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 ...

THE MARITIME DICAEOLOGIE, OR SEA-JURISDICTION. (Book 3)

THE THIRD BOOK. (Book 3)

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 dis∣charging of the Ship, and the delivery out of her lading to the Merchants, to whom the same be∣longeth, and for to come to the Caulking, fitting, trimming, preparing and furnishing of her with Victual, Tac∣kle, 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 determinati∣on 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 se∣cured and preserved from foraign Invasions, and by Trade and Commerce with foraign Nations not a little enriched; and nei∣ther Shipping nor Trade, can be upheld without the welfare of Merchants, Owners of Ships, Fitters, Furnishers of them, Ma∣riners, &c.

And this welfare of the Merchant, Owner, Fitter, Furnisher, and Mariner, cannot be maintained without a settled Jurisdicti∣on of Admiralty, regulated according to the Civil and Mari∣time Laws, setled amongst, and known unto all Maritime Na∣tions.

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 for∣bear to Trade with that Nation, which shall deny them that Ju∣stice, and likewise deny that Nation to Trade with them.

Now it is most certain that the municipal Laws of this King∣dom, are so different from the Civil and Maritime Laws, that if Maritime Causes (be they either for freight, wages, dama∣ges done to Merchants Goods, Building, Tackling, and furni∣shing of Ships, &c.) should be here determined by the munici∣pal Laws of this Nation, and beyond the Seas by the Civil and Maritime Laws, they must necessarily receive many of them, a dif∣ferent; 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 con∣trary.

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 Mari∣ner 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 pre∣servation 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 pre∣scribed; which Rules are not known, or owned by the municipal Laws of this Nation, and therefore cannot that Law take cog∣nizance 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 Acti∣on 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 al∣leage 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 ground∣ed, 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 agitati∣on 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 de∣termine all differences in businesses of that nature, which as I con∣ceive, 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 ano∣ther, 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 whereso∣ever 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 Ma∣riners, 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 Mari∣ner 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 mari∣time affairs, and the other unsuitable and disagreeable thereun∣to; 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 use∣full, 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 Mari∣time Laws, either at the main Sea; or upon any Creek, Port, or Ha∣ven

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 nau∣tica usura, wheresoever made, are tryable by the Civil and Mari∣time 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 termi∣nated 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 foene∣rator suscepit; Amphoteroplum cum & commeatus & remeatus periculum suscepit; the one when he undertaketh the danger of the Ship on∣ly 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 Com∣mon 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 pos∣session thereof, but by the Civil and Maritime Law, and power of the Admiralty Court. And every Ship that is built may have ma∣ny 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 necessa∣rily 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, workman∣ship, victual, or other furniture and necessaries, so that necessa∣rily 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 con∣tracteth with all these several Tradesmen, who regard not his a∣bility, by reason the Ship it self is by the Maritime Laws lyable for

the payment of every mans particular debt, which Law must ne∣cessarily take place, or else few or no Ships be built and employed for trade; for at the Common Law I conceive they can have on∣ly their several Actions against the Master, with whom they con∣tracted, who for the most part is not able to make satisfaction to one third part of them, and many times not to one particu∣lar 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 Acti∣on 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 in∣deed 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 Mari∣time 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 As∣sumsit 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 ceremo∣ny 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, ac∣cording to the formalities of this Nation in that case required, shall, being sued in any Court beyond the seas, prove good a∣gainst him, without due examinations of half the said formali∣ties, whereas the Foreigners Bill, which is (according to the cu∣stomes 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 formali∣ties 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 (ac∣cording to the best of my judgment) to the answering the Argu∣ments 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 go∣verned within themselves, as we are here; yet are those Munici∣pal 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 va∣rious constructions have been rendred, even upon the very text of the Divine Law, according to several apprehensions and opi∣nions of several men.

For upon all their decisions and determinations they quote the Civil Law,* 1.1 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 Mu∣nicipal 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 an∣other, and which are generally the same, and not Municipal, as

is before more fully set forth.* 1.2 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 Ad∣miralty 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.* 1.3 are urged by Sir Edward Coke in his before menti∣oned 22th Chapter of his Jurisdiction of Courts. I shall take them in order.

The first of them he rendreth thus,* 1.4 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,* 1.5 & incivile est (inquit Celsus) nisi tota lege prolecta, de una aliqua particula ejus proposi∣ta judicare, vel respondere. Take we then the Statute wholly, as it is set down in the Parliament Roll in the Tower,* 1.6 and then to the best of my understanding, we shall find that the mis-transla∣tion hath bred a mis-construction, and wrong interpretation thereof.

These antient Statutes were made by way of Petition and An∣swer, 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 investigatio∣nem Juris si verborum superficiem teneamus, sed interius respicienda est mens legislatoris, quâ ratione motus fuerit ad statuendum aliquid (ut affirmat a 1.7 Oldendorpius) loco praecitato. Certè nullo modo sunt vestiganda ju∣ra, si verborum omnium ne quidem superficiem istam aut teneamus, aut ha∣beamus, nec quovismodo est intelligenda mens legislatoris, quâ ratione motus

fuit ad hoc statuendum, dum abscondita sit petitio, super quâ fundatur sta∣tutum. 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.* 1.8 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 in∣terpretation 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 co∣me de hors accrochant au eux plus grant poaire que a lour office napperti∣nent en pre judice nostre sieūr' le Roy, & le come ley du Royalme, & grant enblemishment de plusours diverses Franchises en destruction & empouris∣siment 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, so∣lonc ce que ad estre duement use en temps du Noble Roy Edward aiel nostre sūr le Roy quorestg 1.9. The first part of the Petition, ha∣ving 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 un∣to 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 mi∣ers dengleterre deins Franchise & de horseh 1.10. 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, with∣in 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 Ad∣mirals 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 ren∣dereth

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 Com∣mon 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 determi∣nation of such as are of their own profession; but the same thing hath been noted unto me as a rule from many expert Record∣men, 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 ta∣ken for a rule from those that were then ancient. But this An∣swer 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 Petiti∣on (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 an∣swer 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 Co∣venants 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 un∣derstanding.

For the following words, Solonc ce que ad estre dument use en temps du noble Roy Edward aiel nostre sur le Roy quorust. Poulton (ha∣ving 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 posi∣tive 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 re∣striction to the answer, and bindeth up the Law to what was u∣sed 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 med∣dle, 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 re∣striction 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 busines∣ses, 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 Pa∣tent of Robert Herle,* 1.11 already cited, in which you shall finde these words: Dantes ei plenam tenore praefentium potestatem, quere∣las omnium & singul••rum de his quae offieium Admiralli tangunt, & cognos∣cendi 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. that which is on the Sea coast, or nearest the Sea, which the French render ou de∣meure aupres ou sur le bord de la mer; and the Spaniard cerca de la mar. Or it is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, belonging to the sea, take which signi∣fication 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 un∣to 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 evi∣dently appear,* 1.12 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 cogniza∣ble 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 bu∣sinesses made at land were cognizable in the Admiralty in Edward the Third's time,* 1.13 then doth the last before mention∣ed 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 cog∣nizable 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 men∣tion, 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 what∣soever) 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 char∣ter party of Ships, or other things, amounting to the summe of 20, or 40 Shillings. The words are these.

Item,* 1.14 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 Judge∣ment 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 Con∣tract 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, con∣taining the whole substance of this very Ordinance, in these words: Item inquiratur de hiis seneschallis & ballivis quorumcunque Do∣minorum 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 Ed∣wardi primi, apud Hastings regni sui Anno secundo.

Item quod quilibet contractus initus & factus inter Calcatorem & Mer∣catorem, 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,* 1.15 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 there∣unto: which punishment is (as is set forth before) a whole years Imprisonment.

Now that this Ordinance and this Article onely forbiddeth Stewards,* 1.16 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 Ad∣miralty; 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 some∣rimes 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 ex∣pect their uncertain coming; nor was the Court of Common Pleas then settled; for it was resolved to be settled in some con∣stant place, but in the 9th. year of Hen. the 3. all which will ap∣pear, by what I have formerly set down.

