an abridgement of all sea-lawes; - maritime law...

AN

ABRIDGEMENT

of all SEA-LAWES;

GATHERED FORTH from all Writings and Monuments,

which are to be found among any people or Nation, upon the coasts of the great

Ocean and Mediterranean Sea:

And specially ordered and disposed for

the use and benefit of all benevolent Sea-farers, within his Majesties Dominions of Great

Britanne, Ireland, and the ad- jacent Isles thereof.

By WILLIAM WELWOD, professor

Of the Civill Lawe.

LONDON Printed for Humfrey Lownes, for Thomas Man

1613 This digital edition 2011

compiled and edited by

Colin Mackenzie LL.B., LL.M.,

of Gray’s Inn, Barrister

Advocate (Scotland) © Colin Mackenzie 2011. Version 1.00 Version 1.02 16th March 2012 – with minor corrections and additions. Version 1.03 30th October 2015 – with minor corrections.

William Welwod, An Abridgement of all Sea-Lawes

TO THE HIGH AND mighty Prince, JAMES, King of Great Britanne, France and Ireland, &c. IT pleased your M. some yeeres past, most graciously to accept of this birth, in the great weaknes and infancy thereof. Therefore is it, that now being strong, and by all warrants inarmed, it most respectfully returnes, offering service to your M. even for all the coasts of your Highnes dominions, upon hope to merit your former grace.

Your M. most humble subject and daily orator,

W. Welwood

Maritime Law Digital

ii


To the Right Honourable, Ludovick, Duke of Lenox his Grace, &c. Henry, Earle of Northampton, &c. and Charles, Earle of Nottingham &c. Lords Admiralls of England, and Ireland, of Scotland and the Isles, and of the Cinque Ports. Having intended a painfull & new labour upon a rare and necessarie argument, as for all Sea-farers, so also properly pertaining to your Honors, my most noble Lords, I could not but of due salute your Honors, as the keepers of Sea-lawes, for a refreshing remembrance, and needfull consideration of that most honourable estate and high office, presently, and (I hope) happily unto you: I meane, the Admiraltie of his M. dominions, a charge both ancient from many hundredth yeeres in this Ile, and most honourable by the personages your predecessors bearing the same, as being all, either sonnes, brothers or uncles or cousins to Princes, or (at least) for action most famous. With all the which, that your Honors may the better ranke & match, surely as the condition of these daies craves, so the best disposed wish, that as you bee every other way Noble, your nobility may be crowned with a careful attention to the speciall parts of the Admiraltie requiring the same, to a memorial surpassing all ancesters: I meane the conservacie, jusrisdiction and priviledges thereof. The jurisdiction, albeit it be most faithfully and diligently exercised, and namely in England by Sr Daniel Dun, & Dr Trevor, most learned, sincere, and worthy colleagues, Judges in the High Court there: yet the daily thwarring disturbing the processe of the Judicature urges a clearing or assigning of the limits & marches, to a netter distinguishing thereof from all other jurisdictions ordinarie; without which, due justice can neither bee administered, concerning the sea customes (of which no court else can take knowledge) for stran-


iii


gers traffiquing here (importing no small staine to the king his justice) nor yet for his M lieges traffiquers on sea, whose contracts and charter-parties ordinarily beare the clause of ruling by the law of Oleron; a forraine law, as all the other lawes of the Admirasll court commonly are, whereof no other Judicature here can take cognissance. To end this point; Beside that which God in the heavens requires of the ministers of justice, please you to remember, that here below amongst men, Nihil iustitia popularius. Consequently therefore, priviledges due for the maintenance of the Admiraltie and jurisdiction thereof, would be vindicate from all sort of encroaching and usurping. But above all, the conservacie (as the chief point of that office) requires security and safety in common for all loyall subjects, traders on Sea specially, for Fishers and others, happily disposed to adventure and exercise the trade of fishing; to the end, that not onely a peaceable, but also a full and plentifull fishing may be enjoyed by his M kingdoms, even according to that which God so freely and bountifully offers into their very doores. For which casue the barbaratie of the Islanders would be repressed, and strangers stayed from scarring, scattring, and breaking the shoals of our fishes; namely, upon out coasts of Scotland. There could be no better employment for some (at least) of his M ships and companies, Ne vel ille usque turbent, aut isti intercipiant, quod noscapere oportet. But, I breake from this purpose, remitting the same to the 27 Title of this booke; hoping for a comfortable out-bearing and maintaining of that necessarie and great dignity of the Admiralty by your LL according to all the occasions of these quarrelsome times. And so I rest, by this present token, devoted to serve your Honors in my calling.

William Welwod.


iv


PREFACE to the Digital edition 2011 I have made a full text digital version of this book almost 400 years after its original publication, so that it is

easily available, in a convenient form, to those interested. Those who download it are requested not to put it to

commercial use without permission.

The name of the author, Willam Welwod, is sometimes spelled Welwood, or Wellwood. He is remembered not

only for this book, but also for his debate with the great jurist, Hugo Grotius, concerning the freedom of the seas:

Title XXVII of this book, later expanded and published in Latin as De Domino Maris, 1615, was a reply to Grotius,

Mare Liberum, 1609. Grotius actually graced Welwood’s views with a reply, although it was not published, and

was not discovered until 1864. Welwod was concerned about fishermen from continental Europe depleting the

stocks of fish in what he saw as Scottish waters. In the late twentieth century this again became a subject of

lively debate, and it remains so to some extent in 2011.

The book was based on a earlier smaller work by the same author entitled The Sea Law of Scotland: shortly gathered and plainly dressit for the reddy use of all Sea-faringmen, Edinburgh 1590. Very few copies of The Sea Law of Scotland survived into the twentieth century. It was re-published with a translation into modern English as

part of: The Scottish Text Society, Miscellany Volume, editor T.C. Wade, Edinburgh and London 1933. An

introduction written there provides us with much useful information on the life of William Welwod.

Apart from the freedom of the sea debate, neither of Welwod’s books has any great claim to fame as law books.

They are not even mentioned by Professor Bell in his Commen aries on the Law of Scotland – which contains the

first relatively modern and valuable Scottish contribution to the writing on maritime law. However, Welwod’s

books were the first Scottish efforts to address maritime law in any coherent way, and they tell us something

about how maritime law was viewed in the early seventeenth century. It should also be noted that the long title

of the The Sea Law of Sco land suggests that it was not aimed at the legal profession; and the long title to

Abridgement of all Sea-Lawes suggests that it too was aimed at those involved in the business of shipping, and

perhaps at a wider part of the public.

t

t

f

Abridgement o all Sea-Lawes was reprinted in 1636, and the text of it was incorporated into the 1686 edition of

Malynes, Lex Mercatoria (first published in 1622), though the authorship of it was not mentioned.

I have adhered to the original pagination: so each page of the original has its own page here. I have not altered

the spelling in the original text save for not using capital letters for the first letter of nouns not starting a

sentence.

The original marginal notes have been reproduced as footnotes and have been placed after the relevant

paragraph rather than at the end of a page. The original marginal notes, no doubt due to constraints of space on

the pages, used many abbreviated citations and other abbreviated words, many of which are now unfamiliar to

most people. The citations and abbreviations are not consistent. I have expanded many of these abbreviations. I

have tried to explain many the citations and abbreviations with additions in green Tahoma font. I should have

liked to have treated more of the footnotes in this way, but constraints of time have not allowed this. Suggestions

for corrections of errors and other improvements will be very welcome.

