The jurisdiction of the admiralty of England asserted against Sr. Edward Coke's Articuli admiralitatis, in XXII chapter of his jurisdiction of courts by Richard Zouch ...

THE JURISDICTION of the Admiralty of England Asserted.

That in all places where Naviga∣tion and Trade by Sea have been in use and esteem,* 1.1 and par∣ticularly in England, special Lawes have been provided for Regulating the same.

LA Mer a ses loix comme la terre,* 1.2 The Sea (saith Godfrey a lear∣ned Author,) hath its lawes as well as the Land. And it is cer∣tain, that Navigation was no sooner invented, and men had experience of the commodity proceeding from Negotiati∣on by Sea, but they established lawes for the maintaining and regulating the same. So much may bee confirmed by what is observable from the use, and

practice, First of those Nations and States which border on the Mediter∣ranean Seas; and secondly of those which confine on the Western Ocean, and the Seas Northward.

Touching the first, Amongst the Gre∣cians, the Inhabitants of the ••sle of Rhodes have been most eminent for their policy in the affaires of the Sea,* 1.3 Cicero saith Rho∣diorum usque ad nostram memoriam Discipli∣plina navalis & gloria remansit. And Con∣stantinus Harmenopulus a famous Judge at Thesolonica, and Conservatour of the law there, gives that credit to their Lawes, that he affirmes,* 1.4 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, &c. All businesse concerning Navigation, and all causes concerning things done at Sea, are decided by the Rhodian Lawes, for the Lawes of the Rhodians are of all Sea-Lawes the most antient. Those Sea-Lawes of the Rhodians, or some part of them, are extant, published in Greek and Latine by Symon Schardius, and Marquardus Freherus, and out of them related by Marisotus, in the first part of his Orbis maritimus.

The Romans, who in the beginning of their Republique, received their Lawes of the Twelve Tables, from the Athenians, under the Empire, when their State was

at the heighest, and abundantly furnished with Lawes for other matters, in the time of Tiberius Claudius, admitted the Rhodian Lawes for the regulating of the affaires of the Sea, whereupon, when one Eudaemon a Merchant of Nicomedia com∣plained to the Emperour Antoninus,* 1.5 that he with others had suffered Shipwrack, and were spoyled of their goods by cer∣tain Officers of the Islands called Cycla∣des, the Emperour answered him 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that indeed he was Lord of the World, that is to say, of the Land, or Continent, but that the businesse, and rights of the Sea had a speciall Rule set down in the Rhodian Lawes, to which he did referr them. These Rhodian Lawes,* 1.6 as Mr Selden ob¦serves, were afterwards inserted into the body of the Civil Laws, by the Empe∣rour Iustinian and others, and were in high esteem both in the Roman & Greek Empire: The titles to which they are reduced in the Civil Law are collected by Petrus Peckius, who hath commented upon them, and are likewise set forth by Morisotus,* 1.7 and as they were in use in the Greek Empire, they are set out by Leunclavius, amongst the Basilica, or Laws from Rome received at Constantinople.

The wisdome and equity of the Ro∣man Civil Laws, in Processe of time, have been received and allowed in all Nations, and states of Europe, for the re∣gulating and determining of businesses at Sea, as it plainly appears in all Au∣thors of several Nations,* 1.8 who have written of, or handled matters of that nature; To which have been added, di∣verse Ordinances, and Constitutions of their own, for confirmation of those Laws, and supply, where it seemed ne∣cessary: So the Provinces and places bordering on the Mediterranean Seas, ac∣cording to former usages, and customs, and upon new emergent occasions, esta∣blished several orders, and constitutions for Maritime businesses, which some e∣minent persons residing at Amalphia, (a Town in the Kingdome of Naples) redu∣ced into a Monument, called Tabula Amalphitana, of which Marinus Fre∣cria writes; In succeeding times, Mari∣time businesses were not determined onely by the Rhodian Laws,* 1.9 but suites and con∣troversies touching matters of the Sea, were determined by the Law which is contai∣ned in the Table of Amalphia unto this ••ay.

The like was done by the people of Venice,* 1.10 Morea, or Peloponnesus, Rome, Ge∣nua, Marsellis, Aragon, Barcelona, &c. of all which places the Constitutions are comprehended in the Book, called Il Consultate del Mare, of which it is related in a distinct Chapter, Questi sono buoni stablimenti, these are the good Constitu∣tions and Customs which belong unto the Sea, the which wise men passing through the World have delivered to our Ancestors.

Touching the Nations confining on the Western and Northern Ocean; It appears likewise, That in Spain there were special Laws and Ordinances pro∣vided for the businesses of the Sea, for occasions both of War and Peace, as in the Partidas of Alphonsus the ninth, under the Title of De los navios,* 1.11 and under the Title De la guerre per la mer, and under the Title De los navios in the Recopilation of Philip the 2d. which are illustrated by the Comment of Alphonsus, Azevedo, and others.

So the French for maritime affaires have divers Edicts or Ordinances which are stiled Reglements sur la fait de Ad∣miralty,* 1.12 which were established by Charls the sixth, Lewis the twelfth, Francis the

first, and lastly by Henry the third, most fully, upon review of all former Acts, which were afterwards ratified by the Court of Parliament at Paris; But for ordinary matters of Navigation, and Trade at Sea, the Laws, or Judgements of Oleron, (which is an Island situate at the mouth of the River Charenton, near the Coast of Aquitain) are of special Obser∣vation in that Kingdone, as appears by an Antient Record, extant amongst the Royal Edicts,* 1.13 Entituled Droits et premi∣nences del Admirall, wherein it is decla∣red, That the Admirall ought to do justice to all Merchants, according to Rights judge∣ments, &c. and usages of Oleron. And Grotius affirms,* 1.14 That as the Rhodian Laws in the Mediterranean Seas, were reputed as the Lawes of Nations, so in France are the Laws of Oleron, and sayeth further in that place, That in what esteem the Laws of Ole∣ron have been in France, the same have Leges Wisbuiences amongst the Nations be∣yond the Rhine,* 1.15 which if Welwood mistakes not, are the same with the Laws of Ole∣ron, Translated into Dutch for the use of the Sea Coasts in those parts.

* 1.16Malines in his Lex Mercatoria, sets forth a Catalogue of the Laws of the

Hanse Towns; And Loccenius in his Pre∣face to his Book, de Iure Maritimo, menti∣ons, jus nauticum Suesicum, and Leges Wis∣buiences, which he sayeth are observed both in the Hanse Towns, and in the Northern Kingdomes, and also the Ordi∣nances of the Hanse Towns themselves, and of the Belgick Common-wealth.

It is likewise apparent, that the King∣dome of England is not destitute of spe∣cial Laws for the regulating of Sea bu∣sinesses, which are distinct from the Com∣mon Laws of the Realm; as namely, the Civil Law, and others, of which the Books of Common Law take notice by the names of Ley Merchant, and Ley Me∣riner.

Touching the Civil Law, how it is ob∣served in the Admiralty of England, Sir Edward Cook shews in his Comment upon Littleton,* 1.17 where he mentions divers Laws which are in use in this Kingdome; And Mr. Selden in his dissertation, ad Fletam,* 1.18 sayes, Iuris Civilis, vel Caesarij usus ab antiquis seculis etiam num retinetur in foro Maritimo,* 1.19 seu curia Admiralitatis. And accordingly in the time of King Ed∣ward the sixth, when Monsieur Villandry being imployed for the King of France,

upon occasion of some differences, hap∣ning betwixt the Subjects of England, and of France, concerning Sea businesses, Signified that the King his Master was desirous that the Ordinances, and the Customs of England, might be reduced into one form, without any difference be∣twixt them, and the French, answer was made, That the English Ordinances for Marine affairs, were no other than the Civil Laws, and certain antient Additi∣ons of the Realm, wherein they could not conceive any reason or convenience of change.

The Law Merchant is likewise menti∣oned, and allowed by Sir Edward Cook in his Comment upon Littleton,* 1.20 as a Law distinct from the Common Law of Eng∣land; And so doth Mr. Selden mention it in his notes upon Fortescue.* 1.21 And Sir Iohn Davis, more fully ownes it in a Ma∣nuscript Tract touching Impositions, where he affirms, That both the Common Law and Statute Laws of England take no∣tice of the Law Merchant, and do leave the ca••ses of Merchants to be decided by the Rules of that Law, which Law Merchant, he saith, as it is part of the Law of Nature, and Nations, is universal, and one and the

same in all Countries of the World; For as Cicero saith of that Law,* 1.22 Non erit alia lex Romae, alia Athenis, alia nunc, alia post haec, sed et omnes gentes, et omni tempore una ea∣demque Lex obtinebit, whereby it is mani∣fest, that the Causes concerning Mer∣chants, are not now to be decided by the peculiar and Ordinary Lawes of every Country, but by the general Lawes of Nature and Nations. He sayeth further, that untill he understood the difference betwixt the Law Merchant, and the Common Law of England, he did not a little marvell, that England entertaining traffique with all Nations of the World, having so many Ports, and so much good Shipping, The King of England also be∣ing Lord of the Sea, what should be the cause, that in the Books of the Common Law of England, there are to be found so few Cases, concerning Merchants, or Ships: But now the reason thereof was apparent, for that the Common Law of the Land did leave those cases to be ru∣led by another Law, Namely, the Law Merchant, which is a branch of the Law of Nations.

The Law Mariner, to which happily the answer to the French Agent, mentio∣ning

Antient additions of the Realm, related, were such things as are con∣tained, and preserved in the Antient black Book of the Admiralty, as cer∣tain Royal Ordinances, made by An∣tient Kings of the Realm. 2ly. The Judgements, or Resolutions of Oleron, in the time of King Richard the first.

3ly. Certain verdicts given upon an Inquisition at Quinborough, in the time of King Edward the third, and some other matters touching the Admiralty of Eng∣land.

Touching the black Book of the Ad∣miralty, Mr. Selden stiles it,* 1.23 Vetusti Tri∣bunalis maritimi Commentarii. And Codex Manuscriptus de Admiralatu. And in his notes upon Fortescue,* 1.24 he saith, that there are in it worthy of Observation, Consti∣tutions touching the Admiralty of Henry the first, Richard the first, King Iohn, and Edward the first.

Touching the Judgements or Laws of Oleron,* 1.25 and the use of them in the Admi∣ralty Court, Mr. Selden, where he from them argues the Soveraignty of the Kings of England, in regard, King Richard the first did publish the Sea Lawes in the Island of Oleron, which was then in his

possession, sayes, that they are still in force; And Sir Edward Cook likewise argues,* 1.26 that the Jurisdiction of the Lord Admirall was long before the Reign of Edward the third, from the Laws of Oleron, So called because they were there made by King Richard the first.

The Inquisition at Quinborough was taken in the year 1376. in the 49. of King Edward the third, by eighteen ex∣pert Sea-men, before William Nevill Ad∣mirall of the North, Philip Courtny Ad∣mirall of the West, And the Lord Lati∣mer Warden of the Cinque Ports, And relates, as by the Title appears, to the u∣sages of former times; The verdicts there given were desired to be establish∣ed by the Kings Letters Patents, in the Cinque Ports and Towns adjoyning to the Thames, to be observed by the own∣ers, Masters and Mariners of Ships, under penalties,* 1.27 &c. And Malines writes, That he had seen them enrolled a∣mongst the Records of the Tower, for the Go∣vernment of the Admiralty.

* 1.28That generally where Lawes have been provided for businesse concerning the Sea, as also in England, several Iudges have been appointed to determine dif∣ferences, and redresse offences concerning the same.

* 1.29GRegorius Tholosanus sayes, Iudicum di∣versorum ratio eo dirigitur, ut lites fa∣cilius expediantur, ne immortales sint sub ju∣dicibus mole negotiorum occupatis & proinde cum commercia hominum sint maximae utilita∣tis, placuit Negotiatoribus proponi proprios Iudices, and accordingly.

First, the Grecians had their special and proper Judges appointed for those bu∣sinesses, So Suidas 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, &c. The Natodicae were Magistrates who did Iu∣stice to Seamen and others who trade by Sea. And the Athenians had an expresse Law to that purpose,* 1.30 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, &c. That actions concerning Sea∣men and Merchants should be commenced be∣fore the Iudges called The smothetae according to their Instruments of Contracts, and dea∣lings.

Secondly, Amongst the Romans there was antiently an Officer called Praefectus Classis by Tully and Livy,* 1.31 and Iavolenus makes mention of Seius Saturninus Ar∣chigubernius Classis Britannicae, and Tacitus of Praetor Classis, which name imports a power of Judicature; in latter times they had also a Magistrate who was called Comes Commerciorum,* 1.32 whose Office was to over-see matters of Commerce or Ne∣gotiation.

Thirdly, the Roman Empire being broken into several States, the lesser as Republiques, had their Consuls, and the greater Kingdomes had their Admiralls to order and determine those businesses. The office of the Consuls is described in the Consolato Del Mare, Consoli determinano ••utti le controversie,* 1.33 &c. The Consuls deter∣mine all controversies which are for Fraights, for Dammages done to goods on shipbord, for parts of ships to be set to sale at an outcry, for Commissions given to Masters and Mariners, for Debts contracted by Masters for the ne∣cessary use of the Ship, for things promised or undertaken betwixt Merchants and Mari∣ners, for goods taken up at Sea, and generally for all other Contracts and businesses which are declared amongst the Customs of the Sea.

* 1.34Fourthly, The Venetian State being a Seigniory, when any great War is ex∣pected, or undertaken, have their Gene∣ral or Supreme Commander of the Navy, who is of as high an esteem as any Magistrate of the City, having absolute power over all Officers, aud others of the Navy; at other times the Legatus classis, or Vice-General, hath the power of disposing of the Navy, and over the Captains of the Gallies, and other per∣sons of the Navy:* 1.35 They have besides four Consuls, who Judge and determine all matters concerning Negotiation, and Trade.

* 1.36Fifthly, Admirals in Europe, had their beginning (as most affirm) in the time of Constantine the Emperour, and that in Magna Graecia, which is now the King∣dome of Naples, where the dignity of Admirall is the third place, to wit after the Vice Roy,* 1.37 and Constable, To whom belongeth the Building, Repayring, and keeping of the Ships Royal, and setting out of the Fleets for Warre, with the Kings consent; He hath also Jurisdicti∣on Civil, and Criminal, amongst Com∣manders, Officers, and others, employed about the Navy, and all others who get

their lively-hood by the industry and art of the Sea, which are held to be such, which transport in Ships, and adventure their Estates by Sea, as also such that make it their Trade to take Fish, or do build Ships. This Court is called Magna Curia, and from it there lyes an appeal only to the supreme Councell; Garsias Mastrilli sayes, he hath all Jurisdiction, both Civil, and Criminal, in Maritime causes, exclusive to all others.

The King of Spain hath divers other Admirals,* 1.38 both in Europe, and the Jndies of equal power, Marinus Siculus sayeth, of the Admirall of Castile, that he is next unto the Constable, and hath su∣preme Authority over all that use the Sea, and is held to be Lord and chief Commander of the Sea, as it is also large∣ly described in the Partidos; besides, for the dispatch of ordinary Maritime busi∣nesse, by the same Laws, Judges are ap∣pointed to reside in Port Towns, and o∣ther places on the Sea Coasts, which are to hear the causes of Sea-men concer∣ning Freight of Ships, and Contributions for goods cast over-board, or any other matter, which Judges were to proceed plainly without solemnities, and with all expedition, &c.

* 1.39In France, by an Ordinance of Henry the third, made upon a survey of all o∣ther former Ordinances, ratifyed by the Parliament of Paris, The Office of the Admirall in the Kings name is thus de∣clared.

1. That of all Armies, which shall be raised and set to Sea, the Admirall of France, shall be chief, and our Lieute∣nant General, and shall be obeyed in all Maritime Towns and places, which are or may be, without contradiction.

Secondly, He shall have Jurisdiction, Conusance, and determination of all things done or committed on the Sea, or shoars of the Seas; likewise of all acts of Merchandise, fishing, freighting or letting to freight, or breach of ships, of Contracts made touching the matters afore-said, of Charter parties of Sea briefs, and of all other things whatsoever happening upon the Sea, or shoars thereof; as our Lieutenant General alone, and to all purposes, in the places afore-said, which Jurisdiction, Cognizance, and determina∣tion, we have interdicted to all other our Judges.

He shall hold his principal Court at the marble Table, in the Palace at Paris,

and shall appoint Judges Deputies in Maritime Cities, and Towns, who shall hear ordinary matters happening with∣in their Circuits, and if any businesse fall out worthy of greater consideration, they shall referre the same to him.

In Denmark the third place of dignity in the Kingdom belongs to the Admirall, who is commonly called Ry••ks Admirall, and as Morisotus,* 1.40 writes, He hath the same Right and Power as the Admirall of France.

In Scotland (as VVellwood a Scotish man writes) the Admirall and Judge of the Admiralty hath power within the Sea-flood,* 1.41 over all Sea-faring men, and in all Sea-faring Causes and debates, Civil and Criminal, So that no other Judge of any degree may meddle there∣with, but only by way of Assistance, as it was found in the Action brought by Anthony de la Tour against Christian Mar∣tens, 6 Novemb. 1542.

The Admirall of England (as Mr. Sel∣den observes) hath another manner of Right,* 1.42 and Jurisdiction, than the Admi∣rall of France, or other ordinary Admi∣ralls, for that the Jurisdiction over the Seas of England, and Ireland, and the

Dominions and Isles of the same as a Province are committed to his Custody and Tuition, as to a President to defend the same, as in the Dominion of the King, by whom he is Authorized, The bounds of which Jurisdiction are limited, and determined in those Seas; and be∣sides, as the French, and other Admiralls, he hath the power over the Navy, and the Government over the Sea-men, and Jurisdiction over the persons and move∣able goods which come under his Judi∣cature, pour raison ou occasion del faie de la mer; which Jurisdiction hath no bounds, but extends to the Mediterranean, African, and Indian Seas, or any other far remote.

What Mr. Selden delivers concerning the Admirall of Englands special Juris∣diction, in the first respect, is confirmed by an ancient Record in French in Ar∣chivis of the Tower of London,* 1.43 set out at large by Sr. Edward Cook, the effect and tenour whereof is, That whereas during the Warrs between Philip King of France and Guy Earl of Flanders, Reginerus Grimbaldus Admirall of the French Navy, had spoiled the Merchants of divers Na∣tions sailing towards Flanders, in the

English Seas, and Commissioners being appointed by the two Kings, to hear and redresse the Complaints concerning the same, the Deputies of the Prelates, Nobility, and Commonalty of the Towns of England, and of divers Maritime Countries, as of Genua, Catalonia, Spain, Germany, Zeland, Holland, Friesland, and Norway declare, That the Kings of Eng∣land, by reason of that Realm, time out of mind, have been in peaceable posses∣sion of the Soveraign Dominion of the Sea of England, and of the Islands therein situate, by ordering, and establishing Lawes, Statutes, and Counter-mands, of Armes, & Vessels otherwise furnished than for Merchandising, and by taking security, and giving protection in all Causes needful, & by ordeining all other things requisite for the maintaining of Peace and Right amongst all other Peo∣ple, as well of other Seignieuries, as of their own, passing through the same. And all manner of Cognizance and Ju∣risdiction high and low touching those Laws, Statutes, Ordinances, & Counter∣mands, and all other Acts which may appertain to the Soveraign Dominion afore-said, and that A. D. B. Admirall of

the Sea deputed by the King of England, and all other Admiralls appointed by him, and his Ancestors, heretofore Kings of England, have been in peaceable Pos∣session of the said Soveraign Protection, together with the Conusance, and Ju∣risdiction, and all things before mention∣ed thereunto appertaining (except in case of Appeals to their Soveraign Kings of England, for default of doing Right, or giving wrong Judgment) and especially in making Restraint, doing Justice, and taking security for the peace of all man∣ner of People, bearing Arms on the Sea, or Ships sailing otherwise apparelled, or furnished than belongs to Ships of Mer∣chandise, and in all other points in which a man may have reasonable Cause of Su∣spicion against them, touching Robbery or other misdemeanours.