Now that these Contracts and Covenants concerning Mari∣time affairs,* 1.17 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,* 1.18 which were brought into this Kingdom by Richard the 1. were absolutely and compleatly settled, and esta∣blished 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, In∣tituled, 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 prosecutio∣nem, forma procedendi quondam ordinata & inchoata per avum Domini no∣stri Regis, & ejus concilium ad retinendum & conservandum antiquam superioritatem maris Angliae, & nos officii Admirallitatis in eodem quoad corrigendum, interpretandum, declarandum & conservandum leges & Sta∣tuta per ejus antecessores Angliae Reges dudum ordinata ad conservandum

pacem & justitiam inter omnes gentes Nationis cujuscunque per mare An∣gliae transeuntes, & ad cognoscendum super omnibus in contrarium attemp∣tatis in eodem, & ad puniendum delinquentes & damna passis satisfa∣ciendum, quae quidem leges & Statuta per dominum Richardum quon∣dam Regem Angliae in reditu suo à terrâ sanctâ correcta fuerunt inter∣pretata, in insulâ Oleron publicata, & nominata in Gallicâ Linguâ, la ley Oleron.

These Laws thus brought in and thus established for the dire∣ction and use of the Office of the Admiralty (as its plain they were by the very words of this Establishment, Et nos Officii Admi∣rallitatis 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 Admi∣ral 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 hom∣mes,* 1.19 ou a trois la nefs, seu part du pais dout ille est & voyent a Bor∣deaux, ou a la Rochelle ou alles, &c. se frette pour aler en pags estran∣ges, le Mastre ne puet passe vendre le nef sil na commandement ou procura∣tion 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 Jag∣ger 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;* 1.20 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 hi∣red 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 amply∣fied,* 1.21 with express reasons of every particular. The words of the Judgment in the Laws of Oleron are these.

Ʋng 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 rai∣son qui les avoit lovez & a termine lieu & cliz viennēt plus peres que leux covenant la pris il doit avoir son loyer tout au lang,* 1.22 mais il doit aidera rendre la nef la ou illa prist se le maistre veult a la venture de dieu, & cest le judge∣ment 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 o∣ther 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 of∣tentimes be lost, to the extraordinary great damage both of Mer∣chants, 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 wa∣ges 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 expe∣cteth 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 Cove∣nant 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 Con∣tract, and holdeth it on, and what freeth it. 3. In case the Con∣tract be held firme, how many dayes after the terme is expired, bring the Merchants within the compass of the Law to make sa∣tisfaction. 4. What satisfaction is to be made, and in what man∣ner. 5. How such satisfaction being made, the same is to be di∣vided 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 bu∣sinesses so subject unto various events, as the sea affairs are, but are at a farre more certainty for the performance of particular cir∣cumstances, 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 con∣cern 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,* 1.23 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 disad∣vantage; but this is but a digression, which hath been spoken of more at large elsewhere, and therefore we will return to the mat∣ter.

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 per∣fectly 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.

Ʋng 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,* 1.24 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 Admi∣ralty 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 determi∣ned 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 hol∣deth 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 en∣telle 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 Mer∣chant 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,* 1.25 & se le Merchant ne trouve frett il puet bien demander au Maistre ses dommages pour la raison quil la mye tenuz ses Con∣venants & affrement dessus ditz & le Maistre lui doit amender, & cest le Judgement en ce cas.

Several other Judgements there be,* 1.26 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, be∣cause 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 esta∣blished 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 Ri∣chard 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 no∣ble Roy ail nostre quorust, doth no ways at all take away the Ad∣mirals, 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 en∣croachments complained of in the Petition, whereunto that Sta∣tute 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,* 1.27 &c. marchandises endomagees, &c.

Item estably est pour custume de mer que se une nef est perdue par la de∣faulte de une lodeman,* 1.28 &c.

Ʋng 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,* 1.29 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 Ad∣mirals by their Patents (as appeareth by that Patent before men∣tioned,* 1.30 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,* 1.31 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 Trea∣tise.

I shall therefore proceed to shew that by the said Inquisition, it plainly appeareth, that Contracts made at land of and concern∣ing 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 cog∣nizance 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,* 1.32 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 Admi∣ralty Jurisdiction,* 1.33 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 se∣veral 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 af∣freightment: 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.* 1.34

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 seig∣neur 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.* 1.35

It being plain then that this Inquisition was in. Edward the Third's time taken for the direction of the Judicature of the Ad∣miralty, it is as plain by these Articles, that in his time the Admi∣ral 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 Ed∣ward 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 there∣by taken, that neither those matters, nor any of that nature should be elsewhere in any other Court meddled with: I shall on∣ly take two or three Articles together, which appoint, that at all Admiralty Sessions enquiries shall be made of all such as shall im∣plead 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.* 1.36

Item soit enquis de tous juges qui 〈◊〉〈◊〉 et devant eulz aucuns plets ap∣appurtenants par droiture a la court de ladmiral••••.* 1.37

Item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de se•• mandements.* 1.38

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 Lieute∣nants 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 In∣quisition 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 con∣cerning 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 anci∣ent: but because the same is in most particulars agreeable with this Inquisition,* 1.39 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 how∣soever he took to be plain for his purpose, yet well weighed, and rightly considered from the original, in my judgment, ma∣keth clearly against it,* 1.40 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 under∣standing.

And first it is by him thus rendred,* 1.41 That the Court of the Ad∣miral 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 try∣ed, 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 set∣teth forth the Petition by way of Preface to the body of the Sta∣tute, 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 judge∣ment, as he hath done in the translating and collecting of the rest; as may well be observed by comparing them with the Ori∣ginals; 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 Ju∣risdictions, Franchises, and many other profits pertaining to our Lord the King, and to other Lords, Cities and Burroughs, be∣sides 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 man∣ner 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 Voy∣ages,* 1.42 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 Poul∣tons, 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, be∣fore 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 com∣mon clamour and complaint,* 1.43 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,* 1.44 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 shew∣ed 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 there∣fore shall proceed to the Petition and Answer, as they stand in the Parliament Roll in the Tower, out of which this Statute is dedu∣ced. And these be the words.

Item prient les comēs pour profit du Roy,* 1.45 & de Roylme que come les Ad∣miralls & 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 de∣putes quils mettant avant en cest part'aint lour clayme del jurisdiction fran∣chise & profits quils clament davoir appendant a lour office issint que decla∣ration 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 sole∣ment 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 sub∣stance they may very well be brought to the same meaning and construction. This Statute was made within two years next af∣ter 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 Peti∣tion 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, Fran∣chise 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 whe∣ther this part of the Petition concerning the Admirals giving in their claim in writing unto the Parliament, was granted or tacit∣ly denyed; or whether they gave in any such claim or not, doth not appear, but it doth plainly enough appear unto me, that up∣on 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,* 1.46 and calleth optima quia contemporanea, this then must therefore be melior expositio then his,* 1.47 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,* 1.48 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, be∣ing 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, Quar∣rels, and other things done arising within the bodies of Counties, saith the other; for so signifieth the word surdantz. So that Con∣tracts and Covenants, &c. of or concerning businesses done at sea, the Admiral is not forbidden to deal with, or take cogni∣zance 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 a∣rise, is the Admiral forbidden the cognizance, but hath full pow∣er 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 busi∣nesses, 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 agen∣dum, & praescribit destinatis ordinem ad agendum.

The Transportation of men, Merchandizes, Wares and Com∣modities of all sorts, from one Kingdom or Nation to another, or from one Port to another by Sea (a thing not to be done with∣in the Realm, or within the body of a County) is the finis, or fi∣nalis 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 Sta∣tutes, in my opinion, cognoscible and tryable in the Admiralty Court, and no where else.

