for lawfull prize , and may be set free by a Replevin granted from the Common Law ; and whatsoever fact done upon the Seas , either by ship or man , the ship or man repairing to Port or Haven , Justice must be had against them from the Common Law : So that by this construction , the Admiral shall have no cognizance of piracy , robberies , &c. committed at Sea , either by the course of the Civil Law , or by the course of the Law of the Land upon the before mentioned Statute of Hen. 8. but if the Pyrats , or Robbers , &c. shall escape , and bring that which they have stoln , or by violence taken away , &c. into any Port , or Haven or to land , this pyracy , robbery , &c. shall be tryed at the Common Law . And as well may it be said that if they shall be taken upon the Sea , and afterwards be brought into any Port , or Haven , or to land , that then the Admirals Jurisdiction ceaseth , and the tryal belongs to the Common Law : So that the Admiral must go set up his Tribunal upon the high Seas ( as Sir Ed. Coke distinguisheth them ) if he will have any Jurisdiction at all . And whatsoever injury shall happen to be done at Sea by one Ship unto another , the Ship which did the injury , by repairing to her Port or Haven , shall free her self from the judgment of the Admiralty Court , &c. and the Common Law shall free the Judge of the Admiralty , and all the Officers belonging to that Court from any further attendance there , which doubtless was the aim of the Author , as will plainly appear , when I shall come to sum up all he would have : And I wish it be not the aim of a great many still , whose aim for their own ends must necessarily be destructive to a general good , as shall be likewise hereafter shewn .

For the Fourth Observation , which is that when a taking is partly on the Sea , and partly in a River , the Common Law shall have the jurisdiction .

For this partly taking on the Sea , and partly on the River , I must confess I know not how it can be : for a Ship is either taken or not taken , when she is taken at Sea ; or taken or not taken , when she is taken upon the River , unless we can say that one part of the Ship was upon the Sea , and the other part of her upon the River , at the very instant time of her taking . But if the jurisdiction of the Admiralty may have its right , we shall have no need of a Mathematitian to strike a line between the Sea and the River , to make the distinction , for indeed this distinction will be altogether needless .

But this Observation having relation to the matter of fact from whence it is drawn , this meaning of taking partly on the Sea , and partly on the River , must be that a Ship is so taken , when she is first taken at Sea , and 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. d d Serj. Callis in 1. Lect. apud ●esp . Grai . An. 1622. 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. e e Stam. pl. coron. li. 1. 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 I see he spareth not to do , against the opinion of the world ; for sure I am a man may see from Dover to Callis , and yet all men have accounted Callis beyond the seas , from Dover , and Dover beyond the seas from Callis ; and yet for all this , if it were possible with modesty to grant him so much , yet can I not grant that , because the Coroner might exercise his Office in this case , therefore the Admiral cannot exercise his ; for it is but argumentum ex contingenti , non ex necessario .

Now for that which he hath out of Stamford f f Stam. pl. ●oron . li. 1. fol. 51. 6. to the same purpose , but useth in another place of the same chapter to make his arguments seem the more in number . Stamford is not so confident of the truth of this assertion , as he is , and puts it not as his opinion agreeing with the Record , but by way of a quaere , seeking only what may be inferred from that Record .

He in that place sets down the diversity of opinions of their Books , concerning the extent of the Coroners Office ; and saith that Nedham saith , Que Coroner ne poit inquirer das cun felony fo rs que de mort d' homme : that the Coroner cannot enquire of any felony but of the death of a man , and yet he saith que in Northumberland g g Idem . Ibid. ils inquir oient de touts felonies mes cel authoritie ils maintenont per praescription , &c. That in Northumberland they enquire of all felonies , but this authority they maintain by prescription ; and he saith that tit . coron. in Fitz. H. p. 206. present fuist devant le Coroner que un tiel prise pur felony conduct fuit ad Esglise per certem freres & adjudge vois presentment eo que il ne parent inquirer de ceo , h h Fitz Herb. pl. 206. ratione officii , &c. It was presented before the Coroner , that such a one taken for felony was conveyed to the Church of certain Fryers , and it was adjudged a void Presentment , because he could not enquire thereof by virtue of his Office , &c. then he quoteth Britton i i Britt . fol. 6. fol. 3. on the contrary , who saith Que il parent inquirer de rape de femme & de debruser de prison quex sont autor felonies que nest mort d' homme , &c. That he may enquire of the ravishment of a woman , and of breaking of prison , which are other felonies , which are not of the death of a man . Then followeth that which is here urged after this uncertainty of the Coroners power , thus set down : Ideo quaere , &c. si un soit occise on rees in les bracher on sauses del meere lon homme pent veier terre ' d un part & d' autor , le Coron. inquira de ceo & nemy Admirall eo qui le pais rent been de ceo aver conusance ; Quod vide titulo praedicto k k Stam. tit . draed . p. 399. p. 399. Issint ceo prova que per Comon ley devant le Statut An. 2 H. 4. c. 11. l' Admirall naver Jurisdiction se non sur le haut meere , wherein he mis-quoteth the said Statute , and doth not rightly urge the words thereof , there being no such word as haut either in that Statute , or in the Statute of 13 Rich. 2. of which the latter is only a confirmation with a penalty , the words being only sur le meere , and not sur le haut meere ; and from this mis-cyting he raiseth a doubt , which otherwise would have been none , Ideo quaere , therefore seek or be advised , whether or not , if one be slain upon any arme of the Sea , where a man may see the Land on one part and on the other , the Coroner shall enquire thereof , and not the Admiral ; because , or for that the Country may take cognizance of it , which ( saith he ) see in the said title p. 399. So ( saith Sir Edward Coke ) this that is deduced and drawn from this authority , doth prove that by the Common Law , before this Statute of 2 H. 4. c. 11. the Admiral had no Jurisdiction but upon the high sea , whereas Stamfords Quaere resteth still upon this point ; and he declareth not his own opinion therein , but leaveth this as doubtful still , as he did the extent of the Coroners Office concerning Felonies before , which he might very well do , this being raised upon so mistaken a ground , which if it had been rightly cited , he might have easily determined against Mr. Coro●● ▪ and have left no doubt behind him .

Now we may see plainly by what Sir Edward Coke saith in the first place , where he voucheth this Record , that the Record ( as I said before ) is very far stretcht , and part which is from thence deduced and drawn very far fetcht , to make seeing what is done on one part of the water , and of the other , to be seeing from one Land to the other ; this by no Logical Rule can be allowed ; the other may , That is , a seeing from Land to Land , with the limitation before mentioned , viz. to so to see as perfectly to discern what is done on the other part of the water . Take this seeing then with that limitation , without which it is as good as no seeing ( for a man to see , and not discern what he seeth to guide and direct his Judgement , helpeth that man nothing in his knowledge of what he is about to judge by his seeing ) as I have said before . For doubtless the foundation of this opinion , if it can be founded upon any reason ( which all opinions are pretended to be ) must be that the witnesses being on Land on one side of the River may before the Coroner give their testimonies to the Jury of and concerning a fact , which they saw and discerned to be done , and how and in what manner the same was done on the other side , and so ex consequenti of a fact done , and how and in what manner the same was done upon the same River , in what part thereof soever , even in the extream part thereof towards the other side to the very bank ; for that a quarrel , &c. might , or may be begun on one side , or in the midst , or on any other part thereof , and be determined by the death of one or more , on the extream part thereof , toward the other side , that there may be some colour to fetch a fact done upon such a River within Mr. Coroners cognizance , and the rather because the witnesses upon the shore might happily be land-men , which by his authority might be called to give their testimony in such a case : whereas in case the like fact should happen to be committed in a Ship , or other Vessel upon the Port or Haven , where the witnesses present at such fact , and might see and discern the same , for the most part were sea-men , which had recourse usually to other Ships and Vessels , as well as the same where the fact was done , and committed , and were and might be without the reach of his power and authority , or any other , except the Admirals , who ( if they were in any Ship or Vessel at an Anchor , either on 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. l l Stat. 15. R 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 m m Supra cap. eod. May 1. 58. 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. n n 43. Ed. 3. which ( saith he ) the Lord Dyer o o Dyer term Mich. 15. 16. El. 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-water mark , and that only by consequence , which consequence will not hold ; For as p p Call●● l●ct . in H●●p . G●●ii p. 26 u●i citat calu● . d●m . Hen. Con●●able . 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 q q B●act . c. 12. Bracton cap. 12. one alleaged to be discharged of Toll or Custome on the Seas by praescription ; in the Case of the Swans , in r r 7. Coke Rep. 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. s s 〈…〉 . Dier. 326. 6. act. & issint fuit adjudge in Lacyes t t 〈…〉 Trin. 25. El. 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. u u 〈…〉 . issint nota que South le low-water mark le Admiral ad le sole & abso●●● jurisdiction & inter le high-water mark & low-water mark , le common ley , & le Admiraltie avoint divisum imperium interchangeablement come est avant dit , se 〈◊〉 super ●quam & l' auter super terram .

It w●● 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 . w w 〈…〉 and so it was adjudged in Lacyes x x Casus Lacy Trin. 25. El. 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 Common Law , because it is then parcel of a County , and within the body of a County ; and with this agreeth that of the 8 of Ed. 4. 19. y y 8 Ed. 4. 19. So note that beneath the low water marks the Admiral hath the sole and absolute Jurisdiction ; and between the high water mark and the low water mark , the Common Law , and the Admiralty shall have severally Power interchangeable , as aforesaid , to wit , the one upon the water , and the other upon the Land ; so it plainly appeareth by what himself hath declared , that though the Land from the high water mark to the low water mark , may be said to be within the body of a Country , when the water is off it , yet is it within the Jurisdiction of the Admiralty , when the water doth overflow it ; And this will prove no argument at all why the Admiral should have no Jurisdiction upon the Ports and Havens , but rather an argument à fortiori , vel à majori ad minus , that he shall there have Jurisdiction . For if he shall not be excluded from his Jurisdiction in those places , where the water recedeth and leaveth dry land of use and profit , which may be claimed by the Lord of a Mannor as parcell of that Mannor ; much less can he be excluded from his Jurisdiction in the Ports and Havens from whence the water doth never clearly recede , or where no man doth or can challenge any right of possession : And again shall he not be excluded those places in the exercise of his Jurisdiction , where seldom or never , and little or nothing falleth under his cognizance ? And shall he be excluded those places in exercise thereof , where things of the same nature , and by the same Law determinable of greater consequence , fall under his cognizance almost dayly and hourly ? If so , we may very well suspect the reason and cause thereof , that it came so to be , not for any good intended , either to the Commonwealth or good people thereof , but for some private end . z z S● . ampliare Juridictioonem in quibus non est amplia●da , &c. To this he addeth , that it was adjudged Paschae 17. Eliz. a a 〈◊〉 . scac . Pasc . 17. El. in the Exchequor , Diggs being Plaintiff , that the land between the flowing and reflowing of the Sea belonged to the Lord of the Mannor adjoyning , as the Lord Dyer doth there report , but to this I shall not need to strive to give any other answer , then to the former . To that of the 48. Ed. 3. and the 3. concerning the contract for Mariners wages , I shall give an answer when I shall come to handle the other contracts made at land . It is further objected that 46. Ed. 3. and the 3. b b 46. Ed. 3. 3. tit . tit. connusance . 36. tit . conusance 36. an account of trespass was brought for taking of a Ship in the Haven of Hull against certain persons : The Mayor and Bayliffs of Hull demanded cognizance by the Charter of the King granted unto them , that the Citizens and Burgesses of Hull , shall not be impleaded alibi de aliquibus transgressionibus , conventionibus & contractibus infra Burgum , &c. quam infra Burgum ; And the cognizance was granted , which proveth that the Haven of Hull , where the Ship did ride , was infra Burgum de Hull , and by consequence infra corpus comitatûs , and determinable by the Common Law , and not in the Admiralty Court . Which conclusion no Logician will allow ex necessario to be deduced out of the premises , vix ex contingenti ; nor will any Law ( as I conceive ) allow it , that two contending at Law for that which belongeth to neither of them , though it shall be adjudged to one of them , that this shall in any wise be prejudicial to a third party that hath right thereunto , but that he may by the same Law recover the same .

Several Cities and Boroughs , especially upon the Sea Coasts , do challenge several priviledges , some by prescription , and some by grant , as is already set forth in this Chapter , as Flotson at Bristoll , &c. and the Cinque Ports have their Admiralty Jurisdiction ab antique ; yet doth not this make their Ports and Havens there to be part of their Towns , or make them to be within their Boroughs , but within the compass of their priviledges ; nay it rather sheweth the contrary . For things done upon their Ports , they have their Admiralty , and do , or ought to proceed according to the Rules of the Civil and Maritime Laws , Talem habent Jurisdictionem ratione Portuum , non ratione alti maris , and are to give Judgement according to the same Law , as the Vice-Admirals of several parts do , from which Judgements given in any Port-town , ( except the Cinque Ports where the appeal lyeth onely to the Warden thereof ) an appeal lyeth to the high Court of Admiralty , as it doth from the Vice-Admirals Court ; and for other businesses done within their Town , they proceed according to the Common Law and they have their several distinct Officers for businesses of the one nature , and the other , as their water-Baliffs for the one , and the land-Baliffs or Serjeants for the other ; and if the Ports and Havens were not within the Jurisdiction of the Admiralty , I know no use that Cinque Ports , or any other ; Ports can have of an Admiralty by themselves ( as absolutely and clearly the Cinque-Ports have ) seeing that the Lord high Admiral of England hath that Jurisdiction of the main Seas , together with all Ports not so priviledged . And it cannot be less necessary for all the other Ports to have all their businesses agitated therein , tried by the Civil and Maritime Laws , then it is for the Cinque-Ports .

Hull , no doubt , hath great and large privileges ; but whether they extend unto things done upon the Port or Haven there , without the authority of the Admiral , I know not : It is like enough it may , which being made known , the cognizance of this cause might very well be dismist from the cognizance of the Judges , and left unto the Major and Bailiffs of that Town . Howsoever take it that the cause was dismist only upon that ground which is here set forth , viz. that the Citizens and Burgesses should not be impleaded alibi in aliquibus transgressionibus , conventionibus & contractibus infra Burgum , &c. quàm infra Burgum . This no doubt was sufficient for the Judges of the Common Law to dismisse the cause from being proceeded in before them , before whom it was brought as an Action of Trespass , & not before the Admiral , &c. for that it rather belonged unto the Major of Hull , then to them , though indeed it perhaps belonged unto neither ; and hereupon the Major de facto might take cognizance , though by no law or right . I hope we shall not make the Judgment of evaery Major and Recorder to be a Law , or President that others must be ruled by : For then we may hang up the accessary , and go seek the principal afterwards , as they did at Grantham in Lincolnshire , as I have heard . But Sir Edward Coke further saith , that the cognizance was granted , &c. I hope he meant not that it was adjudged to belong absolutely unto the Major and Bailiffs of Hull , excluding the interest of all other parties : for that had been to have judged the cause inaudita nec vocatâ parte interesse habente . For the controversie was then whether the Judges of the Common Law , or the Major , &c. had the cognizance of that cause ; and they having dismissed it from their cognizance , could grant it no otherwise to the Major and Bailiffs of Hull , but insomuch , or for that it belonged not unto their cognizance ; so that after the dismission this controversie was no longer between the Judges of the Common Law , and the Major of Hull ▪ but now the difference concerning the Jurisdiction of , and over this cause , must rest between the Admiral and the Major and Bailiffs of Hull , for that the Admiral being no party in fudicio , the cognizance could no otherwise be granted unto the Major and Bailiffs of Hull , then that they should have it for ought that Court , in which the Action of Trespass was brought , had to do therewith , or to hold plea thereof , which could not barre the Admiral of his claim of Jurisdiction , who was no party in judgement : And then this only resteth as an Authority quoted , that such an Action was brought at the Common Law ; and as it appeareth , that the same was never there determined ; so doth it not appear that ever it was therefore determined by the Major and Bayliffs of Hull . But the Major and Bailiffs perceiving an Action to be brought at the Common Law for a trespass done upon their Pors , might very well conceive that the Action being there brought , the same was rather tryable before them , by virtue of that clause in their Charter which was urged then by the Judges of the Common Law ; and the Cause being dismissed , as it appeareth not that the Major and Bailiffs determined it : no more doth it any ways appear , that they did yet by virtue of this Dismission , or Grant ( as Sir Edward Coke termeth it ) take upon them so much as the cognizance thereof ; or if they did , that the Admiral ever had notice thereof . But if the Admirall did , or if he did not , yet if he had taken to his Court the cognizance of this Cause , I am confident that the Major and Bailiffs could no ways by virtue of that clause , or upon any other ground have taken it out of his hand , unless they have Admiralty Jurisdiction granted unto them , as the Town of Ipswich hath ; the substance of whose Patent concerning the same , I shall here set down in confirmation of what I have said before concerning the Admiralty Jurisdiction upon the Cinque-Ports and other Ports .

Henricus Dei gratia , &c. octavus &c.

Cumque praedictus avus noster per chartam suuam praedictam , quam ut praefertur , confirmavimus , concesserit Ballivis & Burgensibus Villae praedictae & successoribus suis inter alia , libertates , Franches , privilegia , & immunitates , in eadem chartâ contenta & specificata , authoritatem & potestatem faciendi & exequendi infra eandem villam Gypewici , ac libertatem & praecinctum ejusdem omnia & singula quae Admirallo , seu ad officium Admiralli pertinent . Cumque portus villae praedictae & aqua currens & recurrens prout casus exigerit ab eodem portu per fluxum & refluxum maris versus le Southeast , ad quendam locum vocat . Polleshened , alias dict. Polished , nec non tota terra & folum quae per hujusmodi fluxum & refluxum maris aliquo tempore aqua fuerit superundat ▪ sive co●pert . infra libertatem villae praedictae extiterint . Et quod iidem Ballivi Burgenses & Communitas , & successores sui habeant & gaudeant eis , & successoribus suis omnia & singula libertates , Franches . authoritates , privilegia , jurisdictiones & immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum Angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum , quas nos per litteras nostras praedictas de confirmatione acceptavimus , ratificavimus , & confirmavimus , contenta & specificata tam in dictâ aquâ , sive in cursu aquae ac praedictâ terrâ & solo per fluxum sive refluxum maris aquâ quandoque superundat . sive coopert . , quam in omnibus & singulis aliis locis quibuscunque infra villam , praecinctum suburbum , libertates & Franches . praedict. juxta formam chartarum & concessionum praedictarum , prout ea ante tempora usi fuerunt & gavisi . Et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti Ballivi , Burgenses & Communitas & successores sui securius & liberius absque ambiguitate , questione vel dubio habeant officium Admiralli nostri & haeredum nostrorum infra libertatem , praecinct . & Franchesc . praedict. & omnia quae ad officium Admiralli tam super mare & littus maris quàm alibi infra libertatem , Franchisc . & praecinct . praedict. pertinent , concedimus nunc Ballivis & Burgensibus ac communitati villae praedictae & eorum successoribus per praesentes , quod Ballivi ejusdem villae pro tempore existentes sint Admiralli nostri & haeredum nostrorum per & infra totam villam , praecinctum , suburbia , aquam & cursum aquae ac dict. terram , & solum per fluxum & refluxum maris quandoque aquâ superundat . vel coopert . seu in posterum superundand . vel cooperend . Ac omnia & singula quae ad officium Admiralli pertinent seu pertinere poterint tam super mare & littus maris quàm alibi infra libertatem praecinctum , limites supra specificat . faciant & exequantur in tam amplis modo & forma prout aliquis Admirallus Angliae in aliquo loco facere vel exequi consuevit & facere debuit quoquo modo , &c. Et insuper nos de gra. nostra ampliori ad relevamen & incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr . & successoribus nostris annuatim ut praemittitur solvend . damus & concedimus per praesentes pro nobis & haeredibus nostris eisdem Ballivis , Burgensibus & Communitati & successoribus suis wrecum maris , ac omnia bona & catalla quae dicuntur Wreck , Flotson , & Getson ; & omnia alia bona & catalla quae Admirallo sive ad ejus officium pertinent seu pertinere debent , aut poterint infra dict. portum & aquam ac terram & solum praedict. per fluxum & refluxum maris , ac omnia bona per fluxum & refluxum maris aqua ut praefertur superundat . vel coopert . vel in posterum superundand . vel cooperend . qualitercunque contingent . vel ibidem in mari , aut super littus maris invent . seu inveniend . & etiam omnia & singula bona & catalla felonum de se , nec non bona & catalla quae dicuntur deodanda infra libertatem , Franchesc . & praecinctum villae praedictae , ac in & infra praedictum portum , cursum aquae ac terram & solum praedict. per fluxum & refluxum maris aqua ut praefertur superundat . vel coopert . vel in posterum superundand . vel cooperend . absquo compoto sive alique alio nobis vel haeredibus nostris pro praemissis vel aliquo praemissorum reddend . vel solvend . Sciatis insuper , &c.

Teste meipso apud Hampton-Court tertio die Martii anno regni nostri decimo per ipsum Regem de dat . praedict. authoritate Parliamenti .

Now I hope it plainly appeareth hereby that the Admiral hath full power & jurisdiction upon the Ports and Havens , if he be not excluded by special grant , ( and that made in the vacancy or interval between one Admirals Patent ceasing , and anothers beginning . ) And if the Port had been within the Borough of Ipswich , and things there done had been triable at their Town Court , or at the Common Law , then had they had no need of this Grant of Admiralty Jurisdiction , &c. by which Grant of Admiralty Jurisdiction unto them , it doth likewise as plainly appear , that whatsoever is done upon the Port or Haven , is of Admiralty cognizance , this Admiralty Jurisdiction of theirs extending only unto their Port and Haven , which reacheth only unto the place called Pollishened alias Poleshead , and no further , which is the point of the high Sea , ( as Sir Edward Coke termeth it ) so that they have Admiralty Jurisdiction , and yet none upon the main Sea , but upon the Port and Haven only . But I shall proceed unto the next thing by Sir Edward Coke insisted upon .

And in the next place it is thus objected , that 7 R = 2. tit . trespass c c 7 R 2. tit . trespass in Stath . pl. 54. in Statham pl. 54. in an Action of Trespass for a Ship and certain Merchandizes taken away ( which trespass must of necessity be alleaged in some Town and County in some River or Haven ) the Defendant pleaded that he did take them in le haut mere one les Normans quex sont enemies le Roy , and it is ruled a good plea , which concurreth with the other books .

Here it is not said that this trespass was laid or alleaged to be done in any Town or County in any River or Haven ; but saith he , it must of necessity be so . If he take Town , County , River and Haven disjunctim , then I think that according to the Law the Action of the Trespass must have been laid to have been done somewhere , or else the Action would have abated : but if he take them conjunctim , as that it must of necessity be laid to be done in some River or Haven , in some Town and County , I confess that according to reason and nature , a Ship with her lading cannot be elsewhere , except it be upon the high Seas : But I know that at the Common Law it is usuall per fictionem impossibilitatis ( which neither the Civil Law nor Nature do allow ) to lay and alleage in a Declaration that such a Ship with her Tackle , Furniture , Ammunition and Lading , was in the possession of the Plaintiffs in parochia beatae Mariae de Bow in Warda de Cheap , and thereby him lost , and there per inventionem came to the hands and possession of the Defendant , &c. and why this Trespass of taking away this Ship and Merchandizes might not as well be laid to be done in some certain place within some certain Town farre enough from the Port or Haven , I know not : And it is not said , that it was laid to be done upon a Port or Haven .

Wheresoever the trespass was laid to be done , in what Town of what County soever ( for in some Town of some County , or in some part of some County it must be laid to be done ) yet amongst all the Instances Sir Edward Coke hath brought , and amongst all that I could ever yet hear of , I never knew or heard of any original action brought at the Common Law which was said for a thing done upon any of the Ports or Havens , except that of Hull business , which never came to be adjudged between the Admiral and the Mayor , &c. of Hull , &c. or whether the action was rightly instituted or not . The defendant pleaded as above , and it was adjudged for a good plea. I would gladly know what could be argued from hence , if the truth had been otherwise , and he had pleaded he took the Ship and Goods infra fluxum & refluxum maris , or that he took them in tali Portu one les Spaniards quex sont les enimies le Roy , must necessarily this plea have been adjudged nought , because the other was adjudged good ? I see not the consequence how this conclusion dependeth upon the premisses , if deduced into a Syllogism .

It is objected likewise that 7. Hen. 6. 32. d d 7. H. 6. 32. an action lyeth at the Common Law for fore-stalling , &c. in a Port or Haven , &c. and by consequence the Admiral hath no Jurisdiction there .

Here I do observe that about the 6 and 7 year of Hen. 6. the then Lord chief Justice of the Common-pleas did much endeavour suam ampliare jurisdictionem ; for about the same time the first judgement upon the Statute of the 2 of Hen. 4. for double dammages was given for the pretended breach of the two former Statutes of the 13 and 15th . of Rich. 2. and this 2 of Hen. 4. by suing in the Admiralty for a thing not done super altum mare , contrary to those 3 Statutes , whereas none of those 3 Statutes have one word in them that tendeth to the binding up the Admiral to the high Seas , unless any man can make sur le mere super altum mare ; nor is there any word in them that tendeth to the making of the Ports and Havens to be infra corpus commitatus ; e e Super c. 7. hujus 2. lib. as I have shewed before . By this Judgement double damages were recovered against him that had received a loss of 960 marks , odd monies ; and the damages were assessed by the Jury to 700 l. which by the Judgement being doubled , amounteth unto 1400 l. so that instead of recovering of 900 marks without any tryall , whether due to him or not , he is condemned in 1400 l. how the then Plaintiffe ( as the Record is cited ) having got the possession of the goods sued for by the Defendant , formerly the Plaintiffe , or pars agens in the Admiralty , could sustain 700 l. damage by being sued in the Admiralty , I know not , nor can imagine : For the Statute doth not say , the party sued in the Admiralty Court contrary to the Statute of the 13th of Richard the Second , shall recover double the value of what he there sued for , but double the damage he sustained by such suit , which could be no great matter , unless he had recovered and obtained into his possession the summe sued for , which doth not appear , nor is it so much as alleaged or affirmed .

Now it could not be expected that so much sea being converted into land by this Judgement by two years labour , and but finished and brought to pass in the 6th year of Henry the Sixth , 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 f f Stat. 15. R. 2. c. 3. , 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 g g Infra cap. in several chapters of this second book .

In the next place it is objected , that the 19 H. 6. 7. h h 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. i i 15 R. 2. c. 3. 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. k k 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 l l Lib. E. 2. praecitat . 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. m m 22. ass. pl , 93. he would prove by that of 8 Ed. 2. n n 8 Ed. 2. praecitat . before cited , which I have answered already .

It is argued out of Fortescue , cap. 32. fol. 38. o o Fortesc . ca. 32. f. 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. p p 2 R. 2. g. 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 q q Seld. Mare clausum , de dominio maris per totum . 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 , which undoubtedly they had and have , as hath been shewed before . r r Super l. 1. cap. 2. And upon Letters of reprizal no man by vertue thereof taketh or seiseth any Ship or Goods within any foreign Port , or any Port or Chambers of a foreign Prince , other then the Ports and Chambers of that Prince , against whose Subjects the same were granted . And in such cases as these which have relation to the Subjects of foreign Princes or States it is necessary to deduce , that such a fact was done super alto mari , & hoc est quoad Portus suos : but in other cases for Maritime businesses done either upon the Port or contracted for upon the land , it is sufficient in the first to lay in the libel that they were done infra fluxum & refluxum maris , and in the last infra jurisdictionem Admirallitatis , as hath been already said , and shall hereafter be more fully shewed .

For that which followeth in the next place out of Stamford , I joyned it with that of the 8 Ed. 2. and have already spoken thereto . s s Super hoc capite .

Next it is said 4 & 5 Ph. & Mar. Dyer 159. 6. t t 4 & 5. Ph. & ma Dyet 159. 6. by the libel in the Admiralty , the cause is supposed to commence sur le haut mere , & infra Jurisdictionem del Admiralty ubi revera facta fuit in tali loco infra corpus Comitatûs , & non super altum mare ; whereby ( saith Sir Edward Coke ) it also appeareth that the Lord Admirals Power is confined to the high-sea .

This Conclusion can no wayes be deduced out of the premisses , for though , by the libel in the Admiralty Court the cause was supposed to commence sur le haut mere , & infra Jurisdictionem de l'Admiralty , and perhaps falsly so suggested , because the thing was done in some Town within the body of a County : for the instance is , ubi revera facta fuit in tali loco infra corpus Comitatûs ; which locus may be any in-land Town within any County , and non super altum mare , as it deduced in the libel : For it doth not say ubi revera facta fuit super tali Portu infra corpus Comitatûs : If by the Libel the cause had been supposed to have commenced in , vel , super tali Portu infra fluxum & refluxum maris , then the words of the Authority might have run thus , ubi revera facta fuit in tali loco infra corpus Comitatûs , & non super talem portum , vel infra fluxum & refluxum maris , aswell as non super altum mare ; for the words , & non super altum mare , are onely in affirmance of the contrary to what is layed in the Libel , and no ways confining the Admirals Jurisdiction to the particular place laid in the Libel , specifying and designing that very place where such a particular act was not done , if so be in the Libel it had been laid , that this act had been done about the mid-way between Dover and Callis ; and the Authority had said , ubi revera facta fuit in tali loco infra corpus comitatus , and not in or about the mid-way between Dover and Callis , I hope no man will say , that by this authority the Admirals Jurisdiction had been confined to that part of the seas that is about the mid-way between Dover and Callis ; so that it is plain this conclusion cannot be drawn out of the authority .

The rest of the Authorities which follow concern Contracts made at land of things to be done and performed at sea , and of things done or contracted beyond the seas , which u u Inf. a lib. 3. c. 2 , 3 , 4 , &c. I shall deferre to their proper places .

There be two things more urged to prove the Admirals Jurisdiction to be confined to the high Seas , and not to be upon the Ports and Havens , which are not cited amongst his Book-cases and Authorities of Books , but are cited before them ; one amongst the Praemunire's by him cited , which I have spoken to already x x Sup. lib. 2. c. 7. , and the other cited amongst the Prohibitions by him cited , which concern Contracts , and are referred to their proper y y Inf. l. 3. c. 2 , 3 , 4 , &c. places .

These two I shall here insert before I proceed to the next chapter .

The first of them is urged out of the book of Entries , fol. 23. tit . z z Book of Entries , fol. 23. tit . Admiralty . Admiralty , where it appeareth ( saith he ) that the taking of a Ship called the Trinity of London , lying upon the River of E. in the County of Kent , is not super altum mare , but infra corpus comitatus Cantiae , and therefore a Suit for the taking of that Ship lying there , in the Admiralty Court before John Earl of Huntingdon , Admiral of England , appeareth to be against the said Statutes , and yet no question that was infra fluxum & refluxum maris , & infra primos pontes .

Here he saith , that the taking of that Ship in that place appeareth to be against the said Statutes , but mentioneth not what Statutes , having quoted divers before . If there had been a Judgement in the case , he certainly would have added this proof to the Judgement of Burton and Putts Case , and have averred it to have been against those Statutes of the 13 and 15 of Ric. 2. and Hen. 4. but here it is inserted amongst the Praemunires by him cited , and the Statutes next before mentioned , are , the Statute of 32 Hen. 8. c. 14. and the Statute of Ric. 2. concerning Praemunire's , which must be the Statutes , against which this taking must be said to appear to be ; by reason he saith it appeareth to be against the said Statutes , which must be meant of the next mentioned preceding Statutes ; If then , it appeareth there to be against the Statute of premunire , I hope it hath already a a Super l. 2. c. 7. received an answer : If against that of the 32 of Hen. 8. c. 14. it cannot be so , as shall be shewed when we come to treat of freight and b b I●s . l 3. c. 2 , 3 , 4 , &c. contracts , where we shall have occasion to mention that Statute against his tenents .

The other thing by him urged doth next precede the prohibitions by him quoted ex Rot. 140. Mich. 16. Hen. 8. c c Rot. 140. Mich. 16 H. 8. The River of Thames at Billinsgate ( saith he ) is not within the Jurisdiction of the Admiralty , but infra corpus comitatus .

This followeth next after the premunires , and precedeth next before the prohibitions by him quoted , that the River of Thames at Billingsgate is not within the Jurisdiction of the Admiralty : by this Record it must appear thereby not so to be , either by a premunire brought , or by a prohibition granted , ( as I conceive ) being inserted in that place , and must have some relation either to what precedeth , or what followeth .

If the River of Thames at Billingsgate by this Record appear to be infra corpus comitatus by a premunire brought , I can say no more to it then I have already d d Sup. l. 2. c. ● . said . If by a prohibition granted onely , it proveth nothing ; for many a prohibition hath been granted , and consultations have been awarded , without denial of the suggestions . And oftentimes prohibitions have been granted upon such suggestions as could not be maintained , but deserved consultations upon the debate thereof ; and sometimes the parties have come to an agreement after prohibition granted , when consultations would have been awarded if they had been sued for , which are said to be Judgements in such Cases : but a prohibition is no proof until a dispute had upon the validity , and a determination thereupon , no more then the bringing of an action at the Common Law , and giving a Declaration without any further proceedings , is a proof that what is by Declaration claimed , is due , or that the action was duely and legally instituted and brought .

CHAP. IX . That the Rhodian and other Maritime Laws were ordeined as well for the decision of the differnces happening upon the Ports and Havens , as upon the high Seas .

ALl these Proofs and Authorities which I have handled in the four last , and next preceding Chapters being collected and gathered into one heap , as by Sir Edward Coke they are , and taken by themselves , do make a specious shew , and a fair colour for the turning the Lord high Admiral of England out of his Jurisdiction , upon the Ports , Creeks , and Havens of the Sea , but no more then a shew or colour as appeareth to my view .

For the ancient , constant , and continued Practice of the Admiralty Court , and all the Proofs , Presidents , and Authorities , which make to the contrary of what is by him set forth , being with them well weighed and considered , all that he hath shewed in this particular , will serve onely to prove what interruptions have been put , and inrodes made upon the Admiralty Court , : For certainly the Proceedings , Acts , and Judgements given in the Admiralty Court concerning businesses agitated and done upon the Ports and Havens will , as presidents for the Admirals Jurisdiction there , amount unto a great number for those few he hath quoted against it .

The Jurisdiction of the Admiralty , and the Jurisdiction of the Common Law , having always been two distinct Jurisdictions , having no dependancie each upon the other , but both exercised under the Kings of England , e e 〈◊〉 super l. 2. c. 1. I know not why the ancient Practice and Presidents of the Admiralty Court should not be as convincing in the proof of this particular , which resteth in controversie between them , as the practice and presidents of the other : But it is like enough some will be ready to averre that the Admiralty Court , is not a Court of Record , and therefore presidents of that Court are not of so great credit as the Presidents of the Courts of Common Law , but it will be very unfit for me to enter into that dispute , when as it is upon the matter put to the question , whether it be so much as a Court at all , or not : For if it shall have the cognizance of scarce any cause at all ( as it cannot have , if all be true that Sir Edward Coke would prove , as I shall shew hereafter , when I come to summe up all together ) then doth it not deserve so much as the name of a Court.

This only I shall say by the way , that when it was a Court , or if it be a Court , it hath been , and is as much a Court of Record as all Courts in foreign Nations beyond the seas have been , and are ; and whatsoever hath in that Court been , or is done , being legally transmitted and certified , would have carried , and doth carry along with it as good credit in all parts of Christendome as any Record whatsoever , certified out of any of the Courts at Westminster , and so will and doth at this present for any thing therein transacted . But if I should enter upon the presidents in Civil causes , which are to be brought out of the Registry of the Admiralty for the cognizance of causes done upon the Ports and Havens , I should make my self an endless piece of work ; and when I have done those things , perhaps may for all that hath been said , be thought by many not to be authentique : I shall therefore pass them over , and come to those things which are as authentique , in my poor judgement , for proof of the Admirals Jurisdiction upon the Ports and Havens , as any thing that hath been brought against it . And I shall begin first with the Rhodian and antient Maritime Laws , made , ordained , and appointed for the decision of Maritime causes arising and happening as well upon the Ports and Havens , as upon the high Seas , and then proceed to other proofs .

By the Laws of the Rhodes and other sea Laws inserted into the body of the Civil Law , which give directions how to steer the Judicature of so many causes , which may happen and fall out upon Ports and Havens , it manifestly appeareth that things there done , and controversies thence arising , are properly cognizable by the Admiral , no other Law having the like grounds , or affording the like rules for the decision of such differences , or giving such directions for the avoyding of strife in businesses of that nature : To introduce them all here , would make a Volumne , which I Intend not , and it would be too tedious a labour to effect that which so few regard , namely to set forth the most exquisite excellency of the Civil Law founded upon the very strength of reason it self . But why should I so highly commend that which is so much scorned , either to be understood , or so much as lookt after , and by some condemned before it be lookt into , or at all understood what it is ? Serjeant Callis f f Serjeant Callis Lect. 1. p. 31. condemneth the Imperial Law , which ( saith he ) the Civilians use ; for that the Sea-shoar is therein held to be Common to all , and saith that the Common Law of England doth in reason surpass either the Imperial Law or the Civil Law ; which distinction sheweth the understanding he had in those two Laws , which the world hitherto made but one . And Sir Ed. Coke condemneth the Civil Law for proceeding by paper proofs ( as he calleth them ) slighting them as if those proofs that were taken without a publique Notary without the repetition of the Witnesses before a Judge , or without the liberty of administring Interrogatories by the adverse party at the same time , and only exprest by word of mouth , and neither set down in Paper or Parchment , but passeth away with every ayr , were better taken , and remained more perfect on record , then those Paper proofs which are in such manner taken , and with as much care preserved . But surely in most controversies which do arise from a thing done upon the Ports and Havens , it is most necessary , that the proof for the decision thereof , be taken by such Paper proofs ; sometimes in regard of the speedy return of the Witnesses into the parts beyond the seas , who cannot stay such an examination ( without their undoing ) as to be present to afford their testimony viva voce at the time of the tryall : sometimes in regard necessary and requisite Witnesses are hence departed , before the Suit be instituted , and resided beyond the seas , where their testimony must necessarily be taken by Commission , which by the manner of proof made at the Common Law , cannot be done ; so that most differences which do arise from things done upon the Ports and Havens , must be proceeded in according to the rules of the Civil Law , and have their determination from the same , or else be decided without testimony , which is to judge blindfold , or else to rest unadjudged , and the wronged and injured party to be left remediless and unrelieved . But it will be answered , that in such cases they may have a Commission out of the Chancery for that purpose : To which I must reply that the Controversie is whether the cognizance and tryall of causes arising from things done upon the Ports and Havens doth belong to the Common Law , or to the Civil and Maritime Law . And then surely it must more properly belong unto that Law and that Court , which can of it self without the assistance of any other Court , make a compleat proceeding and tryall , and give a direct judgement according to express rules of Justice in such causes , then to that Court , which without the assistance of another Court can do neither . Neither can the Common Law Courts in very many such causes of it self proceed for want of such Commissions ; neither hath it in as many causes any express rules to direct the Judicature thereof . I shall here set down some few of those Laws , which the Civil and Maritime Laws give in such Cases , so farre forth onely as to shew , that the Maritime Laws were ordained as well for the Ports and Havens , as for the main Seas .

First then for the lading of a Ship , which is always or commonly in a Port or Haven , the Civil and Maritime Law directeth who of the Ship shall be chargeable with such Lading , as shall be put aboard the said Ship , and who shall not ; sunt quidam in navibus , qui custodiae gratiâ navibus praeponuntur ut 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , & diaetarii : Si quis igitur ex his receperit puto in exercitorem dandam actionem ; quia is qui eos hujusmodi officio praeponit , committi eis permittit ; quanquam ipse navicularius vel magister id faciat quod 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 appellant : Sed & si hoc non extet , tamen de recepto navicularius tenebitur g g F. 〈◊〉 caup . stab . l. 1. sect. 3. non debet per remigem , aut mesonautam obligari , sed per se , vel h h Ead. l. sect. 2. navis magistrum .

This Law doth not onely shew who is chargeable with the Wares and Merchandizes laden aboard of the Ship , but likewise what things they are chargeable for , and saith , Quod cujusque salvum fore i i Eod. & ead . l. sect. 6. receperint , hoc est , quamcunque rem sive mercem receperint ; and least it might be thought that it is onely meant of Wares and Merchandizes , and nothing else , it explaineth it self yet further , and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent , veluti vestimenta quibus in nayibus uterentur , & cetera quae ad quotidianum k k Eodem . usum habemus ; & parvi referre res nostras an alienas intulimus , si tamen nostra intersit salvas esse . l l Ead. leg . sect. 7. And assoon as such Merchandizes and other Commodities are put aboard the Ship , whether she be upon Port , Haven , or any other part of the Seas , he that is exercitor navis , is chargeable therewith ; and if the same be there lost or purloined , or sustain any damage , hurt , or loss , whether in the Haven before , or upon the Seas after the Ship be set forward on her voyage , whether it be done by the Mariners or any other through their permission or negligence , he that is exercitor navis is to make good the same .

For saith the Law , recepit salvum fore , utrum si in navim res missae ei assignatae sint , an etsi non sint assignatae , hoc tamen ipso quod in navim missae sint receptae videntur , & omnium recepit custodiam quae in navini illatae sunt : Et factum non solum nautarum praestare debet , sed & m m Ead. leg . sect. recepit . vectorum .

And in these cases two several Maritime Actions do lie , whereof the Agent hath his choice . Dicendum duas proponi actiones exercitorias : una est de recepto in simplum , quae dicitur in factum ; altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur . Et haec est in duplum , sed in eam non venit n n Glos● . super eod. sect. verb. & factum . factum vectorum .

So that the very lading of goods aboard the Ship , chargeth him that is exercitor navis therewith ( which the Common Law doth not ; ) for he is lyable for whatsoever his Mariners shall do aboard the Ship , be she in Port , Haven , or upon the high Seas ; but he is not lyable for what they shall do , being at land , and not aboard the Ship : so that the Ship maketh distinction of Actions , but maketh no distinction at all between her being upon the high Seas , or upon Port or Haven ; Debet Exercitor omnium nautarum suorum sive liberi sint , sive servi , factum praestare ; nec immerito factum eorum praestat , cum ipse eos suo periculo adhibuerit ; sed non o o T. eod. leg . debet Exercitor alias praestat , quam in ipsa nave damnum datum sit , caeterum si extra navim licet a nautis non praestabit .