CM

Edinburgh

12th May 2011

[email protected]


v

mailto:[email protected]


CONTENTS The Prohem, contayning the origine of the Sea-law: with the occasion of this treatise. TITLE IThe order of this Treatise TITLE IIOf the judge ordinary, in seafaring causes; with his jurisdiction, and privileges. TITLE IIIOf the Admirall Clerke TITLE IIIIAll the advocates and other officers assistants, for the better and speedier proceeding in the Admiral Court. TITLE VThe manner of proceeding in sea fearing causes. TITLE VIOf persons ordinary in ships. TITLE VIIThe fraughting of ships. TITLE. VIII.Of the Master of the Ship, his Power, and Duty thereunto belonging. TITLE IX.Of the Masters dutie to the Merchant and Passenger, and of his priviledges. TITLE X.The masters duty to the mariner. TITLE XI.Of the duties and priviledges of Mariners. TITLE XII.Of the Clerke of a ship. TITLE XIII.Of a Pilot or Steirsman TITLE XIIII.Of money lent to Sea, called Nauticum foenus. TITLE XV.Of the outreaders, or outriggers, or furnishers, hyrers, and of the owners of ships, and of actions for them and against them. TIT XVI.Of sundry partners of ships, and their discords. TIT XVII.Of casting of goods, and the like; and of and contribution to be made therefore. TITLE XVIII.Of contribution for pirates. TITLE XVIIII.Of contribution for spoyled and spilt goods. TITLE XX.Of contribution for lightning and disburdening of ships for their easier entrie to the port, and for other chances. TITLE XXI.Of the common manner of contribution, and execution thereof. TITLE XXII.Of priviledged ships.


vi


TITLE XXIII.Concerning shipwrack. TITLE XXIIII.Of things found on the sea, or within the flood-mark. TITLE XXV.Of things taken upon Sea. TITLE XXVI.Of Fishers, fishing, and traffiquers therewith. TITLE XXVII.Of the Community and Propriety of the Seas. TITLE XXVIII.Of Warfare Ships, and of the Captains and Companies thereof TITLE XXIX.Of Watermen and Ferriers. TITLE XXX.Of Shipwrights.


vii


The Prohem, contayning the origine of the Sea-law: with the occasion of this treatise. Concerning the argument of seafaring government, so far as by any monuments can be observed; our beginning must be at the inhabitants of the island called Rhode, situated within the Mediterranean sea, in the part thereof called the Carpath sea, upon the coast of Asia minor, over against Caria. The indwellers whereof, amongst all other people we can read of, were most famous for shipping and sayling; and that not onely to the great increase of their power and wealth every way, as by which they did command and daunt all other people about their coast and seas; in such manner, that neither Pirat, nor any sort of the enemy, or disturber of their peace and trafique, durst then appear a: but also by the communicating of their trade, and discipline on sea, they did make neighbour Princes and Cities, willingly tributars unto them b. And further, as Strabo writeth c to the crowning of their renowne, they surpassed all other nations in knowledge of equity in marine businesse; which they manifested by making of sea-lawes. a Gellius, lib 7, cap 3. [Aulus Gellius (c 125-180), Roman writer, author of Noctes Attica.] b Strab, geogr. Lib 12, cap 14. [Strabo (c63 BC-24 AD), Greek geographer, who wrote a work entitled Rerum Geogarphicarum.] c Ibid. For, the very Emperors of Rome, Tibeius Caser, Hadrian, Vespasian, Traian, successively did refer all


1


[2] seafaring debates and controversies, to the judgment of the Rhodian law d. And so likewise exemplary, did their successor Antonius, by his rescript yet extant e: wherein answering to one Endemon his plaint, I am (saith he) the Lord of the world, but the law is the master of the sea; let that thy plaint and controversie Endemon be decided by the law of the Rhodians. d Vide ll. Rhodior. in prin. [Digest XIV, 2.] e L. deprecatio ad L. Rhod. &c. Rhodiae leges. distinct. 2. [Digest XIV, 2, 9.] So farre did the Romans (who alwaies excelled all other nations, in devising of human lawes) yeeld & give place to the Rhodians in the sea-lawes. And by their example, finding seafaring and trafique on sea, redound to a great common wealth, as plainly pronounced f Ulpian, one of the fathers of their laws; the Roman emperors, and namely Claudius,g brought in new forms of actions, and devised a kind of newe and sure commodities and gain for trafiquers, by taking upon them the hazard of shippe and goods: to which end also is erected by English laws, the office of assurance. f L.1 licet. de exerc act. [Digest XIV, 1.] g Sueto. c 1, 18. [Gaius Suetonius Tranqillus c70-c130, De Vita Caesarum.] It is true, that the first making or sea Lawes, is otherwise by some attributed to others, as by Dionisius to the Phoenicians, because of merchant trade.h And Plinius, for the same cause as claims the art of sayling to the Carthaginians,i and consequently, would seeme to a tribute to these two nations also for their necessity, the skill of sayling. To be briefe, by the space of 1000 years, the sea, at least the Mediterranean, was onely ruled by the Rhodian law, but helped with some few additions by the Romans, and that by way of interpretation: the rather, to occur to the deceit and sophistrie of calumniators and wilful vexers of their neighbours, and also for other needfull doubts.k

h De situ orbis. [By Pomponius Mela, a Roma geographer who lived in the first century.]

i Lib 7, Natur Histor, vide Erechiam c 27. [Pliny, the Elder (23-79), author of Naturalis Historia, published c78.] k Docimus in lib suo legali.


2


[3] At last, when all sorts of laws by the eversion and renting all the Roman Empire, were as it were long time buried: Necessity forced the rulers of Rome anno 1075, to make new sea Lawes and statutes: And so successively, every chief seafaring town upon the Mediterranean coast, to add other ordinances; so they of Marseille did, anno 1162; and they of Genoa, anno 1186. And they of Pelopnnesus, called Morea, anno 1200; and the common wealth of Venice, anno 1215. And the emperors of Constantinople, Paleolog, anno 1262; and Constantine, 1270; and James King of Aragon that same year; and Peter King of Aragon, anno 1340; and they of Barcelona, anno 1434: which laws being all collected and ammassed, serve the Mediterranean unto this day. But on the great Ocean, which is our sea, the first laws we know to be made were devised by them of the island of Oleron, situate on the se-coast of France, beside S Martin against the mouth of the Charante and the Marras, neer to the entry of Garumna: Which are therefore called La rool d’Oleron; as by which the controversies on the sea coast of France towards the ocean were ordinarily decided, in the town of the said Ile, called thereupon, La ville de droict, or Oleron. As where the skilled shippers in that law did dwell, and had cognition of all such occurrent debates and questions. Now these laws of Oleron, were afterward transmitted into Dutch by them of Wisby, for the sea use of the Dutch coast. And of late, our kings of Scotland made diverse Acts in Parliament, concerning seafaring.l

l Vide act parlia Scotiae.