If Bargains, Contracts, or Covenants for Land, Houses, Lea∣ses, 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, Cove∣nants, &c. were made at Sea, yet they were of, and concerning things done, or to be done at Land, within the bodies of Coun∣ties, and so cognoscible and tryable by the Law of the Land, which is true enough; and then certainly in Contracts and Cove∣nants 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 Constru∣ction 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,* 1.49 the Law is clear, Contraxisse unusquisque in eo loco in∣telligitur in quo ut perficeret se obligavit. F. de obligat. & actionibus, l. con∣traxisse;* 1.50 ad hoc etiam facit lex, aut ubi F. de bonis authoritate jud. poss. & l. haeres Sect. finali. F. de judiciis;* 1.51 & l. 65. F. de judiciis. And this point is further amplified, Nam locus contractus is proprè dicitur non in quo in∣strumentum fuit conscriptum,* 1.52 sed in quo conventio suam in se recepit perfe∣ctionem. Decis. Senatus Dolani per Grevellum Decis. 91. n. 8.

The Master or Owner of a Ship doth Contract with the Mer∣chant, 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 Bono∣niae, dicitur quod possum conveniri Mutinae ad illa centum, quasi ibi vi∣dear 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 mo∣ney at one place, he may be sued at another, and so a man be∣ing bound to transport goods, or perform any other duty, or ser∣vice at one place, yet he may per fictionem juris be fained or pre∣sumed 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 impossibi∣lities nature abhorreth) as if I bind my self to transport a Merchants Goods, to some Port beyond the Seas, it is impossi∣ble 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 perfor∣mance 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 con∣cern 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,* 1.53 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,* 1.54 which both the original Statute, and Poulton's Translati∣on 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 rende∣reth 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 Ad∣mirals Jurisdiction to the death of a man only, and a maihme, and arresting of great Ships, &c. and that upon the main Sea on∣ly, 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 Ad∣miral 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 up∣on 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: Neverthe∣less 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 forbid∣den 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 Sta∣tute ordaining immediately before, that all Contracts, Pleas and Quarrels, and all other things arising within the bodies of Coun∣ties, 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 cog∣nizance of matters of an inferiour quality and nature; for by the Arugument à majore ad minus, he that hath power in the weigh∣tiest 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 agreea∣ble 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 questi∣oned, why these two particulars, namely the death of a man, and a maihme should only be specified, and nothing in general be ex∣prest, 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 chap∣ter 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,* 1.55 as to see from one land to the other; that the Coro∣ner 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 con∣sequently not in the Admiralty Court. Now by his leave, it on∣ly 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 Stan∣ford'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,* 1.56 and of the other, the Coroner shall enquire of this, and not the Admiral, be∣cause the Country may take cognizance of it. And he voucheth the said authority of the 8th of Edward the second, whereupon he conclu∣deth 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 con∣clusion, if well observed, as if it were impossble that the Com∣mon Law could not by some men be mistaken and made to en∣croach 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 con∣clude 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 ge∣neral 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 Sta∣tute) 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 Sta∣tutes; and therefore his first observation upon the Judgment, raised from this mistaken ground is,* 1.57 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 chap∣ter save one shew that there is expositio magis contemporanea,* 1.58 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,* 1.59 that it depended in advise∣ment 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 parti∣cular, 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 ad∣ventured, 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 cog∣nizance 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 Co∣venants 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 grie∣ved 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 ex∣ecution, 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 in∣ferreth, 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 there∣fore it appeareth by this Act, that the Statute of the 13th of Richard the second is but an affirmance of the Common Law,* 1.60 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 o∣riginal, and likewise Poulton's Translation thereof; and the ori∣ginal is by way of petition and answer in these words.

Parl. 2. Hen. 4. mem 75.* 2.1

It. prient les comes que les estatutz faitz en temps le Roy Rich. touch la jurisdiccion de Courte Admiraltie soient te∣nuz & 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 me∣tre 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.* 2.2

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 on∣ly of a thing done upon the Sea, according as it hath been due∣ly 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 Admi∣rall, as his Lieutenant, that the Statute, and the Common Law be holden against them; and that he that feeleth himself grie∣ved 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 dama∣ges 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 expo∣sition of the 15th. of Richard the 2. hath truely rendred of that and the same, being taken with relation to the Petition as I con∣ceive it ought to be, and by Sir Edward Coke and Poultons Transla∣tions here, it is in affirmance of the first of them onely, as Poul∣ton

himself hath in his Translation thereof rendred it; so that neither of these two Translations agree with the Original, sa∣ving in this, that he that shall find himself aggrieved against the form thereof, shall recover double damages against the pur∣suant.

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 whe∣ther the other party can be said to be damni••••ed, that 100 l. over and above his expences and trouble; I cannot imagine any rea∣sonable 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 Bartholo∣mew 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, be∣ing in the said Ships, did take, and carry away, supposing the taking to be super altum mare, whereas it was in the Haven of Bri∣stow: whereupon the said Burton sued the said Putt upon the Sta∣tutes, 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;* 2.3 and here onely examine the question, con∣cerning 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 there∣to 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 condemn∣ed to pay 1400 l. damages to Burton, who was damnified no∣thing 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 con∣ceive 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 a∣gainst 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 ren∣dereth 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 here∣by 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,* 2.4 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, compre∣hending the one as well as the other, as well the latter which ren∣dreth 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 or∣dinance

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 re∣lation 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, con∣cerning 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, pro∣ved 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 ha∣ving 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,* 2.5 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 af∣ter, 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 ex∣position 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 con∣cerning 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,* 2.6 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 op∣tima, a contemporary exposition is best, then is not this exposi∣tion made by this Judgement the best, though it may be magis contemporanea, more contemporary then the other Judgements, or expositions given longer after,* 2.7 viz. Paschae 28 Eliz. which he instan∣ceth in, That Evangelist Constantine having covenanted with Hugh Gynn, that his Ship should sail with Merchandizes of the said Gynn to Muttrell••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 Thet∣ford 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, be∣cause it seemeth to be the foundation whereon they are ground∣ed, 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 Sta∣tutes, 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 con∣temporary exposition then his, and by his own rule, si non opti∣ma, multo tamen suis melior, If not the best, yet farre better then his.

I shall therefore instance in an Action brought in the Admi∣ralty within three years after the making of the first of these Sta∣tutes, 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 ap∣pear 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 Admi∣ral of the Western parts, by Peter Draper and Robert Ancleyn of Sher∣burne, 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 ap∣peared: and this Action there sometime depended, and was pro∣ceeded 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 sen∣tence was given for the said Stillard, from which the said Draper and Ancleyne appealed unto the King in Chancery, and a Com∣mission 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,* 3.1 Magistro Johanni Bennet, Magistro Johanni Runhale, Magistro Thomae Southam, Magistro Johanni Combe salutem. Sciatis cum nuper notâ lite seu con∣troversiâ in Curiâ nostrâ Admiralitatis Angliae in partibus Occidentalibus coram dilecto & fideli nostro Nicholao Cliffton tunc locum tenente cla∣rissimi fratris nostri Comitis Huntindon, Admiralli nostri in partibus prae∣dictis, inter Petrum Draper, & Robertum Ancleyne de Sherbourn, Mercatores, partem actricem ex una parte, 〈◊〉〈◊〉 Willielmum Stillard Ma∣rinarium 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 & contractu∣um