But if the Exercitor shall receive goods on the shoar in nave custodienda sive transportanda , and shall lose them , or suffer them to be stoln from him before they shall be laden aboard the said Ship , he shall be lyable to make satisfaction . Idem p p Eod. leg . & ita . ait etiam si nondum sint res in navim receptae , sed in littore perierint , quas semel recepit , periculum ad eum pertinere .

If therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his Ship , and transported , in case they there perish , or be otherwise damnified ; much more shall he be answerable for such goods and merchandizes as he shall receive , or shall be laden aboard his Ship , if the same perish or be damnified in or upon the Port or Haven .

Those Laws of the Rhodes which we find inserted into the body of the Civil Law , which are the ancientest Sea-laws extant , do treat of the casting overboard of goods in a storme or tempest for preservation of the Ship , and the remainder of goods , and of the Avaridge payable out of the same , whether the Ship be in such stress of weather upon the Ports or Havens , or upon the high Seas ; and the rules there set down do serve as well for the one place as the other .

These Laws and Rules being general , and not restrained to the high Seas , do sufficiently prove that they were constituted and ordained for all places where a Ship might fall into such danger , that by this Jactus mercium the Ship and remainder of the Goods and Merchandizes might be preserved . And such danger doth not alwayes fall out upon the high Seas , but oftentimes upon the Ports and Havens .

But least this shall be thought not sufficient , but that notwithstanding the generality of the Sea Laws , which have provided directions sufficient for what is to be done in such cases , 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 cun●●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 p p F. de leg . Rhod l. Navis onustae .

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 . q q Cod. de judi . l. nulli .

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 , r r ● . ad legem . 〈◊〉 . l. navis . 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 , s s Eod. l. lege . 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 , t t Ead. si laborante & closs . & sect. cum in ead. & ibi gloss . & l. am●ssae & l. cum depressa . 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 u u L. ead. § si conservatis . 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 , x x Ead ●cum 〈◊〉 & ibi gloss . an prout ponderant , an prout valent .

It is considered by the same Laws likewise , if a Ship be taken by a Pirat , whether upon the Sea , or upon a Port or Haven , and be redeemed , whether all must contribute or not ; and if any thing be taken away by Theeves or Robbers , whether he must lose it that did own it ; and if any one redeem what is so taken away , whether y y Ead. 〈◊〉 navis . Contribution ought to be made for the redemption .

And it is considered how and in what manner this Avaridge is to be made , whether the goods lost are to be valued by themselves , and the goods saved by themselves , or whether altogether , and whether goods lost are to be valued according to the price they were bought for , or according to the price they might have been sold at , and at whether of those two z z Ead. ● . portio . prices the goods saved are to be valued ?

It is likewise considered , whether if a Servant or Slave in the casting over board of the goods doth happen to be drowned , whether any estimation be to be made of him ; and if any of the Passengers be not solvendo , whether the payment of his share belongth to the Master or not ? Whether if the goods cast over board be again recovered , contribution ought to be made ? If contribution have been made , whether it be to be restored , and in what way the Master ought to proceed against him that hath so received it ? and in what way the Contributers ought to proceed against the Master . And whether goods so cast over board are to be accounted pro derelicto , and so become theirs who shall afterwards possess them , or not be so accounted , but remain still the owners ? Vtrum a a Ead. sect. severum sect . signis sect . si res & sex . res autem & l. qui levandae . res Domini manent , an fuerint occupantis ?

It is likewise considered by these Laws , whether if the Master to avoid danger , shall cut off , or throw over board any of his Masts or other Instruments belonging to his Ship , for preservation of his Ship and her lading , contribution in this case be due ? Whether the consent of the Passengers and Merchants in the Ship be requisite , or not ? And whether it must be done b b L. cum arbor , & l. amissa sect. arbore . justi metus causâ , and who is to judge thereof ?

In like manner it is considered , if the goods cast over board be afterwards regained and saved by such as for pay or reward shall adventure and take pains to effect the same , si per urinatores recuperatae sint & extractae , and the Ship with the remainder of her lading shall afterwards be cast away , whether the goods so regained shall contribute to the other afterwards cast away ? And if some of those goods cast away with the Ship shal in like manner be recovered , whether they shall contribute unto him that made the first c c Tit. eod. l. Navis , sect. sed 〈◊〉 . jacture .

After a jacture or casting over board , if some of the goods that be saved be deteriorated , damnified or made worse ; by these Laws it is considered , whether they were so hurt by the ill stowage , or by the dashing of the water at the time of the jacture , or by the uncovering of them ? It is considered likewise , whether the damage be more then the contribution will come to , or the contribution will come to more then the damage is ? And then it is determined whether the damnified goods shall contribute or not , and if they shall , d d L. ead. sect. cum autem & gloss . in what manner ?

If a Ship be split , or any otherwayes cast away , whether upon the Seas , or upon a Port , and the goods some or all be preserved , and saved , it is determined , whether the goods shall contribute to the loss of the e e E. ead. l. amissa . Ship , or not ?

If the Masts of the Ship , whether upon the Sea , or upon the Port be shivered into pieces , and the sails and other tacle be consumed with lightening , and the goods by what means soever preserved , though by obtaining new Masts , new Sails , and new Tacle , &c. these Laws determine whither the owners of the goods be to make f f Eod. navis adveasa & gloss . & l. cum . depressa . contribution or not ?

Hereby it is plain that the special Cases , which are comprehended under one general Law or Head , are very many and various , and require various decisions or judgements , which are upon express reasons by the Civil and Maritime Laws and Commentators upon them most exquisitely set forth , as he that shall look thereinto shall find .

If one Ship shall fall foul upon another , either upon the high Seas , or upon any Port or Haven , so that either or both of them have sustained hurt or damage , the same Laws do most exquisitely determine between them . And under this head do likewise fall very many various cases , variously by those Laws determined according and agreeable to most excellent reason h h F. ad legem Aquiliam l. quem admodum . Sect. 2 , 3 , 4 , & 5. .

If the Mariners shall do damage to the Merchants Goods , ●s by drawing out and drinking up their Wines , &c. whether they do it upon the Seas , or when the Ship lyeth at Anchor upon any Port or Haven , the case is the same ; and the Civil and Maritime Laws determine what is to be done herein : Many general heads more containing under them several various particulars might be instanced in , but these are sufficient to shew that the Rhodian and Maritime Laws were ordained as well for the determination of differences happening upon the Ports and Havens , as upon the high Seas , and have express Laws for the guiding of the judgement therein : which all Nations do acknowledge and allow , wherein the Common Law of England under correction , is deficient .

CHAP. X. The Laws of Oleron , and other ancient Laws of the Sea , were constituted and ordained , as well for the decision of controversies , happening and arising from things done upon the Ports and Havens , as from things done upon the high Seas .

BY a Record which I have before set down at large ; a a Li. 1. c. 4. it appeareth that the Laws now called the Laws of Oleron were ancient Laws , and anciently practised for the regulating of Maritime and Sea ) affairs in that Maritime Island , and that those Laws were by Richard the First , King of England in his return from the Holy Land corrected and interpreted ; and in that Island published in the French Tongue for that purpose , and called la ley Oleron ; in that this Record saith , they were by him Correcta & interpretata , it plainly appeareth that they were made before : but whether then used in England or in that Island onely , may seem doubtful : however it appeareth by the Record it self , that after such correction and interpretation , they were likewise published in England , and were ordinata in Edward the First 's time , and consummated in the 12 year of Edward 3.

Now these Laws being thus established , do plainly shew , that the Admiral had and ought to have Jurisdiction upon the Ports and Havens , as well as upon the high Seas , for that they do set forth what is to be determined in controversies arising , as well from things done upon the one as the other ; I shall instance in some of them .

If a Ship perish in any place whatsoever , whether upon Port , or the main Sea , the Laws of Oleron give direction what the Mariners ought to do for the saving of the Goods , and how farre the Master may recompence them for their pains , in case they save any of the Goods , and in what manner ; whether he may sell or pawn such Goods as are saved , for , or towards their satisfaction ; and whether he may sell or pawn any of the Tackle of the said Ship ( if saved ) without authority from the rest of the owners b b La ley Oler .

They give directions when a Ship arriveth in any Port or Haven , laden or not laden , when the Mariners may go out of her with leave of the Master , when without , and with how many Cables she ought to be anchored , before they may go out without leave , and what care they ought to take , when they do so to free themselves from making satisfaction for such damage and loss , as the Ship or Goods shall sustain in their absence c c La ley Oler . Jud. 5.

They likewise determine in what case the Master shall pay for the healing of a maim , or hurt of a Mariner , and in what cases he shall not , d d Ol. Jud. 6. be that done either in the Ship at Sea , or in the Port , or at land .

They set forth likewise what the Master ought to do , in case any of his company fall sick , what care he is to take of him , and what provision he is to make for him at land , and what allowance he is to afford him ; e e Ol. Jud. 7. all which denied , or if any part thereof withheld , the same is recoverable by these Laws before the Admiral .

These Laws do likewise set forth other duties of the Master and Mariners , when they come into a Port or Haven , where they are to make their right discharge , as by this judgement appeareth .

Il avient qun f f Ol. Jud 9. in quibusque l. jud. 10. maistre d'une nef vient a sauvete a sa discharge il doit monster en aux Merchants lescords avec quoy il quindera , & sil voit amender , le Maistre est tenu a lamender lui , & ses Mariners & y doit partir le Maistre pourtant quil prent in guinda ge , & doit la guindage estre mys pour restorer le dammage primerement & le remenant soit estre eulx , maiz se cordes rompent sans se quils les eussent monstrees aux Marchants , ilz seront tenus a rendre tout le dammage , mais se les Merchants dient que les cordes sunt bonnes & belles & ilz rompent chun doit partirau damage Cestassavoier des Merchants a qui le vin sera tant seulement , & cest le judgement en ce cas .

And clearly this is a Judgement upon a thing happening upon a Port or Haven , and no where else ; whereby the Judge of the Admiralty is to be guided in businesses of this and the like nature .

How a Master ought to behave himself towards and amongst his Mariners , and the Mariners towards the Master , and they amongst themselves , be they upon Seas , or Port , or Haven , and what the punishment is in case they demean themselves otherwise , is by these Laws plainly shewed g g Ol Jud. 12 in quibusque lib. 11. .

The same Laws have likewise provided what is to be done in case one Ship shall do damage or hurt to another , upon the Port or Haven .

Vne nef est en ung comis a maree & estant a sa maree avec autre nef vient & fiert la nef qui est en sa paix en telle maniere q'lle este dommagee du coup que lautre nef luy donne & yades vins en fundrez dedens le dommage doit estre apprisie & party parmoitie en tre les deuz nefs & les vins qui Jont dedens les deux nefs dovient parti , &c. Et est raison pour quoy cest Judgement est fait & ainsi feust quil avoit tout le dommage amende une vi eille nef se myst volentiers en la voire dune melleure nef pour auder avoir lautere nef se elle eustous ses dommages , mais quant elle sceit q'lle doit parir a la moitie elle se mett volentiers hors de la voye , & cest le Judgement en ce cas h h Ol. Jud. 15. in aliis lib. 14. .

By these Laws likewise are determined differences falling out between Ships lying at Anchor , upon any Port or Haven , and determine what is to be done in case one Ship cast Anchor too near another , and who shall pay the damage in case any shall be sustained thereby , or for want of boighs , &c.

Vne nef ou deux ou pleuseurs en ung havene ou il ya pou deave & si assech lune des nefs trop pres de lautre le maistre de celle nef doit dire aux autres Mariners seigneurs levex ure ancre car elle est trop pres de nous & pouroit faire domage & ilz ne la veullent lever le maistre poureulx & ses compaignons la vont lever & a longmer de lui & silz la faillent , a lever & lancre leur face domage ilz serout teneuz a lamander tout au long . Et sil yeufl mys ancre sans boye & elle face domage ilz seront tenuz a lamender tout au long , & silz sont en ung Haven qui astech ilz seront tenuz a mettre balingues aux ancres quilz ne peregent au plam & cest la Judgement i i O● . Jud. 16. in aliis 15. .

What meat the Mariners may carry out of the Ship to land , how long they may stay before they return , what damage happening either to the Ship or Goods ( being in the Port or Haven ) in their absence , they are lyable unto ; these Laws do determine , besides many other accidents happening in and upon the Ports and Havens , whith are by them decided : as when a Ship shall by contrary winds , and stress of weather , be tyred at Sea , so that she is constrained to make to a Port not intended , and there is in want of Victual or Tackle and Furniture , to set to Sea again , and wanteth money wherewith to Victual , Tackle , and furnish again , what the Master may then do , whether he may pawn or sell the Merchants Goods for relief of the Ship , what and how much of the Goods he may so pawn or sell , when the case is that he may so do , and when and upon what occasion he may sell the Ship , and by Law is warranted so to do , and when k k Ol. Jud. 21. in aliis l. 20. .

The same Laws do determine what is to be done , in case a man take upon him the office of a Loads-man or Pilot , and by reason thereof undertaketh to bring a Ship safe to Anchor in the Port of her discharge , and through his negligence or want of skill , the Ship be cast away or perished , or the Goods damnified , in the Port or Harbour ; and likewise , when and upon what grounds such Pilot or Loads-man shall be discharged , and how and in what manner the Master of that Ship shall be liable l l Ol. Jud. 33. 34. & Jud. 24. .

These Laws set forth likewise what is to be done by the Master of a Ship , when his Ship arriveth in the right Port of her discharge , and hath stayed there by the space of one and twenty days for discharge , and is not in that space discharged . More particulars I might instance in , out of the said Laws of Oleron to the same purpose , and how farre the said Laws are extended or limited by latter writers upon the Civil and Maritime Laws ; but that will be a work more properly to be entred upon , when this Jurisdiction of the Admiralty shall be compleatly settled , and freed from interruptions in its due procedings : I shall therefore onely set down this last Judgement , in its own language , not endeavouring to shew what the Law is either in this case , or any of the other before recited , but to conclude that by these Laws so long since established for the directions of Judgements in Maritime causes it plainly appeareth that the Ports and Havens are within the Jurisdiction of the Admiralty , and that all differences therein , or thereupon arising , are cognoscible and tryable in the same .

The words of the Judgement are these .

Item ordonne est pour custume de mer , q'se une nef arrive en ung Port a sa droitturier le descharge & demoure la nef illecq' , chargee jusq's axxi jours ounrables la mettre puet been mettre hors sur ung keye & le Maistre doit ordonner & bailler ung de ses Mariners an Marchant pour prendre garde aux vins ou autres derrenes jusque a tant q'le Maistre soit pay de son frett m m Ol. Jud. 3● . .

Et cest le Judgement en ce cas .

Very many more there are , which will be too tedious here to set down : None of all which is by any part of the Common Law , treated of at all , nor can it if it keep its own rules render the same Judgement with these Laws but a diverse , if not in many cases a clear contrary .

CHAP. XI . That by the ancient Statutes of the Admiralty setled before the last Confirmation of the Laws of Oleron 12 Edw. 3. and Articles of enquiry added thereunto , it is plain that the Admiral hath Jurisdiction upon the Ports as well as upon the high Seas .

THere are likewise ancient Statutes of the Admiralty to be observed , both upon the Ports and Havens , the high Seas , and beyond the Seas , which are comprised in an old authentick Book , called The black Book of the Admiralty , which Statutes are ingrossed upon Vellam in the said Book , and written in an ancient hand , in the ancient French Language , which plainly shew the Admirals Jurisdiction to be upon the Ports and Havens , as well as upon the high Seas . I shall set down onely one of those Statutes for proof thereof , which sheweth how and in what manner damage done by one Ship unto another in a Port or Haven , as well as upon the high Seas , shall be satisfied in case the same be wilfully done , and how , and in what manner in case the same be unwillingly done by chance , by reason of tempest or other mishap . The words of the Statute are these .

It que nulle nef ne vessel de la flotte pour orgueil ne pour haine ou envie sur le mer our entrants es ports ou en port ottroie veille audommage dautre nef ou vessell de la flotte au pris par ceux de la flotte sur payne de faire playne amende de ce qui est endommage en son default , & qui endommage & debrysse au tres entrants aux ports , ou dedens ports , ou sur le mere neuvoillautz par cause de tempeste ou autrement il paiera & amendera la moitie du dommage a la discretion a a Stat. ult. pa. 16. & Judgement de l'Admiral .

There are likewise in the same Book added unto these Statutes the Oath , and Articles , whereupon Juries were and are to make their presentments unto the Admiral , all written with the same hand , the Oath onely in old English , the Articles in the same Language , with the Statutes which shew what things are enquirable and presentable before the Admiral , and there punishable , and how and in what manner such offences are to be punished : out of which it i● easily and plainly to be gathered , that the Admiral hath a full and compleat Jurisdiction , exclusive to all others upon all Ports , Havens , and Creeks of the Sea . I shall here set down verbatim the Oath to be Administred unto the Jury , and some few of those Articles , which shew the Admirals Power and Jurisdiction to be upon the Ports and Havens .

The Oath .

This here see my Lord the Admiral that I John atte nashe shall well and truly enquere for our Lord the King , and well and truly at this time thou serve at this Court of th' Admirate , present as moch as I have in knowleche , or may have by information of eny of all my fellows , of all mane Articles or circonstances that touchen the Courte of the Admirate and Law of the Sea , the whiche shuld be grate to me at this time ; and I thereupon sworne and charged and of all other that may renewe in my minde , and Ine shall for nothing lette , that is for to say , for franchise , Lordship , Kynreden , aliance , friendship , love , hatred , envye enemytee , for dred of lost of goodnee , for non other cause that I shall so doo the Kings Counseills , my fellows and myne owen wel and trewly hele what oute fraude or malengyn , , so God my help at the holydome , and by this Book b b The Jurates Oath pag. 17. 2 .

Next unto this Oath is set forth the punishment of the Jurate that shall disclose the secrets of the King , or any of his fellow Jurates , to be inflicted upon him by the Admiral c c Pag. 18. .

The very first and second Articles to be given in charge are for Theft committed upon any Port or Haven , and the punishment thereof set down . These are the words in the Articles .

Soit d d Art. 1. p. 18. aequis des larrons es ports Comē de cords batenlz autres ancres & autres appare●ls des nefs se nul est endite quil a felon neusement pris ung baten ou ancre que passe xxi d. il sera pendu sil est de ce convicte .

It e e Art. 2. p. 18. se an cuy est endite quil a felon nensement pris ung boye , rope de quelle value quil soit & soit lie a ung autre dedens leave , pour la boye il sera pendu sil nest de ce aquite .

And so f f Art. 3. p. 19. they proceed to set down the punishment of him that shall cut any Cable , whereby the Ship is cast away , or any man lose his life , &c.

And g g Art. 4. p. 19. of such as shall remove an Anchor .

And likewise of such as shall rob Strangers Ships not being enemies .

And h h Art. 5. p. 19. how their goods shall be restored to them , though they pursue not the Felon to death .

And i i Art. 6. p. 20. what course is to be taken in case of such robberies .

Petty Larceny k k Art. 7. p. 20. is by that Law punishable upon the first conviction , by forty dayes imprisonment ; upon the second , half a years imprisonment ; upon the third , death .

By the next l l Art. 8. p. 21. Article , common disturbers of Ships and Passengers , either upon the Seas , or the Ports , are to be enquired of , and their punishment is therein described . Item soit en quis de touts communs malfaiseos sur la mer & en ports se acun homme est endite quil soit comun malefaiseur , il sera pris par ung caper par le mariscalt , &c.

By m m Pag. 21. the next takers , that take and pay at pleasure , and so downwards .

What n n Pag. 22. Sureties shall be taken of such as shall be convict of misdemeanour .

What o o Pag. 22. punishment shall be inflicted upon common fighters being convict .

What p p Pag. 23. upon him that maimeth any other wilfully .

In what case q q Pag. 23. the Master of a Ship is bound for the forth-coming of his Mariners .

The manner of out-lawing and banishing a Felon that absenteth himself , and cannot be taken : And this Law , as appeareth by the Article , was made by Henry the F●rst , which runneth thus :

It en r r Pag. 24. temps du primier Roy Henry , & en temps de pluseurs Roys devant de puis quant ung homme estoit endite en fellonnie l' Admirall ou son lieutenant manderoit ung cape a l'Admirall de la Court ou au visconte de lu visconte aux second sessions quil restoit trouve & sera espace en tres deux sessions xxi . ovors ou plus il sera demaunde a la second session solempne lement , &c.

And likewise the manner of out-lawing and banishing one that hath done any trespass upon any Ship , Tackle , or Furniture thereof , &c. whether upon the Seas , or upon any Port , which Law by the Article appears to have been made by the same King Henry the First , and his Admiral of the North and West , and others of authority and power adjoyned to them . The Law begins thus :

Item s s Pag. 26. & 27. gens quit sont banniz en trespass ne seront une banniz sinon par ung an ou deux , &c. se lon la discretion de l' Admirall & sil est trouve en Angleterre dedens le temps , il avara judgement comme devant est dit , & les biens du banny en trespass ne seront une forfeitz au Roy Comment , &c. And endeth thus : Et ceste ordounare fuit faitte premieremet a Gypswiz out temps du primer Roy Henry per les Admiralz de North & West , & autres seigneurs adheirdantz .

If Ships be arrested for the Kings service , or for any other reasonable cause by the Kings Officers or Admiral , and break the Arrest , the penalty is by these Laws declared ; and this Law wherein the penalty is declared , appeareth to be made in the time of Richard the First at Grimsby by the advice of most of the Lords of the Realm . The Law begins thus :

Item t t Pag. 28. soit en quis de nefs qui sont arrestes pour le service du Roy ou pour autre resonnable cause per les officers du Roy ou de l' Admirall & debrisent larrest . And afterwards it followeth thus : Ordonne estoit en temps du Roy Richard le primier a Grymsby per advys de pluseurs seigneurs du Roylme que quant nefs seront arresters , &c.

Divers other things of the like nature are likewise enquirable in the Admiralty Court , the penalty and punishments whereof are declared by these Laws .

Sir Edward Coke for proof that the Admiral hath no Jurisdiction upon the Ports , amongst other things instanceth in one particular that 7 Hen. 6. 22 , 35. an Action was brought at the Common Law for forestalling in a Port or Haven ; because u u 7 H. 6. 22. 35. it is infra corpus comitatûs , which is a thing taken for granted , but no ways proved at all , as is before w w Sup. l. 2. cap 8. set forth : I shall therefore here set down two or three Articles which shew that if by Port be meant within the flood-mark in the Havens , forestalling and regrating there , are within the cognizance of the Admiral in the Admiralty Court ; the first is this .

Item soit enquis de touts Merchants & Mariners qui vont hors des Ports aux nefs charges de Marchandizes quant les dictes nefs voul droient enter ouz dits Ports & les Marchandises a chattent en gros & les amesnent aux Ports & puis les vendent a greigneur et plus chier marche & plus que les preimer Merchans vouldroient engrevance du commun peuple si aucun est endite en tel cas & convicte par xii il sera imprisonne per demy an & puis fera fin autant come les biens amsi a chattez amonterent maiz se la ditte nef sois repose dattendre son temps & homme a chate de lui Marchandise en tel marne il ne serame dese impesh●e ne riens ne perdra vers le Roy. x x Pag. 31.

Another against forestallers in any Ship , is this :

Item soit enquis de tous ceulx quia chattent bledz poisson ou autres vitailles dedens la nef en regratant devant quilz soient venuz adeu marche se aucun est en ce endite , &c. it sera greissuousement pugny & fera fin au Roy de tant y y Pag. 34. comme la value des bledz ou poisson amsi achattez a monte .

Another against Regrators within the flood-mark is this ;

Item de ceulx qui achattent en gras bledz poisson sale , poisson freiz ou autre vitaille dedens le flodmarks en Regratant , &c. aient mesme le z z Pag. 31. judgment .

Divers other Articles are there expresly set down against several offences committed upon Ports or Havens , with the particular punishments to be inflicted upon such offenders , as against the exactions of a a Pag. 31. Water-officers . Against any mans appropriating to himself the benefit of b b Pag. 33. salt-waters . Against Kidles , Wears and the like hinderance of the Fishing , which is c c Pag. 33. common to all . Against the false Weights , false Measure , and the like , used in any Ship or d d Pag. 35. Vessel . Against erecting of Mills , or adding or altering any thing about them , to the hinderance , hurt or damage of any Port or e e Pag. 36. Haven . Against the taking up and concealing or keeping back from the possession of the Admiral , any Flotson , Jetson or Lagon found as well upon the Ports , as upon the f f Pag. 36. Seas . Against the excessive Wages of g g Pag. 37. Ship-Carpenters .

All which do plainly shew that the Admiral hath had , and ought to have absolutely power and jurisdiction of and over even such things , and in such causes as Sir Edward Coke instanceth in , long before the times from whence he deduceth his authorities : And divers others of these Articles to the same purpose I might instance in , which for brevities sake I omit .

CHAP. XII . That by the Inquisition taken at Quinborough secundo Aprilis anno 49 Ed. 3. Annoque Dom. 1375. it is plain that the Admiral hath Jurisdiction upon the Ports , as well as upon the high Seas .

EDward the Third by a solemn Inquisition of divers persons most famous for skill in Maritime matters and sea-faring businesses , selected and chosen from divers parts of the Kingdome , and assembled at Quinborough upon the second of April in the 49th year of his reign , Anno Dom 1375. set down 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 & neu●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 a a Pag. 58. 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 per●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 b b Ord. 17. pa. 63. 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 c c Sup. ca● . prox . praed. 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 ' d d Ord. 16. pag. 63. 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 e e Ord. ult. p. 64. 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 f f Art , 5 , 6 , 7. p. 67. 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 g g Art. 26. p. 67. 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 h h A●t. 27. ●a 68. 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 comme●dedant car ce appertient a l' Admiral pour disposer pour lame de homme mort .

By these i i Art. 29 & 30. p. 68. 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 k k Art. 32 , 33. & 34. pa. 69. 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 l l A●t. 38 , 39. pag. 70. 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 m m 〈◊〉 . 27 , 28 , 29. pa. 71. 72. 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 ●●stre sur le Roy & ne la my par chartre ou praescription en disheritance du n n Art. 48. p. 72. Roy. And in this respect as well as others , is the Admiral called Custos portuum , & Custos o o Cap. maritimarum partium , &c.

Here again , as by the former Articles , are Forestallers and Regraters , as is before mentioned , to be enquired of p p Art. 41. 42. pa. 71. ; and so are Weights and Measures , and the abuses of water Officers q q Art. 49. & 54. p. 73. .

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 r r Art. 56. pa. 74. 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 s s Art. 60. & 61. pag. 75. 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 t t Art. 66. pa. 75. 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 u u Pag. 76 ▪ 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 a a I here contradict not Wel for Roughton might also translate the Statutes and Articles of Quinborow at some other time as well as these . 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 b b Sup. lib. 1. cap. 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 b b Sup. lib. 1. cap. 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 c c Articulorum fronte . 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 d d Certis tida & loco ; nota , that the tide is observed by ebbing and flowing upon the Ports and Havens , and not upon the high sea . & 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 , e e Cap. 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 g g Roughton Art. 6 & 18. 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 h h Roughton , Art. 7. 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 i i Roughton , Art. 10. 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 k k Roughton , Art. 12. 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 l l Roughton , Art. 14. 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 m m Rought . Art. 16. 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 Admirallo ad valentiam bonorum hujusmodi . Si tamen naves cum hujusmodi merchandizis sive victualibus vento contrario reluctante impeditae , ventum expectent faventem , emptores hujusmodi rerum sive victualium ab omni impeditione in hac parte erunt immunes , & nichil domino Regi , aut Admirallo perdent , nec amittent .

Many Articles more there are which do enquire of offences committed , and punishments proper for them , which are such penalties and punishments as are not used at the Common Law ; I shall but only name the chiefest of them .

There be Articles against

Stealing , n n Roughton , Art. 20. , cutting off , or carrying away the buoys fixed to an Anchor , whereby the Ship doth perish , or is made worse , which is punished by the Law of the Sea with a punishment different from that of the Common Law .

Against o o Roughton , Art. 22. Carpenters and other Artificers imployed about making or repairing of Ships , for taking excessive wages .

Against such as cast p p Roughton , Art. 24. Sand , Ballast , or any other thing into the Channel of a Port or Haven .

Against a q q Roughton , Art. 26. Loadsman that undertaketh to bring a Ship safe through the Haven to the Key or place of discharge , and through his ignorance , idleness , negligence , or other fault suffereth the Ship or Merchandises to perish , the punishment is such as is not used at the Common Law .

Against such as that r r Roughton , Art. 27. & 28. strike , wound , draw blood , make any fray , or kill any man within the Jurisdiction of the Admiralty , they are to be punished according to the quantity and quality of the offence .

Against s s Roughton , Art. 29 , 30 , & 31. Regraters , such as use false weights , and false measures in their Ships for buying and selling by in the Ports and Havens .

Against such as take t t Roughton , Art. ●5 . extraordinary Portage in any Haven , and the Article setteth down what Portage is to be paid by Ships of such a burthen , &c.

Against u u Roughton , Art. 36. Port-keepers and Water-bayliffs that raise new Customes and excessive Fees within the Port or Haven , &c.

Against w w Roughton , 〈…〉 Ships and Men appointed to serve the King , and avoid the service .

Against such as shall cut any x x Roughton , Art. ●0 . Cables , &c.

Against y y R. Art. 42 , 43 , 44. Felonies done in Foreigners Ships , and other Ships upon the Sea-Ports and Havens ; and against such as shall remove any Anchor .

Against z z R. Art. 45. notorious Malefactors , either upon the Sea or Ports .

Against a a R. Art. 49. such as have taken and concealed any Deodand upon the Sea , Port , or Haven .

To conclude , the Admiralty is so farre from being limited to the cognizance of things done upon the high Seas , that it is not so much as limited to things done upon Sea and Sea-Ports , but the power and authority thereof is , and of ancient times hath been extended to all such things as do belong unto the Seas , Ports , Havens , and Salt-waters , as will appear by the 34th Article , which is this .

Item b b R. Art. 34. inquiratur de his qui colligunt in sossat . aquam salsam , & faciunt sibi piscarias , scituantes & de novo facientes & incipientes gurgites , aut alia sibi nccīa immobilia , percipientes exitus & proficua eorundem ad eorum opus proprium & quae in aquâ salsa omnibus debent esse communia , poena si indictati fuerint vel impetiti , poenam ordinationis Regis Johannis apud Hastings subituri sunt : &c.

And this Article further sheweth , that such things as these which concern or belong to Ports or Havens , did in King Johns time belong to the Cognizance of the Admiralty .

And now I shall proceed unto such proofs as I have gathered from the Civil ●aw in confirmation of what I have gathered from other A●tiquity : But I must first shew that that Law is used and practised in other Nations , being a thing by some strongly denyed .

CHAP. XIV . That the Civil Law is used and practised in all or most Nations of Christendome .

I Have heard ( but am unwilling to believe it ) that some have strangely dreamt , and as strangely fancied that dream to be true , that the Civil Law is not received , nor of any use at all in forreign Nations , but the same hath been 1200 years since abolished : but I doubt not but that when their judgements are awaked , and better informed , they will find the same to be but a dream , and will easily be perswaded not to persist in such an error unreformed , which I will more willingly term to be but a mistake , for that the same may in part be understood to be true , and the other part from thence miscollected ; for the City of Rome was no sooner built then it had Civil Laws , and Sanctiones ordained , constituted and appointed for the government thereof , which in many hundred years were , and in many more several Emperours Reigns , by them altered , augmented , and encreased , which were by warres and turmoyls about the time before mentioned ( and long before Justinians reduction of them into method and order , and compiling them into a body ) much distracted and perplexed , or rather laid aside , and as it were destroyed , and lost , which makes Justinian himself in his Edict of confirmation of his digests , say , Post bella c c Justin . in confirm . F. in prin. Parthica aeterna pace sopita , postque Vandalicam gentem ereptam & Carthaginem , imo magis omnem Lybiam Romano Imperio iterum sociatam , & leges antiquas jam senio praegravatas per nostram vigilantiam praebuit in novam pulchritudinem & moderatum pervenire compendium : so that it seemeth these old Civil Laws with their age and perplexities of warres , which do silence Laws , were praegravatae , even suppressed , or crushed down , which some perhaps may terme an utter abolition , and not without cause , when as Justinian himself in the same place , speaking of this reduction of them , Quod nemo antea hoc superavit d d Idem . Ibid. neque humano ingenio possible esse penitus existimavit ; that no man ( before he saw it done ) did ever hope for , or humane reason seriously think it possible : For that it was marvellous that the Roman Law , which began with the City it self , which had by the intestine warres there for almost fourteen hundred years been staggered , and shaken , and that extending unto the Imperial constitution , they could be reduced unto one consonancy or agreement . Erat enim mirabile Romanam sancionem e e Idem , Ibid. ab urbe conditâ usque ad nostri imperii tempora , quae pene in mille & qu●dringentos annos concurrunt intestinis praeliis vacillantem , hocque & in imperiales constitutiones extendentem , in unam reducere consonantiam .

And from this suppression , or laying aside of these ancient Roman Laws , some it seemeth have miscollected , and unduly concluded , that the same hath never since been received or made use of in any forreign Nation at all .

But this new moulding , reducing , and with so much pains , labour and care , digesting of those ancient Laws into method , form , and order , and compiling them into a body , plainly sheweth the contrary , unless we will believe all this was done to no purpose .

And if it shall be said that these Laws thus digested , and brought into forme and method , have since such their reduction ( which was after the time of the twelve hundred years before mentioned for their being abolished ) been again suppressed , born down , or abolished , and not received in any forraign Nation to this day : What shall we say of the printing and so often reprinting of this large body of the Law , since printing was first invented , which was but 190 odd years agone ? Next what shall we say of the so late reprinting this large body with the gloss and case , and other notes upon the same , with the large Index thereunto , in all consisting of six large Volumns in folio , some printed in one Country , and some in another ; some printted within these thirty years , some within a shorter time ?

Or what shall we say of the several Authors of most , if not of all the several Nations of Christendome , which have in all the several Centuries of years since the compiling of this body , even unto this time , wrote and commented upon the same , some on one part , some on another ; and of all those other Authors of all or most several Nations , which have wrote several Tractates of Decisions and other Law-books , which do ground and raise their authority from this body of the Law , and quote the same for proof of whatsoever they determine ?

Shall we say that all this from time to time continued study , industry , labour and pains hath been taken , and all this cost , charge , and vast expence laid out to no end , for no use or purpose ? or shall we say all this is done only to mock the world ? Certainly he that shall say either , will but mock himself , and such as will believe him ; but he can never deceive any one that hath but once seen the inside of a Civilian's study , either at home or abroad ; for both are the same , and furnished with books of the same nature and kind ; and all Lawyers or practisers in the Laws , in all parts of Christendome are Civilians , and do study and take their degrees in the Civil Law , as the Civilians do here , and do proceed in all causes for the most part according to the course and directions set down in the Civil Law , and are regulated and guided in all their determinations and judgements by that Law , saving that in several Nations they have several municipal Laws , Acts , or Edicts published , and declared amongst themselves for the regulating their own particular Government , which are binding unto no others , nor observable in any other Nation , then that wherein they were constituted and ordained , and that in land businesses , and not in maritime and sea affairs , wherein several Nations by reason of their Trade and Traffique each with other , are concerned , and must have their differences which happen between them determined by one and the same Law , which is principally the Civil Law , though some other Maritime Laws , which receive their ground and foundation from the same , are therewith practised ; by which all differences likewise happening and arising between Nation and Nation , are to be regulated and determined , it being now generally received as the Law of Nations , although at the time of its being compiled into a body , Justinian himself distinguished it both from that Law of Nations , and from the Law of Nature . And for other municipal Laws , one Nation will not subject it self unto a municipal Law framed and constituted by an other , they being in some sort different each from other , though both derived from one and the same principal Law , and are neither so many as the Statute Laws of this Land , nor so much different from the Civil Law it self as our Statute Laws are from our ancient fundamental Common Laws : For indeed the body of the Civil Law being so ample , large , perfect , and compleat in it self , for decision of all controversies of what nature soever , arising between persons of what quality or condition soever ; The several municipall Laws of those several Countries , are only some wayes confirmatory or explanatory thereof ; or sometimes extending , or sometimes limiting the same ; but seldome or never contrariant or repugnant thereunto , or much differing therefrom ; unless it be in the manner of punishment , or the like ; and sometimes , and in some places they are no other then the very same abreviated or shortned , and made in affirmance of them , and have their ground from them , as some of our Statutes here have from the Common Law . Nay , those very proceedings , and determinations of Controversies in the Parliament of France ( which many have thought most to differ from the proceedings and determinations of the Civil Law ) are notwithstanding plainly agreeable thereunto , and grounded thereon ; nay , the very name , Constitution and Authority thereof , are all derived from the Civil Law , as doth plainly appear by that which Johannes Montanus concerning the Authority of that great Councel , hath wrote , as likewise by the additions made thereunto by Boerius that Country-man , not much above 100 years since , where it appeareth that the very name Parliament , whereby this great Councel is called , is derived from the Civil Law ; Bartol f f Boer . de Authoritate Parla . Ga● n. 165. an ancient Commentatour upon that Law being there cited , upon three several places thereof , for having or using the word Parliamentum in the same sence the same is used in France , and where likewise divers other Civil Law Authors are cited to the same purpose g g Id. eod loco . .

And Bartol is likewise cited for that he alloweth no Prince to hold a Parliament , that acknowledgeth a Superiour . Princeps h h Bart. l. 2. c. d●u●c . l. 10. non potest habere Parliamentum , si superiorem recognoscat . And likewise Boerius proceedeth to the setting forth the use of this Parliament , namely for the profit of the people , ubi i i Boer . eod. lo. super aliquo oportet provideri pro utilitate totius provinciae , praeses debet facere congregare generale concilium seu Parliamentum , ut super dubio proposito , sanum & utile concilium exhibeatur . And it is there compared to the Roman assembly , much mentioned in the Civil Laws k k Id. Ibid. Et Parliamentum potest dici coetus , cujus nomen tractum est ex more Romano , taking rise and example from that glorious Assembly of the Palace of Rome , mentioned in the Code of the Civil Law . l l L. humanū Cod. de lege . Id ab omnibus antea proceribus nostri palatii quam gloriosissimo coetu nostro &c.

It is likewise called the Parliament of Paris , and it is there said to be called m m Boer . eod. lo. n. 166. Parliamentum Parisiense , quasi Parium lamentum , quia Pares Franciae , qui sunt de numero ipsius , querelas & planctus audiunt , de quo mentionem facit Paul . de n n Paul . de Castr● Consil. 334. vol. antiq. Castr . in Consil. 334. vol. antiq.

And it is there likewise said to be called Curia suprema , o o Id. Boer . n. eod. or curia judicum maximorum juxta Authen . de Consulibus Sect. si autem mediocre , & tunc dicitur curia , secundum eum , id est cura vel cultura juris , so that it is said to be the very sollicitude , care , or study of the Civil Law ; or the very tilling , dressing , or trimming thereof .

And this great Court at first constituted by King Pipin , consisted ex quatuor p p Id. Ibid. num. 171. viginti consiliariis computatis praesidentibus eisd . & per conclavia , ( quae cameras appellant ) distributis . And after other additions made thereunto by Charles the Great , Son of the said King Pipin ; Adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum , domus regiae , ut sic centenarum judicum numerum tenens , illius senatus effigiem haberet quem Romulus Romanorum regum primarius ut rei-publice consulerent , creavit .

There were furthermore adjoyned unto this body eight Masters of Requests of the Kings House , that it keeping the number of an hundred Judges , it might have the Effigies or Forme of that Senate Romulus the first King of the Romans constituted to counsel the Common-wealth .

Nay , the dignity , the precedency , and placing of the Counsellors of this great Councell , is derived from the authority of the Civil Law , as is plainly set forth in the said Montanus upon the Authority of the Parliament of France , and Boerius his additions thereon , who both quote the Civil Law for the same ; and so is likewise the very authority of the Councel from thence derived , as by the said Authors doth likewise appear . And shall we now say that this great Court or Councell , and the very order and authority thereof was thus framed and constituted by the rules and directions of the Civil Law , and say , conceive or think , that their judgements and determinations of Controversies , &c. there given and made , are not according and agreeable to the same Law ?

If I should here endeavour to set forth those several Authors and Writers upon the Civil Law , which have as I said before , in the several Nations of Christendome , in all the several Ages and Centuries of years which have been ever since the Compiling that Body , even unto this time , written and commented thereon , and those which have wrote the Decisions , Determinations , Judgements , Objections , and other Law books grounded upon the same , and which cite them for their authority and proof of what they conclude , I should extend this Chapter to a whole Book or Volumne , and but shew the Civilian , and such as have been verst in Law Libraries , what they have seen already , and but tell others of those things which they will neither search for , nor endeavour to see : And I am afraid I have too farre already deviated from my intended port of discharge of the discourse I in this book entred upon ; which was to prove the Ports and Havens of the Sea to be within the Jurisdiction of the Admiralty ; but before I can return to steer a right course thither , it will be necessary , first to shew that the Civil Law is likewise necessarily practised , used and exercised in all Admiralty Courts , and there binding , and of authority to direct the Determinations , Sentences and Judgements decisorie in Maritime and Sea affairs , between party and patty , be they forreigners or others ; and then to shew that by those Laws so exercised and practised in those Cours , as well as by the other Laws already set forth , it doth appear that the Ports and Havens , and all things done thereou are within the Jurisdiction of the Admiralty .

CHAP. XV. That the Traffique and Sea-trading is different from the bargaining and trading at land ; and that therefore in all Forreign Natious they have their distinct Judicatories guided by distinct Laws , and that though the Judicatories for land affairs have in divers Nations divers Municipal Laws mixed with the Civil Law , yet the Civil Law is strictly used and practised in all Admiralty Courts , and is absolutely necessary in the decision of all Maritime and Sea differences .

SUch as were apt to believe that the Civil Law was , and is abolished in all forreign Parts , and no use made thereof , in the rule and governance of land affairs , would very hardly ( without the removal of that misapprehension ) have been perswaded that the same was of any use in their Admiraly Courts in sea businesses .

I must therefore in the next place shew that he which understandeth only the Rhodian Laws , the Laws of Oleron , and the Inquisitions and Statutes before mentioned ( which the Civilian must needs most perfectly do , the first being a great part thereof inserted in the very body of the Civil Law , and the other from thence derived ) cannot without much reading and knowledge in other parts of that Law , be sufficiently able to manage the pleadings and arguing of all Maritime causes arising in Admiralty Courts between party and party , and between the supreme Authority , and those that are employed by that authority , and such as are in subjection to the same , much less to judge and determine such causes therein according to law and justice .