Besides the Jurisdiction Extraordinary of the Admirall of England concerning Protection against depredations in the English Seas (as Mr. Selden writes) his Or∣dinary Jurisdiction is over the persons, and goods moveable, which come under his judicature by occasion of businesses re∣lating to the Sea, is not only agreeable to the Jurisdiction of the French and other

Admiralls, but is also warranted by the Kings Commissions, as it is apparent by antient, and later Patents, granted by the Kings of England, in which the Ad∣miralls of Englands Ahthority and Juris∣diction is expressely & fully declared, as followeth,* 1.44 Damus & Concedimus &c. We give and grant to N. the Office of our great Admiral of England, Ireland, & Wales &c. And we make, appoint, and ordain him Go∣vernour General of our Navies, and Seas of the Kingdoms afore-said: And be it further known, that we of our special Grace and certain knowledge, do give and grant to the same our great Admirall and Governour of our Navies all and all manner of Iurisdictions, Liberties, Offices, Fees, Profits, Preheminences, and Pri∣vileges Whatsoever belonging or appertain∣ing; So far is recited in the Solemn form of the Admiralls Commission, by Mr. Selden, as sufficient to his purpose, and then saith he follow many things decla∣ring that most ample power, and Ju∣risdiction, amongst which is expressed in Civil Causes, that to him it is granted, Ad cognoscendum de placitis &c. To hold Conusance of Pleas, Debts, Bills of Exchange, Policies of Assurance, Accounts, Charter-parties, Contractions, Bills of Lading, and all

other Contracts, which may any wayes concern Moneys due for freight of Ships hired, and let to hire, moneys lent to be paid beyond the Seas, at the hazzard of the lender, and also of any Cause, Businesse, or Injury whatsoever had, or done, in or upon, or through the Seas, or publique Rivers, or fresh Waters, Streams, Havens and places subject to overflowing, whatsoever, within the flowing and ebbing of the Sea, upon the Shoares or Banks whatso∣ever adjoyning to them, or either of them, from any the said first Bridges whatsoever, towards the Sea, throughout our Kingdoms of England and Ireland, or our Dominions afore∣said, or else where, beyond the Seas, or in any Ports beyond the Seas whatsoever, with divers other Clauses, containing power of coer∣cion for the maintenance of that Jurisdi∣ction.

By the Commission of Oyer and Ter∣miner granted likewise under the Great Seal, according to the Statute of the 28th. of Henry the 8. chap. 15. and other Sta∣tutes for the punishing of Offences and matters Criminal committed within the Jurisdiction of the Admirall, Power is granted in the Kings name, to hear, and determine De omnibus & singulis proditio∣nibus &c. of all and singular Treasons,

Robberies, Murthers, Felonies, and Consede∣racies &c. as well in and upon the Sea, or any River, Port or Fresh-water, Creek, or place whatsoever, within the flowing of the Sea to the the full, beneath the first Bridges towards the Sea, as upon the shoar of the Sea, or else∣where within the Kings Maritime Iurisdi∣ction of the Admiralty of the Realm of Eng∣land, and the Dominion of the same. As well against the Peace and the Laws of the Land, as against the Kings Laws, Statutes, and Ordinances of the Kings Court of Admiralty. And also touching all and singular other mat∣ters, which concern Merchants, Owners and Proprietaries of Ships, Masters, Ship∣men, Mariners, Shipwrights, Fisher-men, Workmen, Labourers, Saylours, Servitours or any others.

* 1.45That in all places, where Iudges have been appointed for Sea bu∣sinesses, as also in England, cer∣tain Causes, viz. such as have Relation to Navigation, and Negotiation by Sea, have been held proper for their Conu∣sance.

MAritime Laws, saith Gode••ry, con∣cern persons or Dealings between Merchants and Sea-men,* 1.46 which is agree∣able to the subject matter of the several Laws mentioned in the first Chapter, and what appeares to have belonged to the office of Maritime Judges.

Amongst the Grecians, Causes happen∣ing betwixt Merchants and Sea-men were called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Causes Concer∣concerning Trade,* 1.47 as Julius Pollux, and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Suidas testifies, The Rhodian Lawes, although as they are now extant, are not ranked under distinct Heads or Titles, yet they may be reduced to these particulars, As first,

Concerning hiring & freighting of Ships; Secondly, Concerning transporting Pas∣singers and Goods; Thirdly, Touching the delivery ad discharging the things re∣ceived in good Condition; Fourthly, Touching Contributions for Losses, in Common danger, and for salvage of Goods. Fifthly, For borrowing and trust∣ing of money for Sea-voyages. Sixthly, Concerning Mariners duties, their wages, and the like.

The same were the matters taken into Cosideration,* 1.48 when the Roman Senate entred into a Consultation to settle the businesse of the Sea; For when Tiberius Claudius had signified to them, that the Sea-men and Merchants trading by Sea, had besought him, that such businesses which were incident to the Sea, might be reduced into some order, Nero, then a Senator, advised, that some might be sent to the Isle of Rhodes, who should di∣ligently enquire, and take notice of what was there observed, Concerning Mari∣ners, Sea-men, Merchants, and passengers Goods put on Board shipps, Partner-ships, Building, Buying, or Selling of Ships, En∣trusting Gold, and Silver, and divers other things. All which was done accordingly,

as appeares by the titles of the Roman Civil Lawes, into which the Rhodian Laws were inserted, and by the Laws touching Sea affairs, which afterwards the Greek Empire received from the Ro∣mans,* 1.49 as in the Title De Nauticis Obliga∣tionibus &c. Touching the obligations, or duties of Mariners, and all manner of acti∣ons which may be brought concerning Ships, or those who sail in Ships, Owners, Masters, or Passengers: Moreover touching wrecks of Ships, casting forth of Goods, and Contri∣butions, and also Fisher-men and Fish∣ing.

The same businesses also are regulated by the Constitutions of the Consolato del Mare, in which are conteined, the Sta∣tutes and Ordinances of Antient Autho∣rity, provided for all Causes of Mer∣chandising, and Navigation, as it is more fully signified in a Chapter of that Book,* 1.50 Nello progresso di questo libro. In the pro∣gresse of this book it is declared, how the Ma∣sters of Ships ought to demean themselves, to∣wards Merchants, Mariners, Strangers, and all other sorts of people, which passe in their Ships, and also how Merchants ought to perform with Masters of Ships, and how Strangers and others ought to pay

fraight for the transporting of their persons &c. All which are made good in the par∣ticular Ordinances and Constitutions therein conteined.

The Sea-Lawes in the Spanish Partidaes have the same scope,* 1.51 as it is in the Title, We intend here to speak of shipping hired to undergoe the Adventure of tbe Sea, and we will shew what things the Master of the Ship ought to observe towards the Mer∣chants, and how the dammage that shall happen to goods cast over board by occasion of storm ought to be divided, and of the price due for the hire of Ships, and of other matters with may concern the same affair.

So much is likewise signified in the Title of the Laws of Oleron, which in the Edition annexed to the Customes of Nor∣mandy, are called Ordonances Royaul tou∣chant le fait de la Mere, as also Judgments, de la mere, des nef, des Mariners, & aussi des Merchants, & de tout leur estre, and in the Edition set out by Peter Garrias La maniere comme les Maestres de Navire. The manner how Masters of Ships, Merchants and Mariners, ought to regulate and govern them∣selves, according to the Iudgements of the Roll of Oleron.

Notwithstanding these Examples of

the usages of all other Nations, some a∣mongst us, as take upon thē to determine, that to the Jurisdiction of the Admiralls of England, no special, or certain Causes do belong; so the Lord Hobard, in Audly and Iennings Case affirms, That their Jurisdiction is not in respect of any cer∣tain Causes, as the Causes of Tithes and Testaments are in the Spiritual Court, but only in respect of place, and no doubt but Sir Edward Cook, and others who talk so much of Altum Mare, are themselves perswaded, and would perswade others, to be of that opinion; but it is apparent, that it is not the place only, but the na∣ture of the Case, happening within such a place, that makes the Jurisdiction, and therefore if a Contract of Marriage, or a Testament be made at Sea, the Admirall claimes no conusance thereof, which he might do if the place alone were suffici∣ent to give the Jurisdiction, and so Godfry in his Comment upon the Cu∣stomes of Normandy saith,* 1.52 that the Iuris∣diction of the Marshal of France, and of the Admirall, are limited to certain Causes and matters, whereupon it followeth, that they cannot Iudge, but of things, of which the Conusance belongs unto them, for their Iu∣risdictions

are not regulated onely by the Ter∣ritory or place, but also by the Causes and matters over which a competent power is granted unto them. And so Justice Reeves, in an Argument in Communi Banco deli∣vered,* 1.53 that he differed in opinion from the Lord Hobard, and affirmed, that the Cause as well as the place gave Jurisdi∣ction, for if a man upon the Sea do seal a Lease, or an Obligation, the Common Law shall have the Jurisdiction, and not the Admiralty, because the Cause is not Maritime, and this he sayes agrees with the Lord Hobard himself in Bridgemans Case, and Sergeant Callis in his Readings doth acknowledge, That the King rules on the Sea by the Laws Imperial and the Roll of Oleron, and others, But that is, saith he, in the Causes of Shipping, and of Merchants and Mariners. And whereas the Sergeant sayth well, and I suppose no man will deny but the Civil or Imperial Laws, the Roll of Oleron and others (by which I suppose may be understood, the Arti∣cles of the Inquisition of Quinborough) are of force in the Admiralty of England, For further Illustration that there are certain Causes properly belonging to the Conusance and Jurisdiction of the Ad∣miralty

Court of England, It may be more particularly deduced and shewed from these several, and respective autho∣rities.

And first, as touching the particular Causes, which may be deduced from the Civil Laws, some things have been all∣ready shewed, out of what the Romans derived from the Rhodian Laws, and if any will be further satisfied, he may find it perspicuously declared, in a Tract. De Iure & judicio Maritimo, wherein the par∣ticular Causes, not only Civil, but also Criminal, concerning Navigation, & Ne∣gotiation by Sea, are summarily set down, with Relation to the Text of the Civil Laws.

And touching the Laws of Oleron, which are lesse obvious, it may be obser∣ved, that the particular Cases therein are, as first

Touching Ships hired for Sea-voyages, and their proceedings in the same.

• 1 How Masters, and Mariners, are to be satisfied, when the Merchant provides not his goods ready, to be laden at the time agreed upon.
• ...

• 2 How the Master ought to consult with his Company before he put out of the Harbour, and proceed with their ad∣vice, and what he is lyable unto, if he do otherwise.
• 3 How the Master ought to make sa∣tisfaction when the Merchant is preju∣diced by his stay, in any place, and is not proceeding in the voyage.
• 4 How the Master, in case his Ship be disabled by some misfortune, may re∣pair it, or hire another, or if the Mer∣chant refuse, what fraight may be de∣manded.

Secondly, Touching the safe keeping, and delivering of goods received into the Ships.

• 1 How the Merchant shall be satis∣fied if his goods be damnified in the Ship, by evill stowing, or other bad usage, and how the Master and Company may clear themselves.
• 2 How the Master and Company are lyable unto the Merchant, if any goods brought into the port of discharge, mis∣carry in the unlading by occasion of the Tackling or Cordage which are found unfit.

Thirdly, Touching the Engaging of Ships or goods in case of necessity.

• 1 First, Whether the Master wanting means to proceed in his Voyage, may sell, or dispose of the Ship without Com∣mission from the Owners, and how, and in what case he may Engage some tackle, or furniture of the Ship.
• 2 How far, in case of necessity, the Master may intermeddle with the Mer∣chants goods, and if he dispose of any, how he is to make accompt, and give sa∣tisfaction.

Fourthly, Touching Contributions to be made for loss, upon occasion of Com∣mon danger.

• 1 First, How the Master with advice of those in the Ship, or otherwise, in ex∣tremity of tempest, may cast out some mens goods, to save themselves and the rest, and how average, or Contribution is to be made.
• 2 How the Master in the tempest cuting down his Mast, and casting it over Board to save the Ship and goods, ought

• to have satisfaction from those whose goods were saved.

Fifthly, Touching damages done by, or betwixt several Ships.

• First, How and in what manner the Damage is to be born when a Ship sailing into a Port bruizes or br••aks another Ship riding there at Anchor.
• Secondly, How if two Ships riding at Anchor in a Haven, and the water being low, the Master of the one observing some danger from the Anchor of the other, may give notice thereof to the Master of that ship, and if he neglect to remove it, may cause it to be done by his own Company, and if he be hindred therein, and damage done, what repara∣tion may be recovered.

Sixthly, Touching the charge for hiring of Pilots, and their duty.

• 1 The Master being bound by Char∣ter-party to pay Pilotage, in what places, and how far he is bound thereunto.
• 2 How far the Pilot is liable to make ••atisfaction of the ships miscarriage un∣der

• his charge, and whether he be bound when he hath brought her into the Har∣bour, if she miscarry by misplacing there.

There be many other Cases contained amongst these Judgements of Oleron, but these may suffice for our purpose.

As the Roll of Oleron doth contain Judgements or Verdicts especially in Civil Causes, which did belong to Ma∣ritime Judicature, so in the Inqui••ition at Quinborough are presented matters Cri∣minal, and Offences concerning which antiently inquiry hath been made in the Admiralty Jurisdiction, which may be reduced into these heads, as

First, Offences against the King and Kingdome; as

• 1 Of such as did furnish the Enemy with Victuals and Ammunition, and of such as did Traffick with the Enemies, without special Licence.
• 2 Of Traytors goods detained in ships, and concealed from the King.
• 3 Of Pirats, their Receivers, Main∣tainers and Comforters.
• 4 Of Murthers, Man-slaughters,

• Maymes, and Pety-felonies, committed in ships.
• 5 Of ships arrested for the Kings ser∣vice, breaking the Arrest, and of Sergeants of the Admiralty who for money dis∣charge ships arrested for the Kings ser∣vice, and of Mariners who having taken pay run away from the Kings service.

Secondly, Offences against the Publick good of the Kingdome; as

• 1 Of ships transporting Gold and Silver.
• 2 Of carrying Corn over Sea with∣out special Licence.
• 3 Of such as turn away Merchan∣dizes or Victuals from the Kings Ports.
• 4 Of Forestallers, Regrators, and of such as use false Measures, Ballances, and Weights, within the Jurisdiction of the Admiralty.
• 5 Of such as make spoil of wrecks, so that the Owners coming within a year and a day cannot have their goods.
• 6 Of such as claim wrecks, having neither Charter nor Prescription.
• 7 Of Wears, Riddles, Blind-stakes, Water-mills•• &c. whereby ships or men have been lost or endangered.
• ...

• 8 Of removing Anchors, and cutting of Buoy-Ropes.
• 9 Of such as take Salmons at unsea∣sonable times.
• 10 Of such as spoyl the breed of Oisters, or dreg for Oisters, and Mussels, at unseasonable times.
• 11 Of such as fish with unlawfull Nets.
• 12 Of taking Royal Fishes, viz. Whales, Sturgeons, Purpoises, &c. and detaining the one half from the King.

Thirdly, Offences against the Admiral, the Navy, and Discipline of the Sea.

• 1 Of Judges entertaining Pleas of Causes belonging to the Admiral, and of such as in Admiralty Causes sue in the Courts of Common Law, and of such as hinder the Execution of the Ad∣mirals process.
• 2 Of Masters and Mariners con∣temptuous to the Admiral.
• 3 Of the Admirals shares, of Weifs or Derelicts, and of Deodands belonging to the Admiral.
• 4 Of Fletson, Jetson, and Lagon, be∣longing to the Admiral.
• ...

• 5 Of such as Freight Strangers bot∣toms, where Ships of the Land may be had at reasonable rates.
• 6 Of Ship-wrights taking excessive wages.
• 7 Of Masters and Mariners taking ex∣cessive wages.
• 8 Of Pilots, by whose ignorance ships have miscarried.
• 9 Of Mariners forsaking their ships.
• 10 Of Mariners Rebellious, and dis- obedient to their Masters.

In the same antient Book of the Ad∣miralty there is a Copy of a more an∣tient Enquiry touching Admiral Causes, wherein some things relate to Constitu∣tions made by King Richard the first at Grimesby, (viz.) That ships arrested for the Kings service, breaking arrest, shall be confiscated to the King; and by King Iohn at Hastings, That no private man should appropriate to himself the benefit of any salt waters, by Meers, Ridles, and the like, and that the same should be pulled down.

And the fishing cryed common to all people was likewise ordered by King Iohn.

This may suffice to confirm that there

were certain special Causes, both Civil and Criminal, which did antiently be∣long and properly to the Conusance of the Admiral, and to shew that his Juris∣diction was not wholly confined onely to the Sea.

* 1.54That the Iurisdiction of the Ad∣miral of England, as it is grant∣ed by the King, and is usually exercised in the Admiralty Court, may consist with the Statutes and Laws of this Realm.

FIrst it appears by antient Record of the time of King Edward the first, De superioritate Maris, That it was ac∣knowledged by the Deputies of the Par∣liament of England, and of divers other Nations, That the Kings of England time out of mind injoyed the Dominion and Soveraignty of the English Seas, by prescribing Laws and Statutes for the preserving Peace and Justice, and by ex∣ercising all kind of Authority in matters of Judicature, and all other things which

may concern his Soveraignty in the same, which being granted, his power to de∣pute a Magistrate or Officer to those pur∣poses, with so much of his authority as he shall think fit, cannot be denied.

Secondly, That the Jurisdiction and power granted by the King in his Letters Patents to the Admiral, is agreeable to Commissions antiently granted, and which have been passed from time to time by the Kings learned Counsel, and by the Lord Chancellor, or the Lord Keeper for the time being, who have thereunto set the Great Seal:* 1.55 and that the authority and Jurisdiction of the Constable and Marshal is designed by S^t Edward Cook, by referring to Grants of those Offices antiently made by many se∣veral Kings, with exception onely to one irregular precedent, in the time of King Edward the fourth.