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 & Ro∣bertum pro parte dicti Willielmi tulit, diffinitivam, iniquam, invalidam sive nullam, ad instantiam ad procurationem dicti Willielmi subdolas & in∣justas 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 inten∣dit ut asserit pro se & dicto Roberto prosequi cum effectu, ac nobis suppli∣cavit ut sibi & praefato Roberto super appellationem praedictam certos ju∣dices 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 ip∣sam & ipsas cum suis emergentibus, incidentibus & connexis quibuscun{que} 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 prin∣cipal▪ eorum rationibus & allegationibus circa praemissa diligenter intendatis & as faciatis & exequamini in forma praedicta. Damus autem praefato Ad∣mirallo 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 ve∣strum 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 Ma∣tiner and Owner of the Ship the Gabriel of Sancta Osicha of Bur∣dugall sued William Snoke and Thomas Saxtingham, Merchants, for freight of that Ship; first at the Common Law, where the Acti∣on lay not, and so failed; and then in the Admiralty; but before sentence appealed to the High Constables Court, where his Ap∣peal lay not; and was therefore from thence dismissed, and con∣demned in Expences; who then appealed to the King in Chan∣cery, 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,* 3.2 dilectis & fidelibus suis Richardo Stury militi, Magistro Jo∣hanni 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 par∣tibus Essex' salvo duceret, solvendo sibi pro quolibet dolio, viginti solidos, & pro una pipa decem solidos, ut accepimus, & licet idem Johannes conven∣tionem 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 Williel∣mum & Thomam tam per Communem legem regni nostri Angliae quam in Curia Admiralli nostri versus partes Boreales diu sequutum fuisse & nul∣lum remedium in hac parte habere potuisse, dictos Willielmum & Tho∣mam in Curia Constabularii & Marescalli Angliae ad respondendum sibi in causa praedicta summoneri & venire fecit, ac quendam libellum super actio∣nem 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 lo∣cum tenentes in causa praedicta, minùs rite & indebitè procedentes, ac judicia∣liter affirmantes & allegantes ipsos nullam jurisdictionem in hac parte habu∣isse praefatos Willielmum Snoke & Thomam à cura praedicta, & de instantia praedicti Johannis Coppin sine causa rationabili quacunque di∣miserunt & deliberaverunt, & ipsum Johannem Coppin in quadam mag∣na 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 in∣strumentum publicum super hoc confectum plenius apparet, qui quidem Jo∣hannis

appellationem suam praedictam incendit ut asserit prosequi cum ef∣fectu, & nobis supplicaverit ut sibi super appellatione sua praedicta certos Ju∣dices sive Commissarios dare & assignare dignaremur, nos supplicationi prae∣dictae tanquam juri consonae annuentes, vobis de quorum fidelitate & indu∣stria 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 or∣do juris, ipsamque & ipsas cum suis emergentibus, dependentibus, incidenti∣bus, & connexis quibuscunque secundum juris exigentiam discutiend. & de∣bito fine terminand, ac etiam ad testes quoscunque per utramque partium prae∣dictarum in hujus causa appellationis, coram vobis judicialiter producentes, si∣ne dolo, vel fraude, odio vel favore, aut aliàs injustè subtraxerint verita∣ti testimonium perhibere compellandum. Et mulctae alteriusque temporalis cohertionis cujuslibet potestate; & ideo vobis mandamus quod vocatis co∣ram vobis partibus praedictis & aliis quos in hac parte fore videretis evo∣cand. auditisque in hujus causis appellationis earum rationibus & allegatio∣nibus circa praemissa diligenter intendatis & ea faciatis & exequamini prout justum fuerit & consonum rationi; volumus etiam quod si aliquis vel ali∣qui 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 A∣ction 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 contract∣ing 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 Byr∣kyrne 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, dis∣cusse, and hear the said Cause in due course of Law, and to de∣termine 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 be∣gun in the first instance some years before, nearer unto the time of the making of the said Statute, the same having been proceed∣ed in even unto seentences in two several instances before the granting of this Commission: all which appeareth by the Com∣mission of Review it self, which is upon Record in the Tower in these words following.

Rex venerabili in Christo patri R. Episcopo London,* 3.3 ac dilectis, ac fi∣delibus suis Thomae Beauford, Thomae Eppingham, Magistro Tho∣mae Field, Roberto Thorley, Willielmo Senenocks, & Johanni Oxney, salutem, ex parte Edmundi Brookes marinarii nobis est osten∣sum, quod licet Magister Johannes Sturmyster nuper locum tenens gene∣ralis 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 co∣ram 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 di∣cti 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 frivo∣le 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. dire∣ctae 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 Jo∣hannis Birkyrne, Richardi, Johannis, &c. in praedicta praet••••••sa cau∣sa 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 Edmun∣di dispendium non modicum & gravamen, unde per partem praedicti Edmun∣di sentientis se ex praemissis sententiis & expensarum condemnatione indebite pergravari ab eisdem sententia & expensarum condemnatione ad nos & no∣stram audientiam est appellatum, sicut per instrumentum publicum inde con∣fectum est in cancellaria nostra ostensum, plenius poterit apparere, idem Ed∣mundus 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 Tho∣mas 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 Hen∣ry Bole, Lieutenant-General of the Admiralty Court, which Cause was from him appealed unto the King in Chancery, and a Com∣mission 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',* 3.4 Magi∣stro Henrico Ware, Magistro Richardo Brinkley, & Magistro Tho∣mae Field, salutem. Sciatis quod ••um ut accepimus 〈◊〉〈◊〉 in quadam causa maritima pecuniaria viginti & quinque librarum prae•••••• ••••ffrectamenti me∣dietatis cujusdam navis vocat' la Christophre de Boston ad Alanum Wagtoft de villa Sancti Bothoni ut ad dom. & possessorem ejusdem me∣dietatis, aliis pertinen. partem actricem & prosequentem ex parte una, & Thomam Jonesson & Thomam Rafin de villa praedicta partem re∣am defendentem ex parte altera, quae coram Henrico Bole locum tenen. ge∣neral. 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 Prohibi∣tions 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,* 3.5 for holding plea of matters determi∣nable 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 fa∣cto 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 in∣to remembrance, and Admiralty Court had no more such inter∣ruptions, but proceeded as before untill the times of those Acti∣ons 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) a∣gain quite out of remembrance: For if from the time of the ma∣king of those Statutes, untill the time of the last of the Judg∣ments 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 cogni∣zance of which causes one of these Judgements is brought) and all the Actions brought, and Sentences that have been there gi∣ven 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 Juris∣diction 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 gene∣ral practice and usage of taking cognizance of Causes of this na∣ture,* 3.6 it plainly appeareth that the Jurisdiction thereof anciently did, and still doth belong unto that Court; for in land busines∣ses 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 skil∣led 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 presi∣dent; for if one man, or more, have judged unjustly, and not according to law, I would not have it said, that he which know∣eth 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 agita∣ted, 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 Admi∣ralty 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 A∣greements made between them upon ordinary trading and bar∣gaining within the City of London, obtained a Supersedeas ground∣ed 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 Admi∣ralty, 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 Super∣sedeas. The Writ de procedendo runneth thus.

Henricus ostavus dei gratiâ Angliae & Franciae Rex, fidei defensor, Dominus Hiberniae, & in terra supremum caput Anglicanae Ecclesiae, cla∣rissimo consanguineo suo Willielmo Com. Southampton Admirallo suo Angliae, sive ejus locum tenenti vel deputato salutem. Cum nuper ex quo∣dam

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 con∣tractibus, & 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 statuto∣rum nullo modo placitari seu inquietari volentes per breve nostrum vobis nu∣per mandaverimus quod vos praefatos Johannem, Andream, & Danie∣lem coram vobis in Curiâ Admirallitatis nostrae praedictae, occasione in pla∣citum non traheretis, sed quod vos placito illo coram vobis in Curia praedi∣cta 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 conque∣rendo 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 & con∣ventionibus praedictis in placitum praedictum contra formam statutorum prae∣dictorum in Curia praedicta minimè tractari extitissent. Et ideo vobis man∣damus quod in placito illo secundem legem & consuetudinem Curiae Admiral∣litatis nostrae praedictae procedatis, & partibus praedictis justitiae complemen∣tum 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;* 4.1 likewise, and upon the said Turners like complaint in the Chancery a Supersedeas was award∣ed, 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 be∣fore Robert Bishop of Landaffe, and others the Kings Commissi∣oners for his Northern parts, upon Maritime businesses and con∣tracts, the said Middleton, Hall, and Dyconson complained in Chan∣cery;

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 alto∣gether, and without delay, to forbear all examination and cog∣nizance 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 whatsoe∣ver 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 mo∣ved, or howsoever to be moved, or attempted, remitting the par∣ties (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,* 5.1 &c.