For Justice which ruleth and swayeth the secular Regimen or Government of all or most Kingdomes and Common-wealths of Christendome , whereby men are made happy in possessing and enjoying their own , and defending themselves against wrongs and injuries offered by others , hath two wings , duas volatiles habet alas , she hath two wings wherewith she soars aloft , and stretcheth her self unto , and spreadeth her self over both sea and land , she hath two Jurisdictions , the one fitted with Laws most apt and proper for distributing of right in all land businesses , the other furnished with Laws most meet and convenient for the dispensing of equity in all maritime and sea affairs ; and yet how different and distinct soever these two Jurisdictions are each from other ( as I have set forth more at large in the a a Sup. lib. 2. cap. 1. first chapter of this second Book ) yet do both these wings of justice in all forreign Nations spring and proceed from one and the same body of the Civil Law , and are from thence furnished and fitted with different and distinct Laws , whereby they keep up , and carry justice upright between them both ; and by the one extendeth her directions unto the business of the land , and by the other reacheth forth her proceed and effects unto the affairs of the sea .

Which two wings , if taken off , Justice must needs fall flat to the ground , and can by no other means so expand her self , as to extend either her directions unto the one , or reach forth such her effects unto the other ; Secundis alitibus procedere nequit , she cannot go on prosperously or happily to execute or performe her own proper office , either upon the one , or upon the other .

Nay , if either of these two wings should be taken off , or but joynted , implumed , or bereaved of those feathers nature at first gave it , though the other should be preserved , and kept never so compleat and perfect , yet could Justice by the perfection of that one wing , but hover and heave her self upwards on one side , whilst the defect in the other would pull her downwards ; and the one side falling to the ground , the other must necessarily follow .

If the power and privileges of either of these Jurisdictions should be decayed , or but impaired , though the other should be left never so entire , yet could not the effects of Justice in the one supply the defects in the other : For the Laws of the Land are no more fit to regulate the Affairs of the Sea , 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 b b Suqr . l. 2. said before , in this Second Book . Sometimes they are damnified in the lading of them , sometimes in the unlading of them , sometimes in the Ship , sometimes in the Lighter , &c. Sometimes they are damnified by one Ship or Vessel falling fowl on another , and that sometimes by the negligence or carelesness of the Master or Mariners of either of them , sometimes of both ; sometimes of neither , but through the extreamity of the weather , or through the darkness of the season , happening either by mist , or night , &c. which could not be helped or prevented by either the care or diligence of the Masters , or their Mariners : Sometimes the Ship by such means is damnnified onely , and not the Goods : Sometimes the Goods , and not the Ship : Sometimes both Ship and Goods : Sometimes the like falleth out for want of a Pylot : Sometimes through the ignorance and unskilfulness of such Pylot , &c.

I might here instance in very many more particulars , wherein this Commerce which consisteth in shipping and merchandizing voyages and affairs doth differ from other trades used and occupied in land business , those being farre more perillous and dangerous then these , and being likewise far more subject to depredations , Pyratical robberies and spoils then these .

All which differences must needs introduce a Law , for the regulating the various and divers controversies that must needs arise by reason thereof , farre different and distinct from that Law , which ruleth and guideth the determinations of such controversies and debates which happen in land businesses , not subject to such or the like casualties , dangers and damages , arising from so divers , various and different causes , all which do a●ter the very Judgements and determinations according to their different qualities , respects and conditions , which Law ( as I have said before ) for the community of Traffick and Commerce , and holding correspondency therein , and obtaining the same Justice by each Nation from other , must continue certain and unalterable , when as the other may suffer alterations , additions or diminutions .

It remaineth therefore here to shew , that besides the Laws of Oleron , &c. and the Title ad legem Rhodiam de jactu before mentioned , which is inserted in the Body of the Civil Law , that there are several other Titles and Laws incorporated in the same Body proper and peculiar for the Decision and Determination of Maritime controversies , which are not at all excercised or used in the Decision of the differences in land businesses , nor any ways proper for them , although many of the other Titles and Laws which are for land businesses are made use of in the proceedings , and sometimes in the determinations of Maritime causes , and that neither those general Laws which serve for both , nor these particular Laws which serve for marine causes onely , are either abolished , taken from , or disused in the Admiralty Courts in foraign parts , but that the same are of most especial use in the same .

For proof hereof , I might cite the Disputations , Decisions , Determinations and Judgements of divers , and very many , if not of all and all manner of causes , set forth in several Authors , of several Nations , in several ages and times , even to this present age , which are all grounded upon the same Laws , and do cite and quote the same for their their foundation , and proof of what they conclude and determine , as I have said before . But no man can conceive that this Collection of so many Causes out of so many several Volumns , could be contained in one so small as I intended this . And some ( and those not a few ) would think it a vain and needless work to jumble so many Authors together , to no other purpose then to confute so plain an errour , as no man that hath been at all verst in the proceedings of foraign judicatures , can be induced to believe .

I shall therefore instance only in some few particular Writers of these latter times , of most common use , and most generally known . I shall step no further back then unto Peckius , sometime Principal of the Juridical Order in the University of Lovain in France , who collected and gathered together several titles , by him pickt out of the body of the Civil Law , which principally belonged unto Maritime affairs , and wrote a Comment upon the same , which was there printed in the year of our Lord God 1556 , above a hundred years since , for the use of such as were employed in the Judicature or practice in the Law in Admiralty Courts concerning Marine businesses ; in which Commentary he doth not only cite divers other Civil Law Authors , but likewise enforceth , extendeth and limiteth the understanding and construction that is to be made of the several Laws , comp●ehended under those several titles , by other particular Laws set forth under several other titles , within the very body of the Civil Law , as necessarily he must do , having not taken in all those titles which concern the business , as himself confesseth in the very title of his Book , which he saith is Commentaria in omnes penè Juris Civilis titulos ad rem nauticam pertinentes ; a Commentary upon almost all the Titles of the Civil Law , which concern Maritime Affairs . But indeed they are not near all , if we consider the divers particular Lawes which concern the same , and are intermixt with other Laws under other titles , and some titles he meddleth not with , which wholly concern such matters , and nothing else ; nor doth he at all treat upon any other Laws which concern such affairs , and are made use of in all Admiralty Courts together with the Civil Law .

Wherefore Vinius a learned Civilian of the Low Countries made an additional Commentary upon the same titles of the Civil Law , and upon the Commentary of the said Peckius , and set forth the same , which was printed at Leyden in Holland , in the year of our Lord God , one thousand six hundred forty seven , wherein he undertaketh , not only to explicate and unfold those titles of the Civil Law which principally concern Maritime affairs , as Peckius had done before , but also to adjoyn thereunto the Laws of Wisbaith , the Laws of Oleron , the Laws set forth in the Book de Consulatu maris ; and likewise the Maritime Law of the Rhodes , Jus navale Rhodiorum quod ad finem tomi secundi Juris Graeco Romano relatum est a Marquardo Trahero , V. CL. as he himself saith , that his said Work might be usefull to all Nations in their Judgments and Determinations in all manner of Controversies , and therefore saith thus ; Cum in animo haberem locos juris nostri , qui ad rem nauticam pertinent , non explicare tantùm , verum etiam cum generis ejusdem institutis & moribus aliorum populorum conferre , atque ad usum quendam accommodare communem , &c.

Now although that for the due administration of Justice in an Admiralty Court , the learning in , and knowledge of the Laws in these last mentioned Books be very requisite , that the same justice which one Nation affordeth to another , may be by that other rendred unto that Nation again , and it obtain the same ; yet is the learning and knowledge of the Civil Law , which guideth and directeth both the Proceedings and Judgments in all Admiralties of Europe , as necessary , and farre more requisite for him that will justifie to any other Nation , or learned Civilian his due and legal proceedings , and justify his Judgments and Determinations in Maritime causes , though according to the Laws before mentioned . For Vinius himself in his Epistle Dedicatory to the Consuls of Amsterdam to his said Work praefixed , ( who I doubt not but ( in regard that ( which he then said in the behalf of the Civil Law ) he said not to any that I now write ) will be believed before me , that may be thought to speak for my profession in mine own Country ) affirmeth that Peckius in his work intended to keep himself within the rules of the Civil or Roman Law ; yet he did by that work shew that he wanted not the perfection of Learning , or solid and sound knowledge of Law , and many other things . Ac for●asse Peckius intra limites Juris Romani se continere voluit ; utcunque sit , ostendit sane hoc in opere Peckius sibi non defuisse justam eruditionem ; solidamque juris & multarum rerum scientiam . And this I will further add , that he that in the Civil Law only ( and without the learning and knowledge which other Authors afford ) hath justam eruditionem , a iust , perfect , or grounded learning , or skill ; and thereby this solidam juris & multarum rerum scientiam , this solid and sound knowledge of the Law , and multiplicity of business , or matters , for which the same was composed and continued , may be fit to judge and determine of these Maritime matters and controversies which happen concerning the same , when as he which hath the learning and knowledge of these other Authors only , and hath no perfection in the learning and knowledge of the Civil Law , shall be very defective in the proceedings to the due or just judgment therein : But herein I shall plainly agree with this my learned Author Vinius , that these Authors are of very good use , & may conduce much to the perfection of him that is either to judge or determine of such Controversies , or shall be practicant in the same ; and likewise in that he further addeth in the same place , viz. that notwithstanding the most perfect knowledge and learning in the Civil Laws , and these other Maritime Laws , it is sometimes , and in some things requisite to make use of , and consult with such Merchants and Mariners , as are expert and skilfull in Navagation and Commerce . Equidem inficior in negotiis nauticis nonnunquam confugiendum esse ad expertes , sive nautas , sive Mercatores , aliosve hujusmodi peritos . Yet this is by no means used , or ought to be done , but where some such thing falleth out , whereof there is nothing certain set down in the written Law , or introduced by Custome , so that I with my same Author affirme the same with that learned Civilian Benveautus Straccha , in these words ; Caeterum nego id fieri solere aut debere , nisi ( ut rectè monet prudentissimus Straccha ) tale quid occurrat , de quo nihil certi aut scripto jure cautum , aut con●uetud●ne introductum est .

Now seeing that these Marine controversies and differences are to be adjudged and determined by these Civil and Maritime Laws , certainly then are none so fit to heare and decide the same , as those that are well verst and skilled in these Laws , which necessarily must be such as spend their whole time , pains , and labour in the study thereof , and by that means do better understand the diversity of such Laws , and gather more knowledge therein then such as are daily imployed in Forreign affairs , and continually busied in multitudes of negotiations , which bring home a golden Harvest , which will not be left , or at any time set apart to give way for the study of those Laws which bring in no such profit . Such men will rather be found in their Sellars and Ware-houses amongst their rich and precious Commodities , which are to be bartered and sold , then in Studies amongst mustie Books , that are to be kept and not parted with ; And will rather be seen upon an Exchange , Mart , or Meeting-place of Merchants , then upon a Bench of Justice : And in this my said Author Vinius agreeth with me , who saith , Caetera enim scire possunt etiam qui vitam umbratilem colunt , & hi si quid literis mandare volunt plura conquirere solent , & curiosiùs cuncta rimari quam aut pragmatici qui rarò relictâ messe aureâ , quàm assidua rerum forensium affert tractatio , literarum monumentis unde nullus praeventus est , student , aut quilibet alii , quos nimia & circumfusa obsidet & opprimit negotiorum multitudo .

And now since I have thus farre deviated and digressed from the way that I was in , give me leave here ( in so necessary a course , or rather discourse ) to go a little further , and afterwards get home again as well as I can . Let me shew of what necessary use the Civilian is in these Admiralty Courts , which have the decision of Maritime Controversies , and how unfit other men not verst or skilled in that Law are for the undertaking thereof .

I know it will be objected unto me in the first place , that some Admiralties in forraign parts are regulated and ruled by the Justice and Judicature of Merchants , and other feafaring men well experienced in matters of that nature .

I must confess I am no Traveller , and that in regard have not been amongst these Mercatorian and Nauticall Judges ; but yet have I in my study travelled through the decisions and determinations of many forraign Judicatures , and by that means ( I believe ) do know their Laws somewhat better then they which have travelled through those Countries , but not through those Courts .

And I do finde that where such Mercatorian and Nautical Judges are , they are either Civilians themselves , or at least , farre better verst in the Civil Law then any of the Merchants or Mariners of our Nation do seem to be ; or else they are not only assisted , but regulated and ruled by Civilians , and moreover by certain Letters yet remaining in my Study , which I have ( in that short time that I have been verst in the high Court of Admiralty in England ) received from such forraign Admiralty Courts , and the Copies of Letters which were unto them returned in answer , and their replyes thereunto , I can shew , that upon contest for the right of Jurisdiction in the cognizance of causes , which have happened between Forraigners and English , whether the Causes were to be decided by their Court or this , that they have urged and quoted the Civil Law for the foundation of their Arguments , for their right of Jurisdiction therein , and have received satisfaction by answers framed out of the same Law unto their said Arguments .

If I should here set forth those Letters and Copies , it would thereby appear , that the J●risdiction of the Admiralty Court of England hath been maintained and defended by Civilians in an other manner then the same would have been by such Mercatorian or Nautical Judges , and that the Subject of this Nation thereby hath gained that Justice and Right at home , which might otherwise perhaps have been hazarded abroad .

But I intend not to stuffe or fill up this short Treatise ( which I intended should have been farre shorter , when I first took it in hand ) with Packets of Letters received from several Forraign Judicatures , and the answers thereunto returned , which will hardly , or not at all be understood by such as are not already convinced of that which they should be here set down to prove .

Nor will I here set forth how farre those Mercatorian Courts ( though assisted by Civilians through their over-powering of their said Assistants ) have fallen short of those which have been and are wholly regulated and governed by Civilians , as well in point of proceedings , as in point of the distribution of Justice .

But I will here take occasion to set forth some inconveniences not a little destructive only to Trade , Traffique and Commerce , and so to the Merchant himself ; but also to Shipping and Navigation it self , which might , and doubtless would happen , if the dicision and determination of Maritime Causes should be left unto , or settled upon Merchants and Owners of Ships to judge according to their own skill and observations , without that Jus scriptum , that written Law which passeth , is allowed and practised in all Admiralties of Europe , wherein they cannot be so well verst , as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof .

I shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same Law in all Nations in Maritime Causes , for one Nation 's rendring of the same Justice to another that it doth from thence receive , which is the chiefest thing that maintaineth the Community of Traffique and Commerce , which cannot possibly be done , if the same should be rendred , by the various fancies of men , in no wise guided by any certain forme or rule , but by that thing ( then which nothing can be more uncertain ) which men call opinion ; tot capita , tot sententiae .

And then I will further say , that for the reason before set down in this Chapter , the Mariner who cometh in with one good wind , and goeth out with another , and must opportunè vela ventis applicare , upon any controversie or difference arising upon or about the payment of his wages , cannot have so sodain and quick dispatch or determination thereof by such Mercatorian or Nauticall Judges , who have other affairs and businessss to attend , as by those who make the decision and determination of Maritime Causes their whole work , and attend wholly upon the same every day of the week , both Terme and Vacation .

Again , it is considerable what justice the poor Mariner could expect , or should be like to have , if the determination and adjudication of their wages should be left unto Merchants and Owners of Ships ( as some men would have it ) out of whose freight the same ought to be paid , and would be as it were parties in all Causes of that nature ; and if the Cause should not at one time be their own , yet must it , and would it assuredly be at another ; and so at all times would it be their own case , though not their own cause : and very seldome would it be , that it should not be their own cause , there being so many Merchants that are Owners of Ships , and so many Owners of every Ship of any burthen considerable ; and every Part-owner of one Ship for the most part , Owner or Part-owner of more , if not of very many ; so that for the most part , some or other of the Judges themselves would be absolutely concerned in the matter of difference depending before them , and the poor Mariner left to their good will and pleasure for his wages and recompence for his pains impended , and his time spent in their service , which would be a means to dishearten and discourage all Mariners for serving in English Bottoms , whensoever imployment should be offered them elsewhere .

Again , in the commixture and joynt Trade of Merchants one with another , having their complices & copartners in all or most of their trading and merchandizing affairs , and such their trading and dealing each for other , and in each others name , that it might , and oftentimes would fall out , that when a man conceived that he had commenced a Suit against his adversary , and whom he had dealt and traded with , he should in conclusion find that he had commenced the same against one or more of his Judges , that were to judge and determine his Cause , or rather the same might fall out so to be , and not be at all discovered .

Much more I could say to this purpose , but I hasten to return to that which I principally intended to set forth in this Chapter , namely to shew by some few Authors of very many , that much of the Civil Law it self is of use , and in force in all Admiralty Courts , as well as any other Maritime Laws .

And as I last instanced in Vinius , I shall in the next place instance in the Authors by him mentioned , namely Benvenutus Straccha , who writeth de mercaturâ sive mercatore , de contractibus mercatorum , de mandatis , de sponsionibus , de nautis , navibus & navigatione , de navibus iterum , iterumque de navigatione , de conturbatoribus , sive decoctoribus , quomodo in causis mercatorum procedendum sit , & de adjecto : Of Merchandizes and Merchants , and of their Contracts , Mandates , Warrants and Bargains , or promises of Mariners , Ships , and Navigation joyntly , of Ships severally , and of Navigation by it self , of Bankrupts , and failing Merchants , in what manner Merchants Causes are to be proceeded in , and of Factors or Substitutes , &c. which Book was printed and set forth within this last Century of years . And I do earnestly desire those that hold the Civil Law useless in these affairs , and in the Courts designed for determination of differences happening therein , but to look into the before mentioned Book , together with Grotius de jure Belli & Pacis , Gentilis & Loccenius , who are latter Writers , being all easily to be had , and they shall find the very Text of the Civil Law , and Commentators thereon , not only out of these before mentioned selected Titles , but out of divers others , cited and quoted for authority in all the several points the said Authors do handle or treat of , which I hope will be sufficient to convince any judicious man , and sufficiently perswade him that the Civil Law it self is of most exquisite use in all Admiralty Courts .

CHAP. XVI . That by several of the Laws of the Titles selected out of the body of the Civil Law by Peckius for the determination of Maritime Causes , and divers other of the Civil Laws conducing thereunto , it doth appear that the Ports and Havens , and businesses done thereupon , are within the Cognizance of the Admiralty Jurisdiction .

HAving now made it appear that there have been several Titles selected and gathered out of the body of the Civil Law for the dicision and determination of Maritime Causes , and the same then , and since very lately commented on for the better understanding thereof , and the more perfect knowledge therein ; now it will remain to shew that by these Laws , and divers others of the Civil Laws mentioned in the foregoing Chapters of this Book , it will plainly appear , that the Ports and Havens , and all things had , done , or agitated thereon are within the power and cognizance of the Admiralty Jurisdiction .

And the first of those Titles , so farre forth as it concerneth the Admiralty is , Nautae , a a F. tit. 9. lib. 4. Caupones , &c. ut recepta restituant . And this Title consisteth of several Laws , whereby Masters of Ships , Mariners , &c. are compellable to restore such Goods , Wares , and Merchandizes as they shall have received aboard their Ships .

Now if the Jurisdiction of the Admiralty Courts had been restrained unto the high Seas , where Masters of Ships and Mariners seldome or never receive in , or deliver out their Merchants goods , but upon some meer accidental occasion ; and had had no cognizance of Causes happening and falling out upon the Ports and Havens , where usually they receive them in , and deliver them out ; then certainly little reason had Peckius had to have made this Title to have been the first of those select Titles he gathered out of the body of the Civil Law , for the decision of Marine Causes , which belong to the Admiralty Courts ; and as little reason had Vinius had to have added so lately his additional Notes thereunto for that purpose .

The next Title so collected , is b b F. lib. 14. tit. 1. de Exercitoriâ actione , which concerneth Contracts , and is to be made use of in its place .

The next is the Title c c F. lib. 14. tit. 2. ad legem Rhodiam de jactu , which I have already instanced in to this purpose in the 9th , 10th , and 14th Chapter of this d d Sup. lib. 2. cap. 9 , 10 , 14. second Book , and therefore shall pass it over in this place .

The next to this is the Title e e F. lib. 47. tit 9. de incendio , ruina , naufragio , rate nave expugnata , of and concerning burning , destruction , and ruine of things , ship-wrecks , robbing or spoyling of Ships . Now as under the first of these Titles , Caupones & Stabularii , Victuallers and Inholders were comprehended as well as Nautae , Mariners ; and yet is it by Peckius collected and commented on only for so much as concerned Marine and Nautical Affairs , fit and proper for Admiralty Courts , who saith that it is his purpose and intent in his Comment to explain those Laws only that belong thereunto , and saith that the other are but things which have some affinity with , or likeness unto the other , or are things handled by such as handle things of another nature , which he expresseth in these words ; Contestatum ante omnia haec volo te , Lector , non expositurum me hoc titulo , nisi eas leges quae ad rem nauticam pertinent ; illud enim nostri est instituti , caetera vel adfinia sunt , vel ab aliis utcunque suis locis f f Peckius in pr●●cipio super dicto tit . examinata . So under this Title , although burning , ruine , and destruction of things at land be comprehended as well as shipwreck , &c. yet doth Peckius his Comment extend only unto those Laws therein which concern Maritime affairs .

Now these Laws which concern offences committed in case of shipwreck and robbing , and dispoiling of Ships , or other Vessels comprehended under this Title , do indistinctly handle the same , whether they happen to be done upon the high Sea , or upon any Port , Creek , or Haven , ( where most of these things most commonly happen ) as by the particular Laws themselves it doth manifestly appear .

This Title setteth forth how , and in what manner such persons shall be punished , which ( when any Ship , or other Vessel ( not being a derelict ) shall be wrecked , stranded , or otherwise distressed , by robbery , opposition , quarrel , spoil , or g g F. lib 4● . tit. 9. l. 1. l. etiam 3. § 〈…〉 Prator . otherwise ) with a deceiptfull intention , to steal , take , carry away , receive , or damnifie h h Leg. eadem . § non tantum . any of the Goods , Wares , Merchandizes , Tackle , Furniture , Ammunition , Provision , &c. belonging thereunto , though the same were cast out of the i i L. eadem §. non solum . Ship , and that indistinctly , whether the said misfortune happened , either upon the high Seas , or upon the Ports , Havens , Creeks , or Coasts of the Sea , where Ships and other Vessels do ride , lie at Anchor , or have their station ; and indeed more proper is this Law for the Ports , Havens , Creeks and Coasts of the Sea , then for the high Seas , it rarely or never falling out , that any persons are present to steal , take , carry away , damnifie , conceal , or imbezle any of the goods belonging to any Ship or Vessel which shall be there wrecked , nor the goods belonging to any Ship that shall be there robbed , or in fight with an Enemy , but such as are either the Pirats or Enemies themselves , neither of which fall under the Judgment of this Law , the one falling under that Judgment which is proper to Pirats , the other under that which is proper to an Enemy ; and this being not appointed for the punishment of such as are either the Robbers , Pirats , or Enemies , which set upon the Ship , but of such as take the advantage whilst such strife and contestation is ; or when any wreck doth happen , and when the Master and Mariners are in a distraction , do take away the Goods belonging unto their Ship , which must needs most commonly fall out , when any such Ship or Vessel shall happen to be so wrecked , robbed , or dispoiled in a Port , Haven , Creek , or Coast of the Sea , where the Shoar is near , and the Goods are either cast upon the same , driven thereto , or with Boats , Engines , or other Instruments fetched or brought thereon .

And by the two next Laws it more plainly appeareth , that this Title principally aimeth at such as shall offend in this manner , when a Ship is in her Port or Haven , or upon any Creek or Coast of the Sea , and there doth suffer any such distress , or any such sad accident doth befall : for that those Laws take care as well for the punishing such as shall take away any of the Goods from off the Shoar , which shall be cast or driven thereon , as the punishment of those that shall take them out of the Ship it self . Item ait Praetor . Si quid ex naufragio , hic illud quaeritur utrum si quis eo tempore tulerit , quo naufragium fit , an vero etiam si alio tempore , hoc est , post naufragium : Nam res ex naufragio etiam hae dicuntur , quae in littore post naufragium jacent , & magis est ut eo tempore k k 〈◊〉 . de incend . ruin . nauf . l Praetor ait . Sect. Item Praetor ait : & l. siquis 5. Sect. ●acentem . .

And the Third Law runneth in these words . Qui autem in littore rem jacentem postea quam naufragium factum est abstulerit , in eâ conditione est , ut magis fur sit , quam hoc edicto teneatur , quemadmodum is qui quod de vehiculo exciderit , tulit l l Eod. l. quo naufragium in prin. . And many things more of the same nature are comprehended under the several paragraphes of this Law .

And these distresses happening at high Sea , there is little help to be expected from any at land , in gathering and preserving the Goods like to be lost ; but by this Title encouragement is given to such as shall help in this kind . Plurimum interest peritura collegerint , an quae servari possint invaserint m m ●od . l. Pedius . Sect. Divus Antonius . .

And the Seventh Law plainly forbiddeth such as dwell upon or near the shore , to take away such Goods so wrecked , though stranded , broken , or cast upon ground , within the confines of any mans ground . Nam & Divus Adrianus edicto praecepit , ut hi qui juxta littora maris possiderent , scirent siquando navi vel infixâ vel fractâ intra fines agri cujusque ne naufragia deripiant &c. n n Eod. l. Ne quid . 7. . Yet to make the matter more clear that these Laws were collected out of the body of the Civil Law , as well to direct the Judgements of Maritime Judges upon those offences and trespasses committed upon the Ports , Havens , Creeks and Coasts of the Seas , as upon the high Seas , I shall instance in an Authentick , by the same Author collected out of the same Law , and by him likewise commented on , wherein it is expressly set forth that Ships and Vessels of what kind soever , usefull for marine businesses ( for so much the word mavigia doth import ) in what place they shall come , which must needs be Ports , Havens and Creeks of the Sea , as well as the high Sea , if by any contingent accident they shall be broken , or otherwise come on ground , as well the Ships as the Goods of the Saylers and adventurers therein shall be preserved whole and entire unto those unto whom they belonged before such Ships or Vessels fell upon the said danger , the Custom of all places whatsoever contrary to this Sanction being altogether to be set aside , unless they be the Ships of Pyrats or enemies . These are the words of the Authentick .

Navigia quocunque locorum provenerint , siquo casu contingente rupta fuerint , vel alias ad terram pervenerint , tam ipsa navigia quam navigantium bona ipsis integra reserventur ad quos spectabant antequam navigia hujusmodi periculum incurrissent , sublata penitus omnium locorum consuetudine , quae huic adversatur sanctioni , nisi talia sint Navigia quae pyraticam exercent pravitatem , sive nobis sive Christiano nomini inimica o o Authr . Navigia , & de Furtis . .

Before I pass any further , I must needs here observe the same thing that Peckius hath observed upon these words of this Law , Sublata penitus omnium locorum consuetudine , &c. viz. Illud sane sine ullâ dubitatione dici potest quod certum sit consuetudinem contra jus naturae nullam habere potestatem p p Peckius super 〈◊〉 . . That it may without any doubt be said , that it is certain that a custom against the Law of nature hath no power or efficacy . And further he saith , in casu constitutionis nostrae omnium consensus operari quicquam non potest cum divinis naturaeque praeceptis consuetudo ejusmodi repugnare videatur q q Peck . Ibid. .

In this case the consent of all men can work nothing , because such a custom may be discerned to be repugnant both to the divine and natural Precepts ; and herewith doth Vinius learnedly concur and much blameth such as have suffered any such custome .

And with this Law agreeth the very first Law of another Title , to the same purpose with this collected by the same Author in these words : Si quando naufragio navis expulsa fuerit ad littus , vel siquando aliquam terram attigerit ad dominos pertineat , fiscus meus sese non interponat , quod enim jus habet fiscus meus in alienâ calamitate ut de re tam luctuosa compendium sectetur r r r r r r r r r r r r L. 11. & 〈◊〉 naufragiis . tit. 5. l. siquando 1. Whensoever a Ship by wreck shall be driven upon the shore , or whensoever she shall be run upon any ground , i.e. either in Port , Haven or elsewhere , she shall belong unto her owners ; my Exchequer or receipt shall not intermeddle therewith : for what right hath my Exchequer , that it should require or seek for any small matter or trifle in so mournful or sad matter or condition ?

I must confess that by this last observation , I have made some digression from my intended purpose ; Yet have I not gone much out of my way , nor farre about to discover what a Rock we of this Nation ( who pretend not onely many Customs , but inforce several Patents and Grants , howsoever obtained , clean contrary to this Law ) are like to fall upon , and what a wreck we are like to make of our Maritime Law , whereby we uphold all our Trade , Traffick and Commerce with other Nations , by falling upon this Errour , so strongly maintained by Sir Edward Coke , that the Ports and Havens are not within the Jurisdiction of the Admiralty Court , where as this Law is universally practised in all parts of the World .

For although by this Law , and the Inquisition taken at Quinborow in the end of Edward the 3ds . raign , and by the Inquisition translated into Latine out of an ancient French Copy by Roughton , upon any wreck , stranding , or running on ground of any Ship or Vessel whatsoever , or wheresoever the owners are to have their Ship or Vessel , or such part thereof , such tackle and furniture thereof , and all such Goods as are saved and can be found out , entirely restored unto them : Instead hereof many Lords of Mannors , who perhaps had some right of claim to all , or some part of Pyrats or enemies Goods so wrecked , as the best Anchor and Cable , &c. where the rest of the Goods belonged or were confiscable either to the Lord high Admiral , or supream Authority ( as in some cases they are to the one , in some to the other ) will ( as I do already find ) even out of the Ships and Goods both of those of our own Nation , and of our friends , and those that hold good correspondencie , and are in amity with us , under a pretended custom contrary to all Law , claim and have the same in the like maner , and other customs likewise , which are as contrary to the law of Nature , as this .

And not onely so but many even of our own Nation and others of other Nations , who neither are Pyrats , nor enemies to this Nation , but in amity and friendship therewith , may have their Ships stranded or wrecked and cast away , and have their Goods even snatched from them by force , and violence , and carried away , and detained by such as can have nether pretence nor colour for such unjust and inhumane dealing , contrary to the law of Nature , and Nations , and that Law which is elsewhere universally practiced , if the current stream of Justice of the Admiralty Court , in these Ports , Havens , Creeks and Coasts of the Seas shall be interrupted and stopped , under this pretence , of having no Power or Jurisdiction over them .

Which pressures in such extreamities , if they shall fall upon those of our own Nation , we shall seem even to devour and eat up one another ; If they shall fall upon Forraigners , that are in league , and amity with us , this 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 s s Object . e● stat. 15. Rich. 2. cap. 3. 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 t t Supra cap. hoc hujus lib. 1. .

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 u u F. de incend . ruin . naufr . l. Praetor ait Sect. 〈◊〉 . Praetor ait , & l. Siquis 5. Jacentem & . l. quo naufr . prin. .

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 w w C. li. tit. 1. de nav cular●is seu naucleris publicas species transportantibus l. nullam vim. 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 x x ●od . l. fin . Judice● qui. 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 , y y Peckius super ead. leg . Judicis erit officium omnibus modis eos abigere .

And by the same Law all Ships and Vessels of what nature , condition , or quality soever they be , and whosoever they be , may be by the power and authority of the Admitalty seized on in any Port or Haven where they ride , and be z z F. de . navibus non excusandis . C. li. 11. tit . 3. & Peck . ibidem . taken and employed upon any service of the King , and are not to be excused .

One Title more of the Civil Law I shall instance in , which treateth of things done upon the Ports and Havens , and then return to some other Arguments out of our own Presidents at home ; and that is the Title of the Digests , Nequid a a F. ne quid . fiat in stum . publ . l. 1. in . prin. in flumine publico , &c. where the Praetor doth interdict , Nequid in flumine publico , ripáve ejus facias , nequid in flumine publico , ripáve ejus emittas , quo statio , itérve navigio deterius sit , fiat .

The Praetor forbiddeth any thing to be done , or to be cast forth into a publique River , or upon the banks thereof , which may either hinder the lying or riding of Ships there : and this Edict extendeth directly to Rivers navigable , and none other , which are the Ports and Havens , and those other parts of the same River through which Ships and other Vessels do sail to the place of their station or anchorage . Hoc b b F. ne quia in stum . publ . l. 1. in prin. interdictum ad ea tantùm flumina publica pertinet , quae sunt navigabilia , ad caetera non pertinet . Nor doth the Praetor here forbid any publique lawfull use of these publique Streams , Ports , or Havens ; but taketh a special care , that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage , anchorage , and lying of Ships there . Non autem omni quod in flumine publico , ripáve fit , b b ●od . l. 〈◊〉 & § ●●d . coercet Praetor ; sed si quid fiat quo deterior statio & navigatio fiat ; and the same Law setteth forth what is accounted to be a deteriorating or making worse of the said station , anchorage , riding , or sailing of Ships : Deterior statio , item iter navigio fieri videtur , si usus ejus corrumpatur , vel difficilior fiat , aut minor vel rarior ; aut si in totum auferatur ; proinde sive derivetur aquâ ut exiguior facta , minus sit navigabilis , vel si dilatetur aut diffusa brevem aquam faciat , vel contra c c Eod. l. ead. & 5. 15. sic coangustetur ut rapidius flumen faciat ; vel si quid aliud fiat , quod navigationem incommodet , difficiliorem faciat , vel prorsus impediat , interdicto locus erit . The Station or Anchorage , and also the passage for Ships doth seem to be deteriorated , and made worse , if the use thereof be corrupted , or made more difficult , less , or more shallow , and more seldome to be used , or shall be wholly taken away . Further , or if the water shall be from thence drawn , and so be made less , and so less navigagable ; or if the banks shall be taken away , and the River thereby made wider , and caused to spread it self more in breadth , whereby the water cometh to be made more shallow : or on the contrary , if it shall be encroached on , and so streightned , that the River passeth with more strength or violence ; or if any thing else be done which may disaccommodate Navigation , or make the same more difficult , or altogether hinder it , this Edict shall take place against the same .

From which Law many Articles of the Inquisition taken at Quinborow , and of the ancient French Articles , translated into Latin by Roughton , set forth to be inquirable in the Admiralty , are plainly derived : which Articles , and likewise many Statutes which forbid the same offences , were enacted to make the same more notorious to the people , and are only in pursuance of this Law , which is the fountain from whence they flow , as their original .

Now lest some should still strive against the stream , and offer to contend , that this Edict of Nequid in flumine fiat , &c. that nothing shall be done in any navigable River , or the Banks thereof , which may hinder Navigation , or the station or anchorage of Ships , is meant only of the River which leadeth to the Port or Haven of discharge , wherein Ships do oftentimes lye at Anchor before they can come further up to be discharged in the Port. I shall further clear this point by the Interdict mentioned by Labeo in the 17th Section of the same Law , where the very word Port is used : Nequid in d d Eod. l. ead. §. 17. mare , inve littore , quo portus , statio , iterve navigio deterius fiat .

After all this perhaps some may lauch further out into the deep , and say that although these Laws collected out of the Civil Law , are made use of in Maritime affairs beyond the Seas , and do argue their Admiralties to have jurisdiction upon their Ports and Havens , yet are they of no use here , for the Admiralty of England is by the Common Law of England more restrained , and extendeth not unto the Ports , nor hath so large a power as forreign Admiralties have .

Since so many Nations as are named in the Libel subsequent unto the last Chapter of the first Book of this Maritime Dicaeologie , have by the same so fully acknowledged the Regimen , Government , and Jurisdiction over the narrow Seas to belong to to the Admiralty of England , and no other Admiralty , as is plainly in the same set forth . Let none of this Nation for shame say that the power and authority of this Court , which extendeth as farre , and further then the power of any other Admiralty Courts doth , shall be nothing at or near home . Nor let it for shame be said that our Admiralty , to which they have not only ascribed , but prescribed from so antient antiquity , such superiority , shall not afford unto Forreigners the same Justice other forreign Admiralties afford unto this Nation .

But for further satisfaction to such as will be further curious , I shall proceed to make further proof of this point by Presidents out of our own Courts at home .

CHAP. XVII . That by the Records of the Admiralty , it appeareth that the Admiral had , and hath power and jurisdiction upon the Ports and Havens .

THe Statute of the 28th of Hen. 8. cap. 15. e e 28 H. 8. 15. directeth that the tryal of Traytors , Pyrats , Theeves , Robbers , Murderers and Confederaters upon the Sea , or in any Haven , River , Creek , or other place , where the Admiral or Admirals have , or pretend to have Power , Authority , or Jurisdiction , may by virtue of a Commission under the Great Seal , directed unto the said Admiral or Admirals , his or their Lieutenant or Lieutenants , and three or four substantial persons , be made and done according to the Common course of the Laws of the Land ▪ but taketh not away the Admirals power of tryal of the same offences , by the course of the Civil Law , as had been formerly used ; but leaveth him to proceed in causes of that nature either way , as the proof the fact may be most fitly had , or made . And this Statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the Ports , Havens and Creeks of the Sea , and other places , that in express words it confirmeth same , and further extendeth his power , unto a twofold manner of tryal of such offences committed within the same limits , that to his Jurisdiction formerly belonged , to make use of each , as he should see cause .

And the Cognizance and tryal of all offences of this nature , whether committed upon the high Seas , or upon the Ports , Havens , or Creeks of the Sea , and whether proceeded against by the course of the Civil Law , or the course of the Common Law , hath belonged unto the Admiral , or Admirals , and his or their Lieutenant or Lieutenants , Judge or Judges of the high Court of the Admiralty , or Judges of Vice-Admiralties , and hath been by them constantly and continually practised and used .

I might here lead you into a labyrinth and so involve both my self and you , in such a vast thicket of heaps of ancient Records which remain in the Registries of our Admiralty , which plainly set forth this constand and continued Power and Jurisdiction of the Admiral upon the Ports , and Havens , that we should in no short time , nor with little labour get out again .

If I should here go on , where I left in the first Book of this Treatise , and endeavour to give you a view , but of the Patents onely , which several Admirals of England have since Edward the thirds time had ( they having from time to time had more plain and clear expressions of the Admirals Right , Power , Authority and Jurisdiction , they having by that means grown very large ) I should too much swell this small Treatise in proving that which will be by farre shorter Records more briefly , and yet plainly enough made to appear .

Therefore to spare mine own labour in writing and transcribing these Patents , and yours in reading them , I shall pitch upon some few other of the shortest Records onely of one year amongst above a hundred , since the making of the said Statute , and that shall be the eight and twentieth year of Queen Elizabeths Raign , at which time all the Judicatories of this Nation were in as good perfection and absolute lustre and splendor for due observation of their just rights and priviledges , as at any other time whatsoever .

In the 28th . year of Queen Elizabeth against the Sessions to be held for the Admiralty by vertue of a Commission grounded upon the said Statute of Henry the eighth several precepts or mandats issued out of the Admiralty Court unto several persons for the summoning and returning of Juries for the enquiry and tryall of all such offences as are mentioned in the said Statute , whether committed upon the Sea , or upon the River of Thames below London bridge towards the Sea , or upon the Sea-shore , wheresoever , within the Maritime Jurisdiction , and Limits of the Admiralty of England , or elsewhere , in or upon publick Rivers , Ports , Creeks , or places overflowed by the Sea . I shall here set down a Copy of one of them onely which beareth date in the Moneth of Feb. in the same year .

Carolus , Rot. Adm●r . an . 28. Eli● . m. 10. Dominus Howard Baro de Effingham praeclari ordinis garterii miles , magnus Admirallus Angliae , Hiberniae , Walliae ac dominiorum & insularum earundem , Rot. Ad. an . eod. m. 17 , 18 , & 19. alia sunt precepta sub eod. tenore . Villae Calisiae & merchiarum ejusdem , nec non Gasconiae , Aquitaniae , classium & marium dictorum regnorum Angliae praefectus generalis , ac socii sui Justiciarii serenissimae Dom , nostrae reginae suae Admirallitatis Angliae ad omnia & singula proditiones , felonias , roberias , furta , murdera , homicidia , confederationes , delicta piratica , spoliationes , depraedationes , &c. & delicta quaecunquae tam in , aut super mare , vel publico flumine Thamises citra pontem Civitatis Londini versus mare , quam super littus maris ubicunque locornm infra jurisdictionem maritimam & limites jurisdictionis Admirallitatis Angliae praedictae , vel alibi in aut super fluminibus publicis , portibus , crecis , & locis super inundatis quibuscunque contra pacem ejusdem Dominae nostrae Reginae , atque Statuta , leges & ordinationes dicti Regni sui Angliae , ac communes leges , Statuta ac ordinationes maritimas curiae suae Admiralitatis Angliae , ejusdem qualitercunque habita , facta , attemptata sive commissa & perpetrata & vicecomiti Surr. &c. Tihi praecipimus , &c. quod venire facias , &c.

And the like Warrants or Precepts were at the same time directed unto the Bayliffs of the Liberty of the City of London , Rot. Admir . an . 28. Eliz. m. 32. in the Burrogh of Southwark , and likewise unto the Bayliff of Southwark .

Another Warrant was likewise directed unto Jasper Swift , Rot. Admir . an . eod. the then Marshall of the Admiralty , that he should have Richard Jones , Osmund Sparke , John Barnard , Humphrey Hood , and Thomas Seal , committed for Pyracies and Felonies by them done upon the Sea , and upon the River of Thames below Bridge , towards the Sea , before the said Courts in these words .

Carolus Domminus Howard , Rot. Admir . an . 28. El. m. 29. &c. ut in superdicto praecepto Jaspero Swift curiae Admirallitatis Angliae mariscallo , tibi praecipimus quod Richardium Jones , Osmund Sparke , Johannem Barnard , Humfridum Hood , & Thomam Seale in Custodia Militis Macresc . & modo detent . & existent . nuper de pyratiis & feloniis per ipsos super mare & rivum Thamiseos infra pontem , &c. coram , &c. habeas , &c.

And there being then divers other Pyrats , and other offenders in the Marshalsey , another Warrant was directed unto the Knight Marshal Keeper of that Prison to have all and singular the Pyrats and other offenders before the said Court , which Warrant likewise ran in the manner of the former ; Rot. Admir . an . 28. El. m. 33. viz. Carolus Howard , &c. tibi praecipimus quod tertio die Octob. &c. coram , &c. omnes & singulos pyratas , &c. habeas , &c.

And upon return of the said Warrants , several Indictments were preferred against several persons , for several pyracies and other offences committed upon the River of Thames , below the bridge , besides such Indictments as were preferred against Pyrats and Robbers upon other navigable Rivers , and at high Sea .