Thirdly, That Mr. Selden shews, that all the Patents of the Office of the Lord Admiral,* 1.56 from the beginning of Queen Mary's time to the time of King Charles, have been conceived after one and the same form and tenor, as of Edward Lord Clint••on, afterwards Earl of Lincoln, under King Philip and Queen Mary, of Charles

Howard Lord Effingham, afterwards Earl of Nottingham, under Queen Elizabeth, of Charles Duke of York, after King Charles, under King Iames, and of George Duke of Buckingham, under King Iames, and King Charles, to which may be added the Patent of Algernon Earl of Northum∣berland under King Charles the first, and of Iames the most Illustrious Duke of York under King Charles the Second.

Fourthly, That the Lord Admiral and his Deputies proceeding according to his Commission, is expresly allowed by King Philip and Queen Mary, where they by a Statute restraining the exportation of Corn without Licence,* 1.57 make a special provision, That that Act shall not be pre∣judicial or hurtfull to the Lord Great Admi∣ral of England, for the time being, or to the King and Queens Majesties Iurisdiction of the Admiralty, but that the said Lord Admiral or his Deputies shall exercise, use and execute all kinds of Iurisdiction belong∣ing to the Sea, according to his or their Commissions: which provision, although it seems to have been made in respect of that Statute, yet it shews what respect the King and Queen intended to their Lord High Admiral, their own Admi∣ralty

Jurisdiction in all matters belong∣ing to the Sea, and to the Commission by them granted.

Against the Jurisdiction of the Admi∣ral as is granted by the King, and as it is exercized in the Court, it is pretended in general, That it is not agreeable,

First, To several Acts of Parliament, Secondly, To divers Judgments, Book-Cases and Judicial proceedings, to which may be added the Resolutions of the Judges upon the complaint of the Admi∣ral, in Sir Edward Cooks Articuli Admira∣litatis, All which more specially may be reduced to three heads.

• First, Where the Admiral meddles with Contracts and Writings concerning Sea businesses made within the Realm.
• Secondly, Where he meddles with other things done within the Bodies of Counties, and
• Thirdly, With such things as are made or done beyond the Sea.

The Acts of Parliament are, First, The Statute of the 13. Rich. 2. chap. 5. which restrains the Admiral from meddling with things within the Realm. Secondly, That of the 15. of the same King, chap. 3. which declares, that he hath no Jurisdi∣ction

within Bodies of Counties. Thirdly, That of 2 Hen. the 4. which inflicts penalties on those who sue or proceed contrary to that of the 13 Rich. 2. Fourth∣ly, That of the 5 of Elizabeth, which is pretended to exclude the Admiral from meddling with things done within Ports and Rivers.

The First of these, being more gene∣ral, may in this place be considered, the rest being more particular may, in dis∣cussing of some other particular points to which they are appliable, be examin∣ed.

That of the 13 Rich. 2. chap. 5. or∣dains, that the Admirals and their De∣puties shall not meddle of any thing done within the Realm, but only of things done upon the Sea, as it hath been used in the time of King Edward the Third.

Touching this Statute it may be ob∣served what Sir Edward Cook delivers out of Plowdens Commentaries,* 1.58 That the Prae∣amble of a Statute is the Key to open the meaning of the makers of the Act, and the mischiefs which they intended to remedy; now in the Praeamble of the Statute it ••s suggested, that the Admiral had en∣croacht

divers Jurisdictions and Franchi∣ses belonging to the King & other Lords, from whence it may be conceived, that the Parliament intended only to restrain him from medling in his Courts with such things within the Realm, wherein he had encroacht upon the Jurisdiction of the King and other Lords, which what those things were, it doth no wayes ap∣pear; but it cannot be imagined or rea∣sonably conceived, that it was intended the Admiral should be debarred from proceeding in Causes of Navigation and Negotiation by Sea, which never did belong to any other Courts of the King or other Lords, and were formerly held proper for the conusance of the Admi∣ral, and as things were then stated could not be held encroachments.

So much may the rather be supposed, because the Statute restraining him from meddling with things done within the Realm, but only with things done upon the Sea, further adds, according to what hath been duly used, in the time of the No∣ble Prince King Edward, Grand-father to the King, which was King Edward the Third.

Sir Henry Sp••••man writes,* 1.59 that some

men did conceive Causarum Nauticarum cognitionem, & forum rei maritimae, quod hodie Curiam Admiralitatis vocant, sub Edwardo Tertio illuxisse; and it is pro∣bable, that in that Kings time, who did many other glorious things for the good of this Nation, the Court of Admiralty received some setlement, and grew more conspicuous than it was before; but the Constitutions observed by Mr. Selden in the Book of the Admiralty of Henry the First,* 1.60 Richard the First, King Iohn, and Edward the First do manifest, that the Court was much more antient: and Sir Edward Cook, to shew the antiquity of the Court of Admiralty to have been long before the time of Edward the Third, in whose dayes, he sayes, that some had dreamed that it had begun, recite, the antient Record De superioritate Maris,* 1.61 before mentioned, and likewise another quoted also by Mr. Seld••n,* 1.62 wherein it is shewed that King Edw. the Third in the 12 year of his Reign did consult with all his Judges, ad finem quod retineatur & continuetur ad subditorum prosequutionem forma procedendi quondam Domini Regis &c. that is, To the end that the form of proceedings at the sute of the Subjects

begun and ordained by his Grand-father King Edward the First and his Counsel, for retaining and preserving the antient So∣veraignty of the Sea of England, and the Right of the Office of the Admiralty in the same, might be resumed, and continued, touching the correcting, interpreting, and declaring the Laws and Statutes lately or∣dained for the maintaining of Peace and Iustice amongst the people of all Nations whatsoever, passing through the English Seas, and for punishing of Offences, and for gi∣ving of satisfaction to such as were dam∣nified, which Laws and Statutes were cor∣rected, declared, interpreted, and published by King Richard the First King of England in his return from the Holy Land, and were intituled Le Ley Oleron in the French tongue.

And it is manifest, That the Law was continued all that Kings time, in regard that in the 49 year of his Reign, the se∣lected Sea-men for the Inquisition at Quinborough, in the conclusion say, That touching some businesses proposed in the Articles of the Inquisition, they know no better advise nor remedy than that which had been formerly used and pra∣ctised

after the manner which is contein∣ed in the Law of Oleron.

All which being admitted and duly considered, it may be presumed, that such Causes as did originally by Civil Law belong to the Admiralty, and what for∣mer Kings had antiently ordained for the regulating of the same, as likewise such as were agreeable to the matters decided in the Iudgments of Oleron, and what are conteined in the Inquisition taken at Quinborough, in the time of King Edward the Third, were within the conusance of the Admiralty Court, and consequently the same are permitted to be tried and determined in the same Court by the Sta∣tute of the 13 of Rich. 2.

Touching the Judgments, Judicial Acts, and Book-Cases intended to restrain the Admiral of England in exercise of his Jurisdiction as it is granted in the Kings Commission, it may be answered in general, First, That those Judgments, Judicial Acts, &c. are in Causes of diffe∣rence in respect of Jurisdiction betwixt the Courts of Common Law and the Admiralty Court, and it is incident to all professions, where there is any com∣petition or emulation with others, to in∣cline

to that which is most to their ad∣vantage. Secondly, Such Judgment sand Book-Cases have been grounded upon the common understanding of the Statutes, without any notice or respect to the Laws of the Sea, or the condition of Maritime Causes, the circumstances of the places being the chief Rule by which they have been framed. Third∣ly, That many of them upon due exami∣nation may be found not so concluding as they are pretended, and although much respect and reverence be due to the Authours, yet we are not bound to be∣lieve that their judgments are infallible. Fourthly, That the Judicial proceeding as Prohibitions, being the results of the for∣mer authorities they may be weighed accordingly. Lastly, Touching the main piece, Sir Edward Cooks Articuli Admira∣litatis, carrying the reputation of the Re∣solutions of all ••••e Judges touching the matters therein conteined, it will appear that they very much differ from the Con∣cessions of the Judges of the Kings Bench 1575, and from the Resolutions of all the Judges the 18 of February 1632, sub∣scribed unto by them, in the presence of King Charls and twenty Lords of his Coun∣sel.

The particular authorities which may be collected out of S^r. Edward Cooks Notes, to prove that the Admiral of England hath no conusance of things done within the Realm, but only of things done upon the Sea, are as followeth,

• 1 That in the 2 Rich. 2. Hibernici sunt sub Admirallo Angliae, de facto super alto Mari.
• 2 That the 7 Rich. 2. in an Action of trespass brought for a Ship and Mer∣chandises taken away, the Defendant pleaded that he did take them, en le haut Mer, ou les Normans que la enemis la Roy, and it was allowed a good Plea.
• 3 That Fortescue who lived in the time of Hen. the Sixth saith, Siquae super altum mare extra Corpus Comitatus in placito coram Admirallo deducantur per testes terminari debent.
• 4 That Dyer in the time of Queen Mary saith, That by the Libel in the Admiralty Court▪ the Case is supposed to com∣mence sur le haut mer, & intra Iurisdictio∣nem de l' Admiralty.

To these authorities may be answered in general, First, That whereas some of them speak of Altum Mare, the Statute of

the 13 of Rich. 2. hath no such Attri∣bute, but mentions simply the Sea.

2 That the same Authorities granting that the Admiral hath jurisdiction on the Sea, do not declare, much less conclude, that he hath no jurisdiction elsewhere: And as to the particulars,

1 The Authority of 2 Rich. 2. which affirms that the Irish were subject to the Admiral of England, for a thing done on the Sea, mentions not for what kinde of thing, and happily it might be for some offence against the Crown, or against the Peace, in offering violence to the Kings Subjects, or the subjects of his Allies; and in such Cases it might be understood, that he had Jurisdiction over the Irish, as over the Subjects of England, and other Nations, onely ex∣tending to the high Sea; but it cannot from thence be argued, but that if it were a business concerning Navigation, or Negotiation by Sea, he might also have had Jurisdiction over the Irish, as well as over other persons, not onely super alto mari, but also in other places elsewhere.

2 The Plea to the Action of Tres∣pass, in the 7 Rich. the 2. might be

good, and allowed in two respects; First, In regard the thing was done where the Country could take no no∣tice, and therefore no Jury by twelve men could be had. Secondly, In regard the Ship and goods were taken from the Kings Enemies, against whom no ••res∣pass could be committed, because that to offend them any wayes was lawfull; and in that respect the Plea might have been allowed, although the Ship and Merchandise had been taken in a Port, or Navigable River.

3. Whereas Fortescue sayes, that things done upon the high Sea, prosecu∣ted before the Admiral, ought to be de∣termined according to the Proofs made by Witnesses, and no more, Sir Ed∣ward Cook affirms, That it proves by ex∣press words that the Admiralty is con∣fined to the high Sea: Fortescue having given reason for Trials by Jury, when the Neighbourhood of the Country could take notice of the business, Grants that for things done in other places, the Law of the Kingdome doth allow of proofs by Witnesses, as in Causes com∣menced before the Admiral for things done on the high Sea, and likewise be∣fore

the Constable, for things done be∣yond the Sea; so that it is evident he doth no more expresly confine the Ad∣mirals Jurisdiction to the high Sea, than he doth the Constables to places be∣yond the Sea; it being notorious that his Jurisdiction extends to Deeds of War, and Arms within the Land; as it will be proved that the Admirals Ju∣risdiction likewise to matters of Na∣vigation, and Negotiation by Sea.

4 Touching the Authority of Dyer, that by Libel in the Admiralty Court, the Case is surmised to commence, Sur la haut mer, &c. It may be answered, that the Libels in the Admiralty, some∣times (as the business falls out) declare, Super alto mari & infra jurisdictionem Cu∣riae, but ordinarily Causes are laid onely intra fluxum & refluxum Maris & Iuris∣dictionem Curiae, and generally the Causes are no otherwise described, but A con∣tra B. in causa civili, & Maritima.

* 1.63That the Admiral of England may hold Conusance of Contracts, and Writings made at Land, touching business of Navigation and Trade by Sea.

BY an ancient Record in the Black book of the Admiralty (of which Mr. Selden takes notice) it appears,* 1.64 that it was ordained by King Edward the first, and his Lords, at Hastings, Que comment div••rs Seigneurs avoient fran∣cheses, &c. That although di••ers Lords had ••ivers Franchises to try Pleas in Ports, yet that neither their Steward, nor Bayliffs should hold any Plea, if it concerned Merc••ant or Mariner, as well for matter of Fact, as of Ships, Obligations, and other D••ed••; which although it extends onely to inferiour Lords, yet it may be said, that it was done in favour of the Admirals Jurisdiction, in such matters.

Secondly, by Commissions from time to time Granted by the Kings of England, to the Admirals, power is given, Ad cognos∣cendum, &c. to hold the Conusance of Charter-parties,

Policies of Assurance, Bills of Bot∣tomry, Bills of Lading, and of Sale of Ships.

Thirdly, The Causes and Sutes ari∣sing by occasion of businesses contained in such Writings have in all observable times and places been held to be Mari∣time, and the Conusance of them hath been allowed to Martim Courts, as it hath been before fully shewed; and it may be further considered, that such Con∣tracts and Writings have their Original from ancient Maritim Laws, & are both in names and nature, things forein to the Laws of this Realm: And so much may be gathered from the order which Wes•• ob∣serveth in his Book of Presidents, where after the form▪ of Deeds and Contracts proper to the Common Law, he handles those which concern Merchandizing and Trade by Sea, as things of a distinct and several nature.

Touching the particulars, First, Char∣ter-parties seem to have been derived from the Rhodian Laws, by which it was provided, Si quis na••em conduxerit, instrumenta consignata sunto, If any man shall hire a ship, let there be Writings drawn and sealed thereupon.

There is likewise mention of Charter-parties

in the Role of Oleron, and in the French later Ordinances, made for the reglement of the Admi∣ralty of France, and it is supposed that no mention of them can be found in any Law or Statute of this Realm, until the 32 of King Henry the 8. cap. 14. where the Conusance of them is referred to the Admiralty, as it shall be hereafter shewed. Moreover Malines confirms, that anciently in Charter-parties it was exprest,* 1.65 That the Contents thereof should be understood according to the Law of Oleron; and at this time there are Clauses usu∣ally inserted into them, enjoyning, That the Merchants besides the payment of Freight, shall make allowance for Pri∣mage, Average and Pettelodmenage, things no where occurring in the Books of Common Law, and anciently determi∣nable by the Law of Oleron.

Secondly, Policies of Assurance are grounded upon the Civil Law, which alloweth an Action for the undertaking a hazard which is doubtfull, for reward or consideration first given, which is commonly called a Praemio, they are of later Civillians called Sponsiones Merca∣toriae, and Assecurationes,* 1.66 which Malines

affirms, were taken up in this Kingdome from the Laws of Oleron, practised on the Sea coasts of France, but it is manifest that now they are likewise in use in Venice, Naples, Genua, Ancona, Spain, and Portugal, and in other places where the affairs of the Sea are regulated by the Civil Law, the Consolato, and Laws of Oleron.

Thirdly, Bills of Bottomry, when an Owner, or Master of a Ship, to furnish his Voyage, takes up money upon ex∣traordinary interest to be paid when the Ship arrives at the Port appointed, and thereby engages his Ship for the performance of the same, are grounded on the ancient Grecian and Roman Laws. Iulius Pollux, a learned Expositor of tearms, or words used amongst the Grecians, calls a Bill of this kinde, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.67 quae de nautico soenore conscripta est, of which nauticum foenus, there are several Titles in the Digest and Code of the Civil Law, and the monies so lent to be transported at the hazard of the Lender, in the Civil law is called Pecunia trajectitia, of which Salmatius, Pecunia trajectitia dicitur, quae trans mare vehenda accipitur,* 1.68 & usurae quae ex pacto in eam pecu∣niam

praestantur, Maritimae, & nauticae dicuntur.

Fourthly, Bills of sale of Ships are made conformable to Maritine Laws; for as West in his Presidents delivers the form, it is in such Bills of sale exprest and declared, That he that sells the Ship bindes himself, his Executors, and Administrators, the said Ship so bar∣gained and sold, to warrant and defend, against all men, for one whole year, and a day, according to the Law of Oleron, the danger of the Sea, Fire, and Enemies, onely excepted.

These things being considered, it may be thought reasonable, that such Con∣tracts and Writings being grounded upon the Civil Law, the Laws a∣mongst Merchants, and other Maritime Laws, the Sutes arising about the same should rather be determined in those Courts, where the proceedings and Judgements are according to those Laws, than in other Courts which take no notice thereof.

For the restraining of the Court of Admiralty from proceeding in Sutes arising from such Contracts and Wri∣tings made at Land, although the bu∣sinesses

therein contained, are to be per∣formed at Sea, amongst the Authorities cited by Sir Edward Cook, there may be intended appliable to this purpose, First the Act of Parliament of the 15. of Ri∣chard the 2. Chap. 15. Secondly, some judgements given, and Prohibitions granted in the Courts of Common Law, concerning causes of this sort, commen∣ced in the Admiralty.

Touching the Statute of the 15. of Richard the 2. Chap. 34. which is the ground of the main Objections against the Admirals Jurisdiction, it may be conceived, That whereas that of the 13. Chap. only in general restrains the Ad∣mirals from medling with things done within the Realm, and allows them to meddle with things done on the Sea, that is relating to the Sea, This Statute was intended to declare more expressly, both in what places, and in what mat∣ters they should not meddle, And touching the places, in regard the word Realm,* 1.69 as Sir Edward Cook observes, in a general sence extends to the Sea within the Kings Dominions, as well as to the Land, de∣clares the restraint, to be only within the bodies of Counties, And it may be sup∣posed

that he intended a difference be∣twixt the Bodies and the Extremities or bounds of Counties, as the Statute of the 3. of Edward 1. makes a difference betwixt things done within the Shires, and things done within the Marches, and Bor∣ders of Shires, whence the Statute of the 5. of Elizabeth, Chap. 5. allows to the Admirals Jurisdiction, as the main Sea, so also the Coasts of the Sea, being no parts of the Bodies of any Counties of the Realm, and in that respect this Sta∣tute specially excepts from the Admi∣rals Jurisdiction, the Conusance of wreck of Sea, as happening on the Coasts or Shores of the Sea, out of the bodies of any Counties, so that as to the place, or Territory of the restraint, this Statute declares it streighter, than that of the 13. of Richard the second.

Touching the matters, with which the Admiral by this Statute is not to meddle within the bodies of Counties, they are expressly declared. First Con∣tracts, Pleas, and Quarrels, That is perso∣nal Actions concerning Contracts; and Secondly are implyed matters Crimi∣nal, and the prosecution of them.

Touching the First, which concern

this Assertion, the words are, That the Court of Almiralty hath no manner of Conu∣sance of any Contract, Plea, or Quarrel, ri∣sing within the bodies of any Counties; But all such Contracts, Pleas, and Quarrels shall be tried, determined, and remedied by the Com∣mon Law. Which words are so general, that it is pretended, they ought to be understand of all Contracts, and Wri∣tings whatsoever, even of such as con∣cern Sea businesses, if they be made, or written within the Bodies of any Coun∣tries.