Reverendo in Christo patri Roberto Landavensi Episcopo, ac aliis Commissionariis nostris in partibus nostris Borealibus, & eorum cu∣ilibet, salutem.

Vobis & cuilibet vestrum stricte praecipimus & manda∣mus, quatenus ab omni examinatione & cognitione in aliquibus causis Civi∣libus, 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 no∣ster habet jurisdictionem originem trahentibus, fething their original, or arising from any other place where the Admiral hath jurisdi∣ction, 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 attemp∣tandis, omnino & indilate supers', partes si litigare voluerint ad Curiam no∣stram Admirallitatis nostrae Angliae pro justitia eis ibidem juxta leges no∣stras 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 Ma∣ritime causes, contracted in the parts beyond the seas, upon the high Sea, or in any place where his Admiral of England had ju∣risdiction, or from thence proceeding against the said John Bates, by what names soever called, by whomsoever, or in what man∣ner soever begun, or to begun for the selling and delivering of the said xlii Fowders of lead as aforesaid, in like manner as be∣fore, remitting the parties (if they would sue) to the Court of the Admiralty of England for justice to be to them there admini∣stred in that behalf.

The words of the Supersedeas are these.

Rex &c.* 5.2 Majori & Vicecomitibus Civitatis nostrae Ebor. salutem, Vo∣bis & cuilibet vestrum praecipimus, quatenus ab omni cognitione in causis civilibus & maritimis in partibus ultramarimis vel super alto mari, aut a∣libi, ubi magnus Admirallus noster Angliae habet jurisdictionem, contractus & originem contrahentibus versus Johannem Bates Mercatorem, cujus∣cunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud Civitatem Burdugaliae Ʋenditioni expositis & deliberatis per quos∣cunque vel qualitercunque motis seu movendis omnino & indilate supersedea∣tis, 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 keep∣ing 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 re∣cover 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 con∣signed,

or doth intrust him to dispose of them in any particular manner whatsoever; yet he may in many cases upon certain exi∣gencies happening sometimes sell the same, sometimes he may dispose of them otherwise then he was appointed by the Mer∣chant 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 dama∣ges 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 Ci∣vil and Maritime Laws do allow, that being a thing done at sea, where complaint cannot be presently made, or remedy had be∣fore a Magistrate, (as may be at land) and therefore the like at land not to be allowed, in both which cases they oftentimes re∣cover, 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 Com∣mission out of the Admiralty Court, which turneth exceeding much to the disheartning and discouraging of Masters and Com∣manders of Ships, which if not remedied, will be the utter de∣struction 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 o∣ther person whatsoever, and in what manner soever, to be agi∣tated or performed by sea, upon the seas, beyond the seas, or else∣where 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 exa∣mined 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 go∣ing

Statutes, viz. that Contracts of this nature, though made at land, which do maris per transitum, sive viagium, aut negotia mariti∣ma 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 concern∣ing 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 cog∣nizable 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 Chap∣ter, have been by Consultations out of the Courts of Common-Law at Westminster, after Prohibitions from thence obtained, de∣termined 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 Consul∣tation 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 ci∣ted 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 Justi∣ces (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 Justicia∣riis 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 Plan∣taginet Knight, Viscount Lisle, the said Dukes Vice-Admiral, or his Lieutenant, and also to John Tregonwell, Dr. of Laws, Official Com∣missary, 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,* 5.3 fidei de∣fensor, & 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 venera∣bilis viri Johannis in dicta Curia Admiralitatis Surrogato, sufficienter & legitimè Deputato, eorumque cuilibet, salutem; Ex parte vestra nobis est in∣timatum, quod cum quidam Robertus Baker nuper de London Vintner, in dicta Curia nostra Admirallitatis coram vobis implîtaverit quendam Jo∣hannem Maynard, de & super quodam contractu de re facta super mare, quidam tamen Johannes Gilbert Armiger in hac parte cognitionem ve∣stram fraudulenter & malitiosè satagens declinare, & debitum legis proces∣sum in eadem Curia nostra in parte illa impedire, ac suggerens in Curia no∣stra coram Justiciariis nostris apud Westm. ipsum Johannem Gilbert, ac quendam Willielmum Cowicke procuratorem suum per vos in praedi∣cto

Curia Admirallitatis Coram vobis super praedicto placito praetens∣eundem 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 Gil∣bert. & Willielmum Cowicke, & pro praemissis fulminare proponend. placitum quod inde per legem terrae in praedicta Curia nostra coram Justitici∣ariis nostris apud Westm. & non coram vobis in dicta Curia nostra Admi∣rallitatis pertinet ad eandem Curiam Admirallitatis trahere machinando in ip∣sius Johannis Gilbert grave dampnum, ac nostri contempt. coronae{que} nostrae Regiae exhaeredationis periculum ac contra legem & cons. regni nostri Ang∣liae, Breve nostrum de prohibitione minus rite vobis dirigi procuravit, cu∣jus brevis praetextu vos in placito praedicto huc usque supersedistis in gra∣vem libertatis praedictae Curiae nostrae Admirallitatis laesionem, & quia prae∣dictum 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 ple∣nius 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.* 5.4 T. R. Norwich apud Westm. xi. die Julii, Anno Reg∣ni nostri vicesimo quarto.

One Richard Bell likewise sued one John Crayne in the Admiral∣ty Court, for that the said John did at Dartmouth within the Ma∣ritime 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 appa∣rel 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, affirm∣ing 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 Admi∣ralty, 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 Con∣sultation was awarded, by which it is said to be in ipsius Richar∣di

Bell grave damnum, & legis libertatisque Admiralli laesionem manife∣stam, 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 ca∣put; Nobili & prae potenti viro Domino Johanni Vicecomiti Lysle Ba∣roni de Malpas & Somerey, praeclari ordinis Garteri Militi, Domino Bas∣set & 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 juris∣dictionem maritimam promisisset, & se extrinxisset ad exonerand. & in∣demnem conservand. ipsum Richardum, ab omni obligatione, & juris vin∣culo pro captione seu restitutione cujusdam navis vocat. the Mary Fortune, & apparatus ejusdem, ac bonorum & mercimoniorum in illa, tempore cap∣turae 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 & proprieta∣rios praemissorum fuisse; Idemque Johannes Crane nobis suggerendo dix∣erit quod hujusmodi contractus factus fuit apud Dartmouth infra corpus Comitatus nostri Devon. inter partes praedictas, & non infra jurisdicto∣nem 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 pro∣cedere distulistis & adhuc differtis, in ipsius Richardi Bell grave damnum, & legis libertatisque Admiralli nostri laesionem manifest. Et quia cognitio∣nem jurisdictionemque Admirallitatis in causis maritimis per hujusmodi calli∣das assertiones impediri nolumus, vobis jam significamus quod in causa prae∣dicta jam coram vobis inter partes illas pendenti, dummodo de causa mariti∣ma, & infra jurisdictionem Admiralli nostri juxta jura legis nostrae Angliae terminan. agat. licite procedatis, ac procedere poteritis in causa illa quan∣tum ad jurisdictionem Admirallitatis nostrae pertinet, brevi nostro de prohibi∣tione

vobis prius inde in contrarium directo in aliquo non obstant.

T. R. Lyster apud Westm.* 6.1 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-Admi∣ralty 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 quar∣ters of Grain, and that they the said Christopher and Thomas bar∣gained and agreed concerning the said carriage and transporta∣tion of the said Grain in the said Ship the George, in forme fol∣lowing, 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 tran∣sportation 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 Ves∣sels 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 considera∣tion thereof promised and convenanted to and with the said Chri∣stopher 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 rea∣son thereof the said Christopher Turners Grain might be safely trans∣ported and carried without any heating, wetting, or other im∣pairing, &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 sug∣gested in the Kings Bench that the said Christopher had libelled in the high Court of the Admiralty,* 6.2 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 de∣pended in the High Court of the Admiralty, by way of the Ap∣peal 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 un∣to

to the said High Court of the Admiralty, whereupon the said Court desisted.