One against Conray Bowes for that upon the 20th . of February , he , with a certain Wherry , upon the River of Thames , within the Jurisdiction of the Admiralty , did enter upon and into a certain Lighter , lying over against Debtford , &c. upon the same , &c. did , &c.

Inquiratur pro Dom. Reginâ si Conraye Bowes nuper Grenwici in Comitatu Kantiae watermanus , Rot. Admir . an . ●8 . El. m. 14. vicesimo die mens . Februarii anno regni Dom. nostrae Elizabeth . Dei gratia Angliae , Franciae , & Hiberniae , nunc Reginae , fidei defensoris , &c. vicesimo octavo , in cymbâ quadam vectoria vocata a Wherry super publicum flumen Thamiseos infra Jurisdictionem maritimam praefatae Dom. nostrae Reginae suae Admiralitatis Angliae , intentione malevola existent . ac deum prae oculis suis non habens , sed instigatione diabolica seductus , circa mediam noctem , cymbam quandam vectoriam dictam a Lyghter , tunc super publico flumine rivi Thamiseos ex opposito Depforde Creeke infra Jurisdictionem praedictam ad anchoras residen . vi & armis , viz. baculis , pugionibus , & gladiis piratice & felonice praeparatis invaserit , ascenderit , fregerit & intraverit , ac quantitatem sive numerum centum quinquaginta Fasciculorum , dict. Faggots , valoris & precii decem denar . de bonis & cattallis Thomae Jackson tunc & ibidem praedictis die & anno & loco , in praedicta cymba vectoria dicta a Lyghter sub custodia dict. Thomae Jackson infra Jurisdictionem praedictam reperte . & existentem extra eandem cymbam & à custodia & possessione ejusdem Thomae Jackson pyratice & felonice ceperit furatus est , spoliavit , & asportavit contra pacem supradictae Dom. nostrae Reginae nùnc coronam & dignitatem suas , ac contra formam diversorum statutorum hujus regni Angliae in contrariam editorum & praevisorum . Billa vera .

And one John Barret , &c. was at the same time likewise indicted for that upon the first of March , in the same year , out of a certain Hoy , called the Peter of Feversham , upon the publick River of Thames , over against Cox-key within the Jurisdiction of the Admiralty , riding at Anchor , did pyratically and feloniously take and carry away one piece of Linnen-cloth called Lockeram containing , &c. together with divers other particulars set forrh in the said Indictment , which runneth after the same manner with the former : Inquiratur pro Domina Regina &c. si Johannes Barret , &c. Billa vera .

And another against John Clements , ●od . an . m. 1● . m 13. Inquiratur si Johannes Clements , &c. Billa vera .

Another there was against Winterhey , Bridges , Black , Albons , Saltash , and others , that they with two Boats upon the River of Thames within the Jurisdiction of the Admiralty , did by force of arms set upon a Ship called the Richard of Dartmouth neer Woolwitch , &c. and boarded her , and entered into her ; and one John Terry the Master and owner of her , did beat and evil intreat , &c. and that one Ralph Williams did with a sword of the price of five shillings , then and there feloniously and violently strike him the said John Terry upon the arm , and upon the thigh , and gave him mortal wounds , whereof the said Terry , at the same time , then and there died ; And that the said Winterhey , Bridges , Black , Albons , Saltash , &c. were then and there present , aiding and assisting , encouraging and abetting in , and unto the said act , &c. The words of the Indictment in brief are these .

Inquiratur , Rot. Admir . an . 28. El. m. 24. &c. si Willielmus Winterhey , nuper de &c. Rogerus Bridges nuper de , &c. Thomas Black , nuper de , &c. Rogerus Albons , Willelmus Saltash & alii in duabus cymbis , super publicum flumen Thamiseos infra , &c. navem quandam vocatam , The Richard portus Dortmouth juxta Woolwich , &c. vi & armis , &c. ascenderunt , &c. ac in Johannem Terry proprietarium & magistrum dictae navis , &c. insult . &c. ac Radulphus Williams ipsum Johannem Terry cum quodam gladio precii 5 s. super brachio & in femore felonicè & violenter tunc & ibidem percussit , ac lethalia vulnera ei intulit , & praedicti Willielmus Winterhey , Thomas Bridges , Thomas Black , Roger Albons , Willielmus Saltash , &c. tunc , & ibidem fuerunt praesentes cum praefato Radulpho Williams , &c. ipsum , &c. de quibus lethalibus vulneribus praefatus Johannes Terry tunc & ibidem instanter obiit , & sic , &c. Billa vera .

Another against Richard Jones , ●ot . Admir . an . 28. El. m. 21. Valentine Luyson , and others for entering into a Ship , over against Blackwall , beating the Master , and taking away Cheese , Butter , &c. which was found . Billa vera .

Another against Bernard Hood , Rot. Admir . an . 21. El. m. 25. Goodwin , Hussey , and others for the like , in a Ship upon the River of Thames , over against Erith , which was likewise found . Billa vera .

And these are Indictments preferred and found against Pyrats and Pyracies , or Sea Robberies , committed upon several parts of the River of Thames onely ; and that but within but a part of that 28th . year of Queen Eliz.

If I should step into the year either before , or after , and either proceed forwards , or return backwards , I might fill a Volumn with Warrants or Precepts of the same kind , with the before recited , and with Indictments for offences of this nature , committed upon this very River of Thames ; yet are there ( besides the Indictments for Pyracies , &c. at Sea ) several other Indictments for Pyracies , and other offences of this nature committed upon other great Rivers , beneath the first Bridges , nearest the Sea , as well as upon this ; And to shew the extent of the high Court of the Admiralty unto all Ports , and great Rivers whereso ever , as well as unto the Sea , I shall instance in two or three of them ; The first of which shall be one that was preferred , and found in the same 28th . year of Queen Elizabeth , and at the same time with those before mentioned .

And that was against William Winterhey , Humphrey Smith , and others for pyratically setting upon a certain French Vessell called the Susan of Mestrey , laden in the River of Bourdeaux with French Wines , and lying at Anchor upon the publick river , called Hampton water , within the Jurisdiction of the Admiralty , and then and there by force of arms , &c. making an assault , &c. upon Daniel Bretton , Governour of the said Ship , and taking away and stealing from the said Ship to the value of 100 l. and 70 Tun of French Wine , of the value of 300 l. of English money , of the Goods and Chattels of Maturine Gantier , &c. The Indictment runneth thus .

Inquiratur , Rot. Admir . an . 28. El. m. 23. &c. si Willielmus Winterhey nuper de , &c. & Umphridus Smith de , &c. in cymbâ quâdam vectoriâ tunc super publicum flumen vocat Hampton water , infra , &c. vi & armis , &c. navem quandam Gallicam vocat . the Susan de Messhey in rivo Burdugalensi vinis Gallicis onustam , &c , ad anchoras exist . vi & armis , &c , ac in Daniel Bretton corrector . in Dom. navis , &c. insultum , &c. ac eand . navem , &c. ad valentiam 100 l. ac 70 Dolia vini Gallici valoris 300 l. monetae Angliae , de Bonis & Cattallis Maturini Gantier , &c. ceperint , furati sint , &c. Billa vera .

And Thomas James was indicted , for that upon Severn , beneath the first Bridge of the same , he did assault one John Gethin , and others , and with a Gun charged with bullets shots and hatt the said John Gethin , that he then and there instantly dyed . The Indictment runneth thus ; Inquiratur si Thomas James de &c. super quandam partem maris vocatam Seavern , infra primum pontem ejusdem , &c. vi & armis in quosdam Johannem Gethin & alios insultum fecit , & praefatum Johannem Gethin cum quibusdam pilis tormentariis plumbeis , in bombardo , sive tormento pretii decem solidorum inclusis , &c. unam plagam mortalem , &c. de qua idem Johannes Gethin ad tunc & ibidem instanter obiit .

I shall instance only in one notorious Pyracy more committed upon the same Navigable River of Severn , upon which were indicted William Holborne of Southold in the County of Suffolk Gentleman , Captain of a Man of Warre called the Hopewell of Weymouth Melcombe Regis ; Edward Wright of Berry in the same County Gentleman , otherwise called Captain Careless , Captain of a French Man of Warre of the burthen of fourty Tuns ; Henry Ward of Barstable in the County of Devon , Captain of the Ship the Mary of Stonehouse ; William Sweet of Stonehouse in the County of Devon Mariner , and 12 more by name , besides others in general : for that upon the second day of August , &c. they being in the said three Ships , furnished in a warlike manner , between the Maritime places called Wormeshead and Oxmuch in the River of Severn , within the Maritime Jurisdiction of the Admiralty of England , being pyratically and feloniously gathered together , did by force of arms , viz. with Swords , Guns , &c. in the three said Robbing Ships , pyratically and feloniously appointed between the said Wormshead and Oxmuch within the said Jurisdiction , the day and year aforesaid , pyratically and feloniously set upon , climb up into , break and enter into 4 Merchants Ships called the Margaret of Caermarthen , the little Matthew of Caermarthen , the Tasker of Milford , and the Margaret of Burrey , laden with divers Goods , Wares and Merchandizes at the Fair of St. James , then lately held at Bristol , whilst they were sailing from the Port of Bristol , towards the Port of Caermarthen , and did by force of arms assault and make Affray upon , beat and evil intreat , and put in fear of their lives James Joanes , Thomas Richards , William Tasker , and Griffith Jones , Governors and Masters of the said Ships under God , and divers other persons , Mariners of the said Ships , unto the said Pyrats and Robbers unknown , being then and there the said day and year in the said Merchants Ships in the peace of God and their said Soveraign the Queen , and three Packs of Woollen and Linnen Cloth , Dowlas , Cress-cloth , Holland , Cambricks and Lockerams , to the value of three hundred pounds of English money , two great Chests of Velvets , Taffaties , and other Goods to the value of two hundred pounds , one Iron Chest to the value of twelve pounds , one pack of fine Dowlas , Lockerams , Cress-clothes , Hollands , Cambricks , Silk Lace , and other Goods to the value of one hundred and sixty pounds of like English money , one great Chest of Millian Fustians and Callicoes , and other Merchandizes to the value of sixty pounds , and a Chest of large Hats , Mantles and Clothes , to the value of thirty pounds of like English money , of the Goods and Chattels of Griffith Atkins and Henry Philips of Carmarthen , Merchants , then and there , the day and year aforesaid , between the said Wormsbead and Oxmuch , upon the said navigable River , within the Jurisdiction of the Admiralty aforesaid , being and remaining in the Custody and possession of the aforesaid James Joanes , Thomas Richards , William Tasker , and Richard Joans , Masters under God of the Ships , the Margaret of Caermarthen , the little Matthew of Carmarthen , the Tasker of Milford , and the Margaret of Burry , out of the said Ships from the said Masters , and out of their custody and possession , did then and there pyratically , feloniously , and violently take , steal , spoyl , and carry away , contary to the peace of the Soveraign Lady the Queen , her Crown and dignity , and contrary to the form of divers Statutes to the contrary made and provided : The Indictment it self runneth in the same forme with those before mentioned , viz.

Inquiratur pro Dominâ Reginâ si Willielmus Holbourne nuper de Southould in Comitatu Suffolciae Gen. nuper Capitaneus navis militaris , the Hopewell , Portus de Weymouth Melcombe Regis ; Edvardus Wright nuper de Berrie in Comitatu Suffolciae Gen. alias dictus Captain Carelesse navis Gallicae militariter instructae oneris quadraginta doliorum vel Circiter : Henricus Ward nuper de Barstable in Comitatu Devon . nuper Capitaneus naviculae vocat . the Mary , de Stonehouse : Willielmus Sweet nuper de Stonehouse in Comitatu Devon . Marinarius , nuper proprietarius dictae naviculae vocat the Mary , &c. ac diversi alii pyratae , & malefactores incogniti , secundo die mensis Augusti , anno Regni , &c. in praedictis tribus navibus militaliter instructis tunc , &c. as in fully set down in English .

Now to shew further that the Cognizance of all matters happening upon these Ports , and Havens , did and doth belong unto the Jurisdiction of the Admiralty properly , and entirely , and to no other Jurisdiction , I shall instance in one Record of many , whereby it will appear that when the City of London ( who by their Charter have more power and priviledge upon the River of Thames , then any Judicatory whatsoever , except the Admiralty ) have endeavoured to take cognizance of matters of this nature , the same have been demanded from them by the Admiralty Court . And that Record sheweth that one John Seaward being committed to the Counter in Woodstreet , London , for suspision of drowning a Boy in the River of Thames , The Sheriff of the City of London was commanded by the Admiralty to bring the said Seaward , before the said Court of the Admiralty , upon the 15th . of March , in the 30th . year of Queen Elizabeth , which Precept was returned by Thomas Dixon on the behalf of the Sheriff of London , together with the said John Seaward accordingly , and the Precept and return thereof run in these words .

Carolus Dominus Howarde , Baro de Effingham praeclari ordinis Garterii Miles , magnus Admirallus Angliae , Hiberniae & Walliae , ac dominiorum & insularum earundem , villae Callisiae , & marchiarum ejusdem , Normanniae , Gasconiae , & Aquitaniae , classisque et marium dictorum regnorum Angliae et Hiberniae praefectus generalis , ac socii nostri Justiciarii ad omnes et singulas proditiones &c. ut in priori Praecepto in hoc capite citato Vicecomitibus London , nec non Williemo Blunt custodi Computator . Anglice The Counter , in vico dicto Woodstreet , seu ejus deputato cuicunque salutem :

Ex parte prefatae Dom. nostrae Reginae tibi praecipimus , et mandamus quotenus non ommitt . propter aliquam libertatem , seu Franchesiam , quin sub poenâ centum librarum de bonis vestris quibus cunque ad opus et usum dictae Dom. nostrae Reginae et nostrorum levand . Johannem Seaward Wherry-man super suspitionem submersionis pueri cujusdam in rivo Thamiseos , infra Jurisdictionem praed. apud Southwark in praetorio , ibidem die Veneris Proximo quindecimo die mensis instantis Martii circa horam nonam in aurora , unà cum causis ejus detentionis , si quae coram vobis remanent his respondend . quae sibi ex Parte praefatae Dom. nostrae Reginae , cum venerit , objicientur ; & hoc ●illatenus omittatis sub poena praedicta & periculo incumbenti .

Datum Londini in suprema curia Admirallitatis predicta , sub sigillo ejusdem curiae 12th . die Martii , Anno Dom. 1587. stylo Angliae , Reginaeque &c. Anno 30. Jul. Caesar Hareward . endorsat . Thomas Dixon ex parte Vicecomitis London introduxit hoc praeceptum una cum retrodicto Joh. Seaward , die Veneris 15. Martii , 1587.

I might here take an occasion to set forth a number of Records of the Admiralty , both of this time , before it , and since , which would set forth the multiplicity of actions entered , proceeded in , and sentenced in the Admiralty Court , for Injuries , Wrongs and Trespasses done upon the River of Thames , and other Ports and Havens , and likewise shew that when parties have sued in the Courts of Guildhall London , or other Courts , for any matter of such injury , wrong , or trespass , done unto them , upon the River of Thames , or such other Ports , that they have been called into the Admiralty Court , and there been proceeded against , and punished for their contempt against that Court ; And if I should collect them altogether , and here set them forth , they would appear very many for one of the instances set down by Sir Edward Coke in his 22th . Chapter of his fourth Book of his Institutes , against the power and Jurisdiction of the Admiralty upon the Ports and Havens .

And yet perhaps it may be said , that herein the Admiralty had usurped a power which belonged not thereunto ; but when as many instances may be set against one , it is easily judged on which side the usurpation lyeth ; But to decide the question more clearly , I shall instance in some few of many of the Common Law 's own Records , which plainly determine this point of Jurisdiction upon the Ports , and Havens , against the instances brought by Sir Edward Coke in his said 22th . Chapter against the Jurisdiction and Power of the Admiralty upon those places .

CHAP. XVIII . That by Writs de Procedendo out of the Chancery , upon Supersedeas from thence granted , the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens .

WHat hath been already said , I conceive might be sufficient , to convince the Judgements of indifferent men , that the Ports , Creeks , and Havens of the Sea , are within the Jurisdiction of the Admiralty , and not within the Bodies of Counties . But , because I know this Argument may meet with some particular Contradictors , who will be apt rather to adhere to one President out of the Courtes at Westminster , then be convinced by very many binding Authorities and Authentick Proofs of this nature , I shall make this truth likewise evident by both Writs de procedendo , awarded upon Writs of Supersedeas , out of the Chancery , and by Consultations awarded upon Prohibitions out of the Courts of Common Law .

The Ship the Trinity of London , alias the Trinity of Hull-bridge , lying at Anchor upon the River of Thames , belonging unto one Thomas Pierce , was there arrested and taken into the possession of the Admirall , and a Supersedeas was brought ; But Termino Mich. 27th . Hen. 8. a Writ de procedendo was awarded in these words .

Henricus octavus Dei Gratiae Angliae , & Franciae Rex a a Super fil . prohib . & consul . 〈◊〉 ●egisto , Ad● . m. 39. fidei defensor , Dom. Hiberniae , & in terra supremum caput Anglicanae eccl. praeclarissimo consanguineo suo , Henrico Duci Richmond & Som. magno Admirallo Angliae , Walliae , & Hiberniae , Normaniae , Gasconiae , Aquitaniae , ejusve locum tenenti & commissario sal . Licet nos nuper volentes certis de causis certiorari super causa arrestationis five attachiamenti cujusd . navis vocat . the Trinity of London , aliàs the Trinity of Hullbridge , una cum suo apparatu tunc infra Jurisdictionem vestram , ad anchoram residem . ad quendam Thomam Pers jure dominii sui quasi pertinentem , sub custodia vestra axistentem ut dicebatur , vobis mandavimus quod causam praedictam cum omnibus eam tangentibus quocunque nomine idem Thomas in causa illa censeret . nobis in cancellariam nostram ad certum diem in brevi nostro contentum ubicunque tunc foret sub sigillo vostro distinctè & aperte mitteretis & breve nostrum praedictum . Quibusdam tamen certis de causis coram nobis in cancellaria nostra praepositis mandamus quod in causa illa cum ea celeritate qua jure & secundum legem & consuetudinem in curia Admirallitatis Angliae hactenus usitatum poteritis , procedatis Dicto brevi nostro vobis prius in contrarium inde directo non obstantc .

T. meipso apud Westm. 14 die , Anno dom . vicesimo Septimo . M Crumwell .

John Gilbert of Ratcliffe sued Thomas Linsey of Woolwitch , Fisherman , in the Admiralty Court for certain Wrongs and Injuries done unto him upon the River of Thames . Thomas Linsey suggesteth in Chancery , that he was there sued pro diversis negotiis , contractibus , & querelis , ac aliis rebus infra corpus Comitatus Cantiae factis , & emergentibus , and obtaineth a b b 27. May. 35. H. 8. Supersedeas : John Gilbert being dead , Dyonisia , his relict , Termino Hillarii , 36. Hen. 8 had a Writ de procedendo , which I have here set down .

Henricus octavus c c Eod. m. 66. Dei gratia , Angliae , Franciae , & Hiberniae Rex , fidei defensor , & in terra Ecclesiae Anglicanae & Hiberniae superemum caput , Charissimo consanguineo & consiliario suo Joh. Vicecomiti Lisle , ordinis Garterii nostri militi , Baroni de Malpas & Somerseii , Domino Basset & Tyasse , magno Admirallo nostro Angliae , Hiberniae , Walliae , Villae & Merchiarum nostrarum Cales , nec non Gasconiae , Aquitaniae ejùsve in Curiâ nostrâ principali Admiralitatis nostrae Angliae locum tenenti , officiali & Commissario generali , seu alii ejusdem Curiae nostrae praesidi cuicunque & eorum cuilibet salutem .

Cum nuper ex parte Dionisiae relictae , & Executricis Johannis Gilbert dum vixit de Ratcliffe in Comitatu nostro Middlesexiae defuncti nobis graviter conquerendo monstratum extitit quod cum idem Johannes dum vixit quendam Thomam Lindsey de Woolwich in Comitatu nostro Cantiae , Fisherman , de & super quodam contractu civili & maritimo pro quibusdam rebus & injuriis aliis eidem Johanni infra nostram Jurisdictionem dictae Admiralitatis nostrae Angliae super publico flumine Rivi nostri Thamisiae infra fluxum & refluxum maris , ultra pontem Civitatis nostrae London versus mare , initis , habitis , factis & illatis , secundum d●bitam legis formam , & consuetudinem Curiae nostrae Admiralitatis praedictae , coram vobis in eadem Curia implitaverit , quòdque idem Thomas Lindsey cognitionem ejusdem Curiae nostrae Admiralitatis in ea parte fraudulenter & maliciose satagens , declinare & debitum legis processum ibidem minus juste impedire , suggerens inter alia coram nobis in Curia Chancellariae nostrae quod vos eundem Thomam ad respondendum praefato Johanni dum Vixit coram vobis in dicta Curia nostra Admiralitatis nostrae Angliae praedictae de diversis negotiis , contractibus & querelis , ac aliis rebus infra corpus dicti Comitatus nostri Cantiae , factis & emergentibus , graviter distrinxistis & multipliciter inquietastis minus juste in ipsius Thomae dampnum non modicum & gravamen , ac contra statutum Domini Richardi nuper Regis Angliae post Conquestum secundi anno regni sui quinto decimo apud Westm editi . Et eo praetextu dictus Thomas brevem nostrum de supersedendo datum apud Westm. vicesimo septimo die Maii , Anno Regni nostri tricesimo quinto vobis minus rite dirigi procuravit , cujus quidem brevis nostri vigore , vos in placito praedicto huc usque supersedistis in dispendium . Ideo quibusdam certis de causis coram nobis in dicta Cancellaria nostra propositis , nos in ea parte juste moventibus , & maxime pro eo quod dictum brevem nostrum de supersedendo ab eadem Curia Chancellariae nostrae improvide emanavit , quia dictus Thomas pro rebus & injuriis infra nostram Jurisdictionem Admiralitatis nostrae praedictae factis & emergentlbus juste tractatus existit , prout per quendam libellum coram vobis in dicta Curia nostra Admiralitatis nostrae praedictae oblatum , & responsiones dicti Thomae Lendsey ad positiones ejusdem ibidem virtute sui praestiti juramenti facti , & coram nobis in dictâ Cancellaria nostra ostensas plenius apparet . Nos nolentes quòd per hujusmodl malitiam & suggestionem cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur , vobis mandamus quod in placito illo secundum legem & consuetudinem dictae Curiae nostrae Admiralitatis nostrae Angliae praedictae procedatis , & partibus praedictis justitiae complementum in ea parte haberi & ministrari faciatis cum effectu dicto brevi nostro , aut aliqua alia prohibitione vobis inde in contrarium direct . in aliquo non obstanti

T. meipso apud Westm. xix . die Februarii Anno regni nostri tricesimo sexto . Southwel .

Now it is plain this was an Action brought in the Admiralty for , or concerning certain things and injuries done unto the Agent , within the Jurisdiction of the Admiralty ; and the place which is here said to be within the Jurisdiction of the Admiralty , is a Port or Haven , set down in express words , viz. the publick River of Thames within the ebbing and flowing of the Sea , beyond London Bridge towards the Sea , infra Jurisdictionem Admiralitatis Angliae , super publico flumine Rivi Thamisiae infra fluxum et refluxum maris , ultra pontem Civitatis London , versus mare , &c. And this Action is likewise there said to be brought according to due form of law and custome of the Admiralty Court , secundam debitam legis formam et consuetudinem Curiae nostrae Admiralitatis praedictae coram vobis in eâdem Curiâ implacitaverit . And Lindsey for suggesting these injuries done upon the River of Thames , to be done in the body of the County of Kent , is said to have endeavoured fraudulently and maliciously to decline the cognizance of the Court of the Admiralty , and unjustly to hinder the due course of Law there : Cognitionem ejusdem Curiae nostrae Admiralitatis in eâ parte fraudulenter et malitiosè satagens declinare et debitum legis praecessum ibidem minus justè impedire . And he is said unlawfully to have procured that Writ of Supersedeas to be directed to that Court , breve nostrum de supersedendo vobis minus ritè dirigi procuravit . And that Writ of Supersedeas is said to have gone out rashly and unadvisedly , improvide emanavit , because Lindsey was justly sued there for things and injuries done and arising within the Jurisdiction of the Admiralty , pro rebus & injuiis infra nostram jurisdictionem Admiralitatis nostrae praedictae factis et emergentibus , juste tractatus extitit . And it is there declared , that the Cognizance of the Admiralty Court shall not by such malice and suggestion be wronged , Nolentes quod per hujusmodi militiam et suggestionem , cognitio in praefata Curia nostra Admiralitatis nostrae Angliae taliter derogetur : And the Court commanded to proceed according to law , &c. notwithstanding the Supersedeas or any other Prohibition directed to the contrary .

So by these Writs de procedendo out of the Chancery , the Admiral is acknowledged to have Jurisdiction upon the Ports and Havens ; and many more of the same nature might be instanced in , which for brevity sake I omit .

CHAP. XIX . That by Consultations out of the Courts of Common Law , upon Prohibitions thence granted , it is clear the Admiral hath Jurisdiction upon the Ports and Havens .

AS it is manifest by Writs de procedendo , out of the Chancery upon Writs of Supersedeas thence granted , that the Admiral hath jurisdiction upon the Ports and Havens ; so it is likewise evident by consultations out of the Common Law Courts at Westminster , upon Prohibitions from thence upon false suggestions granted ; that the Admirals power and authority doth extend unto the cognizance of such causes as do from thence arise ▪ some of which I shall instance in .

Patrick Landy of Broheda in Ireland sued Richard Prideaux in the Admiralty Court pro qu●●quaginta les dicars pellium salsorum , libelling that the said Richa●d Prideaux had infra fluxum & refluxum maris received and taken into his hands and possession , the Goods and Merchandises aforesaid , and kept the same , or otherwise had de eitfully alienated them , or disposed of them , ipsum Richardum Prideaux bona res & merces &c. in manus et possessionem sui ipsius Richardi infra fluxum et refluxum maris accepiss● et sumpsisse , eademq , tunc penes se hab●●sse , seu saltem eadem dolo malo alienasse .

Prideaux suggesteth that these fifty Dickers of Hides being in certain Warehouses at Padstow in the County of Cornwall , infra corpus ejusdem C●nut●ûs , were by George Syddenham and George Francis there sold and delivered unto him , and by him received and kept , and convetted to his own use , and that he was unjustly vexed and sued in the Admiralty Court for the same , contrary to the Statutes of 13 and 15 of R 2. and obtained a Prohibition .

But the matter being argued in Court , and the Goods and Merchandises being found to have been in the possession of the said Prideaux within the Jurisdiction of the Admiralty , viz. within the ebbing and flowing of the Sea , 19 die Junii 38 Eliz. a Consultation was awarded , which saith , Quia tamen Justiciariis nostris apud Westmon . per debitam Examinationem in hac parte factam , satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis , dummodo res sic se habeant , aliqualiter in eisdem impediriseu retardari non debeat . The Consultation I shall here set down at large , whereby both the Libel , Suggestion , Prohibition and Consultation will appear .

Elizabetha Dei gratiâ , Angliae , Franciae , & Hiberniae Regina , fidei defensor , &c. venerabili viro Julio Caesari legum Doctori supremae Curiae Admiralitatis Angliae locum tenenti , aut alio fudici in hac parte cuicunque ejusdem Curiae salutem . Cum nuper ostensum est nobis quod in statuto in Parliamento Domini Richardi nuper Regis Angliae secundi post Conquestum , apud Westm , anno Regni sui tertio decimo tent . edit . inter alia inactiatum fuisset authoritate ejusdem Parliamenti quod Admiralli & eorum deputati se ex tunc de aliqua re facta infra regnum Angliae nisi solummodo de rebus factis super altum mare , prout tempore Domini Edwardi quondam Regis Angliae , avi praedicti quondam Regis Richardi secundi debite usum fuisset , nullatenus intro-mittant . Cumque etiam per quendam alium actum in Parliamento praedicti quondam Regis Richardi secundi anno regni sui quinto decimo tent . edit . inter caetera declarat . ordinat . & stabilit . extitisset authoritate ejusdem Parliamenti quod de omnibus contractibus , placitis & querelis , & de omnibus rebus factis sive emmergentibus infra corpus Comitatus tam per terram quam per aquam ; ac etiam de wrecco maris Curia Admiralitatis nullam habeat cognitionem , potestatem nec jurisdictionem : sed quod sint omnia hujusmodi contractus placita & querelae , atque omnia alia emergentia in corpus Comitatus , tam per terram quam per aquam , ut praedictum est , ac etiam Wreccum maris triat . terminat . discuss . & remediat . per leges terrae , & non coram Admirallo , nec per Admirallum , nec ejus locum tenent . quovis modo , ac nuper ex insinuatione Richardi Prideaux de Padstow in Comitatu Cornubiae Generosi accepimus & intelleximus quod quidam Patricius Landy de Broheda in regno nostro Hiberniae mercator , statuta & leges praedicta minime ponderans , sed machinans ipsum Richardum contra debitam legis hujus regni Angliae formam , & contra vim , tenorem & effectum statutorum praedictorum . Et de & pro quibusdam bonis rebus & mercibus , viz. quinquaginta Lez . Dickers pellium salsorum eidem Richard . per quosdam Georgium Sydenham & Georgium Francis apud Villam de Padstow in Comitatu nostro Cornubiae in quibusdam domibus vocat . Waterhouses ibidem infra corpus ejusdem Comitatus , & non super altum mare venditis ac deliberatis , ac per ipsum Richardum ibidem receptis habitis & detentis , & ad upsum suum proprium conversis , ac pro ejusdem captione , possessione , conversione , & detentione eorundem indebitè & injuste gravare , opprimere & fatigare ipsum Richard . pro eisdem rebus & mercibus , ac pro praedictis captione , possessione , conversione & detentione eorundem inter alia bona res & merces per praefatum Patricium in eâdem Curiâ coram vobis libellando spec. indebitè injustè gravare , oppimere & fatigare ipsum Ricardum pro eisdem rebus & mercibus ac aliis , ac pro praedictorum captione , possessione , conversione , & detentione eorundem in Curiâ Admirallitatis coram vobis aut alio judice in hac parte competente quocunque vestrum locum tenente traxit in placitum caute , false , & subdole in eâdem Curiâ Admirallitatis coram vobis aut aliquo vestrum libellando , querelando , & allegando eundem Richardum Prideaux , bona , res & merces per praefatum Patricium in eadem Curia , coram vobis sic libellando specifice in manus , & possessionem sui ipsius Richardi infra fluxum & refluxum maris accepisse , & sumpsisse eadem , tunc penes se habuisse , seu saltem eadem dolo alienasse , eundumque Richardum in eadem Curia coram vobis vel aliquo vestrum , occasione praedicta comparere , & eidem Patricio ibidem de & in praemissis respondere tanquam in causa civili & maritima , licet eadem bona , res & merces eidem Richardo in forma praedicta vendita & deliberata vicesimo die Februarii , anno regni nostri tricesimo tertio , apud praedictam villam de Padstow praedictam infra praedictum corpus Comitatus Cornubiae praedictae ; & non super altum mare per praefatum Georgium Sydenham & Georgium Francis eidem Richardo Prideaux , ad opus & usum ejusdem Richardi deliberata fuere , minus juste abstrinxit : Ac licet Richard . idem materiam superius contentam in praedicta Curia Admiralitatis coram vobis alióve Judice antedicto in exonerationem ipsius Richardi in praemissis sepius placita verit & allegaverit , ac illam inevitabili veritate & testimonio probare ibidem obtulerit , vos tamen aliusve judex dictae Cu●●ae Admiralitatis antedictae , placitum , & allegationem admittere penitus recusastis seu recusavit , praedictusque Patricius ipsum Richardum in bonis , rebus & mercibus praedictis in forma praedicta venditis & deliberatis nec non in expensis ex parte , & per partem praedicti Patricii , & suorum sociorum sive complicum in eadem Curia Admiralitatis fact . condemnari & condemnatum ad effectualem solutionem eorundem cogi & compelli per vos aut alium Judicem Curiae illius , & per vestram vel ejus diffinitivam sententiam sive finale decretum totis suis viribus conatur , & indies machinatur , vosque statuta praedicta mimime ponderantes placitum praedictum de & super praemissis coram vobis alióve judice antedicto nuper tenuistis , vel ad tunc tenebatis , sic diffinitivam vestram sententiam & finale decretum inde fulminare & pronunciare properavistis seu pro peravit in nostri contemptum & ipsius dampnum non modicum & gravamen , & contra formam & effectum statutorum praedictorum , unde idem Richardus in Curia nostra coram Justiciariis nostris apud Westm. auxilium & munificentiam nostram humillime implorando supplicasset sibi de remedio congruo provideri per quod nos jura coronae nostrae regiae , ac leges & statuta regni nostri Angliae prout vinculo juramenti astringebamur manutenere volentes , ac contra eadem volentes ligeos nostros sectis vel suspensionibus violari aut inquietari illicitis , vobis & cuilibet vestrum per brevem nostrum prohiberemus & praeceperimus firmiter injungendo ne ulterius placitunt praedictum seu quicquid aliud praemissa aliqualit . tangent . seu tangens versus praefatum Richardum ulterius teneretis , seu aliquis vestrum teneret quovismodo , nec quicquam inde attemptaretis vel attemptari procuraretis quod ipsius Richardi praejudicium aut nostri seu coronae nostrae Regiae , aut legis & consuet . vel statutorum regni nostri Angliae contemptum sive derogationem cadere valeret quovismod , ac de ipso Richardo occasione hujusmodi placiti citando , excommunicando , molestestando in aliquo seu gravando supersederetis & desisteretis , & quilibet vestrum supersederet & desistereret omnino ipsum Richardum penitus absolventes & exonerantes de eisdem .

Quia Justiciariis nostris apud Westmon . per debitam Examinationem in hac parte factam satis constat quod praedicta Curia nostra Admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat , at quod praedictus Patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat ; Ideo vobis mandamus quod praedictus Patricius in causa sua praedicta in praedicta Curia nostra Admiralitatis praedictae licitè procedere & facere valeat quod ad praedictam Curiam nostram Admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti . Super eod. fil . m. 8.

T. E. Anderson apud Westmon . decimo nono die Junii Anno regni nostri tricesimo octavo . Culwicke Scott .

Shortly after the granting of this Consultation by the Lord Chief Justice Anderson , and before the cause could come to hearing , or to be fully determined in the Admiralty Court , Prideaux upon the same Suggestion procureth another Prohibition from the Lord Chief Justice Popham , and thereby again stayed the proceedings in the Admiralty Court , untill the 41th year of the Queen . But in that year vicesimo septimo die Junii , upon reexamination of the poynt , another Consulation was awarded agreeable with the former ; and the Admiralty Court was then a second time set free to determine the Cause in these more express words : Ideo vobis mandamus quod praedictus Patricius in causa praedicta quoad omnes hujusmodi res & contractus praedict. super altum mare , vel super ejus necessaria dependentia , Ita quod vos vel praedictus Patricius de aliquibus rebus , contractibus infra corpus alicujus Comitatus regni nostri Angliae factis ne intromittatis , &c. in Curia Admiralitatis praedictae coram vobis , seu aliquo vestrum licite procedere & facere valeat , &c.

Now here doth this Consultation put a plain distinction between the bodies of Counties and the Ports and Havens , here called necessaria dependentia alti maris ; and indeed they are such necessary dependants of the Sea , that they may very well , nay they must be called mare , the Sea , though not altum mare , the high Sea ; otherwise needless , and altogether in vain was this distinction of mare & altum mare , of the Sea , and the high Sea , and main Sea , if the Ports , Creeks and Havens were not mare , Sea , and those parts of the Sea further remote from the land , altum mare , the high or main Sea . And then let us consider that though upon every suggestion , whereon a Prohibition is in such cases awarded upon the Statute of the 13th of Richard the second , the words sur le meer in the same , be in the Prohibition translated super altum mare ; yet will not those words sur le meer , nor any other words in that Statute bear any such construction ( as by the said Statute , if lookt into , Ins . cap. lib. 3. will appear , which Statute shall be hereafter set down at large according to the Parliament Roll in the Tower . ) And then is there nothing at all contained in that Statute , which can so much as seem to limit the Admiral to the high Seas , or exclude his Jurisdiction from extending to the Ports , Creeks and Havens , which are sea , though not high sea . And so the very foundation whereon all the Arguments which tend to the deprivation of the Admiral of his Jurisdiction upon the Ports and Havens are grounded , is clearly taken away .

Patrick Landy likewise sued John Prideaux of Padstow pro tribus millibus centenis sepi libellando eundem Johannem Prideaux bona , res & merces praedicta ac alia bona , res , & merces in manus & possessionem sui ipsius Johannis infra fluxum & refluxum maris accepisse & sumpsisse , eademque tunc penes se habuisse , seu saltem eadem dolo alienasse , &c.

Prideaux upon suggestion that those Goods and Merchandises were per quendam Georgium Sydenham nuper Capitaneum navis Anglicanae vocat . the Black Boat apud Villam de Padstow in Comitatu Cornubiae , infra corpus ejusdem Comitatus , & non super altum mare vendita & deliberata , & per ipsum Johannem ibi recepta , habita & tenta , & ad vsum suum proprium conversa , &c. And obtained a Prohibition .

12. Feb. 37 Elizab. A Consultation is awarded in the same words with the other . 〈◊〉 eod. fil . ● . 5.

The same Patrick Landy sued Digorius Halman in the Admiralty , pro quinquaginta dycariis pellium Hibernicorum , libellando quod idem Digorius praedictas quinquagintas dycarias pellium sub nomine bonorum , rerum & mercium in manus & possessionem suas infra fluxum & refluxum maris accepisset & sumpissset , easdemque tunc penes se habuisset , & saltem easdem dolo alienasset , &c.

Digorius Halman upon suggestion that Gremfield Halse , Nicholas Halse , and John Hoyell alias Howele at Plymoth in the County of Devon , infra corpus ejusdem Comitatus Devoniae , & non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium , &c. & pro certâ denariorum summa barganizarunt & vendiderunt eidem Digario Halman , ac quibusdam Johanni Martin , & Thomae Crane praedictas quinquaginta Dicarias pellium , &c. And obtained a Prohibition .

Vicesimo sex to Maii 40 Eliz. a Consultation was awarded . Sup. eod. fil . m 17. T. Edvardo Anderson .

And as before , so here in this same cause , and upon the same suggestion , a new Prohibition was awarded by the Lord Chief Justice Popham .

But 26 Maii 41 Eliz. a Consultation was again awarded , as in the before mentioned cause , and many more I might likewise instance in , and set forth both the Prohibitions and Consultations at large , but that I should thereby too much enlarge this Treatise .

Now as by the Writs de procedendo awarded out of the high Court of Chancery , upon Supersedeas in the former Chapter set down , so by the Consultations upon Prohibitions awarded out the Courts of Common Law here set forth , I hope it is evident enough , that the Admirals Jurisdiction extendeth to the Ports and Havens , Infra lib. 3. cap. 9. and to all things done thereon . Vide etiam quae sunt in cap. 9. libri tertu specificata .

CHAP. XX. That the Ports , Havens , and Harbours where Ships do lie or ride at Anchor , are not within the bodies of Counties , but that the Jurisdiction which the Admiralty hath anciently had thereon , hath been by Act of Parliament reserved thereunto .

NOw seeing that the Ports and Havens , whereon Ships and other Vessels do ride and lie at Anchor , are not only of a different nature from the land , but are absolutely consisting of the same nature with the Sea , and are sometimes more drawn in , and sometimes again further stretched out ; and are from antiquity both by antient Authors and ancient Records termed and called the Armes of the Sea , as indeed most properly they still are , I cannot easily be induced to think that these Ports or Havens , by being only incompassed on both sides with several Counties , and touched upon by the banks thereof , can be said to be within the body of either of those Counties , or so much as the least member , part , or parcel thereof , or so much as properly be said to be within the skirts thereof .

I must confess that many particular Statutes , and new Laws have been made , directing such and such things to be done or not done , either by Sea , or upon any Port or Haven , which by the Civil and Maritime Laws had not been formerly in the same manner , or perhaps not so fully directed : And the cognizance of such matters by the same Statutes and Laws , may seem to belong unto other Courts , as well as unto the Admiralty , by reason whereof some have often reached at all , and have strove to hold more in one hand then they could grasp in both their armes . But such things both upon the Sea , and upon the Ports and Havens , as have been anciently determined by the Admiralty , according to the Laws Civil and Maritime , have not been by such Statutes or new Laws really taken therefrom , nor were ever intended to be : But the same have been constituted and made in affirmance of the power and authority of that Court , as wel upon the Ports and Havens as upon the high Seas ; and have been by express words continued thereunto , and the cognizance of many such matters , by such new Laws appointed , have been directed unto that Court .

I shall instance only in one Statute that sheweth the same , and then leave this subject , and breake my self unto another .

By the Statute of 32 Hen. 8. cap. 14. a rate was set what should be paid for the freight or portage of several particular sorts of Merchandizes from the Port of London to other places , and from thence to London ; and this being a thing mutable , which could not be formerly settled for a perpetual Law , according to any Rules or Laws Civil or Maritime ( though the like had been formerly done by the Admiralty pro tempore , as appeareth by the Inquisition taken at Quinborow , and the other Statutes and Articles of the Admiralty before several times mentioned ) the cognizance of the excessive freight taken for transportation of these particular sorts of Merchandizes , was by the same Statute to be taken in the Courts at Westminster . As for the forfeiture of the double value of the freight so taken , the one half to the King , the other half to the Informer , yet the excessive rates for freight in general taken for transportation of any goods whatsoever , and from and to any Port or Place whatsoever , having been punishable by the Admiralty , that power is no more taken from that Court by this clause , then the tryal of pyracy , &c. by the Civil and Maritime Laws is from thence taken by the Statute of H. 8. 27. cap. 4. & an. 28. cap. 15. which giveth a power to that Court to try the same offences after another manner , which is a thing by all of both professions acknowledged .

Another clause there was contained in the said Statute , that if any Stranger , Denizen , or not Denizen , should lade on board any English Bottom any of their Goods , Wares , and Merchandizes to be transported to any forraign Port , that they should pay no other Custome or Subsidy therefore , then such as the English paid : But in case that they did laid their said Goods , Wares , and Merchandizes aboard the Ships or Vessels of Forreigners , then they should pay such Custome or Subsidy as had been usually paid by Forreigners .