In answer whereunto, there may be taken into consideration, a General Rule cited by Sir Edward Cook, allowed as he saies by all Laws,* 1.70 in construction of Sta∣tutes, viz. Quamvis lex generaliter loqua∣tur, restringenda tamen est, ut cessante ratione, & ipsa cesset, cum enim ratio sit anima, vi∣gorque ipsius legis, non videtur legislatur id sensisse, quod ratione caret, ••tiamsi verbo∣rum generalitas prima facie aliter suadeat. And the reason of this Statute, as may be gathered from the Praeamble, as the Key thereof, was to hinder the Admi∣rals encroaching of divers Jurisdictions, Franchises, and Profits pertaining to the King, and other Lords, besides those they

were wont or ought to have of right; by which words it is acknowledged, that the Conusance of some ma••ters did for∣merly belong to that Jurisdiction; And not to diminish any of their Ancient and just rights in things belonging to the Sea, which are permitted, and allowed to the Admiral, by the Statute of the 15. of Richard 2. and unto which neither the Kings Courts, no•• the Courts of any other Lords had formerly before this Statute any pretence.

Sir Edward Cook in his Answers to the 1. Objection of the Complaint, 8••. Ia∣cobi, saith, That the Judges acknowledge, that of Contracts, Plea••, and Quarrels made upon the Sea or any part thereof, &c. the Admiralty hath and ought to have Jurisdiction, and that no President can be shewed, that any ••rohibition hath been granted for any Contract, Plea, or Quarrel concerning any Marine cause made or done upon the Sea. By which words he implies, that although the Admiral had and ought to have Juris∣diction upon the Sea, yet it was only concerning Marine Causes, but if a Con∣tract, Plea, or Quarrel were made or done upon the Sea concerning any Ter∣rene

Cause, or matters concerning busi∣nesses of the County, a Prohibition might be granted. Now it may seem worthy of Consideration, whether any Reason can be shewed why the Courts of Common Law ought to have cogni∣zance of Contracts, Pleas, and Quarrels which concern Terrene Causes, or Mat∣ters concerning businesses of the County, made or done upon the Sea; Yet if Contracts, Pleas, or Quarrels, which concern Marine Causes, or Matters be∣longing to the Sea, be made or done within the Bodies of Counties, the Ad∣miral ought not to have the like Cog∣nizance, And if no reason thereof can be shewed, how according to the gene∣ral Rule which Sir Edward Cook delivers touching the Construction of Statutes, the common Interpretation which is made of that of the 15. of Richard 2. Chap. 3. by which Contracts, Pleas, and Quarrels arising within the Bodies of Counties, are extended to Contracts, Pleas, or Quarrels relating to Marine af∣fairs, can be justified, the reason of the Rule being, Cum Ratio sit anima Legis, non videtur Legislator id sensisse, quod ra∣tione caret, etiamsi Verborum generalitas, prima facie aliter suadeat.

And that the place only, where a Con∣tract is made of written, should alter or transferr the Jurisdiction to the Courts of Common Law, may seem very un∣reasonable, for the reasons following.

First, for that Contracts, Pleas, and Quarrels, being things incorporeal, or matters of right, may more properly be said to arise from that, from which they are caused, or occasioned, than from the place where they happen to be made, and so Contracts, Pleas, and Quarrels occasioned by the businesses of the Coun∣ty, may be said to arise within the Body of the County, and Contracts, Pleas, and Quarrels occasioned by the busi∣nesses of the Sea, may be said to arise from the Sea, in what places so ever they happen to be made, or Written. So it is properly said, Ex facto jus oritur, & actio oritur ex delicto. Because the Law results from the fact, and the Action is occasioned by the fault. So where the Jurisdiction of the Admiral of France, is said to be, pour le fait de la Mer, Mr. Sel∣den renders it in Latin,* 1.71 ob causam aliquam à re maritima ortam, and Salmatius (as before) saith,* 1.72 usurae propter pecuniam tra∣jectitiam praestandae maritimae & nauticae

vocantur, etsi nummi in terris dantur.

Secondly, that the end of a Contract, being to have something performed, and Pleas and Quarrels are occasioned by the non-performance, or ill performance of the same, The place of performance is more considerable, than the place where the Contract was made, or written; So Ulpian a famous Roman Lawyer saith, Mulier exigere dotem illic debet,* 1.73 ubi mari∣tus ••omicilium habet, non ubi instrumentum dotale conscriptum est, nec enim id genus contractus est, ut tam eum locum spectari oporteat, in quo instrumentum dotis actum est, quam locum domicilii, in quem mulier per conditionem matrimonii reditura erat, When a Dowry is to be restored to a Wife, after her Husbands death or divorce, it is not to be estimated, according to the value of things where the instrument or deed of the Dowry was made, but according to the value of the place where the Dowry was to be made good, that is the place, where her Husband li∣ved.

Thirdly, for that if the Question be whether a Maritime Contract were made or no, it may be determined by a jury of the place, But if the Plea or Sute be (as most commonly it is) whether

the Contract be performed, or not per∣formed, it cannot be determined but upon proofs, made from the place of per∣formance, of which the Vicinage to the place where the Contract was made, can take no notice, and therefore it is improbable that the Statute should in∣tend that such Sutes should be tried, discussed, and determined only by the Courts and course of Common Law.

Fourthly, the Common Law is not so strict, but that according to the nature of the business, it allows Jurisdiction to other Courts; For although Promises and Contracts of money, are generally Pleadable in the Courts of the Com∣mon Law,* 1.74 yet as Bracton writes, causae de rebus promissis ob causam matrimonii, in foro Ecclesiastico terminari debent, quia cujus ju∣ris, id, & jurisdictionis, est principale, ejus∣dem erit accessorium; And in an other place he gives a reason for the same, quia semper videndum propter quid aliquid sit, vel promittatur. And again, although Sutes touching Tenures and Services belong to the same Courts of Common Law,* 1.75 yet Littleton shews, That if Tenants in Franck Almain, fail to perform divine Service, the Lord may complain thereof to

the Ordinary; and Sir Edw. Cook in his Comment thereupon observes, that the Law doth appoint every thing to be done, by those to whose Office it properly appertaineth, and so saith he, the Lord hath remedy for his Divine Service (albeit it issue out of tem∣poral Lands) in foro Ecclesiastico, by the Ecclesiastical Court. And certainly if what constructions are made of the Law, were made of this Statute, it would be more easily admitted, That a Maritime Contract, although made, or written within the County, should be tried before the Judge of the Admi∣ralty, whose Office it is to determine Maritime causes.

Thirdly, For the better discerning of the meaning of this Statute, it is offered to consideration what hath been the sense of Parliaments in preceding and subsequent Statutes; as first in the Sta∣tute of the Staple made in the 27 of Edw. the 3. in 3 Chap. where it is decla∣red, That the Mayors and Constables of the Staple, shall have Iurisdiction and Conu∣sance within the Towns where the Staple shall be, of all manner of things touching the Staple, which shall be ruled by the Law Merchant, and not by the Common Law of

the Land, nor by the usage of Cities, Bur∣roughs, or other Towns, &c. So that all manner of Contracts and Covenants made betwixt Merchant, and Merchant or other, where one party is a Mer∣chant, whether the Contract be made with∣in the Staple, or without, the Plaintiff may sue his action or Quarrel before the Ju∣stices of the Staple by the Law of the Staple, unless he make choice to sue in some other place of the Common Law; from which may be observed, First, That the Merchants businesses, by the Judge∣ment of the Parliament, were held fit∣ter to be regulated by a special Law, viz. the Law-merchant, than by the com∣mon Laws or customes of the Countries. Secondly, That where Contracts or Co∣venants did concern Merchandize, or matters belonging to the Staple, it was not thought considerable, to point of Ju∣risdiction, whether the Contract or Co∣venant were made within or without the precincts of the Staple.

The susequent Statutes are that of the 32 of Hen. 8. Chap. 14. which de∣clares that the Court of Admiralty may hold plea of Charter-parties; and that of the 43 of Elizabeth, Chap. 12. which

hinders the Courts of common Law from medling with Policies of Assu∣rance, which two things are the main matters endeavoured to be maintained by the Statute of the 15 of Rich. the 2. to belong to the Conusance of the Courts of common Law, because they are usual∣ly made at Land, within the bodies of Counties.

The Statute of the 32 of Hen. 8. Ch. 14. prohibiting the employment of Forein ships, ordained, concerning the shipping of this Kingdome, That the Owners, or Masters make their departure from the Port of London, after the Freighting, or Lading of the Ship, as soon as wind and weather wil serve, according to the Charter-party made betwixt the Owner, or Master, and the Mer∣chants, without protracting of time, and also that they, and every of them to his power, shall see and provide that all Wares and Merchandises, which shall be by the said Merchants, and their servants brought into any Ship or Vessel, shall be honestly and in good order saved and kept; Provided al∣wayes, that if any Merchant stranger, or other, finde himself grieved, or damnified, by negligent keeping of his Wares, or Mer∣chandises, or by long delaying, or protracting

of time, in making of the Voyage, by the said Owner, his Master, or any of the Ma∣riners of the said Ship, otherwise than shall be agreed in, or by the said Charter-party, not having been le••ten by wind or weather, he shall and may have his remedy by way of complaint, before the Lord Admiral of Eng∣land for the time being, his Lieutenant, or Deputy, against the said Owners or Masters, who shall or may summarily, and without de∣lay take such order therein, as shall be thought to their discretions most convenient, and according to right and justice in that be∣half. It is true, that the Cases exprest, are for the Merchants to recover satis∣faction for delay, or damage done to their goods, according to the Charter-party from the Owners, and the Masters of Ships; and it were very unreason∣able, if the Master or Owner having d••ely performed their Voyage, might not seek the like remedy before the same Judge against the Merchants, not observing the Charter-party, either in not Lading their goods within the time appointed, or not paying the Freight ac∣cording to agreement in the same con∣tained and exprest, the causes being hinc inde reciprocal, and it being some∣times

held an absurdity, Illud quod in uno eodemque judicio terminari potest, apud diversos Iudices ventilari.

The Statute of the 43 of Elizabeth, Chap. 12. declares, That whereas differen∣ces growing upon Policies of Assurance had been ordered by discreet Merchants, ap∣proved by the Lord Mayor, who did speedily decide those Causes, until that of late years, divers persons did withdraw themselves from that arbitrary course, and have sought to draw the parties assured, to seek their monies of every several assurers by Sules commenced in her Majesties Courts, to their great charges, and delay, thereupon it was enacted, that a Commission should be granted, giving power to certain Commissioners (the first whereof is the Judge of the Ad∣miralty) to order and decree such Causes, in a brief and summary course, without for∣malities of pleadings and proceedings. Malines affirms,* 1.76 that he amongst others, was one who upon experience of the great inconveniences which followed upon the drawing of those Causes, to the Courts of Common Law, solicited the Parliament to pass that Act.

The Legal authorities which may be conceived to be intended to debar

the Admiral from the Conusance of Contracts, and writings made at Land, touching things to be performed at Sea, or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before, the Courts of Common Law have admitted, and held Pleas of Charter-parties, of Policies of Assurance, and declared something concerning Ma∣riners wages. Touching Charter-parties, it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute, of double damages, by William Hore a∣gainst Ieffery Unton, who had sued the said Hore in the Admiralty for four∣score pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes, imployed to go towards Island, in regard, Contractus ille apud novam Sa∣rum infra corpus Comitatus, & non super altum mare factus, & junctus fuit; where∣upon damages were assessed against the Defendant to an hundred Marks, and costs to 40 l.

Again, that in the 28 of Elizabeth in the Kings Bench, upon a Charter-party, by a Deed indented which was made at Thetford in the County of Norfolk, Euangelist Constantine sued Hugh Glynn,

for the breach of Covenant, in not stay∣ing at Mu••trel in Spain so many dayes as were limited by the Covenant, where∣upon he was condemned in 500 l. and in arrest of Judgement it being shewed, That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had, and that therefore the trial was not suffici∣ent, Sir Christopher Wray, and the whole Bench resolved, that the Plaintiff should recover 500 l. besides the costs and damages, because the Charter-party was made at Thetford within the Realm.

Concerning Policies of Assurance, That in the 38 of Hen. 8. in a Case be∣twixt Crane and Be••l, touching a promise made at Dartmouth, That the Ship should pass without taking, which was after∣wards surprized by the Spaniard upon the high Sea, it was held not determi∣nable in the Admiralty, for although the taking were upon the Sea, yet the promise was upon the Land.

Again, that in the 36 of Elizabeth, an Action of the Case was brought in the Kings Bench upon an Assumpsit, from a Policy of Assurance, where it was

undertaken, That a Ship should sail safely from Melcomb Regis to Abbevil in France, the Ship being arrested by the French King in the River of Somme, in the Realm of France, and the matter was there adjudged: ••o which may be added what S^r Ed. Cook delivers for Law in Dow∣dales case, Cum combein le contract comme le performance, &c. when as well the Contract as the performance of it, is wholy done be∣yond the Sea, and it so appears, the Trial fails at the Common Law: But here, saith he, the Assumpsit was made at London, which is the ground and foundation of the Action, and therefore the Trial of necessity shall be there, or otherwise it shall not be tryed at all; and the Arrest which is in issue is not the ground of the Action, but the Assumpsit, &c.

Touching Mariners wages is, that of the Book of 48 of Edw. 3. where it is said, That if a Mariner make a Cove∣nant with one to serve in a Ship on the Sea, yet if his wages be not paid they shall be demanded in that Court, by the Common Law, Nemy per ley Mariner.

To these Authorities it may be re∣plied in general, that all, but the last, are grounded upon the commonly re∣ceived

sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there, where it is made or written, with out any respect to the nature of the business, and the occasion thereof, from whence in truth it doth more properly arise; And whereas other acts of Parlia∣ment have in some special points ordain∣ed and declared otherwise, it may be hoped that it may not be held a crime unexcusable, if a man should doubt of the reasonableness of those authorities.

Touching the particulars, As First of the 31. of Henry 6. betwixt Hore and Unton, wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party, it is said, that the Sute was upon a Charter-party of Freightment, for four score pounds, It doth not appear that it was for the freight of the Ship, although it be most probable; and if it were so, why the Ma∣ster of the Ship should not as well sue for his freight, by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute, might sue in the Admiralty for dammage done to his goods, aboard a Ship, contrary to the Charter-party, without any respect to

the place where it was made? if no rea∣son can be shewed, that Judgment may be thought not to have been grounded so much upon reason as it was upon the common received opinion of the mean∣ing of that Statute, as it is therein rela∣ted, quia contractus ille apud novam Sarum, factus & junctus fuit. Touching that of the 28. of Elizabeth, whereby Glynn was condemned to Constantine for breach of Covenant, in a Charter-party, in the summ of 500. l. it seems a Case far more reasonable, though something grie∣vous, because it is not denied, but that a sute upon a Charter-party may be com∣menced at the Common Law, upon a penalty, as it seems that was, for breach of Covenant, in not staying at Madrill, so many dayes as were limitted by the Charter-party, Only that is thought no concluding argument, against a sute in the Admiralty for freight grounded on a Charter-party; But whereas when in the Arrest of judgment, it was alleged that the Trial was not sufficient, because the issue did arise out of a place in a Forein Kingdome, from whence no Jury, by Twelve men might be had, Sir Edw. Cook sayes that Sir Christopher Wray and

the whole bench resolved, That the Plaintiff should recover cost, and dam∣mages, because the Charter-party was made at Thetford in Norfolk, within the Realm, it is as much as if Sir Edw. Cook had said, that whether the suggestion in the issue, were true or false, tryed by a competent, or incompetent Jury, yet if the sute were brought upon a Charter-party, the Conusance thereof did belong to the Common Law, and whether the former Judges, had proceeded well or not, was not material, so that what is premised formerly touching Judgments and judicial Acts, in the First Chap. may from this case be excused.

And as touching the infinite prohibi∣tions granted upon sutes commenced in the Admiralty concerning Charter-par∣ties, there may be something declared, and made appear reasonable hereafter, in an other place.

As to the instances of Policies of as∣surance held tryable at the Common Law, although by the Statute of the 43. of Elizabeth, it hath been shewed, that the proceedings in those causes at the Common Law, were altogether incon∣venient to the Kingdome, yet in regard

Sir Edward Cooks reasons in Dowdales case for the maintaining of proceedings in such businesses, may be applyed to other matters, to the prejudice of the Admi∣ralty Jurisdiction, something may be ob∣served concerning the same, in Sir Ed∣ward Cooks reasons, as first, That the Assumpsit is the ground, and foundation of the Action, and that the Arrest, or Imbargo in that case had been no ground of an Action, if there had been no As∣sumpsit, neither could the Assumpsit have produc'd an Action, if there had not been an Arrest. But what was the nearest, and immediate ground of the Action? without doubt, the Arrest, And what was chiefly in question? not the Assumpsit, for it was taken for gran∣ted, that that was done in London; but it was the Arrest, which (as it was decla∣red) was in issue; And it is likely that the Common Law which intended a Trial of the Vicinage, intended it of the thing or matter which was in issue, to be tried. But he further argues, That the Trial must be of necessity where the As∣sumpsit is made, for otherwise there could have been no Trial, at the Com∣mon Law, which might have savour'd of

some reason, If possibly there could have been no Trial in any other Court, but the Cause being Maritime, and a∣mongst Merchants, it might more proper∣ly, have been tried in the Admiralty or in the Assurance Court, without a Jury, or Trial of Twelve men, by witnesses, as Fortescue acknowledgeth.

Thirdly, touching that of the Book of 48. of Edward the 3. where it is said, That if a Mariner make Covenant only to serve in a Ship on the Sea, yet if the wages be not paid, they shall be deman∣ded in that Court, by the Common Law, not by the Law Mariner, the occasion was, that an action of debt being b••ought at the Common Law, upon an Obliga∣tion dated at Harflet in Kent, whereas in truth it was made in Normandy, and the consideration was Service done in Warr in France, thereupon one of the Judges said, That the summ demanded grow∣ing due for Service done in Warr, the Cause ought to be tryed in the Consta∣ble, and Marshals Court; Another (as it seems willing to retain the cause) said t••at he hired a man to go in a message to Rome, although the service were done in another Realm, yet what was due by

covenant, might be recovered in that Court; Another said, if a Mariner make a Covenant with one to serve in a Ship on the Sea, yet if his wages be not paid, they shall be demanded by the Common Law, &c. So that it is plain it was not a Resolution of the Court, but a fuit dic, as they say, and one mans opinion, by way of argument to another purpose; And the ground thereof might be, that if it were in issue whether such a Covenant were made, it might be tryed at the Common Law, but it doth not conclude but that if the Question were, whether the service in the Ship were performed on the Sea, it might more properly be tryed in the Admiralty Court.

For confirmation on this point.

First, To the 4. Request of the Judge of the Admiralty to the Lord Chief Ju∣stice of the Kings Bench 12. May, 1575. viz. That the Judge of the Admiralty may have and enjoy the knowledge of the breach of Charter-parties made be∣tween Masters of Ships and Merchants for voyages to be made to the parts be∣yond the Sea, according as it hath been accustomed, time out of mind, and ac∣cording to the good meaning of the Sta∣tute

of 32. Hen. 8. chap. 14. though the same Charter-parties be made with in the Realm, The answer is, This is agreed upon for things to be performed upon, or be∣yond the Seas, though the Charter-party be made upon the Land, by the Statute of 32. Hen. 8. chap. 14.