3


[4] As also the kings of England have done before m: for Edward III, by a solemne inquisition of 18 most famous persons for skill and sea-faring, assembled at Queensborow from diverse parts, anno 1375. Set down certain articles concerning the Admiralty and sea-faring, into old French: as may be seen in an old parchment authenticke book yet extant; which articles one Thomas Roucghton of that same, turned afterwards into Latine and intituled de officie admiralitatis Angliae. m Vide statuae Angliae. Likewise Frederick the second of Denmark, in his generalle convention at Copenhagen, anno 1561, set down a compend of statutes, for ruling his seafaring subjects; but for most part all one with La Roole d’Oleron. Also the French king Henry III, added his new constitutions to these of François, and others his predecessors, which are chiefly for the authorising of his Admiralty jurisdiction, honour and profits thereof; preferring the Admiral and his officers to all other judges and justices, except these called Royals. Notwithstanding all these many, diverse and late statutes and ordinances made and set forth in these sixeteene hundred years, by the nations, people and Princes above it and, in the decision of causes, and judging of seafaring controversies; that fragment of the Rhodian law, extant and Latinised by Simon Shardius, intituled by him, leges vavales Rhodiou & selecte leges Rhodiorum, with the interpretations and commentations, devised upon by the old Roman Jurisconsults, insert in the Pandects; together with the constitutions made by the Roman emperors, contayned


4


[5] in the Cod and Novells at large: as it were by common consent of nations, obtains the prerogative throughout all Europe; as in Great Britain, Germany, France, Italy, and Spain. Such is the force and authority of the civil Roman law amongst all Nations Christian 1. ___ 1 Welwod seems to assume that the compilation of laws, first printed in 1561 by Simon Schard and written in

many earlier manuscripts, called the Rhodian Sea Laws represents the ancient Rhodes maritime law which existed

before the time of the Roman Empire, and which is referred to in the Digest (XIV, 2). However, learned modern

commentators date this work to the middle ages. Walter Ashburner, The Rhodian Sea Law, 1909, is a brilliant

study of the available material, and concludes that it was written between 600 and 800 AD; that what the author

calls Part II and III represent a view of the maritime law at the time it was written; that the part he catergorises

as part I of the laws, which holds them out as the original Rhodian law, is worthless. He is of the view that part II

is of minor importance; and that Part III was an unofficial though not unmeritorious compilation of 47 paragraphs

or “chapters” which probably supplements Book LIII of the Basilica. Ashburner’s views are backed up by his deep

and detailed research of the available manuscripts and his logical reasoning. They are consistent with those of

Pardessus (Collections de lois maritimes antérieures au XVIIIme siècle, 6 vols 1828-45) and others, and are

accepted by later writers, e.g. Benedict on Admiralty, vol 1 (Jurisdiction) ch 3; F.R. Sanborn, Origins of the Early English Maritime Law and Commercial Law, 1930. ___ In which countries, albeit there hath bin, and yet remaines a great number of professors and doctors of the Roman civil law, who have written largely thereupon; yet few or none has taken in hand to write pertinently or expressly, upon the laws concerning sea-faring, the traffique on the sea, and by sea, with the dueries requisite of every sea-faring person, of all sorts and degrees. It is true that Julius Ferrettus in his observant devoir to the Emperor Charles the fifth, prepared the discourse for addressing of navies with convenient and expert governors, and all sorts of necessaries for hostilities on the sea, intituled de jure et romantica, but far off from our present argument, as may be seen by the same of late published, anno 1579, and dedicated to Philip, Charles his son, by Exuperantius Ferrettus, sonne also to the said Julius. Peter Pekkius also a Fleming Zelander, hath learnedly commented upon the titles of the civil law touching the sea lawes; but more busied about the exposition of words then of the matter. Likewise, Benvenutus Straccha, in his large book, de mercatura, interlaceth a title de nautis, navibus & navigationibus, but commeth not close to this argument, for he holds straightly within the compass of the civil law protesting also his pretermissi-


5


[6] ons and remissions of many chief matters to certain doctors, who also writes but obiter of the sea matters, and none speakes of the sea customes, which is our principal argument: to the end of which book is a annexed as a halfe sheet of paper, bearing consilia de usu maris, & navibus transvehendis; a turne of small contentment. ’Tis true that Simon Shardius, anno 1651, promised this same compend and collect of sea lawes forth of all laws (which presently by God’s grace I intend) but by death prevented, could not perform it. To conclude then, since no man, as I can understand, has set his pen to this by arguments and purpose, for the due information about the sort of seafaring passes in every order, but the commanders, judges, skippers, mariners, merchants, passengers, fishers, ferryers, waterman, &c, concerning their several duties privileges and powers, and all manner of things pertaining or incident to sea and sea-farers; I thought good, after the insight and deepe consideration of all the lawes and ordinances aforesaid, to mend a weake piece of labour, which I intended many years since, intituled the Sea-lawe of Scotland; and to frame the same in a very harmonicall or collection of all sea-lawes. And upon the conscience of my profession of the civil law, having no employment a part in any Admiralty, to publish the same for the use of the Admiralties, and benefit of all benevolent seafarers; and that presently because of the present use thereof so requiring the same, as I now cleerely perceive: that is to say; because that whereas the most civil, wise and politic nations have even most carefully distinguished the ju-


6


[7] risdiction of the sea from the jurisdiction of the land in all respects: yet nevertheless some men prease always, upon what intent I not, to confound the same. And the multitude of these who doe acknowledge the foresaid distinction, as specially the mariners, through ignorance contemne all other lawe but the rule of Oleron. In these respects (I say) I have with great pain and travell, concluded the publication of this work; which if it please (as I pray) God to bless with the own effect, I have reward enough.

_____

TITLE I The order of this Treatise

As the affairs of the sea concerns onely seafaring and medlers therewith: even so all doubts differences and controversies, rising upon the same, and their cases must also concern the same persons, which are either chiefly owners, out-traders or hirers, masters, pilots, mariners, clerks, merchants, passengers. Of whom the owner is he, to whom the ship or any part pertains in property. The out-trader or hirer, he to whom as hirer or partner for a voyage or more, or a longer time, during the hiring and lease of the ship, the profits and commodities thereof redounds a. And the master is he to whom the whole care and charge of the ship is committed b. The rest are all knowen. Now there are persons whiles happens all to fall forth in one man; as one to be master owner, and out- a L.1 de exerc act. [Digest XIV, 1.] b L.1 ad Leg Rhod. [Digest XIV, 2.]


7


[8] trader; and again to be all divers and distinct: and therefore the actionss to beare about acordingly. Likewise the cognition of their debates pertains not to every judge indifferently, but onely to the Admiral of the sea: which things this Abridgement shall orderly and summarily declare; beginning at the judge ordinary to sea-fare causes; the members of the court, and manner of preceding there: next, the persons ordinarily in ships, with fraughting thereof, as belonging to the chief uses of shipping: thirdly, the power, duty and privilege of everyone foresaid in ships: fourthly, the manifold causes of losses and damage in sea-faring, with the reddresse thereof: fiftly, the privileged ships, shipwreck, ships and things taken and found on the sea, or within the flood-marke thereof: and lastly, of fishing, fishers, ferryers and waterman, and shipwrights.

_____

TITLE II Of the judge ordinary, in seafaring causes; with his jurisdiction, and privileges.

As for the judge of the sea, we have first to consider, how at the beginning of the Roman Empire, there was a speciall difference betwixt the persons to whom the charge of shipping was given, and then to whom the commandement of fleets and navies was committed; and betwixt the persons who exercised the jurisdiction in seafaring debates, as followeth.