This being a thing newly by that Statute appointed , and not determined formerly by the Civil and Maritime Laws , whereby the Admiralty proceedeth ; yet was it by the same Statute provided , that if there should be no such Ships or Vessels of England , or Dominions of the same , at or in the Port , Haven , or Place where the said Strangers , Aliens , or Denizens , their Servants or Factors would freight or lade their Wares and Merchandizes toward the outward Regions , that then if the said Stangers or Denizens , their Factors , Atturneys or Servants before he or they did lade , freight , or convey the said Goods , Wares , Commodities , or Merchandises into any strange Ship or Vessel , did notify and declare the same lack or want of such English Ships or Vessels , unto the Lord high Admiral of England for the time being , or his Lieutenant , Deputy , or Deputies , if &c. and did obtain his or their Certificate to be made under his or their Seal to whom such notice or declaration was to be made of lack and want of such English Ships and Vessels , that then it should be lawfull for them to freight and lade their said Wares and Merchandises in any strange Ship or Vessel , at that time being in the same Port or Haven , and to pay none other Susidies or Customes therefore but as the English Merchants did use , and ought to do by the Laws and Customes of England .

And it is enacted by the said Statute , That the Owner and Owners , Master and Masters , and other Governour or Governours of Ships , and every of them to his or their power , and for as much as in him or them should be , shall provide that all Wares and Merchandises which shall be by Merchants , their Factors or Servants , or any of them , brought into any Ship or Vessel , shall be honestly and in good order saved and kept .

And under that clause it is provided , That if any Merchant , Stranger , or other find himself aggrieved or damnifyed by negligent keeping of the said Merchandises or Wares , or by long delaying or protracting of the time in taking the Voyage , by the said Owner , his Factor , Master or any the Mariners of the said Ship , otherwise then shall be agreed betwixt the said Merchant , his Factor , So that the Charter-party though made at land , by this Statue is cognoscible by the Admiralty for the breach of it . Atturney , or Servant ; and Master or Owner in or by the said Charter-party , ( not being letted by wind or weather ) shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being , his Lieutenant , or Deputy , against the said Owner or Owners , Master or Masters , Governour or Governours , or his or their Factor or Factors ; which Lord Admiral for the time being , his Lieutenant or Deputy shall and may summarily and without delay , take such order , and give such direction therein , as shall be thought to his or their discretions most convenient , and according to right and justice in that behalf , Sup. cap 10 , 11 , 12 , 13. hujus lib. 2. which is in affirmance of the Civil Laws before mentioned .

But Mr. Poulton rendreth this Statute obsolete : And for the first part of it , which setteth a rate what shall be paid for the freight or portage of Goods and Merchandises from the Port of London to other places , and from thence to London . I must needs agree with him , that the same may , or necessarily must be obsolete and out of use ; for that since the time of making of the said Statute , the rates and prizes for Cables , Anchors , and other Tackle , Furniture , Victual , and other Provisions , have been much altered and encreased , nor indeed are , or can the Ships themselves either be built or bought at such rates or prizes as they then were , so that they cannot be let for the same freight they then were .

For the other clause of Forreigners transporting their Wares and Merchandises in English Bottoms , to pay no more Custome then the English , whether the Customers have disused the same , and so made it obsolete , or not , I know not . But in case they have so done ; I know no warrant or necessary cause they have for so doing ; but for the last mentioned clause , That Masters and owners of Ships shall provide , that all the Merchants Wares and Merchandises shall be in good order saved and kept , and that the Merchant which shall thereby , or by delay or protracting of the Voyage ( without just cause ) longer then the time agreed by the Charter-party , find himself aggrieved , shall and may have his remedy in the Admiralty .

This is only in affirmance of the Law of that Court , Sup. cap. 10 , 11 , 12 , 13. hujus lib. 2. and was both before the making of that Act , and hath been ever since used and practised in that Court , and cannot by the disuse of it at the Common Law ( where it is not by that Act at all to be used ) be made obsolete , but is by the practice and use of it , where it is appointed to be used , held , continued , and preserved from being made obsolete there .

Now no man can say , but that this saving and keeping of Merchants Goods and Merchandises honestly , and in good order , is clearly meant of such saving and keeping them honestly and in good order , as well whilest the Ship or Vessel remaineth in the Port or Harbour , as when she cometh at high Sea ; and the delaying and protracting of time in taking of the Voyage with the next good wind , according to the time agreed on by the Charter-party , is most certainly a wrong or injury done upon the Port or Haven , and the Jurisdiction of the Admiralty in causes of this nature upon the Ports and Havens by this Statute affirmed and confirmed .

And moreover the very breach of the Charter-party , though made at land , is by this Act affirmed to be cognoscible in the Admiralty , which bringeth me in the very next place upon that point and particular , wherewith I shall begin the next Book .

THE MARITIME DICAEOLOGIE , OR SEA-JURISDICTION . THE THIRD BOOK .

CHAP. I. That all Differences arising from Contracts concerning Maritime Affairs ought to be tryed in the Admiralty Court , and the reasons thereof .

HAving been thus long upon the Ports , and Havens , it is now full time to begin to think of the discharging of the Ship , and the delivery out of her lading to the Merchants , to whom the same belongeth , and for to come to the Caulking , fitting , trimming , preparing and furnishing of her with Victual , Tackle , Apparel and furniture , &c. and manning her with Seamen and Mariners for some voyage , and taking in of her lading from the Merchants or their Factors to be transported in the same . In the effecting of all which several men of several Occupations , Trades , and imployments , are severally to be contracted with , as well at Land , as upon the Port and Haven . The validity and invalidity of all which contracts , Sir Edward Coke would have to be Cognoscible , Tryable , and determinable in the Common Law Courts , according to the Course of the Common Law , and not in the Admiralty Court , or according to the Proceedings , Rules , and Grounds of the Civil and Maritime Laws . But I must here likewise adventure another dispute with him upon this point .

And first I shall offer some reasons to the contrary , and then endevour an answer unto his Arguments . And after both , I shall set forth what Laws have been made for the determination of such differences as shall arise upon such contracts , by which Laws certainly they are still to be determined .

And first I say that by Ships , and Shipping , this Nation is secured and preserved from foraign Invasions , and by Trade and Commerce with foraign Nations not a little enriched ; and neither Shipping nor Trade , can be upheld without the welfare of Merchants , Owners of Ships , Fitters , Furnishers of them , Mariners , &c.

And this welfare of the Merchant , Owner , Fitter , Furnisher , and Mariner , cannot be maintained without a settled Jurisdiction of Admiralty , regulated according to the Civil and Maritime Laws , setled amongst , and known unto all Maritime Nations .

Because ( as it is well known ) all of them have dealings with such foraign Nations abroad , and such foraign Nations with them at home , who both expect and will have the same Justice meted to them , that they measure unto others ; else will they both forbear to Trade with that Nation , which shall deny them that Justice , and likewise deny that Nation to Trade with them .

Now it is most certain that the municipal Laws of this Kingdom , are so different from the Civil and Maritime Laws , that if Maritime Causes ( be they either for freight , wages , damages done to Merchants Goods , Building , Tackling , and furnishing of Ships , &c. ) should be here determined by the municipal Laws of this Nation , and beyond the Seas by the Civil and Maritime Laws , they must necessarily receive many of them , a different ; many of them a clean contrary Judgment .

To instance briefly in some few of many ; If Mariners be hired to serve in a Ship , for so much by the Moneth , and serve divers Moneths in her , and the Ship dieth at Sea , and never maketh port ; here the Judgement of these two Laws will be clean contrary .

Likewise , if a Ship be let to freight at a certain rate by the Moneth from Port to Port , and so home again , and the Ship in some of those Ports shall be imbarqued for some moneths , here the Judgements of the two Laws both for freight and wages for those moneths will be contrary , and upon other emergent causes from hence arising , the Judgements will likewise be , in some farre different , and in other some clean contrary .

If the Merchants Wines , Oyls , &c. be leaked out end for end , the Judgements upon Action for the freight will be different , if not contrary .

If the Merchants Goods shall be damnified by ill stowage , or careless looking to , or shall be purloyned or stoln , the party not known , or if known , not able to make satisfaction , here , upon Action brought by the Owner for his freight , and by the Mariner for his Wages , the Judgements will differ very much .

If in a storm at Sea , or in any Port or Haven , the Ship and her lading be in danger , and some Goods be cast over board , for preservation of the rest , by the Maritime Laws , the remaining Goods are to be cast into an Avaridge , to make satisfaction for the Goods cast over-board , by which Law certain Rules , as well concerning the danger , the nature of the several Goods , and the casting them over board , as concerning the Avaridge it self to be made , are prescribed ; which Rules are not known , or owned by the municipal Laws of this Nation , and therefore cannot that Law take cognizance thereof , and consequently upon Action brought by the owners for freight 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 ●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 , &c. in which Titles these particulars are defined , what they are , what maketh them so to be , and what maketh them not to be so ; and are likewise distinguished into several sorts , each of which is terminated and limited unto its proper bounds , as when this Nauticum foenus is distinguished into Heteroplum and Amphoteroplum , as some Authors terme it ; Heteroplum cum commeatus tantum periculum foenerator suscepit ; Amphoteroplum cum & commeatus & remeatus periculum suscepit ; the one when he undertaketh the danger of the Ship only outward bound , or only homeward bound ; the other when he undergoeth the danger both of the outward and homeward Voyage , and many other of the like nature , of which the Common Law hath not one word , that ever I could hear of , much less any rule to guide the professors thereof in the Judgment of such things .

In Bills of sale of Ships , &c. though made at land , the parties to whom the same are made , cannot ( if withstood ) obtain the possession thereof , but by the Civil and Maritime Law , and power of the Admiralty Court . And every Ship that is built may have many part . Owners , and most commonly she hath , and before she can be compleatly built , tackled , victualled , fitted and prepared to put to sea , a great number of several Tradesmen must necessarily have been imployed therein , and been assisting thereunto , which cannot with any possibility , every of them repair to every Owner , some possibly being or inhabiting beyond the Seas , other some in this Nation ; if all in this Nation , yet oftentimes some in one place , some in another , farre remote each from other , and from the place of such her building , tackling , &c. to make his particular contract with him for his materials , workmanship , victual , or other furniture and necessaries , so that necessarily some one of the Owners ( which commonly hath not above an eighth , sixteenth , or two and thirtieth part , and sometimes one that hath no part at all ) is by the rest made Mr. of her , and contracteth with all these several Tradesmen , who regard not his ability , by reason the Ship it self is by the Maritime Laws lyable for the payment of every mans particular debt , which Law must necessarily take place , or else few or no Ships be built and employed for trade ; for at the Common Law I conceive they can have only their several Actions against the Master , with whom they contracted , who for the most part is not able to make satisfaction to one third part of them , and many times not to one particular man .

If one Ship shall do damage to another , either at the main Sea , or upon any Creek , Port , or Haven , the damage must be sued for in the Admiralty Court , and Judgment given according to the Maritime Laws , which prescribeth every Ship her rule , how to steer her course both going out to sea , or coming in from sea , or riding at sea , which plainly demonstrateth which Ship was in fault , by which the Judgement must be regulated . And no Action can be so properly commenced at the Common Law for these damages , for that the Owners damnified can very hardly arrest all the Owners of the other Ship , which did the damage , nor indeed can any of those Owners by that Law be lyable to such arrest ; but the Master , who if solvent , will not come on shore , but take his imployment in some other Ship outward bound , so that the remedy lyeth properly against the Ship by the Maritime Laws , as hath been already said .

If a contract be made beyond the seas concerning any Maritime businesses by bill , or otherwise , the same is not cognizable at the Common Law by their own books , neither indeed if it were , could it receive the same Judgment it shall by the Civil and Maritime Law ; for a verbal Contract is not made by Assumsit there , as here it is ; nor in a Contract made in writing is any thing more required , or thought necessary then the signing or subscribing of a Bill , for performance , &c. and sometimes the sealing , but never the delivery ; nor is there any such ceremony there used or known , without which by the Common-Law ( as I have heard ) it is nothing ; so that the English Merchants , or other seafaring mans Bill , here signed , sealed , and deliveted , according to the formalities of this Nation in that case required , shall , being sued in any Court beyond the seas , prove good against him , without due examinations of half the said formalities , whereas the Foreigners Bill , which is ( according to the customes and usages of those parts , from which they will not by auy means depart ) sometimes only signed , sometimes sealed , sometimes both , but never delivered , shall for want of this one formality of delivery at the Common Law , prove voyd and of none effect , and so the English man become undone by formalities of the English Laws , so far different from those of foreign Nations , especially the Laws Maritime , which are for the most part , if not altogether , agreeable in most places , if not in all . Many more reasons might be given , why all contracts of this nature wheresoever made , should and ought to be tryed in the Admiralty Court , by the Civil and Maritime Laws , and not by the Municipal Laws of this Nation ; and many instances more might be given , wherein the Civil and Maritime Laws ( which are Common to all Nations ) do differ from the Municipal Laws of this , and so would vary the Judgments in Causes of the self same nature : But that is too large a task to undertake here , and but a needless one , when some few instances may satisfy a wise man that intendeth not to quarrel . I shall endeavour here in a word to satisfie but one doubt by the way , and so proceed ( according to the best of my judgment ) to the answering the Arguments brought against the Admirals cognizace of these Contracts . It is objected that other Nations have their several Municipal Laws as well as England ; and that therefore these Contracts may as well be tried by the Municipal Laws of this Nation , as by any Municipal Law of another . I answer that they have in several Nations , several different Municipal Laws , whereby they are governed within themselves , as we are here ; yet are those Municipal Laws all grounded upon the Civil Law , and are no more different one from another , then one and the same lesson playd upon several Instruments , in several strains ; nor do otherwise differ , then as the several Interpretations of several men upon them have differed ; as in many doctrinal points in Divinity various constructions have been rendred , even upon the very text of the Divine Law , according to several apprehensions and opinions of several men .

For upon all their decisions and determinations they quote the Civil Law , Sup. lib. 2. c. and the Authentique Writers and Commentators thereon , as is already said , li. 2. c.

And as the controversies happening and arising between one Nation and another , are not to be decided by either of their Municipal Laws , that being a way to raise a new controversie , by which of those Municipal Laws the old should be decided ; no more are those controversies which do arise concerning maritime and sea affairs to be determined by those Municipal Laws , but by their Maritime Laws , by which they trade one Nation with another , and which are generally the same , and not Municipal , as is before more fully set forth . Sup. li. 2. c. 14. For further satisfaction vide caput 10. hujus libri tertii .

CHAP. II. The Arguments deduced out of the Statute of the 13 R. 2. c. 5. to prove that Maritime Contracts , made at land concerning Maritime Affairs , are not tryable in the Admiralty Court , answered .

FOr the taking away the cognizance of Contracts made at land concerning Maritime affairs from the Admiralty Court , the Statute of the 13 of R. 2. c. 5. the 15 of R. 2. c. 3. and the 2 of H. 4. c. 11. Coke li. 4. instit. cap. 22. are urged by Sir Edward Coke in his before mentioned 22th Chapter of his Jurisdiction of Courts . I shall take them in order .

The first of them he rendreth thus , Coke li. 4. instit. cap. 22. that the Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England , but only with things done upon the sea , according to that which hath been duly used in the time of the noble King Edward , Grandfather to Richard the second ; by which , saith he , it is manifest that the Jurisdiction of the Admiralty is only confined to things done upon the Sea . And truly taking only these words , it may very well seem so to be . Sed tota lex in omnibus suis partibus diligenter prospicienda est , 〈…〉 & incivile est ( inquit Celsus ) nisi tota lege prolecta , de una aliqua particula ejus proposita judicare , vel respondere . Take we then the Statute wholly , as it is set down in the Parliament Roll in the Tower , 〈…〉 and then to the best of my understanding , we shall find that the mis-translation hath bred a mis-construction , and wrong interpretation thereof .

These antient Statutes were made by way of Petition and Answer , and so remain still upon the Roll ; here is set down only the Answer to the Petition , but not one word of the Petition , to which the answer hath relation . Et cum non sit satis ad investigationem Juris si verborum superficiem teneamus , sed interius respicienda est mens legislatoris , quâ ratione motus fuerit ad statuendum aliquid ( ut affirmat a a 〈…〉 Oldendorpius ) loco praecitato . Certè nullo modo sunt vestiganda jura , si verborum omnium ne quidem superficiem istam aut teneamus , aut habeamus , nec quovismodo est intelligenda mens legislatoris , quâ ratione motus fuit ad hoc statuendum , dum abscondita sit petitio , super quâ fundatur statutum . Scire leges ( inquit Celsus ) non hoc est verba eorum tenere , sed vim & potestatem habere . l. scire leges F. de legibus Quedcunque igitur negligere est legum vim potestatemque destruere . F. de legibus l. scire leges . I shall therefore first set down both the Petition and answer as I find them in the Tower Roll , and then under correction examine the true construction and interpretation of them , according to the best of my ability . The words are these .

Item , prient les comes que come les Admirals , & lour Deputies tiegnent lour Sessions en diverses places deins le Royalme , si bien deins franchises come de hors accrochant au eux plus grant poaire que a lour office nappertinent en pre judice nostre sieūr ' le Roy , & le come ley du Royalme , & grant enblemishment de plusours diverses Franchises en destruction & empourissiment del' comen people que plese ordaine & establer lour poaire en cest persent Parlament quils ne sic mellent nempriegnent sureux connisances , de nulls contracts covenances regraters , &c. que con ques les quex divent & purrant estre termines devant auter Jugges nostre sur le Roy deins les quatre miers Dengleterre deins Franchise & de horse , &c. R. le Roy voit que les Admirals & lour Deputies ne soi mellent de sore ena vant de null chose fait deins le roylme mes solemet , de chose fait sur le meere , solonc ce que ad estre duement use en temps du Noble Roy Edward aiel nostre sūr le Roy quorest g g Rot. Parl. a● 13. R. 2. m. 41. . The first part of the Petition , having set forth that the Admirals keeping their Sessions in divers places in the Realm , as well within the Liberties , as without , had incroached to themselves greater power then belonged unto their Office , &c. Then so much of the prayer of the Petition as is granted , consisteth in these words .

Quils ne sic mellent nem pregnent sur eux conisances de nulls Contracts , covenances , regrates , &c. que con ques les ceux divent & purrant estre termines devant autres Jugges nostre sur le Roy , deins les quatre miers dengleterre deins Franchise & de horse h h Rot. Parl. an . 13. R. 2. n. 41. . They pray that the Admirals may not so meddle or encroach upon the Cognizance of Contracts , Covenants , Regraters , &c. determinable before other the Kings Judges , within the four Seas of England , within franchise and without the rest of the Petition is not granted , but tacitely denied , and this part is thus answered by the King .

Le Roy vort que les Admirals & lour Deputies ne soi mellent , &c.

This Sir Edward Coke positively without any relation to the Petition , rendreth in the words before set down , viz. The Admirals and their Deputies shall not meddle from henceforth with any thing done within the Realm of England , but onely with things done upon the Sea ; which Poulton more truly rendereth thus ; but still without relation to the Petition , that the Admirals and their Deputies shall not meddle from henceforth , of any thing done within the Realm , but onely of a thing done upon the Sea ; rendring of , for with , which is the more proper signification of de , and will as I conceive bring home the true construction of the Answer , with relation to the Petition , to which it hath , and necessarily must have reference .

It hath been affirmed unto me by some professors of the Common Law , that the King upon a Petition never grants more then is desired by the Petition , and that that which is granted more then is desired , is void in Law ; but that I leave to the determination of such as are of their own profession ; but the same thing hath been noted unto me as a rule from many expert Recordmen , more especially from my old deceased friend Master W. C. not long before his death , then above 80 years of age , viz. that the King in Parliament never granted more then was askt , many times less ; who affirmed that this in his younger time he had taken for a rule from those that were then ancient . But this Answer here being set down positively alone , without the Petition , or any relation thereunto , hath ( as it seemeth to me ) made the Grant far larger then the request , which must not be , but must be reduced thereunto , and receive a Construction , with a due relation to it .

It being complained of in Parliament that the Admirals and their Deputies had encroacht , as is before set forth ; It is desired by the Petition that they and their Deputies may not meddle with Contracts , Covenants , or Regraters , &c. tryable before the other Judges ; It is answered that henceforth they shall not , of a thing done within the Realm , but of a thing done upon the Sea .

The Construction of the Answer , with relation to the Petition ( which as I humbly conceive must not be separated by any Logician ) will plainly be this .

The Admirals and their Deputies shall not henceforth meddle with any Contracts , Covenants , &c. of , or concerning any thing done within the Realm , but onely of Contracts , Covenants , &c. of , or concerning things done upon the Sea : So that we plainly see an Answer to a Question , or Petition turned into a positive Thesis , without relation to the thing , whereof it is an answer , is easily turned into another sence never intended ; And this answer to a Petition , translated alone without the Petition , and put positively , as the translation of the Statute putteth it , doth seem clearly to take away from the Admiral the Cognizance of all Contracts , and Covenants whatsoever made within the Realm , whereas taken with the relation to the Petition , it as clearly confirms the Cognizance of Contracts of , or concerning things done at Sea unto him ▪ For as the answer to the Petition doth grant that the Admiral shall not meddle with Contracts of things done within the Realm , so doth it reserve the Contracts and Covenants of things done upon the Seas unto him ; And the words as I said before , can imply no other thing , to the best of my understanding .

For the following words , Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust . Poulton ( having thus translated the Answer , without mention of any one word of the substance of the Petition ) rendreth barely thus : as it hath been used in the time of the noble Prince King Edward , Granfather of our Lord the King that now is : As if this positive Thesis , by him extracted out of that , which was the King's Answer to a Petition , and had onely a relation thereto , had been so used in Edward the thirds time , whereas the words are a restriction to the answer , and bindeth up the Law to what was used in the Kings time ; for Solonc ; which in true French is Seloon ; signifieth secundum or juxta , according or agreeable , so that if the Answer could be taken positively without relation to the Petition ( which as I conceive it cannot be ) yet these words Solonc ceque ad estre dument use , &c. had restrained and limited it , not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in Edward the thirds time : So that under correction , by that strained construction and interpretation that is made of the former part thereof , the Admiral is not barred the Cognizance either of Contracts , Covenants , or any thing else , which he had Cognizance of in that Kings raign . Take that part of the Petition wholly , and the King wholly grants it , but no more .

By the Petition it is desired that the Admirals may not meddle , nor encroach upon the Cognizance of Contracts , Covenants , Regraters , &c. cognizable before the other Judges ; the King granteth it , putting a difference between the Contracts , &c. of things done at Land , and of things done at Sea , and by this restriction referreth to what Covenants , Contracts , Regraters , &c. were duly used and tryed in the Admiralty in Edward the thirds time , and those he thereunto reserveth the Cognizance of , but no other . And now it cometh to be mainly considered , whether Contracts and Covenants of and concerning Maritime businesses , though made at Land , were cognizable in the Admiralty Court , or at the Common Law in Edward the thirds time .

And it seemeth plaine unto me that in Edward the thirds time , the Admiral had the Cognizance of all Maritime Causes , by the words of their Patents . I will give but one instance of the Patent of Robert Herle , Sup. l. 1. cap. 1. already cited , in which you shall finde these words : Dantes ei plenam tenore praefentium potestatem , querelas omnium & singul●rum de his quae offieium Admiralli tangunt , & cognoscendi in causis maritimis , & justitiam faciendi , &c. Now if Bills of Botomery ( whereby Ships only are lyable to the payment of the debt contracted upon them ) though contracted for at land , or if freight for the service of Ships at sea , or Mariners wages , for their service at sea likewise , for which either the Ships or Contracters are lyable at the parties Agents choice , though the said Contracts were made at land ; and the like businesses which have their first rise from somewhat done at sea , are not maritime causes I would gladly know what causes can be called maritime : for sure I am , that maritimus is either 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . that which is on the Sea coast , or nearest the Sea , which the French render ou demeure aupres ou sur le bord de la mer ; and the Spaniard cerca de la mar . Or it is 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , belonging to the sea , take which signification of the word you will , and the before mentioned causes will be causae maritimae ; if for on the Sea-coast , or near the Sea , then the Contracts in such causes , though they he made at land , are made on the Sea-coast , in the Sea Town , or near the Sea : If for belonging unto the Sea , then these Contracts ( wheresoever they are made ) are made for things to be agitated and done at sea , and for things that cannot be done without the sea ; and such Contracts they are , that if the sea was not , would never have been made ; and therefore these Contracts must necessarily belong unto the sea , and so must those causes which arise from them ; and must as necessarily be those causae maritimae , which the Admiral is to take cognizance of . And I am confident that it cannot be shewed , that the Common Law had any cognizance of these or the like causes in Edward the Thirds time ; or that these or such like causes , were the causes wherein the Admirals are said then , or after , to have encroacht upon the Kings Courts : Nor that the Common Law had then , nor hath yet any positive Laws , rules , or grounds for the decision of causes of this nature . And clear enough it is , that even in Edward the Thirds Reign ( to which this Statute hath reference ) many Laws and rules were confirmed , and many made for direction of the Admiral in the decision of Causes of this nature ( as by several antient Records shall hereafter appear ) by which I doubt not but that it will evidently appear , Inf●a cap. proxim . & sequent . that the cognizace of these Contracts concerning Maritime affairs , wheresoever made , were then duly used in the Admiralty Court , and did properly thereunto belong .

CHAP. III. That by the ancient Statutes of the Admiralty , and by the Laws of Oleron , it appeareth that Contracts made at land of and concerning Maritime affairs , were cognizable and tryable in the Admiralty both before , and even in the time of Edward the Third , whereunto the last mentioned Statute maketh reference .

IF Contracts and Covenants of and concerning Maritime businesses made at land were cognizable in the Admiralty in Edward the Third's time , Stat. Rich. 2. 13. 5. then doth the last before mentioned limitation of the Statute of the 13th of Rich. 2. 5. continue them tryable there still , taking the construction of the Statute to be with relation to the Petition , or without .

But before that I go about to shew that they were then cognizable there , I shall make it first appear , that they were there triable long before his time , and so come to the cognizance of them in his time .

In the beginning of that antient authentique book , called the black Book of the Admiralty , whereof I have formerly made mention , in which all things therein comprehended are ingrossed in Vellam , in an antient character , which hath been from time to time kept in the Registry of that Court , for the use of the Judges of the Admiralty successively ( and is as free from suspition of being corrupted or falsified , as the Records of any Court whatsoever ) are set down the ancient Statutes of the Admiralty , with directions how , in what manner , and of what things every Admiral shall enquire , at every Port , and Haven , after his being made high Admiral : Where amongst other things , I find an Ordinance made by Edward the First , at Hastings , as is plain , by the Ordinance it self , whereby all Stewards , and Bayliffs of Mannours , upon the Sea-coasts are forbidden to meddle with any plea , or try any cause whatsoever , touching or concerning any Merchant or Mariner , whether by deed or charter party of Ships , or other things , amounting to the summe of 20 , or 40 Shillings . The words are these .

Item , Li. nigro Admirallitatis , p. 29. ordonne estoit a Hastings par le Roy Edward le primer & ses seigneurs que coment divers seigneurs avoient diverses franchises de trier plees ou Ports , que leur seneschaulx ne Baliffs , ne tendroient nul plee sil touch Merchant ou Mariner tant par fait come par chartre de nefs Obligations & autres faitz comment la somme amont que a xx s , ou a xl s , & saucun est endite quil a faite le contrare & de ce soit convict , il avera mesme le Judgement come desus est dit . They that shall do to the contrary , and shall be thereof convict , they shall have the same Judgement as is aforesaid , which is a years imprisonment , set forth in the next preceding Article , for a Mariners breaking an arrest , made upon him , for to serve the King in any Ship .

And the same Ordinance concludeth this : Item chūn contract fait entre Marchant & Marchant , ou Marchant ou Mariner outre la mer ou dedens le Flod markes sera trie devant l' Admirall & nemient ailleurs par lordonannce dudit Roy Edward , & ses seigneurs . Also every Contract of a thing done between Merchant and Merchant , Merchant or Mariner , beyond the Seas , or beneath the Flood mark , shall be tryed before the Admiral , and nowhere else , by the Ordinance of the said King Edward and his Nobles .

And in another thick covered Book with great Brass Bosses , kept in the Registry of the said Court , wherein are set down some things of Antiquity , and likewise some things of latter times , I find this very Ordinance set down in express words , agreeing both with the former part and with the Addition thereunto .

Wherein I likewise find an Article of Enquiry in Latine , containing the whole substance of this very Ordinance , in these words : Item inquiratur de hiis seneschallis & ballivis quorumcunque Dominorum per costera maris Dominia habentium , qui tenent , vel tenere usurpent aliquod placitum mercatorum vel marinarum concernens , excedens summum quadraginta solidorum ; paena qui inde presentati fuerint & super hoc convicti paenam quinque librarum & judicium subibunt , & haec est Ordinatio Edwardi primi , apud Hastings regni sui Anno secundo .

Item quod quilibet contractus initus & factus inter Calcatorem & Mercatorem , Marinarium , aut alies ultra mare , sive intra fluxum maris , vel refluxum vulgariter dictum Fludd marke erit triatus & terminatus , coram Admirallo & non alibi per Ordinationem praedictam .

And by an Inquisition , Rough. Ar. 38. long since translated out of an ancient French Copy into Latine , by one Roughton , and Ingrossed in the said black Book , I find this whole Article in the self same words , save that instead of these words paenam quinque librarum & judicium subibunt , the words are these : Eandem paenam ut super & judicium subibunt : which agreeth with the Ordinance it self , which referreth to the punishment in the preceding Article thereunto : which punishment is ( as is set forth before ) a whole years Imprisonment .

Now that this Ordinance and this Article onely forbiddeth Stewards , Sup. li. 1. c. 2. and Bayliffs of Mannours , for medling with such Maritime Contracts , and Causes , it is because that at that time , there were no other Courts that could encroach upon the Admiralty ; for the Kings-Bench was not setled in any constant place , but followed the King , wheresoever he went ; and the Justices in Aire , and Justices of Assize being Itinerantes , and sometimes at home , and sometimes in their Circuits , and somerimes in one place , sometimes in another , and so in no certain place , and least of all in any Ports , or Haven Towns , never did nor could take Cognizance of Maritime Contracts , or Causes , which always required a most sudain dispatch ▪ and could not expect their uncertain coming ; nor was the Court of Common Pleas then settled ; for it was resolved to be settled in some constant place , but in the 9th . year of Hen. the 3. all which will appear , by what I have formerly set down .

Now that these Contracts and Covenants concerning Maritime affairs , Seunda pars hujus Capitis . though made at Land , were continued cognoscible in the Admiralty Court , in Edward the 3. time , as well as before , will likewise plainly appear thus .

The Laws of Oleron , Super li. which were brought into this Kingdom by Richard the 1. were absolutely and compleatly settled , and established in this Nation by Edward the 3. in the 12 year of his raign , as will plainly appear by that ancient Record of the Tower , Intituled , De Articulis super quibus &c. Anno Regni Regis Edward 3. 12. which is already set down , which I will here repeat , because I will not turn you back to the other place , being there made use of to another purpose .

Item ad finem quod resumatur & continuetur ad subditorum prosecutionem , forma procedendi quondam ordinata & inchoata per avum Domini nostri Regis , & ejus concilium ad retinendum & conservandum antiquam superioritatem maris Angliae , & nos officii Admirallitatis in eodem quoad corrigendum , interpretandum , declarandum & conservandum leges & Statuta per ejus antecessores Angliae Reges dudum ordinata ad conservandum pacem & justitiam inter omnes gentes Nationis cujuscunque per mare Angliae transeuntes , & ad cognoscendum super omnibus in contrarium attemptatis in eodem , & ad puniendum delinquentes & damna passis satisfaciendum , quae quidem leges & Statuta per dominum Richardum quondam Regem Angliae in reditu suo à terrâ sanctâ correcta fuerunt interpretata , in insulâ Oleron publicata , & nominata in Gallicâ Linguâ , la ley Oleron .

These Laws thus brought in and thus established for the direction and use of the Office of the Admiralty ( as its plain they were by the very words of this Establishment , Et nos Officii Admirallitatis in eodem , &c. ) were many of them of no use at all , if the Admiral had not , at , and after the time of the bringing of them in , or were not at , and after the time of the settlement thereof , to have had the Cognizance of Contracts and Covenants made at Land , of and concerning Maritime affairs ; for many of them do set forth and declare , what Judgement is to be given by the Admiral upon such Covenants and Contracts ; and the very first Judgement setteth forth in what case the Master of a Ship , ( being come to a strange Port ) may there sell the Ship , and in what case he may not , and in what case he may pawn some of his tackle , and in what not ; all which must needs be done by Contract or Covenant , and he must necessarily seek his Chapman at Land , and not at Sea . And who should have the Judgement of such contract , whether it be good , or a void contract , but the Admiral who hath his direction by these Laws , how to Judge , I know not . The words of the Judgement are these .

Premierement leu fait ung homme Mastre d'une nef la nef est a deux hommes , Oler . Judg. 1. ou a trois la nefs , seu part du pais dout ille est & voyent a Bordeaux , ou a la Rochelle ou alles , &c. se frette pour aler en pags estranges , le Mastre ne puet passe vendre le nef sil na commandement ou procuration des Seigneurs , mais sil a mestier de despens il puet bien mettre aucuns des apparilz exgaige par conseil des compaignons da la nof & cest le Jagger en ce cas .

Again a Master of a Ship hyreth Mariners in the Town where the Ship is , and by their Agreement , contract or covenant , some are to be at marinage , others at whole pay in mony , which done , the Ship can find no freight to go to the place where the Master intended to go , and whether he hyred his Mariners , but must go further , or not so farre . This no doubt is contracting and covenanting at Land for a Maritime voyage , which cannot as I believe be by the common Law , according to the Maritime Rules decided , nor hath it any rule of it self to Judge it by , whether any of the Mariners so hired are bound to performe this new voyage or not , which if the professors thereof shall undertake , I much fear that in this very first question they must judge clean contrary to the Laws of the sea , or clean contrary to the grounds and principles of their own Law , which are very good and very reasonable in the land affairs ; Supr. li. 〈◊〉 secundo cap. 1 , 2. but the reason thereof will not hold in Maritime businesses , as I have said before . And excellent Authors there be written by Civili●ns , which give exact reasons of the differences of judgments in land businesses and sea affairs . 2. Whether those that are hired at marinage , of those that are hired at full deneirs are the rather bound to performe the Voyage . 3. Upon what termes those that are freest are bound ; and must performe the same . 4. What is to be done in case the Voyage prove shorter or longer then that which was agreed for . The Judgement upon these particulars is set down briefly in the 20th Judgement of Oleron , and is by other Civil Law Authors amplyfied , L Oler . jud. 20. with express reasons of every particular . The words of the Judgment in the Laws of Oleron are these .

Vng Maistre dune nef loue ses Mariners eu la ville dont la nef est les lowe les ungs a Marinage les autres à deniers ilz veoient que la nef ne puet troun fretts a venie en ses parties & leur coūient alzr & plus loing nes ceulz qui vont a marinage la doivent servir , mais ceulx qui vont a deniers le maistre est tenu a leur croistre leurs loyer veve par veve & corps par corps par la raison qui les avoit lovez & a termine lieu & cliz viennēt plus peres que leux covenant la pris il doit avoir son loyer tout au lang , Oler . jud. 20 mais il doit aidera rendre la nef la ou illa prist se le maistre veult a la venture de dieu , & cest le judgement en ce cas .

Other Judgements there be which determine in what cases the Master of a Ship may sell part of his Merchants wines , or other goods , without breach of his Charter-party or contract of a freightment , and in what case such his sale or contract for such wines or goods ( which must necessarily be made at land ) shall be good and sufficient in law .

And such cases as these the Admiralty adjudgeth sometimes at 1 , 2 , 3 , or 4 hours warning , or in a very short time ; for if such Cases should wait Terms or Courts , many a Voyage would oftentimes be lost , to the extraordinary great damage both of Merchants , Owners , Masters , and Mariners of Ships .

But for Contracts and Covenants between the Master of a Ship and his Mariners ; for their wages , some have thought them to be upon sufferance allowed by the Common Law unto the Admiralty for the quick dispatch of Mariners , and they should not be inforc'd to bring several Actions at that Law ; but had it been at the allowance or sufferance of that Law , another reason might have been added of such their allowance or sufferance , viz. because these poor men seldome have any money to expend in Suit , for obtaining of so small a summe , as commonly their wages severally amounteth unto , whereas in the Admiralty they are , and alwayes have been heard summarily without payment of one penny , for the Judges extraordinary pains in the hearing , and determining causes of this nature ; and an Advocate expecteth but a single Fee from them all , be they never so many , which oft-times amounteth not to 2 d. a piece .

But we see plainly that such manner of Contracts belonged unto the Admiralty Court by the Law established and confirmed in the twelfth year of Edward the Third , and so did all Contracts and Covenants between Merchants and Masters , and Owners of Ships for freight or the like .

A Master of a Ship lets a Ship to freight to one Merchant or more , and they covenant and agree , that they shall so lade , that the Ship may be ready to depart by a certain day , and they fail , and have not fully laden by that time , so that the Master loseth his time , and oft-times his weathering ; this is a Contract or Covenant made at land ; yet hath the Common Law no law or rule that , ever I could learn , to judge the same by : 1. Whether in this place the Master may contract with any other Merchant for a new freight , or not . 2. What lading boarded firmeth the Contract , and holdeth it on , and what freeth it . 3. In case the Contract be held firme , how many dayes after the terme is expired , bring the Merchants within the compass of the Law to make satisfaction . 4. What satisfaction is to be made , and in what manner . 5. How such satisfaction being made , the same is to be divided between the Master and the Mariners . And 6. How such an accident firmeth or altereth the Contract made between the Master and the Mariners . If therefore in Sea affairs there were not Sea Laws and Rules to limit and regulate such general Contracts , but that they should be held broken for defect of performance of every particular circumstance at the Common Law , very many and great inconveniences would follow in cases of this nature , because as the land is more firme then the sea , so are not land businesses so subject unto various events , as the sea affairs are , but are at a farre more certainty for the performance of particular circumstances , then the sea affairs possibly can be ; and yet it will not be denyed , but that some Contracts made at land concerning Land businesses , are against the Law , some void by Law , and some must be regulated by Law , much more must such as concern Maritime affairs be regulated by such Laws as are most proper for them , which are the Maritime Laws ; and if these Laws shall not be observed and followed in this Land and Nation , Super. li. cap. as well as in all others , the English Merchants , and the Enhlish Mariner and Owners of Ships will be tyed to such inconveniences as the Merchants , Mariners and Owners of Ships of no other Nation are , to their extraordinary disadvantage ; but this is but a digression , which hath been spoken of more at large elsewhere , and therefore we will return to the matter .

As the 20th . Judgement of Oleron is set down for a guide and direction of the Admiral and Judges of the Admiralty in the particular Contracts before mentioned therein between Masters of Ships and Mariners ; so doth the 22. Judgement set down a rule , to guide and direct them in the Judgement of Contracts , and Covenants made between Merchants and Mariners , and Owners of Ships in the case above specified , which is in some particulars of that case plain enough , yet in all it cannot be perfectly understood , but by such Civilians as are very well verst in other both ancienter and subsequent Authors , who have wrote of the Maritime Laws ; the words of this Judgement I shall here set down .

Vng Mastre frette sa nef a ung Merchant & est devise entre eux & im's ung terme pour chargier la nef & les Mariners par le space de xv jours ou de plus oultre & aucune foiz en pert le Maistre son fret , & sa mession par default dung Merchant , Ol. Jud. 22. le Marchant est tenu alamender , & in celle amende que sera faitte les Mariners auront le quart & le Maistre les trois parties par la raison quil trouve les costes & cest le Judgement en ce cas .

This Judgement is without question a plain direction to the Admiral and Judges of the Admiralty , what to determine in some of the particulars above mentioned , upon a Contract made at Land for freight of a Ship , which serveth sufficiently for my purpose , to prove that the Admiral and Judges of the Admiralty had both before , and in Edward the 3. time ( who in the twelfth year of his raign established these Laws ) Cognizance of Contracts made at Land between Merchants and Mariners , and Owners of Ships for freight .

And to this Judgement , which sheweth what is to be determined in case of freight , where the Merchant is in fault or delay , I shall adde , and here set down one Judgement more , which sheweth what is to be determined , when the Mariner , or any of the Owners are in default or delay : As if a Merchant do take to freight by Contract or Covenant , any Ship lying in any Port or Haven , and it falleth out that the Ship is stopped or stayed , through de●ault of the Mariner , or any of his Owners , and how and in what manner this Contract or Covenant holdeth , or holdeth not ; and these are the words of the Judgement .

Item ordonne est & estably pour loy & custume de la mer que se ung merchant a frette une nef eu quelque Port que se soit & a viengne que le nef soit empeschee pour default du maistre ou du Seigneur a celliu a qui la nef est le merchant qui avoit frette la nef puet requirra le maistre entelle maniere je te requier que tu mettes mes biens ou mes denrrees en la nef & le maistre dit que la nef est empeschee de par aucun Seigneur le Merchant qui avoit frette la nef se puet partir du covenant & affrettment du dit maistre & affretter a son choys ailleurs sans ce que soit tenu audit maistre de rien a mender , Ol. Jud , 25. & se le Merchant ne trouve frett il puet bien demander au Maistre ses dommages pour la raison quil la mye tenuz ses Convenants & affrement dessus ditz & le Maistre lui doit amender , & cest le Judgement en ce cas .

Several other Judgements there be , Ol. Jud. 26. jud. 29 , & 30. judm . 31. which ( when a Ship is so taken to freight by any Merchant ) do set forth several duties to be performed , both on the Merchants part , and likewise on the Masters and Mariners parts , which I shall not here set down , because it is not my drift , or purpose to shew what the Laws of the Seas are , but onely to shew that by the Laws of Oleron established in Edward the 3. time , Contracts for freight of Ships , and Mariners wages were cognoscible in the Admiralty Court , and these Laws are left as guides and rules for the Admirals , and Judges of the Admiralty to determine such causes by .

Hence it is plain to my understanding , that the Statute of Richard the 2. though taken in the most generall construction , without reference or relation to the Petition ( which I cannot by any means be drawn or perswaded to allow ) yet being restrain'd with this restriction Solonc ce que ad estre duement use en temps du noble Roy ail nostre quorust , doth no ways at all take away the Admirals , or the Court of the Admiralties Cognizance of any thing whatsoever was cognoscible before them , in Edward the 3s time , and so consequently doth it not take away the Cognizance of Contracts for freight , nor wages , nor are they any of the encroachments complained of in the Petition , whereunto that Statute is an answer .