Secondly, it was agreed unto by all the Judges and Attorney General before the King and his Counsel, That if a Sute be before the Admiral, for Freight or Mari∣ners wages, or for breach of Charter-parties for Voyages to be made beyond the Sea, al∣though the Charter-parties happen to be made with in the Realm, and although the money be payable within the Realm, so as the penalty be not demanded, a Prohibition is not to be granted. But if the Sute be for the pe∣nalty, or if the Question be made whether the Charter-party were made or not, or whether the party did release, it is to be tryed by the Kings Court at Westminster, So that at first it be denied upon Oath that a Charter-party was made, or a de∣nial upon Oath tendred, to which it may be added, that it was there further a∣greed, That if Sute shall be made in the Court of Admiralty, for building, amending, saving, or necessary victualling of a Ship,

against the Ship it self, and not against any party by name, but such as for his interest makes himself a party, no Prohibition is to be granted, though this be done within the Realm.

* 1.77That the Admiral of England may hold Conusance of things done in Ports, and Navigable Ri∣vers, as touching Dammages done to persons, Ships, and goods, Annoyances of the Pub∣lick passage, and unlawfull fish∣ing.

FIrst it is apparent that Ports, and Na∣vigable Rivers are places where Ma∣ritime businesses, and causes of diffe∣rence concerning the same, may happen, as well as on the main Sea it self, and in truth are more proper for such affairs, than for any ordinary businesses of the Land, Portus (saith Ulpian) est locus con∣clusus quo importantur merces & exportan∣tur,* 1.78 and importation, and exportation of

goods do chiefly concern Navigation, and Merchants affairs.

Secondly, Flumina navigabilia, that is navigable Rivers, are of the same con∣dition and use, and it is allowed by the Common Law, that every water which flows and reflows, is an Arm of the Sea, and Mr. Selden maintains that Navigable Ri∣vers, are in the Kings special Dominion,* 1.79 and Protection, and under the King, within the Jurisdiction of the Admiral: for he shewing the difference betwixt the Admiral of France, and the Admiral of England, saith, the Government of Ri∣vers, which are in the Dominion of the King of France, belongs not to the Admiral of France, but to the special Iurisdiction of those who are called the Presidents or Masters of the Waters, and Forests: for the Publick Ri∣vers, as he affirms, within the limits of that Kingdome, belong wholly to another Office, and not to that of the Admiral, as it doth to the Admiral of England.

Thirdly, it is evident by the Judge∣ments of Oleron, established for Law in the Admiralty of England, That many causes are resolved concerning Damma∣ges done by one Ship to another, sailing in the River, and for falling foul one up∣on

another, in the Port or Harbour, as also for loss done to Merchants goods in the Ports of discharge, by miscarriage, in the unloading, by reason of unfit coar∣dage, and tackling. It may likewise be shewed out of the Inquisition taken at Quinborough, that many things done in Ports and Navigable Rivers, are within the Jurisdiction of the Admiralty, as Ship-wrights taking excessive wages, removing of Anchors, cutting of Buoy ropes, and taking Salmon at unseasona∣ble times, the using of unlawfull Nets, the spoyling of Beds of Oysters, the dreg∣ging for Oysters and Mussells at unsea∣sonable times, and divers other matters. Against the Admirals Jurisdiction in this respect are pretended likewise Statutes, Book-cases, Judicial Acts, &c. by which it is endeavoured to be proved, That the Admirals Jurisdiction is confined only to the high Sea, and wholly excluded from things done in Ports, and Navigable Ri∣vers, which are said to be within the bodies of the Counties of the Realm. The first Statute is that of 15. Richard 2. which declares, that the Court of Ad∣miralty hath no manner of Conusance, Power, or Jurisdiction of any Contract,

&c. or any other thing rising within the Bodies of Counties, either by Land, or by Water; which later part is so Gene∣ral, and uncertain, that according to the General rule delivered by Sir Edw. Cook before mentioned, lex generaliter loquens restringenda est, &c. for by the general understanding of it, as it is most gene∣rally understood, by the Professors of the Common Law, it doth not only debarr the Admiral from the Conusance of those causes, which he is supposed to have encroached to the prejudice of the Courts of Common Law, but also from the Conusance of those things, which they were wont, or ought to have of right, contrary to the express meaning of the Praeamble of that Statute, as all those Causes which before this Statute did belong to the Admiral by the Roll of Oleron, and the Inquisition at Quin∣borough.

But it may reasonably, and probably be conceived, that the Statute intending to restrain the Admirals Jurisdiction, in∣tended by the words, Other things in gene∣ral, such things, about which Actions and Sutes at the Common Law might arise, And having before mentioned

Contracts, Pleas, and Quarrels, where∣in private persons might have an interest by way of personal Actions, did after∣wards add other things arising within the Bodies of Counties, intending thereby pub∣lick offences, and such as are against the Crown, as Treason, Murther, Man∣slaughter, Mayhemes, Robbery, Tres∣passes vt & armies, and the like, which interpretation, First is agreeable to the Praeamble, which mentions encroach∣ments upon the Jurisdiction, &c. per∣taining to the King. Secondly, because the Statute ordaining that such things shall be tryed, discussed, and determined by the Laws of the Land, and not before the Admiral; seems to intend things, which might be tried either way, as Offences of that Nature, which done on the Sea, might have been tried before the Admiral, and being done on the Land were to be tried in the Courts of Common Law. Thirdly, because the reservation in the conclusion of the Sta∣tute Provides, that nevertheless of the death of a man, or Mayheme done in great Ships, being, and hovering in the main stream beneath the Bridges next to the Sea, the Admiral shall have Conu∣sance,

which being in the nature of an Exception, implies, that the things before mentioned in general, were to be under∣stood of Offences, or matters of the same nature, and condition.

Sir Edward Cook where he cites the Statute of 15. Rich. 2. notes, that it was to be observed, how curious the makers of it were, to exclude the Admiral from all manner of Jurisdiction, within any Water which lyeth within any County of the Realm; but if his words be con∣sidered, his curiosity goes far beyond them, for whereas the words of the Statute Anciently and generally have been received, only beneath the Bridges next or nigh the Sea, he renders it only beneath the Points of the same Rivers, The French word Pounts, being easily turned into Points, which Criticism might have the better passed, if it might be known what were meant by Points of Rivers; we understand by Points of Land, some extreme parts or ends, which in respect of the rest, are of a more accute figure, but Rivers towards the Sea, (which way the Criticism looks) grow broader, or wider, far from any Angular acuteness; Again, we commonly say above, or b••∣neath

the bridge; but if we speak of the extremites, we say behither or be∣yond, within or without the Lands end; besides, whereas the words in that place are ships riding in the main stream of Navigable Rivers, it may be doubted where that main stream can be found beneath the points of the River.

The former reading of the Statute, viz. beneath the Bridges, is agreeable to an ancient Edition of the Statutes at large printed 1543. above a hundred years since; so Rastals Abridgement, and Poultons Collection of the Statutes, and is so received by Crompton in his Ju∣risdiction of Courts, where he writes of the Admiralty, according to the Sta∣tutes. It is further confirmed by a ma∣nuscript Copy of the Statutes in French, in the Library of Merton College in Ox∣ford, in which are these words, Niene meyns de mort de omme, & de mayheme, en∣grosses neifs, estants & o••erant••s, a my le haut fio des grosses reviers tant seculament, par-avali des pounts, des mesmes les riviers, & L'n Admiral co••usance.

The second Statute that may be ap∣plied to this purpose is that of 5 Eliza∣beth, Chap. 5. which relating to divers

things made offences by that Statute, or∣dains, that all and every of the said offences, done on the main Sea, or Coasts of the Sea, being no part of the bodies of any Counties of the Realm, and without the Precinct, Li∣berty and Iurisdiction of the Cinque Ports, and out of any Haven or Pier, shall be deter∣mined by the Lord Admiral.

Touching this Statute it may be ob∣served, That the end thereof was ac∣cording to the Title, for the maintenance of the Navy, and as for a mean to that end, for the imploying of English ship∣ping, especially for the bringing in of Fish, for which purpose it provides, That Wednesdayes should be held Fish-dayes; That none shall demand toll of Fish brought in Subjects ships; That no Herring unsalted should be bought out of strangers bottoms; besides, that no Wares should be carryed from Port to to Port; and that no Wine, nor Woad shall be brought in but in English ships, of which businesses it might be more fit for the Officers of Corporate Sea-Towns to enquire, than for the Ad∣miral, which the Parliament under∣standing, might without prejudice to his Jurisdiction in other matters except

from him touching offences of that kinde, the enquiry within Havens and Piers.

Besides, whereas Sir Edw. Cook recites the words, That all such Offences shall be tryed before the Admiral; the words of the Sta••ute are, before the Lord Admiral of England, or his Lieutenant or Deputy or Deputies, and other Iustices of Oyer and Terminer, according to the form of the Sta∣tute of the 28 Hen. 8. for Causes of Piracy. So that it concerns not the Admiral in his ordinary capacity, but as he is chief in that Commission. And whereas Sir Edw. Cook from this concludes, That by the Judgement of the whole Parlia∣ment, the Jurisdiction of the Admiral is wholy confined to the Sea, and Coasts of the Sea, being no parcel of the County, how strongly soever he con∣ceives it, under favour it is no good ar∣gument, to infer from these new created offences, of which he is to enquire in an extraordinary way, that he hath no Ju∣risdiction in other matters, which did formerly belong unto him, especially touching Navigable Rivers, of which in this Statute there is no mention, nor ex∣ception.

Moreover, whereas the Judgement of the Parliament in this Statute is so confidently urged for the limiting of the Admirals Jurisdiction, it is de••••red, that to the points in question, two other Statutes, the one long subsequent to that of Rich. 2. the other not long pre∣ceding that of the 5 of Queen Elizabeth, may be taken into consideration.

The first is that of 28 Hen. 8. Chap. 15. concerning the trial of Piracies, and other crimes committed within the Ad∣mirals Jurisdiction, wherein it is de∣clared, That all Treasons, Felonies, Mur∣thers, Robberies, Confederacies committed in or upon the Sea, or in any other Haven, Creek or place, where the Admiral, or Admirals have, or pretend to have Iurisdiction, shall be enquired, tried, heard, or adjudged by the Admiral, and others appointed by the Kings Commission under the Great Seal, in such shires and places of the Realm as shall be limited in the Commission, as if any such offence had been committed upon the Land, &c.

The end of this Statute was, that whereas Piracies, and other offences committed within the Jurisdiction of the Admiralty, were formerly tryed ac∣cording

to the Civil Law, and Offen∣ders could be convicted onely by con∣fession of the parties, and proofs by Wit∣nesses, to reduce the Trial of the same to the course of the Common Law by a Jury of Twelve men; by which Sta∣tute, although the Manner of the trial of Offences were altered, yet the Li∣mits of the Admirals Jurisdiction are allowed to extend not onely to the Sea, but to Havens, Creeks and places, where the Admiral, or Admirals have, or pretend to have Jurisdiction. And in the Commission of Oyer and Terminer grounded on that Statute, the places of Offences committed, to be heard and determined before the Admiral, and others, are thus described, Tam in aut super mari, aut aliquo portu, rivo, Aqua dulci, Creca, seu loco quccunque infra flux∣um maris ad plenitudinem, a quibuscunque primis pontibus versus mare, quam super littus maris, & alibi ubicunque infra juris∣dictionem nostram Maritimam, aut limites Admiralitatis Regni nostri, & Dominiorum nostrorum: By which words, not onely power is given to hear and determine offences in those places; but it is like∣wise declared that those places do be∣long

to his Majesties Maritime Juris∣diction, and of his Admiralty.

The second Statute is that of the first of Elizabeth, Chap. 17. made for the pre∣servation of Spawn and fry of Fish, and the remedies thereof being provided, it is ordained, That the Lord Admiral of England, and the Lord Mayor of London for the time being, and all and every other, which lawfully have, or ought to have any conservation, or preservation of any Rivers, streams or waters, shall have power to en∣quire according to that Act, which plainly shews, that the Parliament then con∣ceived, that the Admiral of England had power and Jurisdiction to some purposes in Rivers and Streams, salt and fresh, otherwise, he had not been na∣med in the first place, amongst those who had right of conservation of the same.

The Jurisdiction of the Admiralty as to publick offences and causes criminal since the Statute of 15 Rich. 2. hath been so well settled by the Statute of 28 Hen. 8. that there can be little occasion of difference touching those matters be∣twixt the Courts of the common Law, and the Court of the Admiralty; yet

Sir Edw. Cook having unnecessarily col∣lected many other legal authorities which may be applied to maintain that by the Common Law the Admirals Ju∣risdiction did not extend to Ports and Navigable Rivers, it may not be amiss to examine the grounds and weight of the chiefest of them, which may be re∣duced to two heads; First, such as shew that Havens and Navigable Rivers are within the bodies of Counties, and that the common Law hath held plea of things done in them. Secondly, That the Courts of common Law have pu∣nished such as have sued in the Admi∣ralty Court, for things done in Ports and Navigable Rivers.

Touching the first, these Authorities might be intended.

First, That in the time of Edw. the first, a Replevin was brought for the taking of a ship on the coasts of Scar∣borough in the Sea, and carrying her into the County of N. The Defendant al∣though he pleaded that the thing was done on the Sea, was overruled to an∣swer, from whence amongst other things S^r Edw. Cook makes a special ob∣servation, That when the taking of a

thing is partly on the Sea, and partly on the Land, the Common Law shall have the Jurisdiction.

Secondly, That in the time of Edw. the 2. It was held, That where one may see what is done on one part of the water, and on the other, it was held no part of the Sea, and that the Coroner shall exercise his office in this case, and of this the Country may have know∣ledge.

Thirdly, That in the 43 of Edw. the third, sixty Acres of Marsh ground over which the Sea did flow and re∣flow, were adjudged parcel of the Mannor of Brancaster, belonging to the Abbot of Ramsey, and by consequence were within the body of the County to the low water mark.

Fourthly, That in the 46 of Edw. 3. an Action of Trespass being brought in the Kings Court against certain persons of Hull, for taking a ship in the Haven of the Town, the Mayor and Bailiffs de∣manded Conusance by Charter of the King, by which it is granted, that the Citizens and Burgesses of Hull, should not be impleaded, Alibi de transgressioni∣bus infra Burgum, quam infra Burgum,

which was allowed, and the Haven ly∣ing within the Burrough, by conse∣quence was within the County.

How far these Authorities conduce to the proof of the head proposed, may be doubted, but as to the ground of the head it self, which is so much insisted on, That where the Courts of Com∣mon Law have Conusance, the Court of Admiralty can have no Jurisdiction, un∣der favour it is insufficient, for in the same place several Courts to several pur∣poses may have distinct Jurisdictions, Robberies and divers other Offences committed in forests, are prosecuted be∣fore the ordinary Justices, and yet the Justice in Eyre concerning vert,* 1.80 venison and other things retains his special Ju∣risdiction. In France as Sanction writes, the Lords of mannors adjoyning to Na∣vigable Rivers, have several rights of fishing, and other commodities, by the Kings grant or by prescription, and if they be disturbed they may have their re∣medies, in the Ordinary Courts of Ju∣stice, but as touching the free use of the Rivers in respect of Navigation, and that which concerns the Publique, the special Officers called the Masters of the

Waiters, (whose Authority in this King∣dome belongs unto the Admiral) have the charge thereof, and if any Impedi∣ments be given, or Annoyances done in those respects, it belongs to their Juris∣diction and power to reform the same.

Touching the particulars, and first of that of the Replevin in the time of Edw. 1. concerning a Ship taken in the Sea, and brought into a River, and the defendants being over-ruled to answer, the Reason was, as Berry the Chief Justice said, be∣cause the King would have the peace kept, as well by Sea, as by Land, Mr. Selden in his notes upon Fortescue,* 1.81 recites the case more fully and gives another reason, viz. That William Crake de Hol∣tham was summoned to answer a com∣plaint of Robert de Beause, for taking a∣way a Ship of the value of 40. l. on the Sea, near Scarborough, to which it was pleaded by the Counsel, that the Plain∣tiff did count or declare of a thing taken on the Sea, out of any County, So that if the matter were put in issue before the Country, it could not be resolved what Sheriff should summon the Coun∣try, and that the Admiral was appoin∣ted by the King to hear and determine

sutes of things done on the Sea, &c. Whereunto Berry Chief Justice of the Common Pleas answered, we have a general power throughout all England, but of the power of the Admirals of which you speak, we know nothing, nei∣ther will we assign our power to them, without commandment from the King, touching which you shew nothing; Ha∣ward said, The place is so near, that if a man had killed one there, he should have been taken, and brought to the Land, and hanged, as well as if the fact had been commited on the Land; Mettinggam said more, we tell you that we have power of things done on the Sea, as upon the Land, and therefore we order you to answer; The reason which Mr. Selden gives, was because in those times the Common Law had Conusance of things done on the British Sea within the view of the Land, although afterwards it kept its limits, infra corpus comitatus, Leaving the Sea wholly to the Admiral; So that ac∣cording to the Verse, sometimes applyed by Sir Edward Cook, Iudic••s officium est, ut res ita tempora rerum Quaerere, the case ad∣judged in the time of Edw. ••. can be no president for subsequent times, when

the Admiralty Jurisdiction was better settled; and so it falls out with Sir. Edw. Cooks observation upon that case, viz. That when the taking of a thing is partly in the Sea, and partly in a River, within the County, the common Law shall have the Jurisdiction, because that in later times, it hath been resolved otherwise, as in the Mayor of Harwich his case, which was, That the Vice-admiral of England having seized a Mast floating on the Sea, caused certain Fisher-men to draw it to shore at Har∣wich in Suffolk, where the Mayor then claiming Admiralty Jurisdiction, like∣wise seized it, for which he being sued in the Admiralty Court of England, moved for a Prohibition; but the Judges were of opinion that it did be∣••ong to the Admiral of England, and denied a Prohibition, because the ••eizure at Sea, and drawing to shore at Harwich was one continued act; and ••herefore the drawing it to shore at Har∣••ich, gave no right to the Mayor of Harwich. The like may be gathered ••rom a Resolution in communi banco, 40 Eliza. viz. An Inhabitant of Ply∣••outh, being Owner of a ship, joyned

in the furnishing and victualling her, and sent her to Sea, in which imploy∣ment the Captain of the ship by Piracy took a French mans ship laden with salt, and brought her into Plimouth, and sold his salt to the Owner; whereupon the French men sued the Plimouth-man be∣ing Owner, in the Admiralty Court, for the Ships goods, and upon suggestion that part of the wrong was done upon the Land, a Prohibition was awarded, but after a long debate, a Consultation was granted, because the first wrong was done upon the Sea.