8


[9] For amongst the Romans in the beginning, first the builders, forthreakers, or furnishers, and preparers of ships and navies with all necessaries (by a special ordinance called lex decia) were stiled duumviri navales a; as the governors of those fleets were called Archigubernii b, and the Justiciaries of sea-faring debates, Magisteriani: even so amongst the Grecians the commanders of their fleets were stiled στρατηγος. And after the Empire seated at Constantinople, magnus dux classis, and Drungarius magnus c, as the chiefe carrier of the pinsell or flagge. His stile afterward was Admiratus, from Amir, a word of the Saracens signifying an overseer, or a captaine on sea or on land; for mirar is to see as the Spanyard useth it. From this word Amiras, commeth the word Amirante to the Italians for the leader of their fleets, as well as L’amiralgio; albeit they terme their sea-faring judges, Li consoli del mare, and such like them from the same word Admirall, which most part nations of Europe use in the same meaning; as first and chiefely France, where Childebert the first, 1000 years sithence, instituted an Admirall as captain and commander of his Armie upon the sea, like as he did then ordain a marshall for the government of his gen d’armerie on land. Onely the Spanyard called this leader and commander of his fleets and navies, Adelantado: as who should go before the rest. a Livius, b 9. [Livy 59 BC-17 AD.] b L. Seius Saturninuis ad C trebell. [Digest XXXVI, 1, 48.] c Vide fragmenti ascrispta Polybio. [Polybius 203-120 BC.] Briefly, the word Admiral, however this day it might be used or abused, for to signifyie the chief shippe, which was navis praetoria to the Romans, as the chiefe commander of the fleet; yet that word Great Admiral notes properly the man who the Romans called Prae-


9


[10] fectum maris, and the Grecians, Thalassiarchum: to wit, the governor of the sea. And thus farre concerning names and styles for the commanders, and gubernators of ships, fleets and seas. But concerning the jurisdiction of the sea, and the exercises of justice amongst sea-faring men; at first among the Romans, it was allowed to every president on the coasts, and after word other judges were specially constitute at the sea sides called Magisteriani d: but the judges were accountable to their higher judge styled praefectus praetorio sublimissimus, from whom there was no appellation or advocation e. d Vide Alberic. ad Novell 17 & 24. [Albericus de Rosate 1290-1360.] e L a proconsulibus. [Digest I, 16.] C de appell. [Code 7, 62.] Sithence, in the latter days, before the readier obedience to the great Admirall of the sea, it is by common consent of nations, successively agreed, that in consideration of the admiralls their sovereign commandment, their special preferment, and power upon the lives of men within the sea flood; that there what they should also have a sovereign jurisdiction only proper to themselves, over all sea-faring men within their bounds, and in all seafaring causes and debates, civill and criminall. So that no other judge of any degree, at least in Scotland, may medal therewith, but only by way of assistance; and that by commission and in difficult cases, as was found in the action intended by Antoin de la tour, against one Christian Marteis, 6 November anno 1542.f

f Tom 1, c 555, regist Scot. In which jurisdiction, the first power necessary, is to constitute a Vice-Admiral and Captains to supply his absence on sea; as also Deputies, for particular parts on the coasts, with the Crowners to view the dead bodies found on sea, or found on the coasts there-


10


[11] of, and commissioners or judges generall, for exercising justice in his high court on land, with clerks, procurers, doome-sayers, marshalls, and other officers, for the exercising of the said jurisdiction both in peace and war: and therefore to sit and hold courts where they please; to execute justice, to imprison and relax; and to command the King’s prisons and boroughs their prisons, to receive and keepe their warders and prisoners.g

g L’Amirall de France. Finally, their authority sheld be distinctly acknowledged in all things pertaining to sea-faring. It is true, that in Scotland before the erection of our Admirall after the example of other nations, the Deans of Guild were ordinarily judges in civil debates, betwixt mariner and merchant, as the Water-Baillie between mariner and mariner, like as the high justice was judge in their criminalls. Which actions all now falling forth betwixt the persons asforesaid, of due appertains is to the jurisdiction of the Admiral; & therefore his judge depute, or Commissar, called Judge Admirall, and none other, should sit, cognost, determine and minister justice in the foresaid causes; as likewise upon all complaints, contracts, offences, pleas, exchanges, affecurations, debts, counts, charter-parteis, covenants, and all other ratings concerning lading and unlading of shippes, fraughts, hyres, monie lent upon casualties and hazard at sea, and all other businesses whatsoever among sea-farers, done on sea, this side sea, or beyond sea; not forgetting the commission of writs and appeals from other judges, and the causes and actions of reprisals or letters of marque: yea, to take stipulations, cognossans, and insinuations,


11


[12] in the books of the Admiraltie: and to do all other things without which the jurisdiction of the Admiraltie cannot stand nor beare out; and therefore to arrest and put in execution, to enquire within & without liberties, by the oaths of xii men upon all offences h. h Vide diplomata admiralior. in utroque regno. Vide late de officie Admiralitatis Angliae. As first, touching the revealers of the King and countrey their secrets over sea, in time of warre. Item, against pirates, there assisters or abettors, out-treaders & receptors. Item, against fortifiers of the King's enemies, & harmers of his friends. Item, against the breakers of the Admirall’s arrestments and attachements. Item, against goods forbidden, & merchandise not customed, and yet shipped and transported. Item, against the resisters of the Admirall his officers, in exceeding his precepts. Item against the foretailers, regratrers, and dearthers of corne, fish, drinke, fire-wood, victuals caried over sea. Item, against pleaders before other judges than before the Judge Admirall, in causes pertaining to his jurisdiction; as also against the judges cognoscing thereupon. Item, against them which give sea beliefs, testimonials, or suchlike, over sea, without power or license from the admiral. Item, against transporters and carriers of traitors, rebels, manifest transgressors, and fugitives from justice, over sea. Item, against hirers and freighters off ships of other nations, when they may be served by their own nation. Item, against such as cast ballasting, sand, or what else, in harbours, or channels, that defile or spoil the same.


12


[13] Item, against ship and boat-wrights, extortioning the lieges or subjects. Item, against taking away the boigh from the anchor, or cutters of cables or other rewes. Item, against false weights and measures by sea. Item, against shedders of other men's blood on sea, or any port or river below the first bridge next the sea: or them who are lamed or hurt through faulty and ill-geare in ship. Item, against customers or Water-baillies, taking more custom or anchorage than wont. Item, against such as absent themselves from weppinshewing or mustering; which the Admirall may ordainee twice a yeere in time of war, and once in two yeeres in time of peace, upon all dwellers at ports and harbours, or within 1 mile neere thereunto.i

i L’Amirall de France. Item, all sorts of transgressions committed by seamen, ferry-men, water-men as well as in flood rivers and creeks from the first bridge, as on the seas; fishers, pilots, shipwrights pressed men contemning the authority of the Admirall; and and after due cognition, to levie and apply to his own use the penalties and amerciaments of all transgressors aforesaid, as due unto the Admirall; to deliver the goods of pirates, felons, capital faulters, their receivers, assisters, attainted, convict, condemned, outlawed, or horned. Item, deo dando, that is to say the things, whether boat or ship, &c that caused the death of a man, or whereout-of a man did perish. Item, shares, lawful prizes, or goods of the enemy.


13


[14] Siclike lagon, that which was found lying at the sea ground, and flotson that is found swimming upon sea, and jetson, which is cast foorth of the sea to the shore and caused, with anchorages, beaconages, meare swine, sturgeons and whales &c, and and all fish of extraordinarie greatnes, called regal fishes; which all allowed in Great Britain, France, and other noble kingdoms, to the Admiralls, by their sovereign; for the better maintenance of their estate, jurisdiction and conservancie on seas, rivers, floods, roads, ports, harbours, channels, sayling, fishing and all trading there, as altogether and chiefly committed to be care, maintenance, and protection of the great Admirall.

_____

TITLE III Of the Admirall Clerke

The clerk of the Admirall court, beside that he should bee very skilful, faithful, and give his solemn oath thereupon at his admission; and decide the points of his office requisite and common to all clerks of other courts, he should have diverse registers, as for congees, saveconducts, passports, sea-briefs; as without which no ship should passe to the sea in time of warre, nor are yet to farre voyages in time of peace:a which no other judges nor governors should give forth, but the Admirall onely.b

a L’Amirall de France. b eodem. Item, one other register for the reports of the skippers and captains, at their return to the admiral also.c

c eodem.