And divers other Judgments there be amongst these Laws of Oleron , which determine Contracts made between the Masters of Ships and Pilots , or Loads-men , whether the same be made at land or elsewhere , for the conducting of Ships into Ports and Havens , or from one Port or place to another ; I shall only quote some two or three of them , and leave the rest .

Item se ung lodeman prent charge sur luy de amaner une nef en aucun port & avient quen sa defaulte la nef soit perie , Oler . Jud. 33. &c. marchandises endomagees , &c.

Item estably est pour custume de mer que se une nef est perdue par la defaulte de une lodeman , Oler . Jud. 24. & 34. &c.

Vng bachellor est lodeman de une nef & est love alamener jusquis au port ou len la doit discharger , &c. And some others there be of the same nature .

And the ancient Statutes of the Admiralty and Laws of Oleron before mentioned , established by the said King Edward the Third , in the 12 year of his Reign , Sup ● . as is before declared , having settled the cognizance of such Contracts , and Maritime Causes in the Jurisdiction of the Admiralty , he granteth the same to his Admirals by their Patents ( as appeareth by that Patent before mentioned , Edw. 3. granted unto Robert Herle in the 35 of his Reign . ) But ( as it seemeth ) some in those times having opposed , or at leastwise afterwards interrupted this settlement , the same King caused an Inquisition to be made at Quinborough , the second day of April in the 49th year of his Reign , before William Latimer Chamberlain of England , and Warden of the Cinque Ports , and William Nevill his Admiral of the North , by near twenty of the most able and best skilled seafaring men of several Port Towns of this Nation , of and concerning the ancient customes of the Admiralty , Sup. li. 2. cap. 12. to be held firme and continued according to their Verdict , as I have at large set forth in the twelfth chapter of the second book of this Treatise .

I shall therefore proceed to shew that by the said Inquisition , it plainly appeareth , that Contracts made at land of and concerning Maritime affairs , were in Edward the Third's time cognoscible and tryable in the Admiralty Court .

CHAP. IIII. That by the Antient Inquisition taken at Quinborough in Edward the Third's time , it appeareth that the cognizance of Contracts made at land concerning Maritime affairs belonged then and before unto the Admiralty Court .

IT hath been an antient Rule or Maxime amongst Merchants , Owners of Ships , Masters of Ships , and all sorts of Mariners and Seamen , that Freight is the Mother of Wages ; therefore are the Mariners wages to be paid out of the freight the Ship hath earned ; and the damages done to the Merchants goods by the Mariners , or sustained through their negligence , is to be paid out of the freight ; and what is so paid out of the freight , is to be deducted out of their wages ; and by this rule all are necessarily cognoscible in one and the same Court or Judicature ; and the damage done at sea being cognoscible in the Admiralty , and no where else , Sup. li. 3. ca. 1. that cause must necessarily carry the other two along with it , both which are likewise there tryable , both for this and divers other reasons in the first chapter of this third Book exprest . But I am likewise here to shew , that by the Inquisition taken at Quinborough in Edward the Thirds time for direction of the Admiralty Jurisdiction , Sup. cap. of the second book . as is already set forth , the same were both then and before cognoscible in the Admiralty Court .

By the 14th Article of that Inquisition , if a Ship be let to freight for several prices or rates of affreightment , the whole freight shall be cast up rateably , and the Mariners paid out of the whole ; so that the Admiralty is to take cognizance of the several Contracts of affreightment made by the Merchants before the lading of their goods , and to cause the Mariners to be paid their wages they had contracted for before their entring into their service on Shipboard , according to the said agreements of affreightment : the words of the Article are these .

Item se une nef soit affreta a divers pris de fretters lentier de tout laffret sera accompte ensemble & les portages paiez aux mariners selon lafferāt du fret de chūn tonnel lun acompte cōe dit est droittement avec quis lautre . Inq. apud Quin. capta art. 14.

Divers rules there are in the Maritime Laws for direction , whether , and when Mariners are to have their wages contracted for , when not , when all , when some part thereof , and what part thereof , which are guided by the rates of payment of freight . I shall instance but in one more out of this Inquisition , and that shall be out of the very next article to that before set down , which followeth in these words .

Item une nef soit affrettee deurs quilque ' lien quae soit & ait certain jour limite de paiement de son fret en endenture , ou autrement les Mariners scront paiez de la moitie de lieurs louyers a la charge de la nef , & de lautre moitie quant mesme la nef sera venus en lien de sa discharge se le maistre ou le seigneur de la nef ny veult come dit est avoir la nef lostel & de leure serout ilz paiez quant la moitie du dit fret est receu . Inq. apud Quin. capta art. 15.

It being plain then that this Inquisition was in . Edward the Third's time taken for the direction of the Judicature of the Admiralty , it is as plain by these Articles , that in his time the Admiral had cognizance of Contracts made for freight of Ships and Mariners wages , wheresoever the said Contracts were made ; and then the Statute of Richard the Second , cap. 13. being shut up with this clause of Solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre , doth no wayes take away the cognizance thereof from the Admiralty , which is a thing I cannot too often repeat .

Neither resteth this Inquisition here , but what matters were cogno●cible , and to be determined before the Admiral by the Laws which I have in the former chapter quoted out of the Laws of Oleron , and by divers others of them , as well as those there quoted , and by divers other Articles in the foregoing part of this Inquisition , being then fully settled and established . It is towards the latter end of this said Inquisition provided , and care is thereby taken , that neither those matters , nor 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' emple●●ent aueun home a la commune loy de la tre ' de chose appurtenant dancien droit a la loy marine . Inq. Quin. art. 51.

Item soit enquis de tous juges qui 〈◊〉 et devant eulz aucuns plets apappurtenants par droiture a la court de ladmiral●● . Inq. Quin. art. 52.

Item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de se● mandements . Inq. Quin. art. 53.

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 , Sup l. 2. ca. 10. 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 , Sup. cap. 2 ▪ hujus lib. 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 , Coke li. 2. inst. cap. 22. 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 , Stat. 15 R. 2. cap 3. 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 onl● leave it to be considered how it varyeth from Poultons , and both vary from the Original , aiming , as I cannot but believe , at their own ends , when meeting together in substance , will , being rightly considered , conclude one and the self same thing .

But having here challenged Mr. Poulton , or him whom he hath followed , that he hath not dealt so fairly in the Translation of these Statutes , as he hath in the Translation of the other , I shall here shew how , and wherein he hath mis-translated the same , before I proceed any further .

My first challenge is , that in the Praeamble to the first of these two recited Statutes , he affirmeth that there was a great and common clamour and complaint , Stat. 13 R. 2. cap. 5. which had been oftentimes made before that time , &c. whereas there is mention of no one word thereof in the Petition , which denoteth any manner of clamour , but only a modest complaint of things done by the Admiralty Courts , which indeed ought not to have been done , as plainly appeareth by the Petition it self , Sup. cap. 2. hujus lib. 3. and the answer thereunto set down before : But it is a thing meerly invented in disgrace of the Admirals Jurisdiction . And secondly , that there is , as I shewed before , left out the whole Prayer of the Petition , both that part which was granted , and that which was not granted , by which means he would wrest and set awry , as I conceive , the sence and meaning of the Statute . Thirdly , that in the Preamble to this Statute , as in the former , it is said it was made at the great and grievous complaint of all the Commons , made unto our Lord the King , &c. whereas there is mention of no one word which denoteth either great or grievous complaint in the Petition ; but is only inserted as the other words were in the former Statute . Other things that were in this Petition , are not set forth in the Praeamble of the Statute , which I shall not question , because I do not find that they were granted , but tacitely denied : and therefore shall proceed to the Petition and Answer , as they stand in the Parliament Roll in the Tower , out of which this Statute is deduced . And these be the words .

Item prient les comēs pour profit du Roy , Rot. Parl. 1● . R. 2. n. 30. & de Roylme que come les Admiralls & lour deputes acrochent a eux diverses jurisdictions , franchise & auters profits que appertinent a Roy & as auters Shires & Cities , & Burghs quels ne solient avoir de droit a grant impoverishment de la come & arerisment de profits la Roy que plese comander as ditz Admiralls & lour deputes quils mettant avant en cest part'aint lour clayme del jurisdiction franchise & profits quils clament davoir appendant a lour office issint que declaration de lour clayme en escripit puisse estre fait en cest present Parlament per ount la come ypurra saveir dont ele serra entendent ou dit Admirall & dont nempe .

Rex , le Roy voet que de touts maners , contracts , plees , quereles , & touts autres choses faitsz sourdantz deins les corps de Countees ●i bien per terre come per ●awe & auxint de wreck de meere la Court de la Admirall eit nulle manner conisance , poair ne jurisdiccion , mes soient triez termines discus & remediez parles loyes de la terre , & nemye devant ne per l' Adimirall , ne son Lieutenant en nulle manner , nient meyns de mort d' home , & de maheim ●aitzes grosses niefs esteantz & hoverantz en my le haut fil des grosses rivers , tant solement pa avale les pontz de mesmes les rivers pluis procheyns al meer & en null autre lieu de mesmes les rivers eit l' Admiral conisance & auxint darest des niefs en les grantz-flotes pui grantz viages du Roy & de Roylme , savant au Roy touts manners forfaitures & profitz & ent provenantz & eit ensement jurisdiccion sur les ditz flotes durantz les dites viages , tant solement savant tondis as Shires , Cities & Burghs lour liberties , & franchises .

The translations of the fore part of this Statute ( the praeamble excepted ) though they do somewhat differ one from another , and both in some sort from the original , yet in matter of substance they may very well be brought to the same meaning and construction . This Statute was made within two years next after that of the 13th of Richard the Second , when the true meaning thereof rendered with the relation unto the Petition ( according to the custome of those times when all Statutes were so made , viz. by petition unto the King , and his answer thereunto ) was not forgotten ; and had that of the 13th of Richard the Second born that construction Sir Edward Coke hath since made of it , the Petition whereon this of the 15th of Richard the Second is founded , need never have , nor ever had been made ( I am confident ) but these Western Petitioners from whence all these Petitions came , and not from so general and common a clamour as Poulton makes it , as plainly appeareth by the Records cited by Sir Edward Coke in his 22th chapter of the Jurisdiction of Courts , towards the end thereof , under this title therein ( Addition of some Records of Parliament ) not being satisfied concerning the plain meaning of the former Act , pray now that the Admirals and their Deputies may bring into the Parliament their claim of Jurisdiction , Franchise and Profits , which they claim to belong unto their Office , so that the declaration of their claim being made in writing in this present Parliament , that may be reserved unto them , which shall belong unto the said Admiral , and no more ; so that whether this part of the Petition concerning the Admirals giving in their claim in writing unto the Parliament , was granted or tacitly denyed ; or whether they gave in any such claim or not , doth not appear , but it doth plainly enough appear unto me , that upon this Petition , a true construction and exposition of the said former Statute is made , which is multò magis contemporanea expositio , then that exposition made of it , by the first Judgment given after twenty years at the Common Law against the Admirals power and jurisdiction upon the Ports and Havens , which Sir Edward Coke citeth in his said 22th chapter of his Jurisdiction of Courts , Coke Jurisd. of Courts , cap. 22. and calleth optima quia contemporanea , this then must therefore be melior expositio then his , Sup. cap. 5. l. 2. and his not optima , which Judgement is more at large handled and treated of before . Now the Exposition of that Statute of the 13th of Richard the Second , Sup. cap. 2 ▪ hujus lib. 3. made by this part of the Statute of the 15th of the same King , is not disagreeable to the construction I have made thereof in the second chapter of this Book , and is , as I conceive , absolutely in affirmance thereof , being so expounded . Which Exposition , as I have there said before ( being taken with relation to the Petition , and joyning them both together as they ought to be ) rendereth it self thus . The Admiral shall not meddle with any Contracts , Covenants , &c. of or concerning a thing done within the Roylm . This saith plainly that of all manner of Contracts , Pleas and Quarrels , and of all other things done , arising within the bodies of Counties , &c. the Admiral shall have no manner of cognizance , &c. But they shall be tried , &c. by the Laws of the land , and in this both Translations in substance made of this part of this Statute by Coke and Poulton , agree with the original , which saith de touts manners , contracts , plees & quereles , & touts auters choses sur dantz deins les corps de counties , &c. la Court la Admirall eit nulle manner' cognisance , &c. Only here they would both purposely pare off ( though to little purpose ) the letter a from the word arising , , and translate sourdantz , rising ; somewhat to blind the true signification , and make the word that importeth most , signify little or nothing , or at least not to be taken notice of : But let it be arising , or rising , do but take notice of it , and then the Contracts and Covenants that the Admiral is forbidden to meddle with , are the Contracts and Covenants of or concerning things done within the Realm , saith the first of these two Statutes ; and Contracts , Pleas , Quarrels , and other things done arising within the bodies of Counties , saith the other ; for so signifieth the word surdantz . So that Contracts and Covenants , &c. of or concerning businesses done at sea , the Admiral is not forbidden to deal with , or take cognizance of , nor of Contracts , Covenants , &c. from them arising , no nor of things done within the bodies of Counties , which have relation to the Sea , or to Navigation , or do from thence arise , is the Admiral forbidden the cognizance , but hath full power and jurisdiction over the same , not at all in my apprehension restrained by either of these two Statutes .

Now Charter parties , or other Contracts for freight or wages , tackling , furnishing , or victualling of Ships , &c. cannot be said to be Contracts , or Covenants of or concerning things done within the Realm , or arising from things done , or to be done within the bodies of Counties , though they be there made , but are Contracts , or Covenants of , or concerning Maritime businesses , done , or to be done at Sea , and arising from such things , as are there done , or to be done , which be the finales causae of such Contracts , from whence all actions , or motions do arise ; à fine omnis oritur actio ; It is causa causarum & impellit efficientem ad agendum , & praescribit destinatis ordinem ad agendum .

The Transportation of men , Merchandizes , Wares and Commodities of all sorts , from one Kingdom or Nation to another , or from one Port to another by Sea ( a thing not to be done within the Realm , or within the body of a County ) is the finis , or finalis causa , from whence all Contracts ; or Covenants , for freight , wages , tackling , furnishing , and victualling of Ships do arise ; such Contracts and Covenants are therefore by these very Statutes , in my opinion , cognoscible and tryable in the Admiralty Court , and no where else .

If Bargains , Contracts , or Covenants for Land , Houses , Leases , Money , or other Land Commodities , be made upon the high Sea , and the Deeds , Bonds , Bills , or other Writings be there signed , sealed and delivered , here the Construction of both the Statutes will be , that though the Bargains , Contracts , Covenants , &c. were made at Sea , yet they were of , and concerning things done , or to be done at Land , within the bodies of Counties , and so cognoscible and tryable by the Law of the Land , which is true enough ; and then certainly in Contracts and Covenants made at Land of , or concerning things done , or to done at Sea , or arising from things there done , or to be there done , the same Statutes ought to be afforded the same Construction and Interpretation .

And had not this word Surdantz arising , cleared this Construction upon this Statute , yet would the Law it self have avoided that Construction which hath been made of the other . For as in Land affairs , by Law every man is to be understood , to have contracted in that place , where that which is contracted for , is to be performed ; So in Sea affairs doth the same Law and Rule hold ; and in this point , F. de obl. & act. l. contraxisse . the Law is clear , Contraxisse unusquisque in eo loco intelligitur in quo ut perficeret se obligavit . F. de obligat . & actionibus , l. contraxisse ; F. de bonis a●ab . jud. poss. ad hoc etiam facit lex , aut ubi F. de bonis authoritate jud. poss. & l. haeres Sect. finali . F. de judiciis ; F. de jud. l. haeres . §. sin . & l. 65. F. de judiciis . And this point is further amplified , Nam locus contractus is proprè dicitur non in quo instrumentum fuit conscriptum , F. eodem l. 65. Decis . sen. Dolani per Grevellum decis . 91. n. 8. sed in quo conventio suam in se recepit perfectionem . Decis . Senatus Dolani per Grevellum Decis . 91. n. 8.

The Master or Owner of a Ship doth Contract with the Merchant , for so much freight by the moneth , to transport his wares and merchandises by Sea ; This contract is to be understood by Law to have been made at Sea , where the Ship served , and where so much money for so many moneths grew due ; and the gloss upon the before cyted Law , saith , Cum essem Bononiae , promisi tibi dare centum in Civitate Mutinae , & de hoc factus est contractus Bononiae , dicitur quod possum conveniri Mutinae ad illa centum , quasi ibi videar contraxisse .

When I am at Bononia I promise to give you 100 , at the City of Mutina , and hereof a Contract is made at Bononia , yet may I be convented at Mutina for this 100 , as if I seemed there to have contracted , so that I am subject to the Jurisdiction of that City . So having contracted at London to transport any thing at , or by Sea , at a certain rate by the moneth , I am subject to the Maritime and Sea Jurisdiction . But it may be objected that fictio juris is allowed in all Laws , and although a man be bound to pay money at one place , he may be sued at another , and so a man being bound to transport goods , or perform any other duty , or service at one place , yet he may per fictionem juris be fained or presumed to have been bound to perform the same elsewhere , and so be sued elsewhere . Sol. I answer that it is true , if my fiction be of a thing possible , it may be allowed , as if I be bound to pay money at London , I may be sued at York , because it is possible I might have been bound to have paid it there ; But if my fiction be of a thing impossible , it may not be allowed ( for impossibilities nature abhorreth ) as if I bind my self to transport a Merchants Goods , to some Port beyond the Seas , it is impossible I should do it by Land ; such a fiction , therefore that I have done it by Land , is not to be allowed ; nor am I for non performance subject to any land Jurisdiction . 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 , Sup. hoc . cap. 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 , Sup. hoc . cap. 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 was done above or beneath the said bridges , they had unduly taken cognizance thereof , as well beneath the bridges as above , as appeareth by what Sir Edward Coke himself hath cited in this his 22th chapter of his Jurisdiction of Courts ; out of the 8th of Edward the Second , tit . coron. 399. where it is affirmed , that it is no part of the Sea where one may see what is done one of part of the water , and of the other , 8 ●d . 2 tit . Coron. 399. as to see from one land to the other ; that the Coroner shall exercise his Office in this case , and of this the County may have knowledge , whereby ( saith he ) it appeareth that things done there are triable by the Country ( that is by Jury ) and consequently not in the Admiralty Court . Now by his leave , it only appears that they would have made it law , that of the death of a man there , which concerneth the Coroners Office , they might take cognizance ; and this saith he is affirmed for law by Stanford's Pleas of the Crown , lib. 1. fol. 51. b. in these words , If one be slain upon any arm of the sea where a man may see the land of the one part , Stan● . Pl. of the Crown . lib. 1. fol. 51. b. and of the other , the Coroner shall enquire of this , and not the Admiral , because the Country may take cognizance of it . And he voucheth the said authority of the 8th of Edward the second , whereupon he concludeth in these words : so this proveth that by the Common Law , before the Statute of the 2d . of Henry the Fourth the Admiral had no jurisdiction but upon the high Seas , which is no good conclusion , if well observed , as if it were impossble that the Common Law could not by some men be mistaken and made to encroach upon the Jurisdiction of the Admiralty , as the Admiralty is accused to have done upon theirs ; whereas here we see it plain in the 8th of Edward the Second , they had , or would have done in this particular ; and therefore in express words doth this Statute declare , that of the death of a man , and a maihme , the Admiral shall have cognizance beneath the first bridges ; let no man therefore from this of the 8th of Edward the Second conclude that the Admiral hath no Jurisdiction of any thing done upon the Ports and Havens , or water , where one may see from one side to the other , since that one particular from which a general is argued ( an argument never allowed amongst Scholars and Logicians ) is by Statute corrected .

For the rest of the particulars , whereon Sir Edward Coke insisteth , he instanceth not in any one before the making of these Statutes ( saving that before mentioned , and thus corrected by this Statute ) nor of almost 30 years after the making of the last of three , and well nigh 40 y●ars after the making of the first of them ; for it will be found to be little less then 30 years from the second of Henry the Fourth , to the sixth of Henry the 6. and little less then 40 from the 13th of Richard the Second , to the 6th of Henry the Sixth , in which year the first Judgement is said to be given in the Court of Common-pleas , upon these Statutes , which Sir Edward Coke affirmeth to be within 20 years of the making of the Statutes ; and therefore his first observation upon the Judgment , raised from this mistaken ground is , Sup. li. 2. ca. 5. that it is contemporanea expositio , which he saith is expositio optima , as is said before , to which I may without danger agree and consent ; for I shall in the next chapter save one shew that there is expositio magis contemporanea , Ins . cap. 7. li. 3. and will not very well agree either with this , or any other of these latter Expositions of those Statutes ; and what is inferred upon this Judgement by Sir Edward Coke , Sup. li. 2. ca. 5. that it depended in advisement and deliberation , in the Court of Common-pleas eight Terms , as is before repeated , will clearly take away what is both by Stanford and himself affirmed in general , upon that one particular , of the Coroners taking his Inquest upon the death of a man upon the water , where one may see from the one side to the other , by that of the eighth of Edward the Second , namely that it appeareth , that by the Common Law before the Statute , things done there were tryable by the Country ( that is by Jury ) and not i● the Admiralty Court ; for if this had been so clear as both these two would make it , then needed not the Judges of the Common-Pleas have advised or deliberated two days upon that point , wherewith they were troubled two years ; which long deliberation and advisement plainly sheweth , that they were at first very loth to adventure themselves upon the seas ( though at a Port ) where they had never been before , yet at length they adventured , but truely , without any offence be it said , in a rotten Barque , without either Pilot or Stearsman , as I conceive such a Voyage hath seldome been taken since , untill Sir Edward Coke's time , immediately after which some have followed his Barque or Vessel , and will so continue , if their Voyage be not stopt . But I shall proceed unto the next Statute , leaving that point of the cognizance of wreck of sea in this Statute mentioned ( which is a thing that concerneth not Contracts , &c. about Maritime affairs made at land ) unto a chapter by it self .

CHAP. VI. The Argument deduced out of the Statute of the second of Henry the Fourth , cap. 11. to prove the Contracts made at land concerning Maritime affairs , are not cognizable in the Admiralty , redargued .

THe Statute of the 2d of Henry the Fourth is likewise urged against the Admirals cognizance of Contracts and Covenants made at Land concerning Maritime affairs , and hath been usually recited in prohibitions with the other two .

This Statute is thus rendred by Sir Edward Coke . It is enacted ( saith he ) that the Act of the 13th of Richard the second , cap. 5. be firmly holden , and kept , and put in due execution , and further at the prayer of the Commons , that as touching a pain to be set upon the Admiral , or his Lieutenant , that the Statute and the Common Law shall be holden against them , and the party grieved shall recover his double damages .

For the first part of the Statute he apprehendeth that he hath given a due exposition of that of the 13th of Richard the second , by setting down the answer to the Petition , without any relation to the Petition it self , and then indeed this Statute to ordain that the former should be firmly holden , and kept , and put in due execution , would have made somewhat to his purpose : But if that first Statute be duly examined , and receive a due construction , then I conceive this will no wayes advance his cause . He further inferreth , that because this Statute doth ordain , as touching a pain to be set upon the Admiral , or his Lieutenant , that the Statute and Common Law should be holden against them ; That therefore it appeareth by this Act , that the Statute of the 13th of Richard the second is but an affirmance of the Common Law , Cokes Juris of Courts , cap. 22. promiseth shall afterwards appear , which I with much diligence in my reading expected , but could find nothing more , then what ( as I hope ) hath in its due place received an answer . And if we examine the original Statutes , and Poulton's Translation of this part of this Statute , they will plainly shew what Statute , and what Common Law shall be holden against them .

I shall therefore here set down the Statute according to the original , and likewise Poulton's Translation thereof ; and the original is by way of petition and answer in these words .

Parl. 2. Hen. 4. mem 75. Parl. 2 H. 4. mem. 75.

It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient tenuz & firment gardez & que ladmiral , & ses lieutenantz ne teinont null mannor de plèe deinz la Court d'admirall en contre la forme & Ordinance des dits estatutz & sils fount a contre en courgent la peine xx . l. paiant la moite au Roy , & lautre moite a perte greve .

R. soit lestatute ent fait tenuz & gardez & outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute & la come ley tenuz denez eux & que rely que loy sente quereue en contre la forme de le dit estatute , eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la Court d'admiraltie , & recover ' ses dammages denums mesme le pursueant au double & encourge mesme le pursuant la peine de x l. en ●i le Roy pur sa pursuit ensi faitz sil soit attemte . 2. Hen. 4 mem. 75.

Which Statute is by Poulton rendred thus .

Item , Whereas in the Statute made at Westminster , the 13 year of the said King Richard ▪ amongst other things , it is contained that the Admirals and their Deputies shall not intermeddle , from hence forth of any thing done within the Realm , but only of a thing done upon the Sea , according as it hath been duely used in the time of the Noble King Edward , Grandfather to the said King Richard , our said Lord the King , willeth and granteth that the said Statute be firmly holden and kept and put in due execution ; and moreover the same our Lord the King by the advice , and ascent of the Lords Spiritual and Temporal , and at the Prayer of the said Commons , hath ordained and stablished , That as touching a pain to be set upon the Admirall , as his Lieutenant , that the Statute , and the Common Law be holden against them ; and that he that feeleth himself grieved against the form of the said Statute , shall have his action by Writ , grounded upon the Case , against him that doth so pursue in the Admiralty Court , and recover his double damages against the pursuant , and the same pursuant shall incurre the pain of ten pounds to the King , for the pursuit so made , if he be attainted .

Now it plainly appeareth by the Original , which I have here verbatim set down , that this Statute is onely in confirmation of the former Statute as originally enacted , according to the true construction thereof , which taken together with that exposition of the 15th . of Richard the 2. hath truely rendred of that and the same , being taken with relation to the Petition as I conceive it ought to be , and by Sir Edward Coke and Poultons Translations here , it is in affirmance of the first of them onely , as Poulton himself hath in his Translation thereof rendred it ; so that neither of these two Translations agree with the Original , saving in this , that he that shall find himself aggrieved against the form thereof , shall recover double damages against the pursuant .

Now what may be called Damages that shall be recovered double by this Statute , is a great question : If a man do sue in the Admiralty Court , and there recover , and is paid a just and due debt of 100 l. which he ought to have sued for in the Common Law , and might have there surely recovered , the question whether the other party can be said to be damni●●ed , that 100 l. over and above his expences and trouble ; I cannot imagine any reasonable man will say he was . What shall be thought then of the leading case , Hil. 6. H. 6. in the Common Pleas , cited by Sir Edward Coke for the first that received Judgement in that Court upon this Statute , of double damages , who saith that Bartholomew Putt sued John Burton in the Admiralty , for that he by force of arms , three Ships of the said Bartholomews with his Prisoners and Merchandizes to the value of 960 marks , odd money , being in the said Ships , did take , and carry away , supposing the taking to be super altum mare , whereas it was in the Haven of Bristow : whereupon the said Burton sued the said Putt upon the Statutes , and a verdict was found for the said Burton against the said Putt , and damages assessed unto 700 l. and Judgement given double for 1400 l. In this place , I shall set aside the Question , whether this case was proper to the Admiralty Court , or the Common Law , having spoken to that purpose already in a place more proper ; ●up . li. 2 ▪ cap. 5. and here onely examine the question , concerning the damages , and them doubled . It doth not appear by any thing is said by Sir Edward Coke , that Putt had either received from , or so much as recovered of the said Burton the said 900 marks , or any part thereof ; and yet the said Burton is found thereto be damnified the said 900 marks , besides 100 l. more for his expence and trouble , all which is double by the Judgement ; so that by this Judgement he was barred and hindred any tryal for his 900 marks , or whatsoever else he should prove himself to be damnified , which no man can or could then say he was not to have recovered in one of the said Courts , but was condemned to pay 1400 l. damages to Burton , who was damnified nothing more then his expence , and some trouble in a wrong Court ( as is pretended ) for what he had unjustly done , for ought ever appeared , or was ever attempted to be made appear , and he hereby acquitted of that Act , how unjust soever .

If it might have been granted ( which may not be ) that the Admiral had no jurisdiction nor cognizance of this Cause , yet surely that Court which had , might first have examined whether Burtons act , complained of , was an unjust act or not , and whether Putt should not there have recovered 900 marks as well as in the Admiralty Court ; and certainly if he should , then cannot I conceive how Burton can be said to be damnified that 900 marks which might elsewhere have been recovered , and obtained against him ; nor can I judge that he being sued for 900 marks , which neither were or could there or elsewhere have been obtained against him , was thereby damnified 900 marks . I shall therefore leave it here to be considered , whether such a Judgement once given at the Common Law , is to be held firme and continued for law ever after , or not .

But I must not pass over a main objection , which might have been , or may hereafter be raised out of this Statute , as the same is by Poulton rendered , which is this : The Statute ( as he rendereth it ) saith , that whereas in the Statute made at Westminster , the thirteenth year of King Richard the second ▪ amongst other things , it is contained that the Admirals and their Deputies shall not intermeddle from henceforth of any thing done within the Realm , but only of a thing done upon the sea , &c. so that hereby it may seem , and be very well urged that this Statute doth clearly confirme the Statute of the 13th of Richard the second , as the same is both by Poulton and Sir Edward Coke rendered and translated without any relation to the Petition : but if this very Statute be duly considered , it will plainly appear that Poulton hath here thrust in a repetition of the former Statute , according to his own former rendering thereof , Sup. hoc cap ▪ 〈◊〉 . to make the same good , which the original before inserted in this very chapter , being consulted withall , will not allow him ; for there is not one word of this repetition mentioned either in the Petition or Answer , quod vide ; for the Petition is that the Statutes made in the time of Richard the second touching the Jurisdiction of the Admiralty , comprehending the one as well as the other , as well the latter which rendreth the true construction of the former , according unto the true meaning thereof , taken with relation to the Petition , as I cannot conceive but that it ought to be , as the former of the 13th of Richard the second may be held and firmly kept , and that the Admirals and their Lieutenants ▪ may not hold any manner of plea in the Court of the Admiralty , contrary to the form and ordinance of the sai● Statutes , which by the Answer is granted in generall , without repeating any part , either of the one of them , or of the other .

So then these former Statutes , being onely considered with relation to the Petitions , whereunto they are answers , I conceive this Statute affordeth no Argument at all against the Admirals Jurisdiction , or cognizance of Contracts made at Land , concerning Maritime affairs , more then what the other afforded ; and so I hasten to what I promised in the Chapter preceding this .

CHAP. VII . That the Admiral by these Statutes , was not barred the Cognizance of Maritime Contracts , though made at Land , made appear by the practice of those times , proved out of ancient Records remaining in the Tower of London .

THe Judgment given in the Case of Burton and Putt by Sir Edward Coke , said to be the first that can be found , that was given upon the Statutes , against the Admiral 's having Jurisdiction any where , but upon the high Seas , and by him said to be within 20 years of the making of the Statutes , and so contemporanea expositio , the time being duely computed , as I have said before , Sup. lib. cap. will be found to have been given full 27 years after the last of them ; For the Parliament , wherein the last of them , viz. the Statute 2. H. 4. was made , was begun and holden at Westminster in the utas of St. Hillarie , Anno Domini 1400 ; and in Hillary ▪ Term 1427 , being 6. H. 6. was this Judgement given , so that the largest part of four in this computation , is abated , to bring this Judgement within the compass of a contemporary exposition ▪ but indeed this Judgement must be grounded as well upon the two former , as this latter , and principally upon the first of them ; and then is this Judgement 37 years and more after the making of that Statute , the same being made in Anno 1389. this Statute therefore having not born this construction or exposition from the time of the making of it , until 37 years after , and upwards , this being the first Judgement thereupon ( as is confest ) and that given by the Judges , not without a great deal of doubting for the space of eight Terms , before they could agree , or would adventure to give that construction , or such exposition thereof , though tending ad suam jurisdictonem ampliandam , I cannot apprehend that this was contemporanea , or optima expositio , nor do I find by all the particulars cited by Sir Edward Coke concerning this matter , that this Judgement was ever pursued as a president or example , by the same , or other succeeding Judges .

Indeed two Actions he instanceth in brought upon the same ground , one by Cupper against Rayner , and the other by Wydewell against Rayner , brought both in the Court of the Common Pleas , Sup. c. 6. li. 2● . about six years after this Judgement , viz. Paschae 12. H. 6. But he speaketh not of any Judgement given therein , which if there had , he would not willingly have omitted to have inserted the same , which maketh me verily conceive that no Judgement was given upon either of them , nor indeed can I think that the former Judgement by him cyted , ever took any effect , or was ever put in execution .

If Sir Edward Coke's rule be true , that contemporanea expositio est optima , a contemporary exposition is best , then is not this exposition made by this Judgement the best , though it may be magis contemporanea , more contemporary then the other Judgements , or expositions given longer after , 28. Eli. Paschae . viz. Paschae 28 Eliz. which he instanceth in , That Evangelist Constantine having covenanted with Hugh Gynn , that his Ship should sail with Merchandizes of the said Gynn to Muttrell●in ●in Spain , and should there remain for certain days , upon breach of which Covenant , Gynn brought an Action of Debt of 500 l. in regard the Charter party was made at Thetford in the County of Northfolk , and had Judgement in the Kings Bench ; And that Mich. 30. and 31. Eliz. of an Action of case brought upon a policy of ensurance , so that the former may be said to be melior expositio , a better exposition then those latter , because it seemeth to be the foundation whereon they are grounded , and therefore more authentique . But if I shall shew that within a farre shorter compass of time after the making of the said Statutes then any of those Judgements were given , which he hath instanced in , no such exposition was made of the said Statutes , but that the Admir●●ty was held to be the proper Court for such causes , and the Civil Law fittest to Judge them by , then will mine be multo magis contemporanea expositio , a farre more contemporary exposition then his , and by his own rule , si non optima , multo tamen suis melior , If not the best , yet farre better then his .

I shall therefore instance in an Action brought in the Admiralty within three years after the making of the first of these Statutes , and in August next after the making of the second of them , and in the same year that this last Statute was made , as will appear by the Record it self , which I shall in this chapter set down at large .

The Action was brought in the Admiralty of the West , before Nicholas Clifton , then Lieutenant to the Earl of Huntingdon Admiral of the Western parts , by Peter Draper and Robert Ancleyn of Sherburne , Merchants , against William Stillard Mariner , in a cause of contract , and letting to freight a ship of the said William Stillard , called the Lethenard of Haniel , to sail thence to the Isle of Ree , for Salt , there to be had , and carried or brought back from thence to Weymouth or Southampton , at the choyce of the said Merchants , as by the Charter-party of contract and affreightment of the said Ship indented , and between the said parties made , evidently appeared : and this Action there sometime depended , and was proceeded in unto sentence without any interruption , or being any wayes hindered by any manner of objecting either of the said two Statutes , against the proceedings in the said Cause , and sentence was given for the said Stillard , from which the said Draper and Ancleyne appealed unto the King in Chancery , and a Commission was from thence by the Lord Chancellor awarded unto five other Civilians , or to any four , three , or two of them , giving them full power and authority to take the said cause of appeal into their cognizance , to be proceeded , heard , and discussed in due forme of law , and the same to determine according to law .

All which will appear by the Commission it self , upon record in the Tower , which I will here set down verbatim .

R. dilectis & fidelibus suis Johanni Cobbam , J. par patend . 15. ● . 2. m. 27. Magistro Johanni Bennet , Magistro Johanni Runhale , Magistro Thomae Southam , Magistro Johanni Combe salutem . Sciatis cum nuper notâ lite seu controversiâ in Curiâ nostrâ Admiralitatis Angliae in partibus Occidentalibus coram dilecto & fideli nostro Nicholao Cliffton tunc locum tenente clarissimi fratris nostri Comitis Huntindon , Admiralli nostri in partibus praedictis , inter Petrum Draper , & Robertum Ancleyne de Sherbourn , Mercatores , partem actricem ex una parte , 〈◊〉 Willielmum Stillard Marinarium partem ream ex altera , occasione affrectationis , conductionis , sive locationis cujusdam navis praedicti Willielmi Lethenard de Hainnel nuncupat . ad veland . ad partes de la Ray pro sale ibidem habendum & praedict. inde carcandum , & deinde apud Weymouth vel Southampton , ad electionem mercatorum reducend . ut occasione conventionum & contractuum affrectationem , conductionem navis praedictae concernen . de quibus per chartas indictatas inter personas suprascriptas evidenter apparet , aliquandiae vertebatur praedictus locum tenens perperam in causa praedicta procedens , & parti Williemi plus debito favens , sententiam contra eos Petrum & Robertum pro parte dicti Willielmi tulit , diffinitivam , iniquam , invalidam sive nullam , ad instantiam ad procurationem dicti Willielmi subdolas & injustas minus justè ut asseritur in ipsorum Petri & Roberti praejudicium non modicum , & gravamen ; a qua quidem sententia diffinitiva & caeteris gravaminibus praetensis fuisset , & sic per praedictum Petrum no'ie suo & procuratorio no'ie dicti Roberti ad nos & nostram audientiam legitimè ut praetenditur appellatum , quam quidem appellationem idem Petrus intendit ut asserit pro se & dicto Roberto prosequi cum effectu , ac nobis supplicavit ut sibi & praefato Roberto super appellationem praedictam certos judices dare seu assignare dignaremur ; nos supplicatione hujusmodi , tanquam juri consona annuentes , vobis quatuor , tribus vel duobus vestrum in solid . de quorum fidelitate & industria fiduciam gerimus specialem , committimus vices nostras , ac plenam tenore praesentium potestatem ac mandatum speciale ad audiendum , cognoscendum , & procedendum in causa seu causis appellationis hujus , nec non in causa in hac parte principali , prout dictaverit ordo Juris ipsam & ipsas cum suis emergentibus , incidentibus & connexis quibuscunque secundum juris exigentiam , discutiend . & sine debito terminand . & ideo vobis & cuilibet vestrum mandamus , quod vocetis coram vobis quatuor , tribus , vel duobus vestrum partibus praedictis , ac aliis in hac parte , quos de jure fore viderit evocand . auditisque in dicta appellationis caâ unâ cum principal ▪ eorum rationibus & allegationibus circa praemissa diligenter intendatis & as faciatis & exequamini in forma praedicta . Damus autem praefato Admirallo nostro ac ejus locum tenenti , nec non universis & singulis Officiariis , Ministris , Ligeis , Subditis , ac aliis fidelibus nostris quorum interest tenore praesentium firmiter in mandatis quod vobis quatuor , tribus & duobus vestrum in forma dicti mandati nostri , prout ad ipsos pertinet , intendentes sint & respondentes , consulentes , & auxiliantes , & vestris mandatis obedientes prout decet .

In cujus , &c. 4. apud Westm. 3. Augusti .

And in the 17th year of the sam● Kings Reign , John Coppin Matiner and Owner of the Ship the Gabriel of Sancta Osicha of Burdugall sued William Snoke and Thomas Saxtingham , Merchants , for freight of that Ship ; first at the Common Law , where the Action lay not , and so failed ; and then in the Admiralty ; but before sentence appealed to the High Constables Court , where his Appeal lay not ; and was therefore from thence dismissed , and condemned in Expences ; who then appealed to the King in Chancery , and had a Commission from thence directed unto Richard Stury Knight , Mr. John Bennet Official of the Court of Canterbury , and Mr. Michael Sergeaux Dean of the Arches London , to hear and discusse the said cause in due form of law , and to determine the same according to the rules of the Civil Law , they being all three Civilians : All which likewise appeareth by the Commission it self upon Record in the Tower , which followeth in these words .

Rex , An. 17 17 Ric. 2. 1. part . pat. m. 7. dilectis & fidelibus suis Richardo Stury militi , Magistro Johanni Bennet , Officiali Curiae Cant. & Magistro Michaeli Sergeaux Decano de Archubus London , salutem . Sciatis quod cum Willielmus Snoke & Thomas Saxtingham , Mercatores quandam navem vocatam le Gabriel de Sancta Ossica apud Burdegal , in quodam loco vocato le Umbier . cum decem & septem doliis & una pipa vini caricassent , & cum quodam Johanne Coppin marinario de Comitatu Essex , Magistro navis praedictae conventionassent quod ipsa vina praedicta usque Gadenasse in partibus Essex ' salvo duceret , solvendo sibi pro quolibet dolio , viginti solidos , & pro una pipa decem solidos , ut accepimus , & licet idem Johannes conventionem suam bene & fideliter compleverit , praedicti tamen Willielmus & Thomas in hâc parte debitè requisiti praefato Johanni in parte vel in toto juxta conventionem suam praedictam satisfacere non curarunt , prout idem Johannes conqueritur , super quo idem asserens se versus praedictos Willielmum & Thomam tam per Communem legem regni nostri Angliae quam in Curia Admiralli nostri versus partes Boreales diu sequutum fuisse & nullum remedium in hac parte habere potuisse , dictos Willielmum & Thomam in Curia Constabularii & Marescalli Angliae ad respondendum sibi in causa praedicta summoneri & venire fecit , ac quendam libellum super actionem praedictam in eadem Curia coram dilectis & fidelibus nostris Johanne Cheyne locum tenente Constabularii praedicti , & Willielmo Faringdon locum tenente dicti Marescalli nostri versus praedictos Willielmum & Thomas adhibuit & proposuit , idemque Johannes & Willielmus locum tenentes in causa praedicta , minùs rite & indebitè procedentes , ac judicialiter affirmantes & allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos Willielmum Snoke & Thomam à cura praedicta , & de instantia praedicti Johannis Coppin sine causa rationabili quacunque dimiserunt & deliberaverunt , & ipsum Johannem Coppin in quadam magna pecuniae summa argenti pro custibus ipsorum Willielmi Snokes & Thomae in hac casu coram eis in eadem Curia factis per sententiam suam seu judicium condemnârunt , & dictos custus ad quandam summam nimis excessivam taxarunt & limitarunt , de quibus quidem sententia judicio & condemnatione expensarum , & de taxatione earundem & aliis gravaminibus praetensis praefato Johanni Copyn in hac parte illatis , & per partem dicti Johannis ad nos & nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet , qui quidem Johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu , & nobis supplicaverit ut sibi super appellatione sua praedicta certos Judices sive Commissarios dare & assignare dignaremur , nos supplicationi praedictae tanquam juri consonae annuentes , vobis de quorum fidelitate & industria fiduciam gerimus specialem commitimus vices nostras , & plenam tenore praesentium potestatem ac mandatum speciale ad audiendum , cognoscendum ; & procedendum in causa , sive causis appellationis hujus prout dictaverit ordo juris , ipsamque & ipsas cum suis emergentibus , dependentibus , incidentibus , & connexis quibuscunque secundum juris exigentiam discutiend . & debito fine terminand , ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis , coram vobis judicialiter producentes , sine dolo , vel fraude , odio vel favore , aut aliàs injustè subtraxerint veritati testimonium perhibere compellandum . Et mulctae alteriusque temporalis cohertionis cujuslibet potestate ; & ideo vobis mandamus quod vocatis coram vobis partibus praedictis & aliis quos in hac parte fore videretis evocand . auditisque in hujus causis appellationis earum rationibus & allegationibus circa praemissa diligenter intendatis & ea faciatis & exequamini prout justum fuerit & consonum rationi ; volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis , ali●s vel alii vestrum libere procedere valeat sive valeant , in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus . In cujus , &c. T. R. apud Westm. xiiii die Novembris .