Secondly, Touching the Coroners exercising his Office (in the time o•• Edw. 2.) in an Arm of the Sea, wher•• one might see what was done on on•• side, and on the other; whereupo•• Standford concludes that by the Com••mon Law, before the Statute of th•• 2 Hen. 4. (or rather of 15 of Rich. 2.) th•• Admiral had no Jurisdiction, but on th•• high Sea, which onely Authority, sait•• Sir Edward Cook, was sufficient to overrul•• all Questions. It may be observed wha•• was delivered in the precedent Case concerning those times; and it may b•• further noted what Mr. Selden writes 〈◊〉〈◊〉

the power and authority of the Sheriffs in those times,* 1.82 Saeculis priscis antequam summorum Admirallorum authoritas, &c. In ancient times before the Authority of the high Admirals of England was sufficiently established by our Kings, and so distinguish∣ed, that the Government of the Sea did wholy belong unto ihem, the Sheriffs had some Authority in the Sea adjoyning to the County, which did appear in that they did execute the Kings Precepts upon the Sea, and convey the Kings ships from one Port to another, through the Seas, which was done about the time of Hen. the 3. and of Edw. ••he 1. but in subsequent times, it was never ••eard of, postquam omnimoda Maris custodia, &c. after that all manner of guarding the Sea, &c. was by our Kings re∣••erred to the high Admiral, and to them ••nely and their Deputies, which now belon••s ••nto them by right unquestionable. In ••hich times if the Coroner did exercise is office, where at this time he cannot, ••or the reason aforesaid, it may be ••ranted, but no good argument can be ••rawn from those times to the times ••ollowing, when the Admiralty Juris∣••iction was better settled.

Thirdly, The authority of the Marsh

grounds, over which the Sea did flow and reflow, adjudged to be within the Mannor of Brancaster in the time of Edw. the 3. whence it is concluded to be within the County, is taken up by Sir Edw. Coole upon the credit of Dyer: But Sergeant Callis in his Readings cites the Record in this manner, Contra Abbot de Ramsey de quodam processu facto, versus dictum Ab∣bot, ad ostendendum quare sexaginta acrae Marisci in manum Domini Regis non debent seiziri. Et Abbas respondet quod ipsa tenet Manerium de Brancaster quod scituatum est iuxta Mare, & quod est ibidem Mariscus qui aliquando per Fluxum Maris minora∣tur, aliquando per Fluxum Mardo auge∣tur, &c. By which it is apparent, that those grounds were claimed by that King, as waste and floted grounds, and no parcel of the Mannor, which the Abbot did justifie, and howsoever they might be part of the County, yet they could not be places concerning which there might grow any question of Ju∣risdiction, for although they were sub∣ject to flowing and reflowing of the Sea yet they were not either fit for the say∣ling, nor arriving of Ships; and admit∣ting that some thing may be inferre••

from thence to prove that places where the Sea floweth may be within the bo∣dies of Counties, yet it doth not wholy exclude the Admiral from having Ju∣risdion, by Sir Edw. Cooks learning, in Sir Henry Constables Case, where he sheweth, That it hath been resolved by the whole Court, that the soyl over which the Sea doth flow and reflow, in∣ter le High-water mark, and the Low-water mark, the Land may be parcel of a Mannor of a subject, and yet it was re∣solved, That when the Sea did flow ad plenitudinem, the Admiral should have Jurisdiction of any thing done upon the water, betwixt the High-water mark, & the Low-water mark, by the ordinary and natural course of the Sea, and when the Sea doth reflow the Land may ap∣pertain to a subject, and then any thing done upon the Land shall be tried at the Common Law, for it is then parcel of the County, whereupon he makes an ob∣servation, That beyond the Low-water mark the Admiral alwayes hath Juris∣diction, and betwixt the High-water mark, and the Low-water mark, the Common Law, and the Admiralty have divisum imperium interchangeably,

and why the same should not hold as well in Arms of the Sea, as in the open Sea, may deserve some considera∣tion.

Fourthly, The allowance of the Common Law of the Haven of Hull to be within the Burrough, in respect of an Action of Trespass determinable at the Common Law, for the reasons before shewed in general, it doth not hinder but that in the same place if damage be done by one ship to another, remedy may be given according to the Judgements in the Roll of Oleron, and so in respect of the place, though not of the cause, the Common Law, and the Admiralty may have conjunctum imperium occa∣sionally.

Secondly, There remain those Au∣thorities which shew that the Courts of Common Law have punished, and restrained such as have sued in the Ad∣miralty for things done in Havens, and Navigable Rivers, as by actions of double Damages, Praemuniries, and Prohibitions.

Touching the first it is related, That 6 Hen. 6. Iohn Burton in the Common Pleas recovered against Bartholomew Putt, for

double damages 1400 l. for that the said Putt had sued Burton in the Ad∣miralty for entring and taking away three ships with Merchandises and Pri∣soners, with force of Arms, Super Al••um mare, whereas the taking thereof was in the Haven of Bristol, intra cor∣pus Comitatus.

Again, That the like Action 12 of Henry 6. was brought by Robert Cupper, against Iohn Reyner, who had sued him in the Admiralty Court for entring his ship in the Haven of Yarmouth, infra Corpus Comitatus Norf.

Secondly, Concerning Praemunires, it is said, That 38 of Hen. 6, one was brought by Iohn Cassy, against Richard Beauchamp, and Thomas Paunce, for that they sued him in the Admiralty Court for taking away certain Iewels super Altum mare, whereas he took them apud Stratford-Bow infra corpus Comitatus Middlesexiae.

Again, That in the 9 of Hen. 7. a Praemunire was brought for a S••te in the Admiralty Court for taking and carrying away, Quandam naviculam apud Horton Key, at South Lynn, supposing the same to have been done super altum mare.

It cannot be denied but that these Authorities especially contain forcible Arguments, and fit to fright men from suing in the Admiralty Court, but how reasonable, it may be considered.

Touching the Action of double Dam∣ages, in the leading Case of Burton a∣gainst Put, the point of Issue was (as it may be supposed) whether the thing done in the River of Bristol, were done within the body of the County, and eight Terms (as Sir Edw. Cook relates) were spent in deliberation of the Case, which argues that the Judges could not easily agree upon the same, and happily the reason was, because the Statute of Henry 4. for double Damages, relates onely to that of the 13 of Richard the 2. chap. 5. and the Action was layed upon that of the 15 Richard the 2. chap. 3. Touching things done within the Bodies of Counties, it being not pro∣per to extend a penal Law from one Statute to another; and how rightly it was so adjudged, may be better consi∣dered; and it may be thought upon, why that being a leading Case, and having received so long deliberation, the Reasons of the Resolutions of the

Judges are no way published.

It may be farther noted as to our purpose, that the taking of Ships in the Haven of Bristol was done with force of Arms, which made it more than an or∣dinary business, of which the Admiral claimeth the Conusance in such places, but was of the condition of those mat∣ters which belong unto him onely upon the Sea; the other Cases of double Damages, for ought appears to the con∣trary, might be for matters of Trespass, committed likewise by Force and Arms.

Touching Praemunires brought for suing in the Admiralty Court, Sir Edw. Cook saith, That they being brought up∣on the Statute of the 16 of King Rich. 2. for suing in Curia Romana aut alibi, are so evident, and of so dangerous a conse∣quence, as no application shall be made thereof. And for the dangerous con∣sequence it is most true, for that the pe∣nalty intended in that Statute extends to the imprisonment of the person during pleasure, and the loss of all his goods, and of the profits of his Lands during life; and for the application which he forbears, it may be conceived that his

meaning was that the Admiral, or his Judge might be made liable thereunto; but for the Evidence that by Curia Ro∣mana aut alibi, the Court of Admiralty should be understood, under his favour it is not so clear; nor if the Statute be well considered, can it with any rea∣son be maintained; the word Alibi, or elsewhere in that Statute was in truth intended of Avignion in France, or some other place, to which the Pope and his Court in those times did usually re∣move; and that Statute being intended to exclude the forein authority of the Pope, it might be thought necessary to debar the people of this Kingdome from having intercourse to the Popes Con∣sistory, whether at Rome or any where else; and when the Popes authority and his Laws were in force in this King∣dome, and no way depending upon the Crown, the word Alibi, or elsewhere, was held to extend to Bishops Courts, if they medled with temporal causes be∣longing to the Kings Courts, especially if they took upon them to reverse, or dis∣parage Judgements given in the Courts of Common Law; but how the word Alibi should be applied to the Kings

Court of Admiralty, never relating to any Forein power, and proceeding onely by those Laws which are allowed by the King to be in force in that Court, it is a mystery beyond any ordinary imagina∣tion. It may be further noted, that al∣though it be said that the two Praemu∣nires were brought upon such occasions, yet it doth not appear that any Judge∣ment was given upon either of them.

Lastly, For confirmation and conclu∣sion of this Point, it may be added, that before the King and his Councel it was likewise agreed unto by all the Judges, That the Admiral may inquire of, and re∣dress all Annoyances and obstructions in Na∣vigable Rivers beneath the first Bridges, that are any impediment to Navigation and pas∣sage to and from the Sea; and also try all personal Contracts and injuries done there which concern Navigation upon the Sea, and that no Prohibition is to be granted in such Cases.

* 1.83That the Admiral of England may hold Plea of Contracts, and other things done beyond the Sea, relating to Navigation and Trade by Sea.

TO maintain that the Court of Admiralty may hold Plea of Con∣tracts, and other things done beyond the Sea;* 1.84 It is alleged, First, That by an Ordinance made by King Edward the first, and his Lords, at Hastings, which is extant in the antient Book of Admiral∣ty, it was ordained that Charum Con∣tract, &c. That every Contract made be∣tween Merchant and Merchant, or betwixt Merchant and Mariner beyond the Sea, or within the flood-mark, shall be tried before the Admiral, and no wayes elsewhere.

Secondly, It may be taken into con∣sideration, That such businesses amongst Merchants and Seamen, are to be de∣termined according the Civil Law, and equity thereof, as also according to the customes and usages of the Sea; Mr. Selden in his Notes upon Fortescue, ob∣serves

out of Bartolus, Quod in Curia mercatorum debet judicari ex aequo & bono, omissis juris solennitatibus, which the Admiralty Judges may, and do observe, but the Courts of Common Law hold they must do otherwise.* 1.85 Malines relates an instance of a Merchant-stranger, who having sold Commodities to three se∣veral Merchants of London, took one Bond of them all for the payment of 300 l. and one of them breaking, and being imprisoned, he was contented to compound with him for the fifth part of his Debt, or for 20 l. in lieu of a 100 l. conceiving him as a third party to be liable for no more; and having re∣ceived that summ, gave him a release, and afterwards the two other parties neglecting to pay him their parts he was advised to sue them at the Common Law, where he was given to understand, That if a man release one of his debtors, who is bound with others, by way of acquittance, they are all released and acquitted thereby, which was contrary to the rule of Equity, and that simpli∣city and just dealing which is expected amongst Merchants, which do not ad∣mit that a mans action should operate

beyond his intention, and that a favour yeelded to one in necessity, should not extend further to his prejudice, in re∣spect of those which were in better con∣dition.

Thirdly, to the like purpose, it is ob∣served, that in Contracts and Bargains, betwixt such persons, those solemnities are not required which are necessary in Deeds at the Common Law, as of sign∣ing, sealing and delivering, to make their Bills and Obligations of force, and the bearers of such Bills according to the course of Merchants, shall be ad∣mitted to demand, and recover without Letters of Attorney.

Fourthly, It is considerable, that In∣struments made beyond the Sea, have usually Clauses relating to the Civil Law, and to the Law of the Sea. Malines shews,* 1.86 That when two or three take up money at interest, and all binde them∣selves as Principals, generally according to the Civil Law and custome of Mer∣chants, every person is bound, but for his own part, and therefore, where it is intended, that for the better secu∣rity, every man should be bound in soli∣dum, in the instrument of the Contract,

ther is a declaration and renunciation made of all privileges, and especially of those which are called, Exceptio divisionis, & ordinis excussiones, and beneficii Epistolae divi Adriani. In Wests Presidents con∣cerning Merchants affairs, there are the like forms, as where a man obligat se hae∣redes & Executores suos, omnia bona mo∣bilia & immobilia, praesentia & futura, tam ultra quam citra mare, ubicun{que} existentia, renuncians omnibus & singulis exceptioni∣bus, &c. and amongst the rest he declares the form of a gneral procuration to sue for Debts in a Forein Country, wherein it is specified that power is given ad Li∣belles, Petitiones, &c. articulos dandum, da∣tisque respondendum, ad Lites contestandum, & de calumnia vitand•• juramentum, in animam constituentium praestandum; all which are as strange to the Law of this Land, as the places from whence they proceed.

Fifthly, For that, as Fortescue affirms, Contracts and Bargains made amongst strangers in another Realm, must be proved (otherwayes than in the Courts of Common Law) by witnesses, which, saith he, cometh to pass, because in those parts there be no neighbours, by

whose oaths Juries of twelve men may be made, as in Contracts and other cases arising within the Realm, is ac∣customed to be done.

To avoid the Admirals Jurisdiction in holding Pleas of Contracts, or things done beyond the Sea, Sir Ed. Cook affirms, that Bargains and Contracts so made, wherein the Courts of Common Law cannot administer Justice, did belong to the Constable and Marshal, for the Juris∣diction of the Admiral is wholy confined to the Sea, which is out of any County; whence it may be gathered, that as to this point he intends for Authorities the Statutes of the 13 of Richard 2. which sets forth the Jurisdiction both of the Constables and Marshals Court, as also of the Court of the Admi∣ralty.

That concerning the Constable and Marshal, is as far from the purpose, as it was from Sir Edward Cooks thought to give any addition of power to that Court. The Act declares, That to the Constable and Marshal it belongs to have Co∣nusance of Contracts, and Deeds of Arms out of the Realm, whence it is inferred, that therefore out of the Realm, the

Admiral shall have no Conusance of Contracts, or matters concerning Navi∣gation, and Trade; It may be better argued from that Act, That as the Par∣liament allowed to the Constable and Marshal, Jurisdiction in Causes of Arms, and Warr, arising both within and without the Realm, which cannot be determined by the Common Law, so it did intend Causes of Navigation and Trade arising either within or be∣yond the Seas, to be tried by the Admi∣ral, The nature and the Quality of the business, more Conducing to the point of Jurisdiction, than the Circumstances of the place where it happens; The Sta∣tute which allows the Admiral to med∣dle with things done upon the Sea, by Sir Edward Cooks leave, doth not confine his Jurisdiction to the Sea, in respect of ••ny place beyond the Sea, It is rather ••retended to debarr him from medling with things done within the Realm, which notwithstanding, it being for∣merly shewed, that the Admiral may ••old plea of Maritime Causes arising ••rom Contracts made within the Land, 〈◊〉〈◊〉 may be less needfull to labour to prove ••hat it doth not hinder him from taking

Conusance of Sutes concerning Navi∣gation and Trade, arising from Contracts made and businesses done beyond the Sea.

The other Authorities which may be collected, to prove how the Admiral hath no Jurisdiction of things done be∣yond the Sea, are a writ in the Register, and Fitz Herbert, and a number of Pro∣hibitions.

That of the Register is, If goods be ta∣ken from an English-man in Spain or be∣yond the Sea, and the party cannot ob∣tain Justice there, he shall have a writ of the Sheriff to arest the Bodies of the offenders, and to seize their goods to the value, which proveth, saith Sir Edwar•• Cook, that the Admiralty cannot hold plea thereof, for that the party hath re∣medy at the Common Law; That Ar∣gument is as good, as if he had said There lies a writ of Withernam at the Common Law, therefore no Letters o•• Reprisalls can be granted in the Admi∣ralty. It stands with great reason, that i•• a Subject be spoiled of his goods, in ano••ther Realm, and can have no remedy there, that the party, or the goods belon••ging to him, being found within the Ju∣••isdiction

of the Common Law, they ••hould be made lyable to satisfaction; And why should it be thought unreaso∣••able, that upon the like occasion, if the ••arty, or his goods be found within the ••urisdiction of the Admiralty, the Sub∣••ect should have remedy there? But this Authority concerns not Contract, or bar∣••ains made beyond the Sea.

Besides, how far this writ agrees with ••he Common Law, it may be conside∣••ed, in regard, Mr. Selden writes, in Tri∣••unalibus nostri Iuris Municipalis, &c. in ••ur Courts of Common Law, the Ju∣••••sdiction hath been ever held to be such, ••••at according to the strict Laws anti∣••••tly practis'd, an Action could not be ••ought upon a business, hapning else∣••here, than within the Kingdome, as for ••any Ages since it hath been held, that ••••e Action ought to be rejected, unless ••••e ground of it be arising from some∣••••ing done within the Body of a Coun∣••••: And Sir Edward Cook recites divers ••••thorities, by which the same is main∣••••in'd as agreeable to the Common Law. ••••t this Law, he allows, where the ••••ings were totally done out of the ••••alm, and Implies, that it is otherwise,

where the Contract is made in o•• Realm, and the performance ought to b•• in another, for then (sayes he) as to th•• present purpose, of necessity, the Conu••sance must be where the Contract wa•• made, for otherwise there can be no tri••al had at the Common Law, and that i•• is most reasonable that it should be so because the Contract is the ground an•• foundation of the debt; But now in cas•• a Contract be made in partibus exteris & transmarinis, whereby payment or per••formance is to be made within th•• Realm, notwithstanding the Contract b•• the ground, and foundation, yet the Ju••risdiction follows the place of paymen•• and performance, and no doubt for th•• same reason, because otherwise the•• could be no pretence for a trial, at th•• Common Law, so that the Rule is fra••med to the building, and not the buildin•• to the Rule.

The last Argument is, that divers Pro••hibitions have been granted upon sut•• brought in the Admiralty, for thin•• done in partibus exteris & transmarin•••• and the first is as ancient as the 36. Hen. 8. But upon what Contracts, bu••••••nesses, or occasions those sutes we••

grounded, and Commenced, it is not ••pecified; and to conclude this point as the former, First, the third request of the Judge of the Admiralty in the year 1575. (viz.) That the Judge of the Ad∣miralty according to such ancient order made by King Edw. 1. and his Councel, and according to the Letters patents of the Lord Admiral for the time being, and allowed of other Kings of this Land ever since, and by Custom time our of memory of man, may have Cognition of all contracts and other things arising as well beyond, as upon the Sea, without ••et or prohibition, The answer is, that it ••s agreed upon by the Lord Chief Iustice and ••is Collegues.

Secondly, All the Judges before the King and his Councel Octavo Caroli a∣••reed, That if sutes shall be commenced ••n the Court of Admiraly for Contracts ••ade, or other things done beyond the ••ea, or upon the Sea, no Prohibition is ••o be awarded.

Concerning the Concessions of the ••udges of the Kings Bench, and the Re∣••olutions of all the Judges alleged for ••••e Confirmation of the precedent As∣••ertions, it may be noted, That touching

the former, by them are intended cer∣tain Answers of the Chief Justice and other Judges of that Bench, to the Re∣quests of the Judge of the Admiralty in the year 1575. of which mention is made in the complaint of the Admiral, 7. Object. wherein it is set forth, That the Agreement made in anno Domini 1575. between the Judges of the Kings Bench, and the Court of Admiralty, for the more quiet and certain Execution of Admiral Jurisdiction, was not observed, to which Sir Edward Cook answers, that that supposed agreement, had not been delivered unto them, but having heard the same read before his Majesty (out of a Paper not subscribed with the hand of any Judge) they answer, that for so much thereof as differs from their pre∣sent Answers, it was against the Laws and Statutes of the Realm, and therefore the Judges of the Kings Bench never as∣sented thereunto, as it is pretended, nei∣ther doth the phrase thereof agree with the Terms of the Laws of the Realm.