But in Trinity Terme following,* 6.3 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 ap∣pear, 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 de∣pending, them moving with an

Ac similiter nolentes per hujusmodi fal∣sas & 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, fi∣dei defensor, &c. venerabili & egregio viro magistro Julio Caesari le∣gum Doctori, praenobilis & praepotentis viri Car. Domini Howard, Baro∣nis de Effingham, praeclari ordinis Garteri Militis, magni Admiralli Angliae, Hiberniae, Walliae, & Dominiorum & Insularum earundem, villae Calis & Merchiarum ejusdem Normaniae, Gasconiae & Aqui∣taniae, Classisque & marinorum dictorum regnorum Angliae & Hiberniae praefecti generalis, locum tenenti Generali, ac supremae Curiae Angliae Ad∣mirallitatis 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. Ebora∣cen. 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 Cu∣ria posuit & articulat. quod in mensibus Aprilis & Maii, Anno Domini millesimo quingentesimo, octog••simo sexto, iidem Christopherus & Tho∣mas

habuerunt Colloquium inter eos de quibusdam quarteriis tritici, & si∣liginis ad numerum sexaginta & novem vel eo circiter, videlicet quadragin∣ta unius quarteriorum tritici, & vigint'. octo quarteriorum siliginis, unde pars accipiendum fuisset in quandam navem vocatam The George of Be∣verley ad quendam locum vocatum Emotland super Rivulum de Hull, àlias dictum Hull Water, & alia pars inde accipiend. fuisset in eandem na∣vem, 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 quen∣dam 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 Chri∣stopherus & 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 quar∣teria 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. celeri∣tate 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 Symp∣son 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 fuis∣sent, & quod eadem non essent calefacta, vel malefacta, vel aliter pejorat. Anglicè Impaired, prout ante tempus illud alia grana ipsius Christophe∣ri fuissent in aliis minoribus vasibus ipsiûs Thomae Sympson, promisis∣set, & convenisset ad & cum eodem Thoma quod si dictus Christophe∣rus 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 Chri∣stopherus solveret praefato Thomae Sympson, vel assignatis suis ple∣num 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 praedi∣ctorum, quod tunc idem Christopherus Turner solveret pro quolibet quar∣terio ultera numerum sexaginta quarteriorum juxta dictam ratam decem de∣nariorum pro quolibet quarterio inde, & quod idem Thomas in considera∣ne inde promississet, & convenisset ad & cum dicto Christophero Tur∣ner,

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 cale∣fatione, 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 ap∣pellationis per praefatum Thomam Sympson in ea parte factae coram vo∣bis remot. fuit, & ad huc in supremâ Curiâ Admirallitatis Angliae coram vobis jam pendet indecis.

Cumque praefatus Thomas Sympson postea, sc. termino Sancti Hilla∣rii ultimo praeterito venisset in Curia nostra suggerens quod praedictus Chri∣stopherus 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 ri∣volum de Humer, aliàs Hull-water, ubi reverà idem Christopherus libellavit in praedicta Curia Admirallitatis coram praefat. Matthaeo Dods∣worth 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 placi∣tum 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 no∣stra coram nobis impetravit & vobis dirigi procuravit, cujus quidem pro∣hibitionis nostrae praetextu vos in causa praedicta distulistis & adhuc differ∣tis 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 pen∣den. diutius impediri, vobis significamus quod in causa praedicta inter par∣tes praedictas licitè procedere poteritis, ac omnia alia facere & peragere in ea parte quae ad forum Admirallitatis noveritis pertinere brevi nostro de pro∣hibitione inde praedict. vobis prius in contrarium in ea parte direct. in ali∣quo non obstant.

* 7.1 T. C. Wray. upud. Westm. primo die Junii Anno no∣stri 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 Voy∣age, bought of him the said Buckhurst, or his servant, certain ne∣cessaries 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 Furni∣ture, 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 na∣ve 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 mo∣netae Angliae, eidem Georgio per praefatum Zachariam, ad tunc solve∣ret, &c. contraxisset & vendidisset praefato Zachariae navem praedictam ac praedict. apparatus, &c. Quodque praedictus Johannes Buckhurst in∣de non ignarus machinans cognitionem placitorum quae ad, &c. quandam pro∣hibitionem 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 Prohi∣bition 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 Do∣mini millesimo quingentesimo nonagesimo septimo jam curren. eorumvè men∣sium 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 ejus{que} 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 via∣agio 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 li∣belled 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 Ad∣miralty, 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 obtain∣ed 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, & liberta∣tis Curiae Admirallitatis laesionem manifestam, and with a Nolentes, &c. as in the former, and both the suggestion, and substance and ef∣fect of the said Libel are inserted in the body of the Consultati∣on upon the File in the Registry of the Admiralty with the o∣thers, 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 cer∣tain rate for day-wages for himself and his Servants, and for cer∣tain

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 stru∣cture 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 Ly∣dyard, 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 Work∣men 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 conside∣ration 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 Parli∣menti, quod Admiralli et eorum Deputati se ex tunc de aliqua refacta infra regnum Angliae, nisi solumodo de rebus factis super altum mare, prout tem∣pore Domini Edvardi Regis avi praedicti quondam Regis Richardi secun∣di 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. suis∣set authoritate ejusdem Parliamenti, quod de omnibus contractis, placitis & querelis, ac de omnibus aliis rebus factis, sive emergentibus infra corpus Co∣mitatus, 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. & re∣mediat. 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 Wil∣lielmus Rolfe apud Woolwich in Comitatu Cantiae infra corpus ejus∣dem Comitatus, & non super altum mare, nec infra jurisdictionem Admi∣rallitatis 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 mer∣ced. 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 Wool¦wich praedictam, in praedicto Comitatu Cantiae infra corpus ejusdem Comi∣tatus, & 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 par∣tem naviculae illius construxerunt, cujus praetextu navicula illa apud Wool∣wich 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 Free∣man 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, vidli∣cet apud Woolwich infra corpus praedict. Com. Canc. caute & subdole sub nomine & specie naviculi praedicti Willielmi Rolfe per ministros prae∣nobilis Caroli Comitis Nottingham. Baronis Howard de Effingham praeclari ordinis Garterii Militis dom. locum tenentem nostri Comitat. no∣strorum 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 promissio∣nes & 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 escu∣lent. & 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 li∣bellando 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 praedi∣ctis exigebat nisi per arrestationem naviculae praedictae nullo modo habuit, ideo eandem naviculam infra jurisdictionem Admirallitatis Angliae authori∣tate 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 na∣viculâ ipsius Hugonis praedicta levari totis suis viribus conabatur & indies machinabatur in nostri contemptum & ipsius Hugonis dampnum, praejudici∣um, depauperationem & gravamen manifest. & contra formam & effectum statutorum praedictorum, cujus praetextu nos quandam prohibitionem ad petiti∣onem praefat. Hugonis con-cessimus, & illam vobis dirigi fecimus, cujus praetextu, vos in causa praedicta procedere distulistis, & adhuc differtis; qui∣busdam 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.

* 8.1T. 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 ob∣served; 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 Poul∣ton's Translation rendreth it only upon the Sea; and the origi∣nal 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;* 8.2 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, Ma∣ster 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 after∣wards 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 freight∣ed 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 Hus∣bands against the said Bonner, contrary to the three before men∣tioned 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 expres∣sing that the matter contained in the Suggestion was no wayes sufficient to maintain the Prohibition. The Consultation run∣neth 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 procu∣rasset quendum Adamum Bonner Dom. &c. in specie, ac omnes alios quoscunque, jus, titulum & interesse haben. in genere, vel haberi praeten∣den. &c. praefato Richardo Husbands de & pro quol' debito viginti librarum eidem Richardo Husbands &c. per quend' contract' &c. in∣fra jurisdictionem Admirallitatis Angliae factum debite responsur' postea pendente secla illa praedictus Adamus Bonner obiit intestat. & post mor∣tem Administratio, &c.