After this , and after the making of the other Statute of the 2d of Henry the fourth , one Edmund Brookes , Mariner , brought his Action in the Admiralty Court before John Sturmister , Lieutenant General of Edmund Earl of Kent , Admiral of England , against John Birkyrne , Richard Honesse , John Walls , and William Burton of Kingston upon Hull , Merchants , Partners in a Maritime Cause of contracting and taking to freight of a certain Ship , called the Laurence of Gyppelwich , and the same was there proceeded in unto sentenc , and sentence was given for the said Edmund Brookes against the said John Byrkyrne and Company ; from which sentence the said Byrkyrne and Company appealed unto the King in Chancery , and there obtained a Commission of Appeal from thence directed unto John Kington and others , who by virtue thereof proceeded in the said Cause unto sentence , and thereby reversed the former sentence , and condemned the said Brookes in expences ; from which said sentence the said Brookes again appealed unto the King in Chancery , and obtained a Commission of Review directed unto the then Bishop of London , and six Civilians , to review , discusse , and hear the said Cause in due course of Law , and to determine the same according thereunto .

And this last Commission of Review was granted but eight years after the making of the said Statute of the 2d of Henry the fourth ; and therefore the Cause must needs be instituted and begun in the first instance some years before , nearer unto the time of the making of the said Statute , the same having been proceeded in even unto seentences in two several instances before the granting of this Commission : all which appeareth by the Commission of Review it self , which is upon Record in the Tower in these words following .

Rex venerabili in Christo patri R. Episcopo London , An 10 H. 4. 〈…〉 . 6. ac dilectis , ac fidelibus suis Thomae Beauford , Thomae Eppingham , Magistro Thomae Field , Roberto Thorley , Willielmo Senenocks , & Johanni Oxney , salutem , ex parte Edmundi Brookes marinarii nobis est ostensum , quod licet Magister Johannes Sturmyster nuper locum tenens generalis Edmundi nuper Comitis Cantiae nuper Admiralli nostri Angliae in quadam causa maritima quae in Curia Admirallitatis occasione affectationis conductionis sive locationis cujusdem navis Laurence de Gippelwich coram praefato Johanne tunc Judice in ea parte competenti inter praefatum Edmundum partem actricem ex una parte & Johannem Birkyrne , Richardum Hornesse , Johannem Walas & Willielmum Burton socios ut dicitur in causa praedicta Mercatores de villa de Kingston super Hull partem ream , ex altera vertebatur quandam sententiam pro parte dicti Edmundi contra partem praedictorum Johannis Birkyrne , &c. rite & legitime tulerit definitivam , pars tamen eorum Johannis Birkyrne , Johannis , &c. a sententia praedicta ad nos & nostram audientiam frivole appellavit , quo praetextu quidem Magister Johannes Kingston & alii colore ejusdem commissionis nostrae eis ad cognoscend . & procedend . in dicta causa appellationis praetens . & negotio in ea parte principali praetens . directae perperam & illegitimè procedentes ac dicti parti appellanti plus debito faven , dictam sententiam pro parte dicti Edmundi ut permittitur , latam licet nullam habuerint jurisdictionem , infirmarunt , cassarunt , irritarunt , & adnullarunt , ac ipsum Edmundum in expensis per partem dictorum Johannis Birkyrne , Richardi , Johannis , &c. in praedicta praet●●●sa causa appellationis & negotio principali praetenso & eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus juste in ipsius Edmundi dispendium non modicum & gravamen , unde per partem praedicti Edmundi sentientis se ex praemissis sententiis & expensarum condemnatione indebite pergravari ab eisdem sententia & expensarum condemnatione ad nos & nostram audientiam est appellatum , sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum , plenius poterit apparere , idem Edmundus nobis supplicavit , ut in dicta causa appellationis suis procedere , & sibi justitiam in hac parte facere digneremur . Nos supplicationi praedictae annuentes , vobis , &c. quorum alterum vestrum vos praefatum Episcopum & Thomam Field , &c.

I shall instance only in one more , one Alan Wagtost sued Thomas Johnesson and Thomas Rafin for 25 l. for freight of the half of a Vessel called the Christopher of Boston , as Master and Owner of half of the said Vessel : and the said Cause was proceeded in before Henry Bole , Lieutenant-General of the Admiralty Court , which Cause was from him appealed unto the King in Chancery , and a Commission in the eleaventh year of Henry the fourth , being but nine years after the making the said Statute , and the Cause in the first instance must needs have been begun some good space of time before that . The Commission of Appeal runneth thus .

Rex dilectis & fidelibus suis Richardo Rochefort Chivaler' , An 11. H. 4. 1. parte paten m. 12. Magistro Henrico Ware , Magistro Richardo Brinkley , & Magistro Thomae Field , salutem . Sciatis quod ●um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti & quinque librarum prae●●●●●ffrectamenti medietatis cujusdam navis vocat' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom. & possessorem ejusdem medietatis , aliis pertinen . partem actricem & prosequentem ex parte una , & Thomam Jonesson & Thomam Rafin de villa praedicta partem ream defendentem ex parte altera , quae coram Henrico Bole locum tenen . general . curiae Admirallitatis Angliae , &c.

Now for the three Records instanced in by Sir Edward Coke , and brought out of the Courts of the Common Law , against the Admirals Jurisdiction upon the Ports and Havens , and in matters of contracts upon businesses to be agitated at sea , I have shewed four out of the Chancery which was then ( as by his own setting forth appeareth ) the only Court enabled to grant Prohibitions in case the Admiral medled with causes belonging unto the Common Law : for thus he saith .

Sundry Towns of the West part praying remedy against the Officers of the Admiralty , Coke Instit. part● 4. cap. 22. pag. 146. for holding plea of matters determinable by the Common Law , which they pray may be revoked , the Kings Answer was .

The Chancellor by the advice of the Justices upon hearing of the matter , shall remit the matter to the Common Law , and grant a Prohibition .

And as these Records are of farre greater antiquity then those by him instanced in , so are they farre more contemporary with the said Statutes ; and therefore , by his own rule , of farre greater authority .

Besides , these three Records by him instanced in , do but de facto set forth what was done , and that but as those three several times in those Courts , sed quo jure , non arguitur . But it may be very well apprehended , that in 27 years after the making of the last of those Statutes , and 37 after the making of the first of them , the Petitions upon which those Statutes were grounded , and from whence they must receive a right construction , began to be forgotten ; but after the same were revived and brought again into remembrance , and Admiralty Court had no more such interruptions , but proceeded as before untill the times of those Actions wherein he instanceth which were brought in farre later times then the former , when the said Petitions , whereunto the Answers have , or ought to have reference , were ( as it were ) again quite out of remembrance : For if from the time of the making of those Statutes , untill the time of the last of the Judgments instanced in , all the particular Actions that have been brought , and ●●●tences that have been given in the Admiralty for things done upon the Ports and Havens ( against the cognizance of which causes one of these Judgements is brought ) and all the Actions brought , and Sentences that have been there given upon Contracts made at land for businesses to be agitated at sea , against which the other two Judgments are brought , should be set forth , I might boldly say there would be many hundreds for one ; and I might very well , and very justly cite divers of those Records out of the Registry of the Admiralty for the Jurisdiction of that Court in matters of this nature , which I doubt not but ought to be as good proof for the Jurisdiction of that Court whereunto they do belong , as those few Records pickt up out of the Registry of the Common Law Courts ought to make for that Jurisdiction whereunto they belong ; nay by those Records of the Admiralty , and the constant , the continued , and the general practice and usage of taking cognizance of Causes of this nature , 〈…〉 . it plainly appeareth that the Jurisdiction thereof anciently did , and still doth belong unto that Court ; for in land businesses whose land or soil shall we judge that to be , but his who hath generally , continuedly , and constantly reapt the Crop , and not his who hath at some times come by and taken up a a Shock or two , and so done as much as he which reapt where he never sowed ? which he must needs do which is neither verst nor skilled in jure scripto , in that Law which is positively set down for that purpose , but shall judge thereof at randam , and will so do because others have done so before him ; nor under correction can it be held to be any good rule of Justice to judge by president ; for if one man , or more , have judged unjustly , and not according to law , I would not have it said , that he which knoweth the law , is notwithstanding bound to judge as the other did , because he hath a president for it . But I shall pass them presidents over , and as I have in the second book of this Treatise shewed you , that even by Records out of the Chancery and Common Law , things done upon Ports and Havens are cognizable in the Admiralty Court , so I shall here shew that by Records of the same Courts the Admiralty hath cognizance of Contracts made at land of and concerning Maritime affairs and businesses agitated , or to be agitated at sea .

CHAP. VIII . That by other Records out of the Chancery , Contracts made at Land concerning Maritime affairs are cognoscible in the Admiralty Court .

ONe Lodowick Sutton sued John Pettite of Abville in Picardy , Merchant , Andrew Lord , and Daniel Lancel , in the Admiralty Court , upon several Maritime Contracts made between them in the City of London , the said Pettite , Lord , and Lancel upon their complaint made in Chancery , that they were sued in the Admiralty 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 ; An. 29. H. 8. in 〈◊〉 ut in . 〈◊〉 Adm. m. 34. 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 , An. 31 H. 3. in Fit . prohib . & consult . in Registro Adm. &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 that they should altogether , and without delay forbear all manner of cognizance in Civil and Maritime causes , contracted in the parts beyond the seas , upon the high Sea , or in any place where his Admiral of England had jurisdiction , or from thence proceeding against the said John Bates , by what names soever called , by whomsoever , or in what manner soever begun , or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid , in like manner as before , remitting the parties ( if they would sue ) to the Court of the Admiralty of England for justice to be to them there administred in that behalf .

The words of the Supersedeas are these .

Rex &c. An. H 8. 31. in Fil. prohib . & consul . m. 56. Majori & Vicecomitibus Civitatis nostrae Ebor. salutem , Vobis & cuilibet vestrum praecipimus , quatenus ab omni cognitione in causis civilibus & maritimis in partibus ultramarimis vel super alto mari , aut alibi , ubi magnus Admirallus noster Angliae habet jurisdictionem , contractus & originem contrahentibus versus Johannem Bates Mercatorem , cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem BurdugaliaeVenditioni expositis & deliberatis per quoscunque vel qualitercunque motis seu movendis omnino & indilate supersedeatis , partes si litigare voluerint ad Curiam Admiralitatis nostrae Angliae pro justitiâ iis ibidem in hac parte ministranda remittentes . Teste meipso apud Westm. decimo quarto die Aprilis , Anno Regni nostri trice simo primo .

Now I shall here by the way observe unto you this thing in particular out of this last Suprrsedeas , and out of these words , apud Civitatem Burdugaliae , venditioni expositis , That though by the course of the Common Law , if a man do deliver certain Goods unto another man , and doth intrust him with the keeping of them , for his the Owners use , or to be by him disposed of in one manner , and he either selleth them , or disposeth of them in another ( I do conceive ) he that so intrusted the other , may recover of him such damage as he hath sustained by such the others sale , or disposal . Yet if a Merchant doth intrust a Master of a Ship with his Wares or Merchandizes to be transported to any Port or place beyond the Seas , for his own use , or for the use of any other particular man , to whom the same are by him consigned , or doth intrust him to dispose of them in any particular manner whatsoever ; yet he may in many cases upon certain exigencies happening sometimes sell the same , sometimes he may dispose of them otherwise then he was appointed by the Merchant or Owner of them , and no damage shall be by the course of the Civil and Maritime Laws recovered of him ; and herein those Laws have very many nice and curious distinctions : and for this Cause , when the Merchant very well knoweth that in such causes he cannot in the Admiralty Court recover any damages at all , he presently flyeth to the Common Law , where he knoweth he shall recover damage against the Master , who was in no fault at all ; in such manner as mutinous and disobedient Mariners ( who have either through their misdemeanors by the Civil and Maritime Laws , forfeited their wages , or some part thereof , or having received due correction from the Master at sea ) do fly to the Common Law , either for recovery of their wages upon their Contract , which they have no wayes deserved , or do there bring their Actions of Battery against the Master , when as he hath only given them such due correction , as the Civil and Maritime Laws do allow , that being a thing done at sea , where complaint cannot be presently made , or remedy had before a Magistrate , ( as may be at land ) and therefore the like at land not to be allowed , in both which cases they oftentimes recover , and are gone on another voyage before the Master can make proof of their misdemeanour done either beyond or upon the seas , which cannot oftentimes be possibly done , but by Commission out of the Admiralty Court , which turneth exceeding much to the disheartning and discouraging of Masters and Commanders of Ships , which if not remedied , will be the utter destruction of Navigation .

And another thing I shall observe in general from both the two preceding Supersedeas's , That all Contracts of and concerning Maritime affairs made between Merchant and Merchant , Masters and Owners of Ships and Mariners , or between them or any other person whatsoever , and in what manner soever , to be agitated or performed by sea , upon the seas , beyond the seas , or elsewhere within the Jurisdiction of the Admiralty , or taking their rise or original from thence , or do in any manner of wise touch , or concern the same , were not permitted in those times to be examined or adjudged in any Court but the Admiralty .

And these Supersedeas's in my judgment are a full confirmation of the Exposition I have before rendered of the two before going Statutes , viz. that Contracts of this nature , though made at land , which do maris per transitum , sive viagium , aut negotia maritima quoquo modo respicere vel qualitercunque tangere & concernere , and so do arise from things done , or to be done at sea , and not from things done , or to be done within the body of a County , do de jure belong unto the Cognizance of the Admiralty , and are in no wise by the said two Statutes taken from the same , and if by them not taken from thence , then doth not the penalty of the other praementioned Statute of Henry the fourth , run upon those that do sue in the Admiralty Court in causes of this nature , but only upon such as shall there sue upon Contracts made at land , of or concerning things done or to be done , or performed at land ; and hereof you shall have further confirmation by Consulations granted at the Common Law upon Prohibitions from thence upon false suggestions issued .

CHAP. IX . That by Consultations granted from the Courts of Common-Law at Westminster after Prohibitions formerly from thence obtained , Contracts made at land of and concerning Maritime businesses to be agitated and transacted at Sea , beyond the Seas , or upon the Ports and Havens , or of or concerning the same , are acknowledged to be cognizable in the Admiralty , and have been thereunto by the same remitted .

I Shall here proceed to shew that the Maritime Contracts , whereof I have hitherto treated in this third Book of this Treatise , and particularly exprest in the Title of this Chapter , have been by Consultations out of the Courts of Common-Law at Westminster , after Prohibitions from thence obtained , determined and adjudged to belong unto the Admiralty .

One Robert Baker of the City of London Vintner , sued one John Maynard in the Admiralty Court , upon a Contract made at land of and concerning a thing done upon the Sea ( as by the Consultation it self doth appear . ) But one John Gilbert Esquire being Bail for the said Maynard , endeavouring to decline the cognizance of that Court , and hinder the just and due proceedings thereof , suggested before the Kings Justices at Westminster , that he and one William Cowick his Proctor , were by the Officers of that Court cited to appear in the said Court in the said cause , pretending the same to be a cause cognoscible before the said Justices , and not in the Admiralty Court , and obtained a Prohibition ; after which the Libel in the said cause being exhibited before the said Justices ( as likewise appeareth by the said Consultation ) and it being thereby plain that the same was for a Contract made concerning Sea business , it is said that the Prohibition issued out unadvisedly , praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram Justiciariis apud Westm. improvidè emanavit , and concludeth with a nolumus quod per hujusmodi malitiam & suggest . cognitio in praefata Curia nostra Admirallitatis taliter derogetur . That the cognizance of that Court shall not be hindred by such malice or suggestion ; and so the cause is thither remitted , by consultation bearing date the 11th of July in the 24th year of the said Henry the eighth . T. R. Norwich apud Westm . which Consultation was directed to Henry Duke of Richmond and Sommerset , and Earl of Nottingham , high Admiral of England , Ireland , Gascoine , Normain , and Aquitaine , and to Arthur Plantaginet Knight , Viscount Lisle , the said Dukes Vice-Admiral , or his Lieutenant , and also to John Tregonwell , Dr. of Laws , Official Commissary , or Judge of the High Court of the Admiralty , and to Thomas Bagard Doctor of Laws , his Surrogate in the said Court .

See the Consultation it self as it follows .

Henricus Octavus Dei gratiâ Angliae & Franciae Rex , Fil. prohib . & consulta in Registro Admir . m. 79. fidei defensor , & Dominus Hiberniae , dilecto & fideli nostro Henrico Duci Richmond . & Somerset . & Comiti Nottingham . magno Admirallo Angliae , Walliae , Hiberniae , Gasconiae , Normaniae & Aquitaniae ; Nec non Arthuro Plantaginet Militi Vicecom. Lisle praedicti Ducis Vice-Admirallo , sive ejus locum tenenti , ac etiam Magistro Johanni Tregon-well legum Dostori in Curiâ principali Admiralitatis Angliae Officiali , sive Commissario , & Magistro Thomae Bagard legum Doctori , dicti venerabilis viri Johannis in dicta Curia Admiralitatis Surrogato , sufficienter & legitimè Deputato , eorumque cuilibet , salutem ; Ex parte vestra nobis est intimatum , quod cum quidam Robertus Baker nuper de London Vintner , in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Johannem Maynard , de & super quodam contractu de re facta super mare , quidam tamen Johannes Gilbert Armiger in hac parte cognitionem vestram fraudulenter & malitiosè satagens declinare , & debitum legis processum in eadem Curia nostra in parte illa impedire , ac suggerens in Curia nostra coram Justiciariis nostris apud Westm. ipsum Johannem Gilbert , ac quendam Willielmum Cowicke procuratorem suum per vos in praedicto Curia Admirallitatis Coram vobis super praedicto placito praetenseundem Johannem Gilbert per inordinatam fatigationem in eadem Curia Admirallitatis coram vobis in dies trahi in placitum & per ministros vestros ea occasione citari , & coram vobis comparere adinde respondere faciendum totis viribus , & sententiam versus ipsos Johannem Gilbert . & Willielmum Cowicke , & pro praemissis fulminare proponend . placitum quod inde per legem terrae in praedicta Curia nostra coram Justiticiariis nostris apud Westm. & non coram vobis in dicta Curia nostra Admirallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ipsius Johannis Gilbert grave dampnum , ac nostri contempt . coronaeque nostrae Regiae exhaeredationis periculum ac contra legem & cons. regni nostri Angliae , Breve nostrum de prohibitione minus rite vobis dirigi procuravit , cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae Curiae nostrae Admirallitatis laesionem , & quia praedictum Breve nostrum de prohibitione à dicta Curia nostra coram Justiciariis nostris apud Westm. nuper inde improvide emanavit , prout per quendam libellum in dicta Curia nostra coram Justiciariis nostris apud Westm. post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ; ac quia nolumus quod per hujusmodi malitiam & suggestionem , cognitio in praefata Curia nostra Admirallitatis taliter derogetur , ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant . 24 Hen 8. 11 Julii . T. R. Norwich apud Westm. xi . die Julii , Anno Regni nostri vicesimo quarto .

One Richard Bell likewise sued one John Crayne in the Admiralty Court , for that the said John did at Dartmouth within the Maritime Jurisdiction of the Admiralty promise and bind himself to exonerate and keep indemnifyed the said Richard for taking or restoring of a certain Ship called the Mary Fortune , and the apparel of the same , and the Goods and Merchandizes in her at the time of the taking of her ; and that he the said Richard at the time of the taking of the said Ship , together with John Bell and others was present against one John Destyron and other Spaniards , affirming themselves to be the Masters and Owners thereof .

And the said John Crane not setting forth what this Contract made at Dartmouth was for , but barely suggesting that he was sued upon a Contract made at Dartmouth within the body of the County of Devon , and not within the Jurisdiction of the Admiralty , obtained a Prohibition .

But upon complaint of the said Bell , setting forth from whence the Contract arose , and for what the same was , it was held to be within the Maritime Jurisdiction of the Admiralty , and a Consultation was awarded , by which it is said to be in ipsius Richardi Bell grave damnum , & legis libertatisque Admiralli laesionem manifestam , to the grievous damage of the said Richard , and manifest wrong of the law and liberty of the Admiral ; and further saith , Et quia cognitionem Jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus , vobis jam significamus &c. And because we will not have the Cognizance and Jurisdiction of the Admiralty in Maritime caues to be hindered by such crafty assertions ; we therefore , &c. as in the former Consulattion .

I shall likewise set down this Consultation , which was in the time of Henry the Eighth , and so come to shew you some of those which were in the time of Queen Elizabeth .

Henricus octavus Dei gratiâ Angliae , Franciae , & Hiberniae Rex , fidei defensor , & in terra Ecclesiae Anglicanae & Hiberniae supremum caput ; Nobili & prae potenti viro Domino Johanni Vicecomiti Lysle Baroni de Malpas & Somerey , praeclari ordinis Garteri Militi , Domino Basset & Tyasse Magno Admirallo Angliae , Hiberniae , Walliae , Villae & Merchiarum Calisiae , Normanniae , Gasconiae & Aquitaniae , sen ejus Deputato in Curia nostra Admirallitatis , salutem ; Monstravit nobis in Curia nostra coram nobis Richar. Bell Com. Sussex . quod cum idem Richardus nuper in Curia Admirallitatis coram vobis implîtasset Johannem Crane , de eo quod idem Johannes ad certum tempus jam retroactum infra jurisdictionem maritimam promisisset , & se extrinxisset ad exonerand . & indemnem conservand . ipsum Richardum , ab omni obligatione , & juris vinculo pro captione seu restitutione cujusdam navis vocat . the Mary Fortune , & apparatus ejusdem , ac bonorum & mercimoniorum in illa , tempore capturae ejusdem , & pro eo quod idem Richardus tempore capturae hujusmodi navis una cum quodam Johanne Bell , & aliis interfuisset erga quosdam Johannem Desticon & alios Hispanos asserent . se dominos & proprietarios praemissorum fuisse ; Idemque Johannes Crane nobis suggerendo dixerit quod hujusmodi contractus factus fuit apud Dartmouth infra corpus Comitatus nostri Devon . inter partes praedictas , & non infra jurisdictonem maritimam , vobisque superinde ad suggestionem ipsius Johannis Crane quoddam Breve nostrum de prohibitione in causa praedicta quod non procederetis , porrexerimus , cujus praetextu vos in causa illa huc usque procedere distulistis & adhuc differtis , in ipsius Richardi Bell grave damnum , & legis libertatisque Admiralli nostri laesionem manifest . Et quia cognitionem jurisdictionemque Admirallitatis in causis maritimis per hujusmodi callidas assertiones impediri nolumus , vobis jam significamus quod in causa praedicta jam coram vobis inter partes illas pendenti , dummodo de causa maritima , & infra jurisdictionem Admiralli nostri juxta jura legis nostrae Angliae terminan . agat . licite procedatis , ac procedere poteritis in causa illa quantum ad jurisdictionem Admirallitatis nostrae pertinet , brevi nostro de prohibitione vobis prius inde in contrarium directo in aliquo non obstant .

T. R. Lyster apud Westm. 14 Julii 38 H. 8. decimo quarto die Julii , anno nostri Regni tricesimo octavo . per Dominum Capitalem Justic Rooper .

In the time of Queen Elizabeth Christopher Turner sued Thomas Simpson of Beverly in the County of York before Matthew Bodsworth , Batchelor of Laws , & Commissary of the Court of the Admiralty in the Northern parts of England , and Judge of the Vice-Admiralty of York , upon a contract before that time made between them the said Christopher and Thomas ; and thereupon layd and articled in the said Court , that in the Moneths of April and May 1586. they the said Christopher and Thomas had speech or talk between them , concerning certain quarters of Wheat and Rye , to the number of 69 or thereabouts , namely forty and one quarters of Wheat , and twenty and eight quarters of Rye , whereof part was to be taken into a certain Ship called the George of Beverley at a certain place called Emot-land upon the River of Hull , alias Hull Water , and the other part thereof to be taken into the said Ship at a certain place called the Good Alehouse , adjoyning to the said River , to be from thence carryed and conveyed in the said Ship by water , unto the City of York , and there to be delivered on Shipboard at a certain place called the Queens Stathe at the said City , and further had talk of the freight or price to be paid for the carriage of the said quarters of Grain , and that they the said Christopher and Thomas bargained and agreed concerning the said carriage and transportation of the said Grain in the said Ship the George , in forme following , viz. that the said Thomas Sympson should take and receive into the said Ship the said forty one quarters of Wheat , and twenty one quarters of Rye at the said place called Emots-lands , and the said other place called the Good Alehouse , and should from thence transport and carry the same with all convenient speed to the Queens Stath aforesaid , being beneath the first Bridge of the River of Owre towards the sea , and there deliver the same on Shipboard , and that in consideration thereof ; the said Christopher Turner did agree to and with the said Thomas Sympson for the transportation of every quarter of the said Grain , to pay the summe of ten pence of lawfull money of England ; and further , that the said Christopher Turner in consideration that the said Grain might be more safely and securely transported and carried , then other his Grain before that time had been , and that the same might not be heated , wetted , or otherwise impaired , as before that time , other his the said Christophers Grain had been in other lesser Vessels of his , the said Thomas Sympson promised and agreed to and with the said Christopher , that if the said Christopher should not deliver into the said Ship called the George sixty quarters of Grain , nevertheless in regard that Ship was of a greater burthen then other Ships of the said Thomas Sympsons were ; he the said Christopher would pay to the said Thomas Sympson or his Assignes the whole freight for sixty quarters of Grain according to the rate of ten pence for every quarter of the aforesaid Grain ; and if there should be more then sixty quarters of the said Grain , that then the said Christopher Turner should pay for every quarter above the number of sixty quarters , according to the said rate of ten pence for every quarter thereof . And that the said Thomas in consideration thereof promised and convenanted to and with the said Christopher Turner , that no Grain or Goods of other men should be received into the said Ship in the said Voyage ; and that the said Ship should be sufficiently manned and victualled , so that by reason thereof the said Christopher Turners Grain might be safely transported and carried without any heating , wetting , or other impairing , &c.

Which cause was afterwards removed from the said Court of the Admiralty in the Northern parts , by way of appeal made by the said Thomas Sympson on his part unto the supreme Court of the Admiralty of England , and there in the end of the 31 year of the said Queens Reign depended undecided .

And the said Thomas Sympson in Hillary Terme following suggested in the Kings Bench that the said Christopher had libelled in the high Court of the Admiralty , Hil. 32. Eliz. that the said Contract was made at Beverley , within the Body of the County of York , and that the said Contract was , that one part of the said Grain was to be received into the said Ship at a certain place called Emot-land upon the River of Humber , alias Hull-water , whereas indeed the said Christopher had libelled in the Court of Admiralty before the said Matthew Dodsworth in the Northern parts , that that Contract was , that the said Grain should be received into the said Ship at the said places called Emot-land , and Good Alehouse upon the River of Hull , alias Hull-Water , and not upon the River of Humber , alias Hull-Water : And whereas that plea upon the said Libel only depended in the High Court of the Admiralty , by way of the Appeal aforesaid by him the said Thomas Sympson , in form aforesaid prosecuted , and otherwise he prayed a Prohibition from the said Court of Kings-Bench , and procured the same to be directed unto to the said High Court of the Admiralty , whereupon the said Court desisted .

But in Trinity Terme following , Term. Hil prox . the said Court of Kings Bench being informed of the whole matter , deduced and set forth in the original Libel , a Consultation was awarded , which in its own phrase ( and in all things agreeable to what I have here set forth ) repeateth the tenor , effect and substance of the said Libel , with a prout per libellum ipsius Christopheri plenius liquet , as by the Libel of the said Christopher in that behalf doth more plainly appear , and concludeth , that notwithstanding the Prohibition for the causes before exprest , and for other the said defects in the said Thomas Sympsons Suggestion contained , and in the said Court depending , them moving with an Ac similiter nolentes per hujusmodi falsas & callidas assertiones placita in Curia Admirallitatis praedicta pendent . diutius impedire ; where nolentes signifieth an absolute forbidding or checking rather then unwilling that the said Pleas in the Court of Admiralty depending should any longer be hindred by such false and crafty assertions , and therefore signified that the said Court of the Admiralty might lawfully proceed in the said Cause between the said parties , and do and performe all other things on that behalf , which the said Court did know did belong thereunto , &c.

Take here this Consultation more in its own language at large , and I shall set forth but some few more , and those as briefly as I can . This runneth in these words .

Elizabetha Dei gratiâ Angliae , Franciae , & Hiberniae Regina , fidei defensor , &c. venerabili & egregio viro magistro Julio Caesari legum Doctori , praenobilis & praepotentis viri Car. Domini Howard , Baronis de Effingham , praeclari ordinis Garteri Militis , magni Admiralli Angliae , Hiberniae , Walliae , & Dominiorum & Insularum earundem , villae Calis & Merchiarum ejusdem Normaniae , Gasconiae & Aquitaniae , Classisque & marinorum dictorum regnorum Angliae & Hiberniae praefecti generalis , locum tenenti Generali , ac supremae Curiae Angliae Admirallitatis Judici & Praefidenti , ejusve Surrogato cuicunque salutem . Cum Christopherus Turner nuper in Curia Admirallitatis , coram Matthaeo Dodsworth , in legibus Baccalaureo , Commissario Curiae Admirallitatis in partibus Borealibus Angliae , ac Judice Vice-Admirallitatis Com. Eboracen . implitasset , & articulat . fuit versus quendam Thomam Sympson nuper de Beverley in Com. Eborum . super quodam contractu inter ipsos Christopherum & Thomam ante tum fact . & super inde in eadem Curia posuit & articulat . quod in mensibus Aprilis & Maii , Anno Domini millesimo quingentesimo , octog●simo sexto , iidem Christopherus & Thomas habuerunt Colloquium inter eos de quibusdam quarteriis tritici , & siliginis ad numerum sexaginta & novem vel eo circiter , videlicet quadraginta unius quarteriorum tritici , & vigint' . octo quarteriorum siliginis , unde pars accipiendum fuisset in quandam navem vocatam The George of Beverley ad quendam locum vocatum Emotland super Rivulum de Hull , àlias dictum Hull Water , & alia pars inde accipiend . fuisset in eandem navem , ad quendam locum vocatum The Good Alehouse adjungentem eidem rivulo , & ab inde abcariari & conveiari in eadem navi per aquam usque Civitatem Eborum , & ibidem deliberari super le shipboard apud quendam locum vocat . The Queens Stath infra eandem Civitatem & ulterius habuissent Colloquium de salario & pretio solvend . pro carriagio dictorum quarteriorum granorum praedictorum , & ulterius quod ipsi iidem Christopherus & Thomas convenissent & agreassent concernen . praedictum carriagium & transportationem granorum praedictorum in eadem nave vocat . The George infra sequen . videlicet quod praedictus Thomas Sympson caperet & reciperet in praedictam navem , praedicta quadraginta unum quarteria tritici , & viginti octo quartera siliginis , ad praedictum locum vocat . Emot-lands , & ad praedictum alium locum vocatum The Good Ale-house , & ab inde transportaret & carriaret eadem cum convenien . celeritate ad le Queens Stathe praedict. stantem & existentem infra primum pontem rivuli de Owre versus mare , & ibidem eadem deliberaret super le Shipboard , & quod in consideratione inde praedictus Christopherus Turner convenisset & consensisset ad , & cum praefato Thoma Sympson pro transportatione cujuslibet quarterii granorum praedictorum , solvere summam decem denariorum legalis monetae Angliae , & ulterius quod idem Christopherus Turner in consideratione quod grana illa magis salvo & secur . transportari , & carriari potuissent quàm alia grana sua antebàc fuissent , & quod eadem non essent calefacta , vel malefacta , vel aliter pejorat . Anglicè Impaired , prout ante tempus illud alia grana ipsius Christopheri fuissent in aliis minoribus vasibus ipsiûs Thomae Sympson , promisisset , & convenisset ad & cum eodem Thoma quod si dictus Christopherus non deliberaret in praedictam navem vocat . The George , sexaginta quarteria granorum , nichilominus pro eo quod eadem navis fuit navis majoris oneris quàm aliae naves . dicti Thomae Sympson fuissent , ipse idem Christopherus solveret praefato Thomae Sympson , vel assignatis suis plenum stipendium , Anglicè The whole freight , pro sexaginta quarteriis granorum juxta ratam decem denariorum pro quolibet qurterio granorum praedictorum , & si plura forent quàm sexaginta quarteria granorum praedictorum , quod tunc idem Christopherus Turner solveret pro quolibet quarterio ultera numerum sexaginta quarteriorum juxta dictam ratam decem denariorum pro quolibet quarterio inde , & quod idem Thomas in considerane inde promississet , & convenisset ad & cum dicto Christophero Turner , quod grana sive bona nulla aliorum hominum acciperentur in eandem navem viagio praedicto , & quod praedicta navis sufficient viritat . & esculat . esset , Anglicè manned and victualled ; Ita quod ratione inde grana dicti Christopheri Turner salva transportari & carriari potuissent sine calefatione , malefactione . vel alias pejoratione , Anglice Impairing , &c. prout per libellum ipsius Christopheri inde plenius liquet ; quod quidem placitum postea à praedicta Curia Admirallitatis in partibus Borealibus per viam appellationis per praefatum Thomam Sympson in ea parte factae coram vobis remot . fuit , & ad huc in supremâ Curiâ Admirallitatis Angliae coram vobis jam pendet indecis .

Cumque praefatus Thomas Sympson postea , sc. termino Sancti Hillarii ultimo praeterito venisset in Curia nostra suggerens quod praedictus Christopherus in Curia Admirallitatis coram vobis Libellasset quod contractus ille fuit , quod una pars granorum praedictorum per contract . illum recipiend . fuisset in navem praedictam ad quendam locum vocat . Emot-land super rivolum de Humer , aliàs Hull-water , ubi reverà idem Christopherus libellavit in praedicta Curia Admirallitatis coram praefat. Matthaeo Dodsworth in partibus Borealibus quod contractus ille fuit quod grana praedicta accipienda fuissent in eandem navem ad praedicta loca vocat . Emot-land & Good Alehouse super praedictum rivolum de Hull , aliàs Hull-water , & non super rivolum de Humber , aliàs Hull-water , & ubi revera placitum illud super eodem libello coram vobis per viam appellationis praedictae , per praefat. Thomam Sympson in forma praedicta protegunt , tantummodo pendebat , & non aliter , quandam prohibitionem nostram in eadem Curia nostra coram nobis impetravit & vobis dirigi procuravit , cujus quidem prohibitionis nostrae praetextu vos in causa praedicta distulistis & adhuc differtis prout decet . Nos tamen ob causas praedictas superius expressas & alias defectiones in suggestione ipsius Thomae Sympson praedict. coram nobis penden . contend . nos movend . Ac simiciter nolentes per hujusmodi falsas & callidas assertiones placita in curia Admirallitatis praedicta coram vobis penden . diutius impediri , vobis significamus quod in causa praedicta inter partes praedictas licitè procedere poteritis , ac omnia alia facere & peragere in ea parte quae ad forum Admirallitatis noveritis pertinere brevi nostro de prohibitione inde praedict. vobis prius in contrarium in ea parte direct . in aliquo non obstant .

1 June 32 Eliz. T. C. Wray . upud . Westm. primo die Junii Anno nostri regni tricesimo secundo . Rooper & Rooper .

And in the same Queens Reign John Buckhurst infra fluxum & refluxum maris , within the ebbing and flowing of the Sea upon the River of Thames , arrested the Ship the Spark , alias the Michael and John of Plymouth , as belonging unto George Ascoth , and citeth him in specie , and all others in genere , and libelleth , that in the Moneths of August , September , &c. 1597. the said George Ascoth was Owner of the said Ship , and had an intent to make a voyage unto the parts beyond the Seas , and to the effect of expediting the Voyage , bought of him the said Buckhurst , or his servant , certain necessaries for his Voyage , to the value of 72 l and received them , and had them into the Jurisdiction of the Admiralty , &c.

Zacharias Ashton put in Bayl to answer the Action , and had the Ship released , and afterwards upon suggestion that upon the tenth of March , 39 Eliz. for the space of two Months before George Ascoth was in the Parish of St. Mary le Bow , in the Ward le Cheap London , lawfully possessed of this Ship , Tackle , and Furniture , and that upon the eleventh of March he sold her unto him for 400 l. and that the Ship belonged unto him : and thereupon obtained a Prohibition .

The Prohibition alledgeth the Statutes of the 13th of Richard the second , the 15th of Richard the second , and the 1. of Henry the fourth , quodque post edictionem Statutorum praedictorum , scilicet decimo Martii , anno , &c. apud London , in parochia beatae Mariae de Arcubus in Warda de Cheap London , ac per spatium duorum mensium ad tunc praeantea praedictus Georgius Ascogh legitimè possessionatus fuisset de nave praedicta vocat . The Spark , alias The Michael and John , portus de Plymouth , ac apparat . accession . & ornament . ad eandem navem tunc spectan . ad valentiam trecentarum librarum monetae Angliae , ut de bonis & catallis suis propriis , & sic inde possessionatus existen . Idem Georgius postea , scilicet undecimo die Martii , anno superdicto apud London praedict. in Parochia & Warda praedictis pro summa quadringent . librarum legalis monetae Angliae , eidem Georgio per praefatum Zachariam , ad tunc solveret , &c. contraxisset & vendidisset praefato Zachariae navem praedictam ac praedict. apparatus , &c. Quodque praedictus Johannes Buckhurst inde non ignarus machinans cognitionem placitorum quae ad , &c. quandam prohibitionem in Curia nostra coram nobis , ne &c. prosequit fuerit , &c.

But no proof being made by the said Ashton that he had so bought the said Ship , or that she was his , and not the said Ascogh's , and the said Court of Kings-Bench being informed that the effect and substance of the said Libel was as is before expressed ; and the Cause being held and adjudged cognoscible in the Admiralty Court , a Consultation was awarded , which saith that the Prohibition was in Johannis Buckhurst , grave damnum & libertatis Curiae Admirallitatis laesionem manifestam ; to the grievous damage of the said Buckhurst , and manifest wrong of the liberty of the Admiralty Court , and therefore concluded as the former did , with a Nolentes cognitionem quae ad Curiam Admirallitatis pertinet in hac parte per hujusmodi falsas & callidas assertiones diutius impediri , &c.

In the Body of which Consultation , the effect and substance of the Libel is thus exprest .

Inprimis videlicet quod mensibus Augusti , Septembris , &c. Anno Domini millesimo quingentesimo nonagesimo septimo jam curren . eorumvè mensium quolibet pluribus , uno sive aliquo , praefatus Georgius Ascogh fuit , erat nec non tempore aresti ab hac Curia interposit . ac in praesenti est Dom. Proprietarius & legitimus possessor navis vocat . The Spark , alias The Michael & John , portus Plymothiae ejusque apparatus & ornamentorum , seu saltem mediatatis , seu alicujus partis dictae navis , proque tali , & ut talis fuit & erat cōmuniter dictus tentus habitus nominatus & reputatus . Item quod annis & mensibus praedictis eorumve uno sive aliquo , praefatus Georgius Ascogh intentionem habuit profectionem faciendi in partes ultra marinas , & ad effectum expediendi viagium sive profectionem praedictam , & paulo ante decessum ejusdem pro necessariis quibusdam suis , & in itinere sive viaagio praedicto ab antedicto Johanne Buckhurst , aut ejus famulo ad usum ejusdem Georgii nonnulla bona ad valentiam septuaginta duarum librarum legalis monetae Angliae , &c.

In the same manner John Fox arrested the same Ship upon the River of Thames , as belonging unto the said George Ascogh , and libelled against the said Aschogh in the same manner , for certain necessaries sold unto him to the value of 50 l. which he received , and had into his possession within the Jurisdiction of the Admiralty , and the said Zachary Ashton put in Bayl to the said Action in such manner as in the other Cause , and afterwards upon the like suggestion made unto the said Court of the Kings-Bench , as he had there made in the said former Cause , he likewise obtained a Prohibition in this Cause as in the other ; but the said Court being likewise by the Libel in this Cause informed of the nature of the Cause , a Consultation was awarded in this Cause as in the other , and concludeth in like manner as the other did , that the said Prohibition was in grave damnum Johannis Fox , & libertatis Curiae Admirallitatis laesionem manifestam , and with a Nolentes , &c. as in the former , and both the suggestion , and substance and effect of the said Libel are inserted in the body of the Consultation upon the File in the Registry of the Admiralty with the others , as it and they came directed from the said Court of Kings Bench thither under seal .

42 Elizab. William Rolfe of Woolwich in the County of Kent did contract and agree with Thomas Freeman Shipwright , upon a certain rate for day-wages for himself and his Servants , and for certain other materials or necessaries for and towards the building of a certain Ship or Pinnace for him the said William Rolfe , according to which agreement the said Freeman , and one Arthur Argill and others , as his Servants did afterwards in the Moneth of April in that year at Woolwich in the County of Kent for divers dayes labor in performance of the said work in their Art , about the structure or building of a small Ship or Pinnace for the said William , and built a great part of the same ; and the said Ship or Pinnace being built , she was named or called by the said William , The Anne and Francis , and the said William being in possession of her as his own proper Vessel , and standing so possest , he afterwards , to wit upon the eighth day of March in the 43 year of the said Queen , at Woolwich aforesaid in the County of Kent , for a certain summe of money unto him then and there paid by one Hugh Lydyard , sold and delivered the said Ship unto him the said Hugh , by which means the said Hugh upon the said eighth of March in the year aforesaid became possessed of the said Ship or Vessel , as his proper Ship or Vessel ; and the said Thomas Freeman caused the said Ship or Vessel being upon the River of Thames , to be arrested , by which means the said Hugh Lydyard was constrained to appear in the Admiralty Court , and to answer unto the said Tho. Freeman after upon a Contract of or concerning the retaining or hyring him the said Thomas , being the Shipwright , to make & build the said Ship , and of and concerning several promises and undertakings of the said Hugh and William made unto the said Thomas in the Moneths of March , April , &c. in the year , &c. concerning the payment of divers summes of money to be paid unto the said Thomas for his Wages and Salary , for his work about the structure and building of the said Ship or Vessel , and for meat and drink of other Workmen that wrought upon the said work , and for other necessaries for the fitting of the said Ship , bought and bestowed thereon by the said Thomas .