It is not probable that Dr. Dunn then Judge of the Admiralty would have produced such an Agreement to the Judges before the King, but that he had

some ground for the same, which being supposed, it may as well inferr that those Concessions were agreeable to the Laws and Statutes of the Realm, because those Judges did assent unto them, as that they did not assent because they were not a∣greeable to the same; And it may as well be doubted, whether those things wherein those Answers at that time did differ from the Resolutions of all the Judges in the 8. of King Charls,* 1.87 were agreeable to the Laws and Statutes of the Realm, as it is confidently affirm'd, that wherein those Concessions did differ from those Answers were against the same, wherein the phrase of the Requests and Answers is not agreeable to the terms of the Common Law is not so much considerable, as how the matters therein contained may consist, both with Law and Equity, and to that end it may not be amiss to recite them, as they are extant in several Manuscripts in which are collected things of those times re∣markable, both concerning the Ecclesia∣stical Courts, and the Court of Admi∣ralty, as followeth.

12. Of May 1575.

* 1.88The Requests of the Judge of the Ad∣miralty to the Lord chief Justice of her Majesties Bench, and his Collegues, with their Answers to the same.

That after Judgement or Sentence gi∣ven in the Court of Admiralty, in any cause, or Appeal made from the same, to the high Court of Chancery,1 1.89 it may please them to forbear the granting of any Writ of Prohibition, either to the Judge of the said Court, or to her Maje∣sties Delegates, at the sute of him by whom such Appeal shall be made, seeing by choice of Remedy in that way, in reason he ought to be contented there∣with, and not to be relieved any other way.

* 1.90It is agreed by the Lord chief Justice, and his Collegues, that after Sentence given in the Delegates, no Prohibition shall be granted. And if there be no Sentence, if a Prohibition be not sued for within the next term following Sen∣tence in the Admiralty Court, or within two terms after at the farthest, no Pro∣hibition shall pass to the Delegates.

That Prohibitions hereafter be not granted upon bare Suggestions or Sur∣mises,2 1.91 without summary Examination and Proof made thereof, wherein it may be lawfull to the Judge of the Admi∣ralty, and the party defendant, to have Counsel, and to plead for the stay there∣of, if there shall appear cause.

They have agreed that the Judge of the Admiralty,* 1.92 and the party defendant shall have Counsel in Court, and to plead to stay, if there may appear evident cause.

That the Judge of the Admiralty ac∣cording to such an antient Order,3 1.93 as hath been taken by King Edward the first, and his Councel, and according to the Letters Patents of the Lord Admiral for the time being, and allowed by other Kings of the Land ever since, and by cu∣stom time out of Memory of man, may have and enjoy cognition of all Con∣tracts, and other things, rising as well beyond, as upon the Sea, without let or Prohibition.

This is agreed upon by the said Lord Chief Justice,* 1.94 and his Collegues.

That the said Judges may have and4 1.95 enjoy the knowledge of the breach of

Charter-parties, made betwixt Masters of Ships and Merchants for Voyages to be made to the parts beyond the Sea, and to be performed upon, and beyond the Sea, according as it hath been accu∣stomed time out of mind, and according to the good•• meaning of the Statute of 32. of Henry 8. chap. 14. though the same Charter-parties be made within the Realm.

* 1.96This is likewise agreed upon, for things to be performed, either upon, or beyond the Sea, though the Charter-party be made upon the Land, by the Statute of 32. Hen. 8. cap. 14.

5 1.97That Writs of Corpus cum Causa, be not directed to the said Judge, in causes of the nature afore-said, and if any hap∣pen to be directed, that it may please them to accept of the Return thereof, with the Cause and not the Body, as it hath alwayes been accustomed.

* 1.98If any Writ of this nature be direct∣ed in the causes before specified, they are content to return the Bodies again to the Lord Admirals Gaol upon Certi∣ficate of the cause to be such, or if it be for contempt or disobedience to the Court in any such cause.

Touching the Resolutions of all the Judges, 8. Caroli, it may be considered, That in the presence of the Kings Ma∣jesty, and twenty three Lords, and others of his Majesties Councel, they were sub∣scribed unto by all the Judges, (viz.) Thomas Richardson, Robert Heath, Hum∣phrey Dawenport, Iohn Denham, Richard Hutton, William Iones, George Crook, Tho∣mas Trevor, Iames Weston, Robert Barkley, Francis Crawly, and also by Henry Martin Judge of the Admiralty, and William Noy the Attorney general, and the Transcript thereof was ordered to be Entred in the Register of the Councel causes, and the original to remain in the Councel chest, 18. Feb. 1632.

Sir Edward Cook concerning the an∣swers and resolutions of the Judges, to those things which he calls Articuli Cleri, 3 Iacob saith▪ That although they were not enacted by the authority of Parlia∣ment, as the ••tatute of Articuli Cleri, in the 9. of Edwa•••• 2. was, yet being re∣solved unanimously▪ by all the Judges of England, and the Barons of the Exche∣quer, they are for matters of Law, of highest authority, next unto the Court of Parliament; And it may be thought

that these resolutions of all the Judges touching the Jurisdiction of the Admi∣ralty, ought to be of no lower esteem, the rather for that the unanimity of all the Judges to the former, must be taken upon the credit alone of Sir Edward Cook, but as to the latter, the Evidence there∣of doth appear by the joynt subscriptions of all before named, which is likewise attested by Sir George Crook, who was one of them, who in his reports of Hil∣lary term 8 Caroli, under the title of Re∣solutions upon causes of Admiral Juris∣diction, writes that it was agreed, as followeth.

First, if sute should be commenced in the Court of Admiralty, for Contracts or other things personally done beyond the Sea, no Prohibition is to be awar∣ded.

Secondly, if sute be before the Ad∣miral for freight, or Mariners wages, or for breach of Charter-parties, for Voy∣ages to be made beyond the Seas, though the Charter-party happen to be made within the Realm, so as the Penalty be not demanded, a Prohibition is not to be granted; But if the sute be for penalty, or if question be made, whether the

Charter-party be made or no, or whe∣ther the Plaintiff did release, or other∣wise discharge the same within the Realm, this is to be tried in the Kings Courts, and not in the Admiralty.

Thirdly, if sute be in the Admiralty, for building, amending, saving, or ne∣cessary Victualling of a Ship, against the Ship it self, and not against any party by name, but such as for his interest makes himself a party, no Prohibition is to be granted, though this be done within the Realm.

Fourthly, although of some causes arising upon the Thames beneath the Bridge, and divers other Rivers beneath the first Bridge, the Kings Courts have conusance, yet the Admiral also hath Jurisdiction there, in the point especi∣ally mentioned in the Statute of 15. of Richard 2. and also by Exposition, and Equity thereof, he may enquire of, and redress all Annoyances, and Obstructi∣ons, that are or may be any Impediment to Navigation, and passage to or from the Sea, and also to try personal Con∣tracts, and Injuries done there which concern Navigation on the Sea, and no Prohibition is to be granted in such ca∣ses.

Fifthly, if any be imprisoned and up∣on habeas Corpus brought, it be certified, that any of these be the cause of his Im∣prisonment, the party shall be remaun∣ded.

Subscribed the 4. Feb. 1632. by all the Judges of both Benches.

Sir George Crooks Reports being pub∣lished by Sir Harbotle Grimston, are ap∣proved and allowed as for the Common benefit, by the Judges then being, (viz.) by Iohn Glynn, Oliver St. Iohn, Edward Atkins, Robert Nicholas, Matthew Hales, Hugh Windham, Peter Warburton, and Iohn Parker.

It may be presumed, that what so ma∣ny persons Eminent both for their place, and also for their knowledge of the Laws, and Statutes of the Realm, did so deliberately, and cautiously resolve upon, and others of like quality have countenanced, ought to be received, and respected as sufficient Authorities, as to those points whereof they did declare their Resolutions, notwithstanding the confident opinions of any others, either private, or singular persons, to the con∣trary: And that the Kings Majesty and his Councels approbation being added

thereunto, should be of force enough to settle all doubts and differences concer∣ning the same, the rather, for that anti∣ently (as before is shewed) the Kings of England, with their Councel only, have made Constitutions concerning the Ad∣miralty, and that in point of Jurisdiction, and it is apparent by the ancient Record, cited both by Mr. Selden, and Sir Edward Cook, That the most famous Prince, King Edward the 3. (in whose time the Ad∣miralty received its chief establishment) in the 12. year of his Reign, did consult and advise with his Councel, and his Judges concerning the same; And it may seem strange,* 1.99 that whereas by the Statute of the 13. of Richard the 2. (whose Acts are insisted upon as the greatest obstructions to the Admirals Jurisdiction) the Kings Councel alone are enabled to decide, what belongs to the Constables and Marshals Jurisdicti∣on, the King himself with his Councel, and Judges, should not have as much power to determine, what belongs to the Jurisdictions of his Admiral.

* 1.100That the Courts, and Iudges of the Common Law, do inter∣meddle, and interrupt the Courts of Admiralty in causes proper∣ly belonging to the same.

HItherto it hath been Endeavour'd to be made appear, That the pro∣ceedings in the Courts of Admiralty, in the chief points in difference with the Courts of Common Law, may consist with the Laws and Statutes of the Realm; It may now be taken into Con∣••ideration, how far the proceedings of the Courts and Judges of the Common Law, in intermedling with causes pro∣perly belonging to the Admiralty, and in obstructing the proceedings of that Court, may be justified; By the former, is intended their drawing of such causes by actions of Trover, and of Trespass, to their Conusance, by the later their dis∣paraging of Stipulations, and prescribing the forms of libells in such causes.

The former may the rather be insisted upon, in regard Sir Edward Cook doth so

often, and so earnestly in general inveigh against the encroaching of the Court of Admiralty upon the businesses belong∣ing to the Courts of Common Law, and in particular where he chargeth, That in the blessed time of peace, those who belong to that Court, wanting businesses proper to that Jurisdiction, do encroach upon matters belonging to the Kings Courts, lest they should sit idle, and have nothing to do; the like practice of en∣croaching being far more unexcusable in those, who belong to the Kings Courts, which do alwayes abound with busi∣nesses sufficient for the same.

Concerning the Actions of Trover. Amongst the grievances complained of by the Admiral, 8 Iacob. It is presented in the first place, That whereas the Co∣nusance of all Contract, and other things done on the Sea, belongeth to the Admirals Jurisdiction, the same are made triable at the Common Law, by supposing the same to have been done in Cheap-side, or such places: And under favour, the answer thereunto is neither clear, nor direct, nor to the purpose; For the ground of that answer being laid, That the Admiral hath no Conusance of

any thing done within any County, it is said, That it is not material whether the place be upon the Water, Infra fluxum Aquae; but whether it be upon any water within the County; where∣fore it is acknowledged, That of things done upon the Sea, out of any County, the Admiral ought to have Jurisdiction, and that no presidents can be shewed that any Prohibition hath been granted for any Contract, Plea, or Quarrel, for any Ma∣ritine cause done upon the Sea. In this Answer it is confest, That the Admiral ought to have Jurisdiction of things done on the Sea, and that no Prohibitions have been granted for any such causes; but whether by the supposal or fiction of a ships arriving in Cheap-side, the Courts of Common Law do hold Plea of things done on the Sea, it is nether confessed, nor denied, much less is there any rea∣son given for the same. Where it is said, It is not material whether the place be upon the water, infra fluxum & re∣fluxum Aquae, but whether it be upon any water within the County, That may be true, in respect that it is suppo∣sed that all things done in the County belongs to the Conusance of the Com∣mon

Law; but when the place where a thing is done belongs apparently to ano∣the Jurisdiction which pretends as well to the right of the place, as to the right of the cause, the place of the action can in no wayes be suppressed, and another suggested in the room thereof; for if that be permitted, the one Jurisdiction being the greater, a more potent may soon swallow up the other, not onely to the prejudice of the subjects for whose good the diversity of Courts were ere∣cted, but also the wrong of the Prince from whom those Jurisdictions are de∣rived.

Sir Thomas Rydlye in his view of the Civil Laws, further shews how inju∣rious to the Admiralty, and unreason∣able this practice is, in regard that in Law no Fiction ought to be admitted, but such as is both possible, and equi∣table; First, That it ought to be Pos∣sible, because otherwise it were to admit that by way of supposition, which nature will not alow; and therefore although one that is dead, to some constructions of Law, may be feigned to be alive, if at that time any of his equals in age be still living, yet one who dyed two hundred

years since, cannot to any purpose be sup∣posed to be living, all of the same age being long before dead. Secondly, The Fiction ought to be Equitable, because if there be no reason for it, it is altogether unnecessary and useless; and therefore although the Law may admit a Fiction or supposition, that a childe in the mo∣thers womb, is already born, for its be∣nefit, in regard that otherwise it might be deprived of its filial portion, or some other right in equity belonging to it; yet where there is no such reason or equity, it ought not to be admitted, as vain and ridiculous; but for the fiction of a ship to arrive in wardo de cheap, where there is no water to bear or carry, is of a thing utterly impossible; and it is wholy void of equity, because a Trial of any business thereupon cannot obtain any just and fait remedy thereby at the Common Law, which might not have been had in the Court of Admiralty, which is a more competent and proper Court, for the trial of such things, than any Court of the Common Law.

Secondly, Concerning Actions of Trespass, the Admiral in his ordinary capacity claiming no Jurisdiction of of∣fences

against the Crown, but onely on the Sea, and of wrongs and injuries done in other places without force or vio∣lence, to make such causes triable in the Kings Courts, it is suggested, that they were done vi & armis, which is the u∣sual form of Endictments of Trespasses in the Kings Bench (as of cutting of a purse) although in truth there were no fear, nor violence used in committing the same.

Touching the interrupting and ob∣structing the proceedings in the Court of Admiralty in causes properly belonging to the same, concerning Stipulations and Libels, although it may be presumed, that what Sir Edward Cook affirms,* 1.101 That where the principal matter is acknowledged to be of Ecclesiastical Cognisance, the Temporal Iudges ought not to call in question the form of proceedings, though they be against the rea∣son of the Common Law, because Cuilibet in sua arte merito credendum, that the same should be allowed in the Admiral Court.

Yet in the third Objection of the Com∣plaint 8 Iacob, it is shewed, That where∣as time out of minde the Admiral Court hath used to take Stipulations for ap∣pearance

and performance of the Acts and Judgements of the same Court; It is now affirmed by the Iudges of the Com∣mon Law, that the Amiralty Court is no Court of Record, and therefore not able to take such Stipulations, and here∣upon Prohibitions are granted to the ut∣ter overthrow of that Court. The an∣swer whereunto is, That the Admiralty proceeding by the Civil Law is no Court of Record, and therefore cannot take any such Recognizances as a Court of Re∣cord may do, and for taking of Recog∣nizances against the Law of the Realm, we finde that Prohibitions have been granted, as by the Law they ought: And if an erronious sentence be given in that Court, no Writ of Errour, but an appeal to certain Delegates doth lye, as it is apparent by the Statute of the 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record. Whereunto it may be replied:

* 1.102That some things done by, or before the Admiral, are matters of Record, may be maintained from an ancient Or∣dinance of King Richard the first, with advice of the Lords, at Grimsby, viz. That when the King writes by his Letters Patents

to the Admiral to arrest Ships more or less for his service, and that the Admiral should write to his Lieutenant to see things put in execution accordingly, forasmuch as the Ad∣miral and his Lieutenants are of Record, After the Admiral shall have written to the King, or to the Chancellour of England the names of the Ships arrested, together with the names of the Owners and Masters of them, in that case neither the Owner of the Ship, nor the Master, shall be admitted to say that the Ship is not arrested; but admitting that the Court of Admiralty is not a Court of Record in ordinary matters, no more are the Stipulations taken there, such Recognizances as are required to be ta∣ken in Courts of Record by the Common Law, those Stipulations causing no privi∣leged obligations before other bonds, nor extending to any part of mens Lands, which is otherwise in Recognizances ta∣ken in Courts of Records by the Common Law; And it may seem strange th•••• 〈◊〉〈◊〉 Edward Cook acknowledging and ••••••••••ing the proceedings of that 〈…〉〈…〉 according to the Civil Laws 〈…〉〈…〉 Stipulations or bayls for the 〈◊〉〈◊〉 ap∣pearance, and the performances of De••crees and Sentences in ••hat Court▪ pr••∣scribed

by the Civil Law, Ne judicia sint elusoria, and unversally practised, where judicial proceedings are according to that Law, as likewise in this Kingdome in the Constable and Marshals Court, and in the Courts of the Universities proceeding by the Civil Law, the same should not be allowed in the Admiralty Court.

And the complaint in this point may seem the more considerable, in regard that, to the publique Notaries about the Exchange, with out Exception or Con∣troll it hath been allowed, That Mer∣chants appearing before them, (in a manner nearer to the Recognizances of the Common Law) do acknowledge bonds, and bind, Se & Executores, & bo∣na tam immobilia quam mobilia praesentia in futura, And sometimes themselves being absent, the same things are done in their nam••s by their servants, or factors, Exhi∣biting Procurations from them to that purpose; And it may be noted, that a∣mongst Sir Edw. Cooks Authorities there cannot be discerned any Statute, Judge∣ment, or Book-case, to make good the Answer to that Objection, in the Com∣plaint.

Secondly, concerning Libells in the Court of Admiralty, The Lord Hobard in Audly and Iennings case affirms, that if a Contract in truth were made at Sea, and in the Admirals Court it be laid generally, without saying super alto mari, a Prohibition might lye, for the Libel must warrant the sure in it self; But Justice Reeves in his Argument, Paschae 22. Garoli, differs from him in opinion, and distinguishes betwixt a particular Jurisdiction, created in diminution of the general Courts of Common Law, and a particular Jurisdiction over things that never did belong to the Courts of Common Law, but which is wholly di∣stinct from the same: In the first case he confesseth that it is necessary to allege the cause of Action to arise within the new created Jurisdiction, because pri∣ma facie, nay de Iure, the Courts of Com∣mon Law have general Jurisdiction of those things, but in the later case, as of the Admiralty, if the cause be Maritime, there is no need to averr it to have been done upon the Sea, out of any respect to the Courts of Common Law, for that it doth not tend to the diminution of any of those Courts, and for Confirmation

thereof he affirms, that the Jurisdiction of the Marshalsey, stands partly upon the Statute Articuli super Chartas, and the words of that Statute are as restrictive as any words of the Statutes touching the Admiralty, and by the books of the Common Laws, the Marshal cannot hold Plea in some cases unless both par∣ties be of the Kings Houshold, nor in any case unless one of the parties be so, yet it is resolved, that the Declaration is good, although it be not averred therein, that any of the parties be of the hou∣shold, and therefore a Fortiori it is not necessary in the Admiralty to specifie in the Libel the thing to have been done, super alto mari, the Admiralty Jurisdicti∣on being more distinct from the Com∣mon Law, than that of the Court of Marshalsey.