14


[15] Item, one other register for the names of merchants, and passengers, and owners; for the skipper is holden to give up the said persons by name.d

d Secundii act parliam. Iac 5 cap 27. And because no man ought to take upon himself to be a master or pilot without due trial of his skill: even so ought his trial to be registered in the Admiral his books.e But within the water of Thames, this trial and registration of pilots, belongs to the Trinity-house.f

e L’Amirall de France. f Looke the Charter of Trinitie house on Thames. Lastly, all money lent to hazard upon the sea, called of old pecunia traiectitis, for certain profit, called foenes nauticum, for which the lender was wont to bear the peril, against the manners of these avaricious daies; their lendings (I say) and bills of assurance, should be done before the Admiral Clerk.g

g L’Amirall de France. To conclude, no other clerk or writer, may meddle or pen things concerning the sea-faring, without licence of the admiral.h

h Kintor. art 45. [David Kintor was a judge of the Admiralty Court in Scotland in the mid 16th century; he wrote

a manuscript on admiralty law and jurisdiction, which has been lost. Parts of it are quoted in Balfour, Practicks, in the chapter on Sea Lawes.]

_____

TIT. IIII All the advocates and other officers assistants, for the better and speedier proceeding in the Admiral Court.

For the more upright proceeding, and easier dispatch of causes & plaints in the Admirall court, it is found needful that all procurers, before they be heard, sweare solemnly first, that they should do nothing maliciously; but as soon as they find their action to be unrighteous in any part of the process,


15


[16] they shall tell it to their client: and if the client will insist, then to shew it to the judge. Secondly, that they shall not reveal their client’s secret to the adversarie, nor yet collude with him to betray their client. And lastly, that they shall propone neither dilator nor peremptor against their conscience.a

a Il consolato del mare. To conclude, the oath of fidelity is likewise to be solemnly taken of the rest of the officers of the court: for the June execution of their offices, namely, at the admissions.b

b Eodem.

_____

TIT. V

The manner of proceeding in sea fearing causes. The debates of seafarers, and seafaring actions, should be decided according to the received laws and statutes of the sea: which failing, then the customs and consuetudes of these are to be followed,a because all dispositions and ordinances commonly take their interpretation from consuetudes and uses.b

a Per l deprecatio ad l Rhod. Baldus in l. observan in § antiquam de off procons. [Baldus de Ubaldis (1327-

1400) – a postglossator and pupil of Bartolus. See the biography of Baldus by K. Pennington at

http://www.faculty.cua.edu/Pennington/BALDBIO.html.] b Innocent in c olim de verb Sig. [Digest L, 16] And if neither law written, or unwritten custom, consuetude occurres or appeares, the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of sea-faring; because it is old and common, that the judgement of skilled and well practised men, should be followed in the owne trade and calling.c

c Per l 1 de vent ispic. [Digest XXV, 4, 1 – perhaps a slender analogy.]


16


[17] But in the manner of proceeding, it is a perpetual privilege, qod velo levato d. That is to say peacefully and summarily for, causes should cognosced, and without the solemnity of other ordinary courts and judgements, only looking to God and the truth; so that the judge should do, if it were possible, as God himself e. d L de submersis C de nauf lib 11. [Code 11, 6.] e Vide rotam genuae & DD. Plaints then of seafarers should be most summarily cognosced, but specially of shipwracke; for it were a cruelty to vex so miserable persons with the tedious ordinary proceedings of courts, in so much as they need not to put their petition in writing f. f Bartolus, Lucius et Johannes ad d.l. de submersis. [Bartolus de Saxoferrato (1313-1357) – Italian jurist and

prominent postglossator.] And because that sayling tends to a great common-wealth, therefore least sea-farers should be wearied with pleas, and so either lose their right, or their trade g, summarie process should be common to them all. g Secundam l illum de Pet haered. Which sort of process is so urged by the doctors of law, that they counsell judges, who fear appellations or advocations, to present the same by a present execution h; namely, in causes of spoyle or wrack; so that upon every interloquutor, they may proceed to execution, making restitution presently. Providing always that caution be first found by the spoyled, to satisfy the sentence of the judge of the appellation, in case it shall happen to be made i. h DD in c proposuisti. de foro competente. i L’Amirall de France. This is also a privilege of the seafaring judicature, that albeit by a common rules of the law, where no litiscontestation is passed, no weakness should be received, nisi ad alternam rei memoriam, ac adversario id citatio; yet in shipwreck as a case very pitiful, any of the ship-broken-men may come to the judge of that part where the wrack happens, & by witnes brought


17


[18] with him, prove the wreck and spoile k; to the end that if any owner should pursue his goods, for to recover them, he might be justly repelled by an exception of an innocent losse l: which should be done within a year and a day; namely, by such as where in service to the Prince & country.m

k Si quis. 10 C de naufrag. [Code 11, 6.] l L fin ad L Rhod. m quoties, de naufrag. The like is to be observed also in cases of spoyle; where by the laws of England, it is sufficient for the spoiler to prove his goods by his mark etc.mm

mm Vide statutae Angliae. In which doing, no citation is required; and that against the common law:n yea, the death of the ship broken may not only be proved by the rest living but also by the persons, who were present at the preparation of their voyage, even their own parents and children, if none of the ship-broken be on line.o

n L de unoquoque de re iudica et L quoties C de naufrag lib 11. [Code 11, 6.] o De l quoties. And as this is a privilege extraordinary for such chances; even so ordinarily may merchants and mariners sailing together, bear witness to each one to other of their society within ship, if they have neither to lose nor gain thereby; and namely mariners, or against the skipper when the voyage is ended, and when they are free from his commandment.p For by consent of the doctors, when the truth cannot be otherwise tried, then unable persons may be heard. p Il consolato artic 221 et 222. Item, to the end that this trade be not hindered by calumniators, and wilful vexers of their neighbours under colour of law: it is provided, that not only the common caution, judicio sisti & iudicatam solvi, be kept on the part of the defender; but also that the pursuers you'll find caution, de expensis solvendis, if he fail in proof.q

q Consent of all sea-lawes Likewise, in case the party pursewed be contumax


18


[19] & will not compeire to defend himselfe, or his ship, or things challenged; namely, after three or foure citations directly from the High Court of the Admiralty, called quatuor defalta (for that citation called unum pro omnibus, is not sufficient to convince one of contumacie) specially in the claim or vindication of a ship, any part thereof, or any other such like thing or goods; then may the judge ordain his marshall or office, by his sentence called primum decretum, to put the plaintiff in possession thereof, at least to the worth of the suit: providing notwithstanding, that if the party compeir within a yeare and a day after, offering the expense to the pursuer, and caution to obey the definitue, he shall yet be heard upon the propriety. Otherwise, that time being fully expired, the judge may proceed and adjudge the propriety of the ship to the plaintiff.r

r De officie Admiralitatis Angliae in fin cum ibi citatis. Neyther is it needful to execute summons or citation in such cases, elsewhere but where the ship or quarrelled goods in question lies, or at the part usuall of their haunting.s

s Ibid. Further, as this way it is provided for the snibbing and staying calumniators in judgment: even so it is ordained against maliciousness, out of judgment of such persons, who onely to hinder and stay their neighbours, vexe them with needlesse arrestments: that upon caution such arrestments be speedily loosed, except it be either for fraught already deserved, or mariners’ wages, or such cases wherein the ship is obliged; or else for servers to the Prince t: as also if arrestment be used, either upon goods, or mariner ready to saile, the same may be loosed, upon caution to make t Il consolato 41.


19


[20] forth-comming so much goods as the mariner hath within ship-board.u

u Denmark.

–––––

TIT. VI Of persons ordinary in ships.