Quidam Richardus Dove suggerens in Curia nostra coram vobis quòd cum in statuto in Parliamento Dom. Richardi nuper Regis Angliae secun∣di, &c. setting forth the three before metioned Statutes. Quodque vicesimo die Novembris, anno regni Dominae Elizabethae Reginae Ang∣liae quadragesimo tertio, apud London, videlicet in Parochia Beatae Ma∣riae de Arcubus in Warda de Cheap, praedictus Adamus Bonner indebi∣tatus 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 appa∣ratuum, &c. Ac quod praedictus Richardus Dove ad tunc & ibidem si∣militer fuisset Dom. Proprietarius & legitimus possessor totius resid. prae∣dictae 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 prae∣dict. 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 Hi∣berniae 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 fidejus∣sorem 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 no∣strum de prohibitione in hac parte manutenend' Et quia nolumus cognitio∣nem, quae ad Curiam Admirallitatis praedict. spectat & pertinet, per hujus∣modi 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 Lon∣don 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 Ca∣roli,* 9.1 a Consultation was awarded with a Nolentes, &c. as in the former. And further, quod in causa praedicta quatenus de non perfor∣matione conventionum praedictarum quoad naulum & morationem coram vo∣bis duntaxat agatur, licitè procedere poteritis, & ulterius facere quod ad Cu∣riam 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,* 9.2 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 be∣fore

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 bu∣siness 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 cognosci∣ble in the Admiralty Court.* 9.3 For upon the granting these Consul∣tations, 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 con∣cerned 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 bar∣gain 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 que∣stion 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 there∣fore was it adjudged that these contracts did arise from busines∣ses 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 ne∣cessaries, (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 concern∣ing

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 up∣on the Seas, or lying at Anchor in some Port or Haven, where the Sea ebbeth and floweth within the Jurisdiction of the Admi∣ralty. And these contracts do arise from businesses to be done at sea, and were therefore adjudged to belong unto the Sea Juris∣diction.

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 with∣in the compass of a possibility. But to feign a thing impossible, as to fain that Ships sail in Cheapside,* 9.4 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 fur∣nished with either victual, tackle, or any other manner of provi∣sion 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 pro∣per hand subscribed, and sealed with his Seal, tye and bind him∣self 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 du∣centarum

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 Apri∣lis anno Regni Jacobi Dei gratiâ Angliae, &c. septimo infra corpus Co∣mitatus Civitatis London, viz. in Parochia Beatae Mariae de Arcubus in Warda de Cheap, et non super altum mare, nec infra Jurisdictionem Cu∣riae Admirallitatis Angliae per quandam billam suam obligatoriam sigillo suo sigillat. et ut factum suum cuidam Thomae Alport tunc et ibidem delibe∣rat. gerens datum eodem die et anno obligasset se et Haeredes, Executores et Administratores suos, ad solvendum praefato Thomae, Haeredibus, Exe∣cutoribus et Administratoribus suis ad omnia tempora super demand. sum∣mam ducentarum septuagint'. et quinque librarum et sex solidorum legalis mo∣netae 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 con∣tra debitam legis hujus regni Angliae formam, et contra formam et effectum statutorum, &c. traxit in placitum falsè, caute et subdolè libellando in Cu∣ria Admirallitatis, &c. cujus quidem suggestionis praetextu, &c.

That upon the 3. of April 7 Jacobi within the body of the Coun∣ty 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 obli∣gatory, sealed with his seal as his deed, then and there delive∣red 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 Ad∣miralty Court for the recovery of the said debt upon the said Bill obligatory contrary, to the form of the Law of England, and con∣trary 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 consul∣tation, which concludeth that the Prohibition was to the grie∣vous 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 vi∣detur praefatis Judiciariis, & pro certis caeusis ipsos specialiter moventibus, quod processus in praedicta Curia Admirallitatis in praedicta causa ad prose∣cutionem 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 cau∣ses 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 compoun∣ded, 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 ve∣ry many more) will be sufficient to determine the right of Juris∣diction as well in causes of the one nature, as of the other against the said several Courts from whence such Supersedeases and Prohibi∣tions 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 Prohibiti∣on may lye, which shall not be dissolved by Consultation.

But by Prohibitions to take businesses of the Ports and Ha∣vens, 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 up∣on 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 cau∣ses 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 se∣lected out of the body of the Civil Law by Peckius for determination of Maritime Causes; and other Laws se∣lected out of several other titles, as subsidiary unto them, do set forth most exactly the determination of Controver∣sies, 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 Rea∣der unto Peckius himself, Vinius, and other Authors wri∣ting 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 ne∣cessary in all forreign Maritime Judicatories, (and not by any the rules of their Municipal Laws) which as they are little or no∣thing 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 tenea∣tur 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 re∣quirat 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 de∣liquerit an in exercitorem detur actio? Magister navis per exercitorem con∣ductus, 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 proce∣dat? quando non? quae autem diversitatis sit ratio, quam optime declarat Ulpianus.

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

Quidam iterum cum navibus suis navigare velint, quidam tamen cum re∣bus suis ipsi superesse non possint, magistrum navi praeficiunt; & ex ea ra∣tione iterum aliae omnes duplicantur & quaestiones & determinationes ea∣rund.

Ʋtrum 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, & a∣lios colliguntur, ad causarum hujus naturae martitimarum determinationes ne∣cessariae, e quibus quamplurimis, qui legit perpaucas hic tantum nominatas, a∣lias excogitabit, ex quibus has varias nominatas habeat & tantum nominatas.

Quaeritur an nave empta, vel emptis navis tabulis, & navis pars, vel ta∣bulae, [ 1] vel tabularum pars evincitur, an evictionis nomine obligetur ven∣ditor?

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.

[ 2] Iterum quaeritur cum contrahitur ad merces transportandum & non ex jactu, sed aliter, quaedam de eisdem dejectae fuerint merces è navi, an praepo∣situs 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 con∣tract. 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.

[ 3] Ac etiam an literae mercatorum in quibus asseritur ita esse cum navis ma∣gistro contractum, & tantum pro naulo, &c. Se sibi sive navis proprieta∣riis debere contra scribentem probent & obligationem inducant, quod accu∣rate distinguendo deciditur per doctores super L. ff. de verborum obl. & L. Lucius ff. de Instit. act. & L. Publia. §. fi. ff. depositi.

[ 4] Sed ubi pro••ent, &c. quid si mercator ante solutionem perierit sive de∣cesserit, 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.

[ 5] Multi mercatores frumenta sua in navem quandam posuerunt, & magi∣ster 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 reddi∣dit 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. lo∣cati & conducti, & Gloss. ibidem & D. D. super ead. L.

[ 6] Cum navis magistro contrahitur ad transferendum tanti ponderis merces, & saccus seu capsa inter alia in navi posita est sigillata, & redditur sine si∣gillo 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 adjudi∣cationem? quod per Julium Ferrettum li. suo primo n. 133. dirimitur. Vi∣de 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 Loffre∣dum de Benevento Doctorem antiquum in L. 1. ff. depositi & per Bal∣dum in L. 1. §. Item Pomponius ff. naut. caup. eximitur.

[ 7] 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 ali∣quo [ 8] 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 sta∣tuto cavetur quod faenerator, &c.

Et quid si ante diem solvendi facultatibus lapsus fuerit primus Campsor [ 9] qui literas scripsit, quo intellecto, ille, cui literae diriguntur, solutionem negat, an possit cogi? Quod discutitur percuriose tractatur, et deceptatur per Sal∣lic. in L. pro debito in fine C. de bonis author. Judi. possiden. et per Aug. In∣stit. de Except. & per Alexan. de Imol. in L. quae dolis ff. solu. matrim.