That the trial of Causes concern∣ing Navigation and Trade in the Court of Admiralty,* 1.103 is more commodious for the Subjects, and Kingdome of England, than in the Courts of Common Law.

HOw much the maintenance, and advancement of Navigation, and trade by Sea, concerns the Kingdome, and Subjects thereof, Sir Edward Cook delivers,* 1.104 who saith, That Trade and Tra∣fique is the lively-hood of a Merchant, and the life of the Common-wealth, wherein the Kingdome, and every Subject hath interest; For the Merchant is the good Bailiff of the Realm, to Export, and Vent the Native Com∣modities, and to Import and bring in the necessary Commodities, for the defence and benefit of the Realm. So much is confir∣med by several Acts of Parliament, fram'd by common consent of the King∣dome. The Statute of the 32. of Henry the 8. chap. 24. sets forth, That it is notoriously known that the Realm of England,

for the most part is invironed with the Seas, so that the Subjects cannot convey, and trans∣port their Wares, Merchandizes, and Com∣modities by Land, but only by Ships, and that the Navy, and multitude of Ships of the Realm, is very commodious, and necessary, as well for the intercourse, and concourse of Merchants, conveying, and transporting their Wares, and Merchandizes, and a great defence and security to this Realm, as well to offend and defend, as also for the mainte∣nance of many Masters, Mariners and Sea∣men, and also hath been the chief mainte∣nance and supportation of Cities, Towns, Havens, and Creeks near adjoyning unto the Sea-coasts: Likewise that of the 43. of Elizabeth, chap. 12. declares, That it hath alwayes been the Policy of this Realm, by all good means to comfort and encourage the Merchant, thereby to advance the general Wealth of this Realm, the Kings Customs, and Strength of Shipping, &c.

* 1.105It hath been formerly observed, That for the encouragement of those who maintain trade by Sea, in all Nations and States there have been special Judges appointed to hear and determine causes concerning Trade and affairs of the Sea; and it may be further noted, that such

Judges have been directed to proceed at such times, and in such manner, as might best consist, with the opportunities of Trade, and least hinder or detain men from their Imployments.* 1.106 Amongst the Graecians, as at Athens, it was provided, That all sutes betwixt Sea-men and Mer∣chants should be determined in those vacati∣ons when the Seas were barred, or in those Moneths when Navigation was restrained; So much is confirmed by Salmatius, Eo tempore quo oritur Arcturus navigationes suas ut plurimum desinebant mercatores, do∣mumque redibant; Boedromion quippe men∣sis qui septembri respondet, quo tempore ferè Arcturus oritur, terminus erat navigationum Atticarum, ideo ab eo mense Munichi••nem usque quo mense iterum se mari committe∣bant, ac vela dabunt, Mercatores Atheni∣enses in urbe desidebant, & lites suas discep∣tabant, ut videre est apud Demosthenem ad∣versus Apaturium.* 1.107 Amongst the Romans likewise, for the better dispatch of causes concerning Sea-businesses, the Judges were ordered to proceed, Levato velo, and de plano, without that Solemnity, and formality which was used in ordinary Courts, and Causes; So in Italy, Spain, and France, the Judges proceed in

causes concerning the Sea, Summarily and in a more compendious way than o∣ther Judges use; And the like, as Sir Iohn Davies relates, hath seemed to the wisdome of this Kingdome, Our Parlia∣ments, saith He, have not only made extra∣ordinary provisions, for a more speedy reco∣very of debts due unto Merchants, for their Merchandizes, than is provided by our Com∣mon Law, as appears by the Statute of Acton Burnel, made the 11. of Edward 1. and the Statute De Mercatoribus, made the 13. of Edward 1. but also hath allowed a Court of Proceedings in cases of Merchants, different from the course of our Common Law; For by the Statute of the 27. of Edw. 3. cap. 2. it is declared, That the proceedings in causes of Merchants shall be from day to day, and from hour to hour, according to the Law of the Staple, and not according to the course of the Common Law; and by another Article in the same Parliament, That all Mer∣chants coming to the Staple shall be ruled by Law-merchant, touching all things coming to the Staple, and not by the Common Law of the Land; and by another Article, That neither any of the Benches, nor any of the Iudges of the Common Law shall have any Iurisdiction in those cases. To which may

be added the Statute of 32 of Hen. 8. Chap. 15. and of the 43 of Elizabeth, Chap. 12. which direct, That such causes betwixt Seamen and Merchants shall be or∣dered summarily, and without delay, and as in discretion shall seem most convenient. All which was, and may be observed in the Court of the Admiralty, which in many causes proceed at any time, and in all causes summarily, and according to Equity, but neither is, nor can be ob∣served in Courts of Common Law, which are open onely in Term times, and proceed in an ordinary and strict way.

Secondly, For the advantage of those who use Navigation, and Trade by Sea, The Law-merchant and Laws of the Sea admit of divers things not agreeable to the Common Law of the Realm, which may be better insisted on in the Court of Admiralty, than in the Courts of the Common Law. So much is likewise declared by Sir Iohn Davyes, relating se∣veral instances to that purpose. 1. If two Merchants, saith he, be joynt Owners, or Partners of Merchandizes, which they have acquired by a joynt Contract, the one shall have an Action of account against the

other, Secundum Legem Mercatoriam, but by the Rule of the Common Law, if two men be joyntly seized of other goods, the one shall not call the other to account for the same. 2. If two Merchants have a joynt interest in Merchandizes, if one dye, the surviver shall not have all, but the Executor of the party deceased, shall by the Law-Merchant call the surviver to an account for the Moity, whereas by the Rule of the Common Law, if their be two joynt Tenants of other goods, the surviver Perjus accrescendi shall have all. 3. In an Action of Debt upon a simple Con∣tract, (which is without a Deed in Wri∣ting) the Defendant by the Common Law may wage his Law, That is, he may barr the Plaintiff from his Action, by taking an Oath that he doth not owe the Debt, but when one John Cumpton Merchant brought an Action of debt Secundum Le∣gem Mercatoriam against another Mer∣chant upon a Contract, without Deed, and the Defendant would have waged his Law, he was not permitted so to do, and the Judge∣ment was given for the Plaintiff. It is not hereby intended that the Courts of Common Law cannot or do not take notice of the Law-Merchant, in Mer∣chants cases, but that other things like∣wise

considered, it might be thought rea∣sonable, if they so desire, to allow them the choice of that Court, where the Law-Merchant is more respected, than to confine them to other Courts, where another Law is more predominant. Be∣sides, there may be danger of doubt thereof, because those things are not ap∣proved for proofs at the Common Law, which are held sufficient in the Admi∣ralty amongst the Merchants; for as Sir Iohn Davies further observes, At the Com∣mon Law no mans Writing can be pleaded a∣gainst him, as his Act, and Deed, unless the same be sealed, and delivered: But in sutes between Merchants, Bills of Lading, and Bills of Exchange, being but ticquets, with∣out Seals, Letters of advice, and Credence, Policies of assurance, Assignations of Debts, all which are of no force at the Common Law, are of good credit and force by the Law-Merchant. To which may be added, what Malines observes, That the bearer of such Bills, by the course amongst Merchants, shall be admitted to demand, and recover the Contracts, without Let∣ters of Atturney, which is not admitted in the Common Law. It is moreover considerable, That the Law of the Sea

looks one way, when the Common Law looks another; As for instance, A Ship is Freighted, or hired for a Voyage to the Indies, at 20 l. per moneth by Char∣ter-party, it appeareth that having been eight Moneths in the Imployment of the Merchant, who Freighted her, before she makes any Port, with her Lading she perisheth in the Sea, in this case by the Common Law, as it hath been averred, the Owner of the Ship ought to have Freight for eight Moneths: but by the Law of the Sea, which hath alwayes been allowed, The Merchant losing his goods, the Owner loseth his Freight; A∣gain, if the Owner loseth his Freight, the Mariner, although he escape, loseth his Wages, for the time he served, which happily would not be thought so if he sued at the Guild-Hall for the same.

Thirdly, for encouragement and ad∣vantage of those who use Navigation and Trade by Sea, it is considerable, That in the Court of Admiralty, one and the same Action may be brought against diverse and several persons, undertaking the same business, as when many joyn in subscription to a Policy of assurance, but if a sute be brought at the Common

Law, every man must be sued severally, which the Parliament in the Act concer∣ning assurances, held inconvenient; and in the like manner, divers and several Persons may joyn in the same sute, as Mariners for wages, at a small charge to themselves, with little prejudice to the Masters, or Owners which are sued, and obtain a Decree or Order all together, whereas when they sue at the Guild-Hall, every man sues severally, to the great charge of every particular, and to the excessive dammage of the Masters, or Owners, if Judgements be given a∣gainst them, Besides the inconvenience (of which the Statute of the 28. of Hen. the 8. cap. 15. takes notice) That if Mariners or Shippers, which by reason of their often Voyages and Passages must depart, without long tarrying and pro∣tracting of time, be enforced to attend the ordinary terms of the Common Law.

Fourthly, the Court of Admiralty for the conveniency and dispatch of Mer∣chants, and Sea-mens causes, admits of proofs, which the Courts of Common Law do not allow, for in that Court ac∣cording to the Civil Law, the Plaintiff

may be relieved by the Defendants an∣swer, upon Oath, which in the ordinary Courts of the Common Law is not affor∣ded; Again, whereas in those Courts the Evidence must be produced at the Barr, before the Jury, Sea-men, and Ma∣riners, which are many times necessary witnesses, for the reason before exprest, cannot be present without great preju∣dice to themselves and the Trade of the Kingdome; But in the Admiralty Court they may be produc'd at any time, after the sute is begun, and their Examinati∣ons being taken in Writing, they have liberty to follow their own, and the common occasions. Moreover, many times in causes concerning Navigation, and Trade by Sea, no proof can be made, but by Witnesses remaining in Forein parts, to which the Writs of the Com∣mon Law do not extend, but those Wit∣nesses by Commission out of the Admi∣ralty Court, are usually sworn and ex∣amined by Magistrates in those places, and their examinations so taken are al∣lowed for sufficient proof upon re∣turn.

Divers other instances might be given, by which it would appear that the Court

of Admiralty can give redress in Sutes concerning Navigation and Trade with more conveniency than the Courts of Common Law; but these considered, and how much it concerns the good of the Kingdome, and those who s••pport Navigation and Trade, may be sufficient to discover, which Court may be best justified in proceeding in causes of that nature.

What inconvenience may follow both to the Private and Publick by the inter∣posing of the Courts of Common Law, and by obstructions made unto the Ad∣miralty in such businesses, may appear in one particular, that is concerning Charter-parties and Freight due for im∣ployment of shipping. There is but one instance given of a Sute brought at the Common Law upon a Charter-party, viz. the 28 of Elizabeth, which was on the Merchants part for breach of Co∣venant, viz. for not staying in a Port of discharge so many dayes as were agreed upon, for which the Owner was con∣demned in 500 l. without any respect to the Loss or Damage which the Merchant had sustained: And if it be considered how many clauses there are in Charter-parties,

and Covenants of things to be performed for which the Owners are bound under a general penalty, if upon every breach advantage should be taken in extremity, no man would have great comfort in hiring out Ships to the Sea: And it may be observed, that there is no President that ever any man sued for Freight at the Common Law, which ar∣gues much difficulty in that way, as pro∣bably the performance of the Voyage being to be maintained by such proofs as cannot be produced in those Courts. And whereas it is affirmed, That infi∣nite Prohibitions have been granted in causes commenced in the Admiralty up∣on Charter-parties, it must follow, that thereby was occasioned infinite loss to the Owners of the Shipping, it being most probable by what hath been ob∣served, That the cause for Freight being stopped in the Admiralty, there was no means to recover the same in the Courts of the Common Law. For that is a cer∣tain Rule, That that Merchant which declines that Court knows he is in no danger elsewhere; and it falls out ma∣ny times, That for long Voyages great summs are due for Freight, and Mer∣chants

not alwayes having good success, are sometimes put to their shifts, but how far it stands with the dignity of the High Courts to countenance, or in truth afford protection to such shifts, we leave them to consider, but no man can conceive other∣wise, than that those courses must needs more weaken the Shipping of the King∣dome, than divers Ordinances and Con∣stitutions intended for the maintenance thereof can possibly advance the same. Besides the decay of Shipping, these things conduce to the impoverishing of Mariners who are the life of Shipping, for Freight is said to be the mother of wages, and the Owner losing his Freight, the Mariner cannot so well obtain his wages, and in consequence must betake himself to some other course of life.

The like inconvenience falls out in Trade and Commerce, when Prohibiti∣ons are granted for Contracts, or things done in partibus exteris & transmarinis, The Merchant if he can avoid the Ad∣miralty where he must answer upon Oath, and proof may be made by Com∣mission, thinks himself secure from any danger at the Common Law. And al∣though it may be supposed that remedy

may be given in the Chancery, yet how∣soever it is possible it is not usual for that Court to send Commissions into Forein parts, and the pretence is for the right of Jurisdiction in the Kings Courts of the Common Law, without respect to the Chancery, to which sir Ed. Cook seems to be no great friend.

FINIS.

Notes

• * 1.1

  Assert. 1
• * 1.2

  Commene sur les Cu∣tumes de Normandy Te d•• V••••∣ces.
• * 1.3

  Orat. pro Lege Ma∣mlia.
• * 1.4

  Pro••heio•• l. 2. l••. 11.
• * 1.5

  L. Depre∣catio D. de l. Rhod
• * 1.6

  D▪ Domi∣nio Maris l. 1. c. 10.
• * 1.7

  Orbis ma∣rit••••i. lib. 1 c. 30.
• * 1.8

  Tract de Navigat, et merca∣tura.
• * 1.9

  D•• Sulseu∣dis T••t. de Officio Ad∣m••••alli.
• * 1.10

  Praefat del Cont. solato de c. 44.
• * 1.11

  Partid. 5. et. 9.
• * 1.12

  Fontavon Les Edicts de Flance Tom. 3.
• * 1.13

  Ar•••••• 19.
• * 1.14

  Flores ••••ar sae ad ••••de∣precatio.
• * 1.15

  A bridg. of Sea Laws. c.
• * 1.16

  Part. 1. c.
• * 1.17

  ad Sect. 3.
• * 1.18

  c. 8.
• * 1.19

  Sir Iohn Hayward in the life of Ed. 6.
• * 1.20

  ad Sect. 3.
• * 1.21

  c. 32. p. 39.
• * 1.22

  Offic. 3.
• * 1.23

  De Dom. Maris. l. 2. c. 28.
• * 1.24

  ad cap. 32.
• * 1.25

  De Dom. Maris p. 254.
• * 1.26

  Coment on Liltt. Sect. 234.
• * 1.27

  Part. 1. c. 17.
• * 1.28

  Assert. 2
• * 1.29

  Syntag. l. 47. c. 37.
• * 1.30

  Petit de Legib. Atticis.
• * 1.31

  in Verrem 7. Decad. 3. l. 3. l. 46. ad Senatus Trebes. l. Lib. 14.
• * 1.32

  1 ult. C. de Commer∣cijs.
• * 1.33

  cap. 20.
• * 1.34

  Morisonis l. 2. c. 27.
• * 1.35

  Sansovi∣nus lib. 17.
• * 1.36

  Chassan, Catal. p. 9. cons. 26.
• * 1.37

  Freeca de offic. Ad∣mir.
• * 1.38

  Moris l. 2. c. 22.
• * 1.39

  Edit. per Fontan.
• * 1.40

  Tit. 2. c. 14.
• * 1.41

  Abrigd. c. 1
• * 1.42

  De Dem. Maris l. 2. c. 27.
• * 1.43

  Iurisdicti∣ones p. 142
• * 1.44

  Selden l. 2. c. 16.
• * 1.45

  Assert. 3
• * 1.46

  Tit. de Varl••t.
• * 1.47

  G••omat. verb. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.48

  Iac. Gode∣fred. Com∣ment. ad 1. Deprecatio.
• * 1.49

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. lib. 33.
• * 1.50

  Cap. 24.
• * 1.51

  Partid. 5. & 9.
• * 1.52

  Tit. de Vareos.
• * 1.53

  Lenthal & alii contr. D. Will. Ru∣ssel & a∣lii.
• * 1.54

  Assert. 4
• * 1.55

  Iurisd. of Courts c. 6. F. 127.
• * 1.56

  De Dom. Maris l. 18 c 17.
• * 1.57

  •• & 2 Phil. & Mar.
• * 1.58

  Iurisd. of Courts p. 330.
• * 1.59

  Gloss. ••. Admiral.
• * 1.60

  Iurisd. of Courts p. 142.
• * 1.61

  Ibid. 144.
• * 1.62

  Lib. 2. c. 16.
• * 1.63

  Assert. 5
• * 1.64

  Notes upon Fort••••cue B 6. p 29. v. 557.
• * 1.65

  Lex Mer∣cat. p. 1. cap. 21.
• * 1.66

  P. 1 cap. 24
• * 1.67

  D. lib. tit. 2. C. lib. 4. t. 33.
• * 1.68

  D. Vs••ris cap 2.
• * 1.69

  Comment in Littleton Sect. 43.
• * 1.70

  Iurisdict. of Courts p. 330.
• * 1.71

  Artic. 49.
• * 1.72

  De Vusuris c. 2.
• * 1.73

  l. exigere, D. de Iu∣diciis.
• * 1.74

  Donatio in Matrimo∣nium.
• * 1.75

  Sect. 136.
• * 1.76

  P. •• c. 24.
• * 1.77

  Assert. 6
• * 1.78

  l. 39. D. de verb. signif▪
• * 1.79

  De Domi∣nio Maris lib. 2. cap. 18.
• * 1.80

  Iurisdict. of Courts p. 283. lib. 2. de Eaux & Forests art. 1. cap. 1.
• * 1.81

  cap. 32. p. 31.
• * 1.82

  Lib. 2. c. ••4 p. 188.
• * 1.83

  Assert 7
• * 1.84

  B. b. p. 3. & p. 157.
• * 1.85

  P. 1. c. 13.
• * 1.86

  P. 1. c. 13.
• * 1.87

  8 Carol.
• * 1.88

  Sir Chri∣stopher Wray, L. chief Iu∣stice, Dr. Davy Lewis, Iudge of the Admi∣ralty.
• 1 1.89

  Request.
• * 1.90

  Answer.
• 2 1.91

  Request.
• * 1.92

  Answer.
• 3 1.93

  Request.
• * 1.94

  Answer.
• 4 1.95

  Request.
• * 1.96

  Answer.
• 5 1.97

  Request.
• * 1.98

  Answer.
• * 1.99

  Stat. 1. c. 2.
• * 1.100

  Assert. 8
• * 1.101

  Cook 4 Reports, p 29.3 H 6 14 •• 1••. H. 7.9.
• * 1.102

  E.•• p. 28. & p. 15.
• * 1.103

  Assert. 9
• * 1.104

  Comment upon Mag∣na Chart. Fol. 28.
• * 1.105

  Sholes syntag 47. ••it. 37.
• * 1.106

  Petitus de Legibus Atticis l. 5. tit. ••.
• * 1.107

  C. de Nau∣fragiis l. 5. & ibi Cu∣jacius.