Touching persons ordinary for sailing in ships; they are of divers orders, and therefore diversely styled: as first, he bears charge over the ship and kippage, is commonly called us, and most part of nations, both now and of old, and especially by the Roman laws, navicularius, or magister navis a: that is, as we speak, master of the ship; by the Dutches, skipper; and by the Greeks, navarchus [ναυαρχοσ] or nauclerus b; by the Italians, patrono. But if the ship be a warfaring ship, the principal person is commonly called captain by us and other near nations. The next to the master, is he who directs the ship in the course of her voyage, called by the Frenchman, pilot; by us and the Dutches, steersman, by the Romans, gubernator c; by the Italians, nochiero d, piloto and navarchus, as Gerretus writes. a L 1 et passim ad l Rhod et l 1 parag 2 naut caup. b Vide l semper de iur immunita et l 3 C de navicular. [Digest L, 6; Code I, 40] Vide Vegedium de re militar. c Vide leges navales Rhodiorum. [Rhodian Sea Laws] d Il consolato. The third person is commonly called the Master’s mate or companion, chiefly if the master be steersman himself: this man is called by the Greeks and Romans proreta e: his charge is to command all before the mast. e Vide dd ll navales [Rhodian Sea Laws] et Plautus in rudente [A reference to the Roman play Rudens by

Plautus.] The fourth person is he who attends upon the mending of the faulty parts in the ship, called by us and the Dutches, timber man or shipwright; by the


20


[21] old Grecians and Romans, naupegus or naupagus f: but by the late Grecians, calaphates; for which cause the Emperor Michael was called Calaphates, because his Father had been a shipwright in Paphlagonia; as witnesseth Egnatius. and Volateranus,* and therefore the Venetians and Italians name their timberman Calafatte g. f Vide dd ll selec Rhod. * Lib 23. g Vide Il consolato. The next person in order, is he who bears the charge of the ships boate, called by us, boatsman; by the Italians, barchierie; by the Grecians and Romans, carabita: For carabes notes the boat of the ship h. h Vide dd ll selec. i Vide Il consolato. The sixth person requisite in any Ship of great burthen, is a clerke; by the Italians, scrivano i, (i) whose office is to write up and make account of all things received or delivered in the ship, together with all the ordinary & needful expenses made upon ship and kippage: who for his more faithful discharge, should at his entry be sworn before the ordinary sea-judge; as is ordinarily practised in Ancona, and other parts of Italy k. k Ferretus de re et iure navale. [Aemilius Ferretus or Emilio Ferretti, 1489-1552.] The seventh is the cook, a most necessary member as long as there will be bellies. The eighth is the ships boy, who keeps her continually in harbours; called therefore by the Grecians, nauphlakes; by the Romans, dietarius l; and by the Italians, guardiano m. All the foresaids are dislinct in offices and names, and therefore accordingly should also be distinguifhed in hyres and fees, after the custom of the Country. The rest of the persons of the kippage, are under the common style of mariners, which the Romans call nautas: but they name those of the lowest and base degree, as maybe the boyes l L 1 parag naut caup. m Il consolato.


21


[22] and rentices in ship, mesonantæ n, and nautebatæ, as who should be ready at command, to climb upon the tewes, or such common service in the ship o. n Vide Budaeum ad L 1 naut caup. [Guilielmus Budaeus or Guillaume Budé, 1467-1540, author of

Annotationes in XXIV libros Pandectarum, 1508.] o Vide l debet parag haec actio naut caup.

_____

TIT. VII The fraughting of ships.

No Ship should be fraughted without a charter-partie written & subscribed a, containing both the master and merchant, and the name of the ship, that no doubt may arise b; and likewise, that the master shall find a sufficient steirsman, timberman, shipman, and mariners convenient, shippe-tycht, masts, sayles, tews, strong anchors, and boat fit for the ship, with fire, water, and salt, on his own expenses c. And this charter-party among all the westerne merchants, and those of the great ocean, usually is made to perform all things requisite by the laws of Oleron d. a ll navales Rhod select art 20. [Rhodian Sea Laws ch 20.] b Vide Bartolus in l quod rerum parag. Si navis de lege argumento l. Labeo de De suppellectile legata & c [Digest XXXIII, 10]. c Cap 17 et 230 act Iacob 3. Vide de ll Rhod. d Art 20. And if there be no writing, but an earnest, then the merchant, if he repent or rewe, loseth his earnest: but the skipper, if he repent, loseth the double of the earnest or arles e. e Art 19 ll naval Rhod. [Rhodian Sea Laws ch 19.] If the ship be not ready at the day appointed in the charter-party to go to sea, the merchant may not only free himselfe of her,* except he hold his peace and discharge her not (for then by his silence he appeares to consent of new) but also shall or may obtain all charges, scathes and interest f: except the master shew some excuse of a notorious necessity, or of a * Per legem item parag. Si in lege loca. f Oleron.


22


[23] chance that could not be eschewed: and then he loseth only his fraught, because he hath not deserved it g. but if the fault be in the merchant h, he shall pay the skipper and shippes damage, or according to the Rhodian Law, shall entertain the kippage and company ten days; and if then he stay longer shall pay the fraught of all accordingly i: and further, shall upset all hurt and damage happening by fire, water, or otherwise, after the time appointed k. g Per l si ex conducto, & l si item fundus, & l haec distinctio, & d l si in lege loca. h D l ex conducto. i Art 25 legum navalium. [Rhodian Sea Laws ch 25.] k Art 20 eod. [Rhodian Sea Laws ch 20.] It is true, that the Rhodians charge the Merchant in this case only with halfe fraught, and the skipper with the whole fraught if he fails: albeit that the Romans inflict the paine of the whole fraught upon the merchant m: specially, if he take forth his goods againe; for then is the fraught thought to be deserved n. m D l si in lege, & l ult ad Rhod. [Rhodian Sea Laws ch 20.] & d l in conducto. n L ult locat. [Rhodian Sea Laws ch 20.] But if the ship in her voyage become unable without the master’s fault, or that the master or ship be arrested by some magistrate in her way, the master may either mend his shippe, or fraught another: but in case the merchant agree not thereunto, then the master shall at least obtain his fraught, so for as he hath deserved it o. o Oleron & l ult ad l Rhod. [The text seems to be based upon Rhodian Sea Laws ch 42.] For otherwise, except the merchant consent, or necessity constrain the skipper, to put the goods in another ship worse than his own, the master is holden for all losses and damage, except that both the shippes perish that voyage, and that no fault nor fraud be found with the master p. Also it is recounted for a fault, if the master put forth the ship to sea, either without a skilful pilot, or without sufficient furniture and necessaries, according to the clause ordinary of charter-parties, or that the other ship, in which the goods were p D l ult.


23


[24] last put in, be not sufficient, or that the master hazard forth to sea in an unlikely time q. Yea in former times it was forbidden expressly, as by the Emperors Gratian, Theodosius, and Valentinian, to hazard upon sea from November till April r. As also by the Kings of Scotland, from S. Judes day till Candlemas s. And always it is accounted by the lawes for a fault, to make forth of a port in time of a manifest storm t. q D l Item. r l 3 de nauf. C Theodos. [Code Theodisius XIII, 9, 3] & l 3 de nauf C Just lib 11. [Code 11, 6.] s Vide Act. Par. t l utiq parag fin et l qui petitorio parag fin de vend l item queritor. § si navicilarius C locat & l ult de naufrag. Item, if a skipper set forth his ship for a certain charge, and then takes in any more, hee ought to lose his fraught justly u. u La rool d’Oleron. And in such a case, when goods bee cast through storm, it shall not be made good by any contribution, but by the skipper his own purse x. and if he over-burthen the ship above the birth-marke, hee shall pay a fine y. x Art 25. leg naval Rhod. [This seems inaccurate.] y Denmark. Item, if ship port at any other port than the was fraughted to, against the master’s will, as by storm, or some force; then the goods shall be transported to the port conditioned, on the skippers charges: but this thing also must be tried by the oath of the skipper, and two of his mariners z: or else the skipper may bee in further danger. z Oleron. Where also it is to be observed, that for the in-going to sundry divers ports by the way, imports not a diversity or a multiplication of voyages.* * DD in l qui romae parag Callimachus de verb oblig. [Digest XLV, 1.] But if any man compel the skipper to overburthen ship or boat, he may be therefore accused criminally, and pay the damage happening thereby a. a l unica C ne quid oner. pub lib 11, Item, if any skipper set his ship to an unfree man, & not of substance, & other qualities prescribed by King James the third b, he and his mariners shall under-lie b c 17 et c 127, actor Jac 3.