The said Hugh Lydyard alleaging the Statutes of the 13 and 15 of Richard the second , and the 2d . of Henry the fourth unto the Court of Common-pleas , and there suggesting the same fact , and further suggesting the same to be done , and the said Contracts to be made within the body of the County of Kent , and not within the Jurisdiction of the Admiralty ; & that therefore the Action was brought contrary to the form of the said Statutes , and procured a Prohibition to the Court of the Admiralty ; but upon consideration of the whole matter , the said Court upon the last day of January in the 45th year of the said Queens Reign awarded a Consultation , and remitted the said Cause to the Admiralty Court .

And now in regard that the fact in this case was agreed on both sides , and therefore no repetition made of the Libel in the Body of the Consultation , the right of jurisdiction and power of the cognizance of the cause being only in question , and in regard this Prohibition and Consultation issued out of the Court of Common-pleas , and the former mentioned out of the Kings's-Bench , take this Consultation at large as it came to , and remaineth in the Registry of the Admiralty .

Elizabetha Dei gratiâ Angliae , Franciae , & Hiberniae , Regina fidei defensor , &c. Dilecto sibi Julio Caesari Legum Doctori à libellis supplicum nostrorum Magistrorum uni Curiae nostrae Admiralitatis Angliae Judici sive praesiden . ac locum tenen . ejusdem legitime constitut . aut , &c. salutem . Cum Hugo Lydyard Gen. in Curiâ nostrâ coram Justiciariis nostris apud West . suggerit quod cum per quendam actum in Parliamento Domini Richardi nuper Regis Angliae secundi post conquestum apud Westm. anno Regni sui tertio decimo tent . edita inter alia inactitata sub authoritate ejusdem Parlimenti , quod Admiralli et eorum Deputati se ex tunc de aliqua refacta infra regnum Angliae , nisi solumodo de rebus factis super altum mare , prout tempore Domini Edvardi Regis avi praedicti quondam Regis Richardi secundi usum fuisset nullatenus intromittant , cumque etiam per quendum alium actum in Parliamento praedicti quondam Regis Richardi secundi anno regni sui quinto decimo tent . edit . inter caetera declarat . ordinat . & stabilat . suisset authoritate ejusdem Parliamenti , quod de omnibus contractis , placitis & querelis , ac de omnibus aliis rebus factis , sive emergentibus infra corpus Comitatus , tàm per terram quàm per aquam , ac etiam de wrecco maris Curia Admirallitatis nullam habeat cognitionem , potestatem nec jurisdictionem , sed quod essent omnia hujusmodis contract . placita & querelae , ac omnia alia emergentia infra corpora Comitat. tam per terram quàm per aquam , ut praedictum est , ac etiam wreccum maris triat . terminat . discuss . & remediat . per leges terrae , & non coram Admirallo , nec per Admirallum , nec ejus locum tenentem , quodque post edictionem statutorum praedictorum sc. primo die Aprilis , Anno regni nostri quadragesimo secundo , Quidam Willielmus Rolfe apud Woolwich in Comitatu Cantiae infra corpus ejusdem Comitatus , & non super altum mare , nec infra jurisdictionem Admirallitatis retinuisset quendam Thomam Freeman tunc naupegum existen . ad quandam naviculam vocat . a Pinnace pro eodem Willielmo construend . & fabricand . vel saltem in structurâ & fabricatione hujusmodi naviculae ad laborand . & operam navand . per se & servien . suos in arte suâ pro merced . per diem eidem Thomae per praefatum Willielmum solvend . virtute cujus retentionis idem Thomas & quidam Arthurus Argill & alii ut servien . sui postea , scilicet sexto die ejusdem mensis Aprilis apud Woolwich praedictam , in praedicto Comitatu Cantiae infra corpus ejusdem Comitatus , & non super altum mare , nec infra jurisdictionem Ad●irallitatis , in & circa structuram & fabricationem unius naviculae praedicto Willielmo per diversos dies laboraverer' . & operam navar' an arte suâ & magnam partem naviculae illius construxerunt , cujus praetextu navicula illa apud Woolwich praedict. infra corpus Comitatus praedicti constructa fuit , quae quidem navicula postea denominat . & appellat . fuit per praefatum Willielmum , The Anne and Francis ; ac quod idem Willielmus sic de navicula illa fuit possessionat . ut de navicula propria , & sic inde possessionat . existen . idem Willielmus , postea , scilicet octavo die Martii anno quadragesimo tertio supradicto , apud Woolwich praedictam infra corpus Com. Cantiae , praedictae , & non super altum mare , nec infra jurisdictionem Admirallitatis naviculam praedictam pro quadam pecuniae summa ei tunc ibidem per ipsum Hugonem solut. vendidit , & deliberavit eidem Hugoni , per quod idem Hugo praedicto octavodie Martii anno quadragesimo tertio superdicto apud Woolwich praedictam , videlicet in rivo Thamisiae infra corpus ejusdem Com. Can. possessionat . fuisset de eadem navicula appellat . The Anne and Francis , ut de navicula sua propria ; praedictus tamen Thomas Freeman statut . & leges praedict. minimè ponderans , nec non diversa statut . contra levationem , sustentionem & manutentionem querelarum & sectarum in pria . vel alibi nuper edit . & provis . minime verens , sed contra eadem machinans dictum Hugonem indebite pergravare , opprimere & fatigare naviculam ipsius Hugonis praedictam in rivo Thamisiae praedicte , vidlicet apud Woolwich infra corpus praedict. Com. Canc. caute & subdole sub nomine & specie naviculi praedicti Willielmi Rolfe per ministros praenobilis Caroli Comitis Nottingham . Baronis Howard de Effingham praeclari ordinis Garterii Militis dom. locum tenentem nostri Comitat. nostrorum Sussex & Surrey Constabular . nostri honor & Castri nostrorum de Windesor . Dom. magni Admiralli Angliae , Hiberniae , & Walliae , ac dominiorum & insularum , eorumve villae Calisiae , & Merchiarum ejusdem Norman . Gascon . & Aquitan . classique & marin . dictorum regnorum Angliae & Hiberniae praefecti general . distringi & attachiari fecit , ac capi & attachiari procuravit , ac eo praetextu praedictum Hugonem coram vobis apud Southwark in Com. Surrey comparere & interesse astrinxit ipsum Hugonem ad respondend . coram vobis praefat. Thomae Freeman , de quibusdam contractibus suppositu . inter dictum Thomam Freeman , ex una parte , & eundem Hugonem & praefatum Willielmum Rolfe separatim ex altera , fuisse fact , infra jurisdictionem Admirallitatis de & concernen . retentione praedcti Thomae tunc naupegi existen . ad construend . & fabricand . naviculam praedictam , ac de & concernen . separales promissiones & assumptiones praedictorum Hugonis & Willielmi eidem Thomae fieri supponit , mensibus Martii , Aprilis , Maii , Junii , Julii , Augusti , & Septembris , Anno Domini millesimo sexcentesimo , eorumve mensium quolibet uno sive aliquo de solutione diversarum denariorum summarum eidem Thomae fiend . tam pro mercede & salario suis pro operâ suâ , in & circa structuram & fabricationem naviculae illius faciend . quam pro salario esculent . & poculent . aliorum opificum in eadem opera laborant . ac pro maeremo , cepo , & aliis necessariis pro navicula illa construend . per ipsum Thomam empt . & impens . conabatur & machinabatur , idemque Thomas Freeman in eadem Curia Admirallitatis totis viribus contra ipsum Hugonem in praemissis prosequebatur caute et subdole in eadem Curia Admirallitatis libellando versus ipsum Hugonem , et praefatum Willielmum Rolfe ; inter alia quod ipse idem Thomas Freeman spem alias ad recuperand . quasdam denariorum summas quas idem Thomas versus praefatum Hugonem tunc in eadem Curia Admirallitatis ex separabilibus causis & contractibus praedictis exigebat nisi per arrestationem naviculae praedictae nullo modo habuit , ideo eandem naviculam infra jurisdictionem Admirallitatis Angliae authoritate Curiae illius Arrestari fecit , ac praedictus Thomas Freeman praetextu praemissorum ipsum Hugonem per diffinitivam dictae Curiae Admirallitatis sententiam de & super praemissis condemnari fecit , ac eundem Hugonem ad solvend . denar . per praefatum Thomam in eadem Curia Admirallitatis petit . per executionem sententiae praedictae compellere , vel saltem eos de naviculâ ipsius Hugonis praedicta levari totis suis viribus conabatur & indies machinabatur in nostri contemptum & ipsius Hugonis dampnum , praejudicium , depauperationem & gravamen manifest . & contra formam & effectum statutorum praedictorum , cujus praetextu nos quandam prohibitionem ad petitionem praefat. Hugonis con-cessimus , & illam vobis dirigi fecimus , cujus praetextu , vos in causa praedicta procedere distulistis , & adhuc differtis ; quibusdam tamen de causis Justic . nostris apud Westm. specialiter moven . vobis significamus quod vos in praemissis legitimè procedere poteritis Brevi nostro de prohibitione vobis inde directo in aliquo non obstan .

1. Jan. 45 Elig . T. E. Anderson apud Westm. tricesimo primo die Januarii , Anno regni quadragesimo quinto . Cuick Scot.

Now it hereby appeareth , that though this Contract was made at land , and the Ship built at land , yet because both the Contract and work did arise from the Sea , sayling and transportation of Men , Wares , and Merchandizes , being the principal or only end both of the contract and the work , and the Ship being to be imployed at sea , both the contract and the work were adjudged to be within the jurisdiction and cognizance of the Admiralty .

Yet must I not let one observation slip , which is here to be observed ; and that is , that this Consultation and all others which repeat those Prohibitions which have been founded upon the 3. before mentioned Statutes , shew that all those Prohibitions have in their Latine rendred the Statute of the 13th of Richard the second , to prohibit the Admiral for medling with any thing but a thing done super altum mare , upon the high Sea ; whereas Poulton's Translation rendreth it only upon the Sea ; and the original rendereth only sur le meer , which is upon the sea in general , as well one part as another , as well upon an arme of it , as upon any part else of the Body ; Sup. lib. 3. ● cap. 2. besides what follows , viz. Solonc ce que ad estre duement use en temps du noble Roy Edward ail nostre , as I have already observed , and shall therefore pass to the next .

Richard Husbands of London , Draper , sold unto Adam Bonner , Master and Owner of one sixteenth part of the Ship the Advantage of London , certain cloth for the use of that Ship , to the value of twenty pounds ; the money not being paid , Husbands arresteth this sixteenth part of the said Ship , with Tackle and Furniture thereunto belonging , and citeth Bonner specially , and all others in general to answer unto him in the Admiralty Court for the said Debt . Bonner dieth , Rachel his Wife taketh Administration , and the Suit proceeds against her .

Richard Dove Owner of the other parts or residue of the said Ship became Bayl for the said Bonners sixteenth part . And afterwards upon suggestion in the Kings Bench , that the Debt was for cloth and other things bought by the said Bonner of the said Husbands in Cheapside London , and that the said Ship being freighted and laden in the Parish of St. Mary Bow in the Ward of Cheap London , with Provision of the Queens to go for Ireland , was there arrested by the said Husbands , and alleaging that the said Action was brought in the Admiralty Court by the said Husbands against the said Bonner , contrary to the three before mentioned Statutes , &c. And thereupon obtained a Prohibition . But upon due information made unto the said Court , setting forth the effect and contents of the Libel , a Consultation was npon the 25th of April , in the third year of King James awarded , and the cause returned unto the said Court of the Admiralty , there to be duly proceeded in ▪ The Consultation plainly expressing that the matter contained in the Suggestion was no wayes sufficient to maintain the Prohibition . The Consultation runneth thus .

Jacobus Dei gratiâ Angliae , &c venerabili & egregio viro Julio Caesari . Monstravit nobis Richardus Husbands de London , Draper , quod cum ipse idem Richardus in Curia nostra coram vobis per processum extra dictam Curiam Admirallitatis praedictae debito modo confect' emanan . arrestari procurasset decimam sextam partem cujusdam navis vocat' The Advantage of London , ac apparatuum , &c. Et ulterius citari procurasset quendum Adamum Bonner Dom. &c. in specie , ac omnes alios quoscunque , jus , titulum & interesse haben . in genere , vel haberi praetenden . &c. praefato Richardo Husbands de & pro quol' debito viginti librarum eidem Richardo Husbands &c. per quend' contract' &c. infra jurisdictionem Admirallitatis Angliae factum debite responsur' postea pendente secla illa praedictus Adamus Bonner obiit intestat . & post mortem Administratio , &c.

Quidam Richardus Dove suggerens in Curia nostra coram vobis quòd cum in statuto in Parliamento Dom. Richardi nuper Regis Angliae secundi , &c. setting forth the three before metioned Statutes . Quodque vicesimo die Novembris , anno regni Dominae Elizabethae Reginae Angliae quadragesimo tertio , apud London , videlicet in Parochia Beatae Mariae de Arcubus in Warda de Cheap , praedictus Adamus Bonner indebitatus fuisset eidem Richardo Husbands pro panuclaneo & aliis rebus ad tunc & ibidem praefato Adamo per praefatum Richardum Husbands vendita & deliberat . in summa vigint . librarum legalis monetae Angliae ; Quodque praefatus Adamus Bonner praedicto vicesimo die Novembris , anno quadragesimo tertio superdicto apud London praedict. in Parochia & Warda praedicta fuisset Dom. proprietarius & possessor legitimus praedictae decimae sextae partis navis vocat' The Advantage of London , ac apparatuum , &c. Ac quod praedictus Richardus Dove ad tunc & ibidem similiter fuisset Dom. Proprietarius & legitimus possessor totius resid . praedictae navis , &c. Quodque etiam praefatus Richardus Husbands postea , scilicet vicesimo die Novembris , anno regni dictae Dominae Elizabethae nuper Reginae Angliae quadragesimo tertio superdict . apud London praedict. in Parochia & Warda praedicta praedictam decimam sextam partem navis praedictae ad tunc & ibidem onerat' existent' cum provisione dictae Dominae Elizabethae nuper Reginae Angliae ad navigandum pro regno Hiberniae ac praedictorum apparatuum , &c. pro dicto debito praefati Adami Bonner arrestari procurasset , ac super inde praefatus Richardus Dove , &c. apud London praedict. in Parochia & Warda praedict. fore fidejussorem pro praedicta nave compulsus , & coactus fuisset aliter , &c. quandam prohibitionem nostram , &c.

Quia tamen videtur Curiae nostrae coram nobis , quod suggestio praedicta praedicti Richardi Dove in Curia nostra coram nobis in hac parte exhibit' . materiaque in eadem contenta minus sufficien' in lege existunt ad Breve nostrum de prohibitione in hac parte manutenend' Et quia nolumus cognitionem , quae ad Curiam Admirallitatis praedict. spectat & pertinet , per hujusmodi insufficientes assertiones diutius impediri , vobis significamus quod in causa praedicta , &c.

T. J. Popham apud Westm. vicesimo quinto die Aprilis , anno Regni nostri Angliae , Franciae , & Hiberniae tertio , & Scotiae tricesimo octavo . 1. L. Rooper .

I shall instance only in one or two more of latter time , and that very briefly .

Claos Cornelius Borss by Charter-party let to freight the Ship the Young Swan of Horne in Holland , whereof he was Master and part-Owner , unto George Rook and Robert Grove for a Voyage from London to several Ports and Places beyond the Seas , and from thence to the Port of London . Borss after the return of the said Ship , sueth Rooks and Grove in the Admiralty Coutt for his freight due by the said Charter-party , and likewise for demorage . Rooks and Grove suggest in the Kings-Bench , that the Charter-party was made in the Parish of St. Mary le Bow in the Ward le Cheap , and alleadged the three before mentioned Statutes , and that they had performed the Covenants of the said Charterparty , and that the Action brought against them in the Admiralty was contrary to the said Statutes , and obtained a Prohibition .

But the said Court being fully informed Termino Pascae nono Caroli , Pasc. 9 Car. a Consultation was awarded with a Nolentes , &c. as in the former . And further , quod in causa praedicta quatenus de non performatione conventionum praedictarum quoad naulum & morationem coram vobis duntaxat agatur , licitè procedere poteritis , & ulterius facere quod ad Curiam Admirallitatis praedictae noveritis pertinere , dicta prohibitione nostra non obstante . T. T. Richardson apud Westm. tertio die Junii , Anno regni nostri nono , Henley & Whigswick .

In like manner David Guy of Disart in Scotland let to freight by Charter-party the Ship the Grace of God of Disart , then lying at Anchor in the River of Thames , to John Delabar and James Hope , upon a Voyage ; upon which Guy sued the said Del●bar and Hope in the Admiralty Court for his freight thereby contracted for , and unpaid . Hope and Delabar setting forth in the Kings Bench , that the Charter-party was made in St. Michael Cornhill , and alleadging the three before mentioned Statutes , and that the said Action was brought in the said Admiralty Court contrary to the said Statutes , Pasch. 9 ca● . obtained a Prohibition . But in Easter Term in the 9th year of King Charles , a Consultation was awarded as in the other .

Hence I do observe that all these Judges which granted these before mentioned Consultations , have heretofote afforded the before mentioned Statutes the same interpretation that I have since gathered , and in this Treatise set down , viz. That a Contract , whether made at land or at sea , if the same doth arise from a business to be done or performed at land , the same is to be tried by the Law of the land : But a contract , whether made at sea or at land , if the same doth arise from a business to be done or performed by or at sea , or beyond the sea , the same is cognoscible in the Admiralty Court . Sup. li. 3. ca. 2 , 3 , 4 , &c. For upon the granting these Consultations , the question was not whether either the Contracts or the Charter-parties were made at sea , or at land , or whether they were made in the Parish of St. Mary le Bow , or St. Michael Cornhill , or not ; but whether the same were Maritime contracts , or concerned Marrtime business or not , and so within the Jurisdiction of the Admiralty , or not ; as in the first of these five last cited Consultations concerning the building of a Ship , the question was not , whether the contracts for the wages in building of her , or the materials bought and imployed upon her , the meat and drink bought and spent in the time of the building of her were made at land or not , or whether the Ship her self was built at land or at sea ; for the case was plain in the one as well as in the other , that the Ship was built at land as all Ships are upon the Stocks , is no doubt at all : and the Ship being there built , it is as little doubt that the contracts were there made , nnless we will suppose that which is not to be supposed , viz. that the parties went to sea to bargain for the building of her at land , and to bargain for materials to build her with , and for meat and drink to be spent in the time of the works being in hand ; but the question was , whether these contracts concerned a business that was maritime or not , which did arise from somewhat to be done at or by sea , or not ; and it being plain , that had it not been for sea imployment , none of these contracts had been made . And therefore was it adjudged that these contracts did arise from businesses to be done at sea , and were therefore maritime , and belonged unto the maritime Jurisdiction of the Admiralty , as all other contracts for victualling , tackling and furnishing of Ships , with either Anchors , Cables , or other Ropes , or whatsoever other necessaries , ( although the same were contracted for and bought at land ) anciently were and did belong , and of right still are , and do belong .

And as for the Contracts and Charter-parties made of letting Ships to freight , it is sure enough that they are seldome or never made but at land ; yet are these contracts made of and concerning a Ship which at the very time of the making thereof is , Aut super mare fluctuans , aut ad Anchoras in quovis portu natans infra fluxum & refluxm maris infra Jurisdictionem Admirallitatis , either sailing upon the Seas , or lying at Anchor in some Port or Haven , where the Sea ebbeth and floweth within the Jurisdiction of the Admiralty . And these contracts do arise from businesses to be done at sea , and were therefore adjudged to belong unto the Sea Jurisdiction .

But perhaps it may be still objected that the Law doth allow a fiction of place for the doing of any thing , and it mattereth not whether the thing was there done or not ; and I do agree that the Law doth allow such a fiction , so that the same be within the compass of a possibility . But to feign a thing impossible , as to fain that Ships sail in Cheapside , Sup. li. 3. cap. or elsewhere upon the dry land , the Law abhorreth , as I have said before .

And then is it more proper and more agreeable to law to feign the Charter-party that was made at land to have been made at sea , which is possible , then it is to feign a Ship to be at land , where the Contract was made , or when she was laden or furnished with either victual , tackle , or any other manner of provision or furniture , which is impossible ?

I shall instance only in one Contract made beyond the seas concerning sea affairs , upon which a Bill obligatory was taken for the payment of a certain summe of money , and the said Bill obligatory was adjudged cognoscible in the Admiralty Court , and then proceed upon another argument ; and this appeareth by a Consultation granted out of the Court of Common-pleas in the 10th year of King James ( Sir Edward Coke himself being then Lord Chief Justice of the Court ) directed unto Sir Daniel Dunn Knight and Doctor of Laws .

Thomas Alport libelled in the Admiralty Court against Philip Cooper , that in the Moneths of January , &c. Anno 1609. and in the Months of March , April , &c. the said Philip Cooper remaining in the parts beyond the seas , &c. did by his Bill obligatory in the said parts beyond the seas , &c. lawfully make , and with his own proper hand subscribed , and sealed with his Seal , tye and bind himself to the said Thomas Alport for the due payment of the summe of 275 l. and six shillings of lawfull money of England , as in the said Libel in the said Consultation is summed up , viz.

Quod mens . Jan. &c. Anno Dom. 1609. nec non mensibus Martii , Aprilis , &c. 1610. seu eorum aliquo , praedictus Philippus Cooper , dum partibus ultramarinis , &c. remanebat , se pro debitâ solutione summae ducentarum septuaginta quinque librarum & sex solidorum legalis monetae Angliae praefato Thomae Alport per scriptum suum obligat . in partibus ultramarinis , &c. legitime factum , manuque suâ propriâ subscript . ejusque sigillo , &c.

But the said Philip Cooper suggested in the Court of Common-Pleas , as in the said Consultation is set forth ; Quod tertio die Aprilis anno Regni Jacobi Dei gratiâ Angliae , &c. septimo infra corpus Comitatus Civitatis London , viz. in Parochia Beatae Mariae de Arcubus in Warda de Cheap , et non super altum mare , nec infra Jurisdictionem Curiae Admirallitatis Angliae per quandam billam suam obligatoriam sigillo suo sigillat . et ut factum suum cuidam Thomae Alport tunc et ibidem deliberat . gerens datum eodem die et anno obligasset se et Haeredes , Executores et Administratores suos , ad solvendum praefato Thomae , Haeredibus , Executoribus et Administratoribus suis ad omnia tempora super demand . summam ducentarum septuagint' . et quinque librarum et sex solidorum legalis monetae Angliae ; cumque idem Philippus liber homo , &c. And reciteth the said three before mentioned Statutes . Praedictus tamen Thomas praemissorum non ignarus , sed machinans non solum ipsum Philippum contra debitam legis hujus regni Angliae formam , et contra formam et effectum statutorum , &c. traxit in placitum falsè , caute et subdolè libellando in Curia Admirallitatis , &c. cujus quidem suggestionis praetextu , &c.

That upon the 3. of April 7 Jacobi within the body of the County of London , viz. in the Parish of St. Mary de Bow , in the Ward le Cheap , and not upon the high Sea , nor within the Jurisdiction of the Admiralty Court of England , he by his certain Bill obligatory , sealed with his seal as his deed , then and there delivered unto one Thomas Alport , bearing date the same day and year , did bind himself , his Heirs , &c. to pay unto the said Thomas , his Heirs , &c. at any time upon demand , the summe of 275 l. and 6 s. of lawfull mony of England , and alleadgeth the three before mentioned Statutes , and that notwithstanding the said Thomas not being ignorant thereof , &c. had brought his Suit in the Admiralty Court for the recovery of the said debt upon the said Bill obligatory contrary , to the form of the Law of England , and contrary to the form of the said Statutes , and thereupon obtained a Prohibition .

But upon the 20th day of June , in the tenth year of King James , it being made appear by the Libell and Bill obligatory , that the same was made beyond the seas in respect of a Maritime business had and done at sea , the said Prohibition was released by consultation , which concludeth that the Prohibition was to the grievous damage of the said Thomas Alport , and manifest wrong of the Court of the Admiralty , and saith the proceedings in that cause in the said Admiralty Court ought not to be delayed .

Et quia videtur praefatis Judiciariis , & pro certis caeusis ipsos specialiter moventibus , quod processus in praedicta Curia Admirallitatis in praedicta causa ad prosecutionem praedicti Thomae ulterius retardari non debet ; Ideo vobis , &c.

T. E. Coke apud Westm. xx . die Junii , Anno Domini nostri Angliae , Franciae & Hiberniae decimo , & Scotiae quadragesimo quinto . Crompton .

But it may be said that many more Prohibitions have been granted out of both the said Courts at Westminster , as well in causes of this nature , as in causes for things done upon Ports and Havens , upon which Consultations have not been had , and I doubt not but in latter times there have ; but it hath for the most part been when the parties have agreed , and the cause compounded , and so no Consultation prayed or sought for , if otherwise , let no man brag of that which hath been done , which ought not to be done . But another cause may be given , and that is this , that the Civilian not being suffered there to plead the right of Jurisdiction belonging to the Admiralty , the same hath not been undertaken by any practicers in those Courts , and if undertaken , yet pleaded but coldly against the Jurisdiction of their own Courts : Howsoever I do conceive that the Procedendoes out of the Chancery , and the Consultations out of the Kings Bench and Common Pleas , which I have in this and the second Book of this Treatise set forth ( though I might have instanced in very many more ) will be sufficient to determine the right of Jurisdiction as well in causes of the one nature , as of the other against the said several Courts from whence such Supersedeases and Prohibitions were granted .

I will not say but that the Admiralty Court may sometime have intermedled with Contracts made at land , arising from businesses done or to be done or performed at land , which is here in England , as it were to take Cattle from a Pasture and put into the sea to feed . And in such cases I doubt not but a Prohibition may lye , which shall not be dissolved by Consultation .

But by Prohibitions to take businesses of the Ports and Havens , or Contracts made at land concerning Maritime affairs from the Admiralty , to be determined by the Common-Law of the land , is to take fish out of the sea to be kept alive and fed upon pasture , or in some Forrest or Park at land .

For I shall in the next Chapter out of many shew you some few of those exact rules the Civil Law hath to proceed by in causes of this nature , besides the Laws I have before mentioned , which the Common-Law hath not .

CHAP. X. That divers and severall of the Laws under the titles selected out of the body of the Civil Law by Peckius for determination of Maritime Causes ; and other Laws selected out of several other titles , as subsidiary unto them , do set forth most exactly the determination of Controversies , which may and do daily arise from Contracts made at land concerning matters to be done at sea .

NOw concerning this matter I may rather referre the Reader unto Peckius himself , Vinius , and other Authors writing thereon , then to spend any great labour about it : but whilest he hath this book in his hand , let him cast his eye upon some few of a great number of such Contracts made at land , concerning businesses to be done at sea , which are exactly determined by these Laws , and are used and held absolutely necessary in all forreign Maritime Judicatories , ( and not by any the rules of their Municipal Laws ) which as they are little or nothing different in their proceedings from the proceedings of the Civil Law , so are they farre less different in their determinations from the determinations of that Law , then our Municipal Laws be .

As in the first of these Titles .

If Mariners before they receive goods on board , do contract with the Loader , ut recepta restituant .

Quaeritur utrum Nauta an Exercitor navis pro restitutione conveniatur ?

Quaeritur etiam an Exercitor , Magister , aut Nàuta ex contractu teneatur de rebus non ostensis ; Ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione ?

Quaeritur etiam utrum nautae ex sola emissione teneantur ? Ac etiam an nautae de facto vectorum teneantur ?

Quaeritur etiam quae & quando actio detur , subsidiaria , protestatio an requirat consensum adversarii ; Ac an in scriptis fieri debet ? Quaenamque sit vis protestationis ? Cum quolibet nautarum sit contractum , an detur actio in exercitorem ? Ac quid si nauta per Magistrum navis conductus in nave deliquerit an in exercitorem detur actio ? Magister navis per exercitorem conductus , an alium substituere potest ? Mutuum dans in navis usum , an caeteris creditoribus praefertur ? & quando ? & quare ? an ? & quando navis per aversionem conducitur ?

Dominus an ? & quando ? & quare ? invitus & ignorans de peculio teneatur ? Merces an pro naulo contracto cum magistro sint obligatae ?

Quaeritur etiam quando argumentum à contractibus ad delicta procedat ? quando non ? quae autem diversitatis sit ratio , quam optime declarat Ulpianus .

Variae etiam quaestiones assurgunt ex variis navium conducendarum modis contractis ; ut de navibus locandis , varia sunt diversorum hominum studia , alius conducendis tantum vectoribus , alius ob naulum mercibus transferendis , alius ex longinquis Regionibus aromatibus abducendis intentus est . Ex quibus quidem variis locationum modis contractis variae sunt quaestiones .

Quidam iterum cum navibus suis navigare velint , quidam tamen cum rebus suis ipsi superesse non possint , magistrum navi praeficiunt ; & ex ea ratione iterum aliae omnes duplicantur & quaestiones & determinationes earund .

Vtrum conducta nave per aversionem , avertitur a conductore periculum , & quando in locatorem rejicitur cum aliis quaestionibus de conductione per aversionem .

Si plures per contractum suum navem exerceant , an cum quolibet eorum in solidum agi potest .

Si navis lacera sit & inde res deterioratae ; an , & quando , vector ex locato contra magistrum agit ?

Quaeritur etiam an , & quando , pro pecuniis mutuo pro reparatione navis sumendis aut aliter in ejus usum disponendis , in exercitorem detur actio & quaenam detur actio ?

Quamplurimae etiam sunt leges diversis in titulis per totum Juris Civilis corpus distentae & diffusae , quae ( ut flores ex horto amoeni & salutiferi ) hisce selectis ut eisdem subsidiariae per authores super ipsis conscribentes , & alios colliguntur , ad causarum hujus naturae martitimarum determinationes necessariae , e quibus quamplurimis , qui legit perpaucas hic tantum nominatas , alias excogitabit , ex quibus has varias nominatas habeat & tantum nominatas .

Quaeritur an nave empta , vel emptis navis tabulis , & navis pars , vel tabulae , vel tabularum pars evincitur , an evictionis nomine obligetur venditor ?

Quod ut speciale est , specialiter disputatur , solvitur & determinatur per L. nave aut . Et L. si dictum . junctis ibidem glossis , F. de evictionibus . Et per Doctores separales super eisdem conscribentes .

Iterum quaeritur cum contrahitur ad merces transportandum & non ex jactu , sed aliter , quaedam de eisdem dejectae fuerint merces è navi , an praepositus navis teneatur ? Quod per L. hoc edictum . § . si de navi . ff. de his qui dejecerunt vel effuderunt dirimitur .

Quaeritur etiam an contra nautas pro rebus positis & transferendis contract . aut deperditis aut damnificatis in navi , talem esse praesumptionem quae in eos probandi onus transfert , quod per Angelum Aretinum super § . si tamen alienum . Instit. de rerum divis . deceptatur & concluditur .

Ac etiam an literae mercatorum in quibus asseritur ita esse cum navis magistro contractum , & tantum pro naulo , &c. Se sibi sive navis proprietariis debere contra scribentem probent & obligationem inducant , quod accurate distinguendo deciditur per doctores super L. ff. de verborum obl. & L. Lucius ff. de Instit. act. & L. Publia . § . fi. ff. depositi .

Sed ubi pro●ent , &c. quid si mercator ante solutionem perierit sive decesserit , an scribentis haeredibus istae nocebunt literae ? quod per Hypolit . de marsel . in singulari suo 373. incipiente ut nostri , & in repetitione sua super Rubrica Cod. de probationibus Col. 51. & Guliel . Durant . in suo Juris speculo tit. de obligat . & solution . in § . notand . vers . pone quod mercator . Et Bald. in additionibus ibidem cum multis aliis dubitationibus , &c.

Multi mercatores frumenta sua in navem quandam posuerunt , & magister ad transferendum accepit , & communem fecit acervum , conveniendo ut ex illo acervo cuilibet redderetur tanta quantitas quantam ibi transferendam posuit . Et cum portum destinatum appulisset , navis ex illis quibusdam reddidit portiones , antequam aliis redderet , periit cum frumento .

Quaeritur an nautae sit periculum ? an mercatoribus qui portiones suas non recipissent ? an mercatoribus omnibus conjunctim ?

Quae quidem quaestio exacte determinatur per L. in navem Saufeii ff. locati & conducti , & Gloss . ibidem & D. D. super ead. L.

Cum navis magistro contrahitur ad transferendum tanti ponderis merces , & saccus seu capsa inter alia in navi posita est sigillata , & redditur sine sigillo apertae , qui tradidit dicit tanta vel talia fuisse inclusa ; nauta contendit quod tanti ponderis non erat capsa .

Quaeritur quomodo procedendum est , ut ad directam deveniatur adjudicationem ? quod per Julium Ferrettum li. suo primo n. 133. dirimitur . Vide etiam L. 1. naut . caup . Stab . ff. & arg. legis de actione in litem jurando ff. de furtis . Et legi in actionibus § . fin . ff. de pollicitationibus .

Quid si quis ignorante navis magistro capsam in navem posuerit clavatam , quae in eadem in venta fuerit aperta , & bona quaedam ex eadem auferuntur ?

Quaeritur an de damno ita ponenti teneatur magister ? quod per Loffredum de Benevento Doctorem antiquum in L. 1. ff. depositi & per Baldum in L. 1. § . Item Pomponius ff. naut . caup . eximitur .

Quaeritur etiam an Excambii literae revocari possint ? quando possint ? quando non ? quod quidein per Bald. in rubr . de constitut. pecunia , in ult. col . & L. quidem ff. eodem col . penult. & per Romanum in singulari 474. & per L. Publia in fi. ff. depositi , & per Bart. ibidem , & alios scribentes de institoria , distinguendo dirimitur .

Ac cum mercator vel campsor litteras Excambii pro Scholari sive aliquo alio scripserit , & effectus facultatibus lapsus erit priusquam praesententur & solvantur dictae literae , utrum Sholaris an campsoris periculo dictae erunt literae ? Quod & distinguendo , & limitando per Bald. in L. pro debito C. de bon. actor . Judi . possiden . & per Bart. in L. singularia col. 7. ff. probatur , & per Hypol. de Marsel . in repetitione sua rebric . de probat . in vers. 284. &c. et L. ubi quis ff. de constit . pecun . et per Bald. in quaest. incipiente statuto cavetur quod faenerator , &c.

Et quid si ante diem solvendi facultatibus lapsus fuerit primus Campsor qui literas scripsit , quo intellecto , ille , cui literae diriguntur , solutionem negat , an possit cogi ? Quod discutitur percuriose tractatur , et deceptatur per Sallic . in L. pro debito in fine C. de bonis author . Judi . possiden . et per Aug. Instit. de Except . & per Alexan. de Imol. in L. quae dolis ff. solu . matrim.

Quaeritur etiam utrum literae cambii paratam habeant executionem ? quod etiam determinatur per nota per Jasonem in L. elegantur ff. de conditionibus indebiti . quod etiam per Bald. consil. 60. lib. tertio , et text . in l. si ex cautiam . C. de non numerat . pecunia , & Matthaeus de afflict . in constit . causas promagistro Justiciario Col. 6. Multaeque aliae hac de re exsurgunt quaestiones quae per jus civile & authores super eodem conscribentes deceptantur & determinantur .

Si unus ex nautis mercator fuerit , vel ut mercator cum magistro navis contraxerit , & in mercibus suis in nave oneratis damnum passus est , utrum sibi tenebitur exercitor ? quod per dict. Julium Ferret . d. li. 1. n. 38. expeditur .

Mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit , juxta L. hujus ff. qui potiores in pignore habeantur . Et postmodum mulier peperit in navi . Quaeritur an teneatur pro partu solvere naulum ? quod per L. sed adde sect. si quis mulierem ff. locati , & per Bartol. ibidem , & per L. haec mori ff. qui potiores in pignore habeantur directe concluditur .

Quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur , & versute res resurripuit alienas , Et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit ? quae per exactissimam Julii Feretti de re navali distinctionem juxta L. sed & ipsi ff. naut caup , determinatur l. 1. n. 34.

Et utrum cum plures competant actiones & tentata sive electa una , ad aliam redire poterit actor ? Et quid si ad diversa plures competant actiones ? quae per L. quod in haeredem ff. de tributoria actione , &c. dijudicantur .

Per L. 3. ff. Naut . caup . Stab . & Gloss. ibidem de dolo lata levi & levissima culpa tenentur exercitores sive magister navis , & inde quaeritur utrum idem sunt , vel unus pro alio ponatur , quod cum deciditur per L. 2. ad L. Rhod. de jactu & L. primam §. 2. naut . caup . ac etiam quid de illo statuendum qui stat in navi navigandi causa . Et cum per praedict. L. 3. naut . caup . determinatur , quod in casu naufragii in casu Pyratarum incursu , & in casu fortuito non tenetur exercitor .

Quaeritur utrum furtum & latrocinium sit inter casus fortuitos numerandum , & inter illos ponendum et computandum . Et quinam alii numerent casus fortuiti ; quae dirimuntur per § . sed istae Instit. de action . & sect. 1. Instit. quibus recontrahitur obl. & L. 3. § . Item si servus ff. naut . caup . & per Angelum de Aretio super D. Loc.

Quaeritur ex d. illa L. 3. Naut . caup . utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor , utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor , quod dirimitur per Bartol. in d. L. 3. ff. naut . caup . &c.

Per legem primam & L. cum navarcarum C. de naviculariis li. 10. nauta cogatur navigare .

Quaeritur igitur an nauta teneatur ex jussu inimici navigare ? vel in sua navi recipere inimicum suum de jure ? quod ex Gloss. super D. L. 1. ff. nautae caup . dirimitur .

Now have I not here rendred or set forth the determinations of these few questions which I have here nominated , they being not considerable without the rest , which taken altogether with their divisions , distinctions , decisions and determinations , would make by themselves a whole Tract de jure Admirallitatis , which would be a Book to little or no purpose , nor receive any welcome , unless this which is de ejus Jurisdictione , may first receive some entertainment , which how necessary and advantagious the same may redound unto this Kingdome , I shall leave to the consideration of him that hath or shall throughly read this Maritime Dicaeologie .

THis small Treatise which I have written in Vindication of the Jurisdiction of the Lord High Admiral of England , &c. I doubt not but will receive this Addition of Advantage , as to tend likewise to the vindication and clearing of the honour and reputation of those Reverend and Learned Judges of the Land ( the two Lords Chief Justices , the Lord Chief Baron , and the rest of the then Judges their Associates , together with the Attorney General ) whose Judgements and Justice have been blemished , and unworthily aspersed by some of their own Profession , in saying those Reverend Judges were questioned in Parliament for setting their hands unto an Agreement made ( before his Majesty of Blessed Memory Charles the First ) between them his Judges of the Land , and Sir Henry Martin Judge then of his High Court of Admiralty , purporting in substance the matter of this Treatise .

It 's true , I have heard that some of the Puisne Lawyers , and young men of that Profession ( sitting in the Long Parliament ) would have attempted such an undiscreet , and unparelleld act ; but by the gravity and wisdome of others more learned in that Profession then themselves , were disswaded from it . Yet if they had , I doubt not but he that reads this Treatise , will find sufficient reasons to justify their assent to that agreement , and that it contained nothing but what they might and ought to do , notwithstanding the Judgements of their Predecessours or Successours .

Others do not forbear or stick to say this Subscription to this Agreement was an extrajudiciall act , and so takes not the effect of a Law either to bind them or their Successours , as though the place and formality of sitting upon the Bench were of the essence of a true and just opinion ; and the Judges being called and convened by special summons before his Majesty , that their Judgements and Opinions there delivered in matters propounded , debated , and argued , were of less force and validity , and more extraneous to reason , then if they were judicially sitting .

Which is an opinion that I cannot conceive any man of sound judgement can adhere unto ; and therefore I shall conclude this Treatise with that judgement given by those twelve Learned and Reverend Judges of the Land , with the consent of that famous Man Mr. Noy , his Majesties Attorney General .

At Whitehall 18 February , 1633. Present . The KING'S MOST EXCELLENT MAJESTY . The Lord Keeper And 23 Lords of the Councel .

THis day , his Majesty being present in Councel , the Articles and Propositions for accomodating the differences concerning Prohibitions agreed unto and subsigned by all the Judges , and his Majesties Attorney-General , were Read , and Ordered to be entred in the Register of Councel Causes , and the Original to remain in the Conncel Chest .

If Suit shall be Commenced in the Court of Admiralty upon Contracts made , or other things personally done beyond or upon the Seas , no Prohibition is to be awarded .

If Suit be before the Admiral for freight or Mariners wages , or for the breach of Charter-parties for Voyages to be made beyond the Seas , though the Charter-parties happen to be made within the Realm ; and though the money be payable within the Realm , so as the penalty be not demanded , a Prohibition is not to be granted ; but if Suits be for the penalty , or if the question be made whether the Charter-party were made or not . or whether the Plaintiff did , release , or otherwise discharge the same within the Realm , that is to be tryed in the Kings Court at Westminster , and not in the Kings Court of Admiralty , so that first it be denyed upon oath , that Charter-party was made , or a denyall upon oath tendred .

If Suit shall be in the Court of Admiralty for building , amending , saving , or necessary victualling of a Sbip , against the Ship it self , and not against any party by name , but such as for his interest makes himself a party , no Prohibition shall be granted , though this be done within the Realm .

Likewise the Admiral may inquire of and redress all anoyances and obstructions in all navigable Rivers beneath the first Bridges that are impediments to navigation , or passage to or from the Sea , and also Try personal Contracts and injuries there which concern Navigation upon the Sea , and no Prohibition is to be granted in such Causes .

If any be imprisoned and upon Habeas Corpus , if any of these be the cause of imprisonment , and that be so certified , the party shall be Remanded .

Signed , Thomas Richardson , Robert Heath , Humphrey Davenport , John Denham , Richard Hutton . William Jones . George Croke . Thomas Trevor . George Vernon . James Weston . Robert Barkley . Francis Crawley . Henry Martin . William Noy . Ex t. T. Meutys .

FINIS .

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