Quaeritur etiam utrum literae cambii paratam habeant executionem? quod [ 10] etiam determinatur per nota per Jasonem in L. elegantur ff. de conditioni∣bus 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 deceptan∣tur & determinantur.

Si unus ex nautis mercator fuerit, vel ut mercator cum magistro navis [ 11] contraxerit, & in mercibus suis in nave oneratis damnum passus est, utrum sibi tenebitur exercitor? quod per dict. Julium Ferret. d. li. 1. n. 38. ex∣peditur.

Mulier pregnans cum navis magistro pro transportatione solvere contraxit [ 12] quod nautis debitum erit, juxta L. hujus ff. qui potiores in pignore habean∣tur. 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 navigan∣dum [ 13] 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.

[ 14] Per L. 3. ff. Naut. caup. Stab. & Gloss. ibidem de dolo lata levi & le∣vissima culpa tenentur exercitores sive magister navis, & inde quaeritur u∣trum 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 numeran∣dum, & inter illos ponendum et computandum. Et quinam alii numerent ca∣sus fortuiti; quae dirimuntur per §. sed istae Instit. de action. & sect. 1. In∣stit. 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 ex∣actissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset ex∣ercitor, quod dirimitur per Bartol. in d. L. 3. ff. naut. caup. &c.

[ 15] 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. nau∣tae caup. dirimitur.

Now have I not here rendred or set forth the determinations of these few questions which I have here nominated, they be∣ing 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 con∣sideration 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 At∣torney General) whose Judgements and Justice have been ble∣mished, and unworthily aspersed by some of their own Profes∣sion,

in saying those Reverend Judges were questioned in Parlia∣ment 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 suf∣ficient reasons to justify their assent to that agreement, and that it contained nothing but what they might and ought to do, not∣withstanding the Judgements of their Predecessours or Succes∣sours.

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 con∣vened by special summons before his Majesty, that their Judge∣ments and Opinions there delivered in matters propounded, de∣bated, and argued, were of less force and validity, and more ex∣traneous 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.

Notes

• * 1.1

  Sup. lib. 2. c.
• * 1.2

  Sup. li. 2. c. 14.
• * 1.3

  Coke li. 4. instit. cap. 22.
• * 1.4

  Coke li. 4. instit. cap. 22.
• * 1.5

  〈…〉〈…〉
• * 1.6

  〈…〉〈…〉
• a 1.7

  〈…〉〈…〉
• * 1.8

  F. de legibus l. scire leges.
• g 1.9

  Rot. Parl. a•• 13. R. 2. m. 41.
• h 1.10

  Rot. Parl. an. 13. R. 2. n. 41.
• * 1.11

  Sup. l. 1. cap. 1.
• * 1.12

  Inf••a cap. prox∣im. & sequent.
• * 1.13

  Stat. Rich. 2. 13. 5.
• * 1.14

  Li. nigro Admi∣rallitatis, p. 29.
• * 1.15

  Rough. Ar. 38.
• * 1.16

  Sup. li. 1. c. 2.
• * 1.17

  Seunda pars hu∣jus Capitis.
• * 1.18

  Super li.
• * 1.19

  Oler. Judg. 1.
• * 1.20

  Supr. li. 〈◊〉〈◊〉 se∣cundo cap. 1, 2.
• * 1.21

  L Oler. jud. 20.
• * 1.22

  Oler. jud. 20
• * 1.23

  Super. li. cap.
• * 1.24

  Ol. Jud. 22.
• * 1.25

  Ol. Jud, 25.
• * 1.26

  Ol. Jud. 26. jud. 29, & 30. judm. 31.
• * 1.27

  Oler. Jud. 33.
• * 1.28

  Oler. Jud. 24. & 34.
• * 1.29

  Sup ••.
• * 1.30

  Edw. 3.
• * 1.31

  Sup. li. 2. cap. 12.
• * 1.32

  Sup. li. 3. ca. 1.
• * 1.33

  Sup. cap. of the second book.
• * 1.34

  Inq. apud Quin. capta art. 14.
• * 1.35

  Inq. apud Quin. capta art. 15.
• * 1.36

  Inq. Quin. art. 51.
• * 1.37

  Inq. Quin. art. 52.
• * 1.38

  Inq. Quin. art. 53.
• * 1.39

  Sup l. 2. ca. 10.
• * 1.40

  Sup. cap. 2▪ hu∣jus lib.
• * 1.41

  Coke li. 2. inst. cap. 22.
• * 1.42

  Stat. 15 R. 2. cap 3.
• * 1.43

  Stat. 13 R. 2. cap. 5.
• * 1.44

  Sup. cap. 2. hu∣jus lib. 3.
• * 1.45

  Rot. Parl. 1••. R. 2. n. 30.
• * 1.46

  Coke Jurisd. of Courts, cap. 22.
• * 1.47

  Sup. cap. 5. l. 2.
• * 1.48

  Sup. cap. 2▪ hu∣jus lib. 3.
• * 1.49

  F. de obl. & act. l. contrax∣isse.
• * 1.50

  F. de bonis a••ab. jud. poss.
• * 1.51

  F. de jud. l. haeres. §. sin.
• * 1.52

  F. eodem l. 65. Decis. sen. Do∣lani per Grevel∣lum decis. 91. n. 8.
• * 1.53

  Sup. hoc. cap.
• * 1.54

  Sup. hoc. cap.
• * 1.55

  8 ••d. 2 tit. Co∣ron. 399.
• * 1.56

  Stan••. Pl. of the Crown. lib. 1. fol. 51. b.
• * 1.57

  Sup. li. 2. ca. 5.
• * 1.58

  Ins. cap. 7. li. 3.
• * 1.59

  Sup. li. 2. ca. 5.
• * 1.60

  Cokes Juris of Courts, cap. 22.
• * 2.1

  Parl. 2 H. 4. mem. 75.
• * 2.2

  2. Hen. 4 mem. 75.
• * 2.3

  ••up. li. 2▪ cap. 5.
• * 2.4

  Sup. hoc cap▪ 〈◊〉〈◊〉.
• * 2.5

  Sup. lib. cap.
• * 2.6

  Sup. c. 6. li. 2••.
• * 2.7

  28. Eli. Paschae.
• * 3.1

  J. par patend. 15. ••. 2. m. 27.
• * 3.2

  An. 17 17 Ric. 2. 1. part. pat. m. 7.
• * 3.3

  An 10 H. 4. 〈…〉〈…〉. 6.
• * 3.4

  An 11. H. 4. 1. parte paten m. 12.
• * 3.5

  Coke Instit. part•• 4. cap. 22. pag. 146.
• * 3.6

  〈…〉〈…〉.
• * 4.1

  An. 29. H. 8. in 〈◊〉〈◊〉 ut in. 〈◊〉〈◊〉 Adm. m. 34.
• * 5.1

  An. 31 H. 3. in Fit. prohib. & consult. in Re∣gistro Adm.
• * 5.2

  An. H 8. 31. in Fil. prohib. & consul. m. 56.
• * 5.3

  Fil. prohib. & consulta in Re∣gistro Admir. m. 79.
• * 5.4

  24 Hen 8. 11 Julii.
• * 6.1

  14 Julii 38 H. 8.
• * 6.2

  Hil. 32. Eliz.
• * 6.3

  Term. Hil prox.
• * 7.1

  1 June 32 Eliz.
• * 8.1

  1. Jan. 45 Elig.
• * 8.2

  Sup. lib. 3. •• cap. 2.
• * 9.1

  Pasc. 9 Car.
• * 9.2

  Pasch. 9 ca••.
• * 9.3

  Sup. li. 3. ca. 2, 3, 4, &c.
• * 9.4

  Sup. li. 3. cap.