24


[25] the pains contained therein. Item, if a merchant put in more goods in ship than was conditioned, then may the skipper take what fraught he please c. c Il Consolato del Mare. It is imputed for a fault to the master, if he direct his course by ways either dangerous through pirats, enemies, or other evill aventures, and holds not forth his due rout d, and damage happen thereby. d L pen parag. Si navis loc et l pecuniam de condic indeb & l qui siscalis C de navicul. Lib 10 & l quum proponas ad l Rhod. [possibly based upon Rhodian Sea Laws ch 4.] It is likewise counted a fault, if the master carry the pensell or flagge of other nations than his own, and thereby incurs scath and loss of anything e. For as packquets, pipes, hogsheads, and such like, should be, marked by the proper marks of the merchants, to whom they appertain f: even so should ships bee discerned one from another by their own pensell or flag. e Per l quum proponas ad l Rhod. [possibly based upon Rhodian Sea Laws ch 4.] f Per l 1 C de navibus non excusandis [Code 11, IV.] & l minime de espise audien. [Code I, 4.] Item, if coffers, pypes, pakquets, &c be delivered close and sealed, and afterward shall be received open and loose, the master is to be charged therefore, until a due triall and consideration of that matter g. g Bartolus in l in actionib in fin de lit iurand & in l unic furt advers naut. [Digest XLVII, 5.] The master also must be answerable for that harm, which the rats for want of a cat do in the ship to any merchandise h. h Per l item quae parag si sullo loc.

–––––

TIT. VIII. Of the Master of the Ship, his Power, and Duty thereunto belonging.

The master of the ship is he to whom the whole power and charge of the ship is committed a: which power is prescribed, partly a L 1 de exercit Act. [Digest XIV, 1.]


25


[26] by the owner or out-trader, & partly by the common law of the sea: as, to let her forth for fraught; to take passengers; to mend and furnish the ship b. And to that effect, if need be, in a strange country to borrow money with advice of the kippage or company c, upon some of the tackle, or to sell some of the merchant’s goods; provided, that the highest price that the rest of the goods is sold for at the market, be repayed to the merchant: which being done, the fraught of that goods so sold and repayed, shall be repaied by the master to the owner of the ship, as well as the fraught of the rest of the merchant’s goods, except the ship perish in the voyage; in which case only the price that the sold goods were bought for, shall be rendred d: and for no other cause, no not in the chance of shipwracke, may the matter take on or conquest money, speciallie by selling of merchants goods e. And thus far concerning his power. b D l 1. c Oleron. d eod. e eod. As for the Matters duty, he ought first, before hee loose or make saile, to seeke and obtaine the consent of the most part of the kippage or company; yea, if he be not very skilful, hee should do no other thing of importance without their advice: otherwise he shall undergo what-ever damage happens by his doings f; (f) and specially if he loose forth of any harbour without an expert pilot g, yea, or in the harbour the ship happen to fall over h. f Eod. g L Item Magister locat. h Oleron. And as the skipper his rashness and unskilfulness is thus-wise corrected: Even so his negligence and oath is to be punished. As first, by suffering the overlap and cowbridge to be unticht i, or the pump to be faulty, or a sufficient decking to be lacking k; and specially, i Denmark. k Leges Rhod art 11.


26


[27] from corne, victuall, and such like goods, which should be most carefully kept, and fenced from water and spoyling l. Otherwise the negligent skipper is holden to make good all scath or damage comming thereby, beside that the fraught of such spoyled goods is lost; except that m the ship or crear was open from the beginning, and fraughted without any overlap n: which two kinds of ships are tearmed by the jurisconfult, emphractæ & rephractæ nn. l Eod art 38. m Art 44 eod. n Vide l parag quaedam de exercit. nn D l 1, parag quaedam. Further, this duty is required of the matter, that according to the act made by King James the third of Scotland, he give up the names of all persons transported in his ship, before he make saile n. As likewise at his return, the just inventory of the goods of any persons, which shall happen to depart this life in that voyage o; to the end that not only the lieges at home, nearest to the dead, may succeed to their right: but also concerning strangers so deceased, and their goods, that the same may be put in sure keeping, forthcomming for three years space; but by the custom of England, one year, until the nearest of the dead-mans kinne come and claim the same p. or which goods in the meanetime, the bedding with the pertinents thereof, may be of due taken by matter and his mate, to their uses; as also such clothing, and other things then presently upon that persons body, may be delivered to the boatsman and servants of the ship, as who ought therefore to burie, or cure at least, the over-putting of the dead in the sea q. n C 27 actor per Jac 3 & L’Amirall de France. o L’Amirall. p Il Consolato del mare. q eod.

–––––


27


[28] TIT. IX.

Of the Masters dutie to the Merchant and Passenger, and of his priviledges. The master ought to render againe whatever he receives within his ship to him who delivered the same, as well victual, as clothing & merchandise, goods, or other thing a: where wee take goods to be delivered, if either it be put in the ship, or in the presence of the master or clerk, as his deputie, layd to the ships side b, and both ways, the peril to appertaine to the master c. a TT naut caup. b L 1 in fin eodem. c L 3 eod. Which thing alto is extended to boatsmen, and to the ferryers d: and yet it is surest to deliver goods before witnesse, and that either to the master, clerke, or skipper his deputies thereto e: for the master is not holden for such things as are put in ship without his, and his companies knowledge f; because where men are found ignorant, they are also esteemed not to consent. But if the merchant or passenger keep his goods by himself, as money or such thing in his coffers, and then alledge the lack thereof, then is the skipper and his kippage only to purge themselves by their oath f. But if afterward notwithstanding they be found guilty, the denyer shall pay the double, and alto bee punished for perjurie g. d d l 1, parag 3. e Art 12, ll navalium. f L 1, depositi. f Eod art 13. G Art 14 Cod. Even so, the master is liable for all damage sustained through evill hookes, cordels, blocks or lines; namely, if the mariner foreshew the said things to be faulty: &


28


[29] alwaies the mariners shall helpe the skipper in common to pay the said damage h. h Oleron. Item, if any scath or damage happen to the merchant or passengers goods, through unreasonable stowing or breaking up, the master shall not only refound or make good the same, but also lose his fraught, and twenty pound in Scotland to the king i, or_his Admiral as his successor now; and for lacke of proof in this case, the skipper and his kippage shall be put to their oath k. i Eod et c 17 et c 130 act Jac 3. k Oleron. Further, whatever shall happen through fault, negligence, or chance eschewable, or by the deed of passengers and others than himself or his kippage, the skipper is holden to answer and pay for all, to the utermost penny l: for if such damage happen by a mariner, the skipper shall refound the double m, but he may repett it from the mariner n. But it is not so if the damage be done by a mariner to another, except hee bee a merchant also, or by a merchant or passenger to one another, then shall not the double be sought of the master o. Neither yet is the master holden for anything without the ship, or yet within the same, if he duly forwarne each man to keep his owne goods, & they agree thereunto p. l D l 1 in fin et si vendita de peric rei vend et l 5 et 6 naut caup. m D l 6 & l 7 eod. n L l 7. o Vide d l 7 et l unica furr ad naut caup. p L fin naut caup et per l itaq; De edi edict. Such is the force of due prostestation, according to the opinions of the most famous Doctors q; which conditions aforesaid, are most justly laid upon the aaster, because he ought to hire good men, and no evil persons in his company r: for it is in his owne free will to chuse his campany, and he should not be ignorant of the men he hath to do with s; otherwise, if the Master were not so obliged to all such duties and diligence q Bartolus & Jason in l non solum parag mortar de non oper nunc. r Instit de ob quae ex delict parag fin. s I qui cum ad reg jur.


29


[30] for the merchant and passenger, there should be great occasion of health and spoil t. t L 1 in fin. Naut caup. Lastly, if through the masters fault, confiscation, or other damage happens, as for non-payment of the custome or false bills of the goods customable, or for transporting of unlawful goods, the master shall refound the same with the interest u. u Sec fun l ult ad l Rhod & l quum prponas C de naut foenor. But concerning the pursutes of these aforesaids, as the merchant may well pursue for the spoiled goods onely x: even so may the master pursue the stolen goods; as he who must onely, at least, chiefely, answer therefore y. And yet for all this, in case for want of these things, which the merchant at the fraughting promised to be done at the entrie to the voyage, any of the foresaid losses happen, and therewith the master and four mariners swear no fault to have been in them, the master shall go free z. x Accursius in l ult ad Rhod & l quum proponas C de naut foenor. y Per l itaq. de furtis. z La rool d’Oleron. And yet mull we not over-pass this observation, that if the master offer the just custom, anchorage, or whatever other duty pertains to any customers, & hee, because of their unrighteous refusall, makes saile, the weather and his necessitie so requiring, then may he be justly defended afterward against that customer a. Neither yet should a ship, that hath once paid her anchorages, pay again, if she be forced through tempest back to the same port b. a Per l quantae de pub. b Per l fin parag si propter necessitate eod.

–––––


30


[31] TIT. X.

The masters duty to the mariner. Seeing the master is the ordinary ruler over his own kippage or company, hee ought to keep them in peace so song as they eat his bread a. And if any mariner happen to be hurt in doing service, or by his companion, the master shall cause him to be healed, as he who is only answerable for the fact of all within shipboard b; and then by his authoritie, repeit or recover from the other mariner, the charges, with all that is lost to the hurt man thereby c: except that he, who is hurt or lamed have provoked the other by evident invasion, assault, or strokes d. a Oleron. b Per l 1 de exerc act & l fin naut caup. c Art 5, Il naval. d Art 6 eod. And if a mariner become sick, the skipper shall cause him to be laid in a house, with all sustentation necessary and usual in the ship, but shall not stay the ship until he be healed; and when he recovers health, shall give him his hire or if he die, shall give it to the wife or nearest friends e. But if a mariner be not hurt in the shippes service, the skipper shall hire another in his place; who, if hee draw more hire, then that mariner shall refound the superplus f. And alwaies the master ought to lend his mariners, if they lack g. e Per l ult ad l Rhod. f Oleron. g eod. Item, if through the masters fault, the ships-boat perish with any mariners in it, as through spoyled tews, &c, then shall the master pay one whole years hyre to the heires of the drowned h. h Art 46, Il naval. Item, he ought to give his mariners flesh upon Sunday, Tuesday, and Thursday; and upon other days,


31


[32] fish, or such like, with sufficient drink: but no meat to them that sleep not in the ship i. and yet the quality and quantity of mariners food and hyres goeth diversly, according to the divers customs of countries, and the conditions made at the entry to their voyage. i Il Consolato.

__

TIT. XI. Of the duties and priviledges of Mariners.

Mariners owe all due obedience to the master, not onely in flying from him in his wrath, so far as they can, but also in suffering; yet may they after one stroak defend themselves. In case of rebellion of mariners against their master, which is thought then to be done, when the master hath thrice lifted the towel from before any mariner, and yet he submits not himself, then may he not only be commanded forth of the ship at the first land, but also, if he make open strife and debate against the master, he shall lose his halfe hire, with all the goods he hath within shipboard a. a Oleron, et Il Consolato. But if in this strife a mariner useth any armour or weapons, then should the rest of the mariners binde him, prison him, and present him to justice; so that if any of them refuse to lay to his hand, and to assist, he shall lose his hire, with all that hath within shippe-boord b. Yea, in case any number of the mariners would conspire to force the skipper to passe to any other port, than to the which he was fraughted, then may


32


[33] they be accused criminally, and punished as for a capital crime c. b Il Consolato cap 160. c Denmarke. And yet, if a rebellious mariner repent in time, and offer amends for a simple rebellion, and the skipper notwithstanding refuse; he may follow the ship, and obytaine his hire d. d Oleron. Mariners ought each one to help and assist others on the sea: or else he that refuseth, loseth hire; and the oath of his fellows shall be a proofe against him e. e eodem. Mariners in a strange port should not leave the ship without the masters licence, or fastening her with foure tewes; or else the loss lights upon them. They should also await upon the ship until she be discharged, and ballasted new f, and the tackle taken downe. f Denmark, Oleron. And if a mariner, in time of loosing and lading, labor not with the rest of the company but goes idle and absents himself, he shall pay a fine to rest, pro rata masters discretion g. g Denmark. At least the half of the kippage or company, ought in a strange country; port or roade, to stay aboard: and the rest, who go a-land, albeit with licence, should keep sobrietie, and abstaine from suspected places, or else should be punnished in body and purse, like as he who absents himself when the ship is ready to saile h. Yea, if he give out himself for worthier then he is in his calling, he shall lose his hire, halfe to the Admirall, and the other halfe to the master i: but this especially ought to be executed against an unworthy pilot k. The mariner also forfets his hire, if the ship break in any part, and he help not with all his diligence to save the goods l. h Denmark. i eodem. k eodem. l Oleron.


33


[34] If it chance any otherwise than well to the master, the mariners are then holden to bring back the ship to the port from whence she was fraughted, without delay m, except it be otherwise provided. m eodem. A mariner may carry as much meat forth of the ship as he may eat at a meal, but no drink n. n eodem. A mariner may either keep his portage in his own hand, or put forth the same for fraught: and yet should not the shippe stay upon the preparation for his portage o. So that in case the ship be fully laden before the goods for his portage be brought in, he shall onelie have the just fraught of so much goods p. o eodem. p Il consolato. If a ship passe further than the mariner was hired, his hire should be accordingly augmented; except hee be hired, as the French man speaks, à mareages, mais non à deniers q. If a mariner run away with his hire undeserved, he deserves the gallowes r. q Oleron. r Denmark, et Oleron. If a mariner be hired for a simple mariner, and afterward in the voyage, findes hiring to be a pilot or a master, he may passe with provision to render his former, hire: even so is it, if he marry s. s eodem. Mariners are not only holden to loose and deliver goods over-board; but also if no porters nor carriers be in those parts, to carry the same themselves for such hire as other workmen should have had therefore t. t Il Consolato del Mare. If it happen a ship to be prized for debt, or otherwise to be forfeited, yet should the mariners hire be paid; and if the prosper, to receive their pay in the same money that the fraught is paid with u. u eodem. Lastly, a mariner should neither be arrested, nor taken foorth of a ship making to saile, for any debt, (but only his hire, & as much other goods as he hath in the


34


[35] ship arrested therefore, according to the quantitie of the debt, and the master to, be answerable for all x: because the ship is compared to a man’s dwelling house y; and by the civil law, a mans dwelling house is his most sure refuge z) except for a sworn debt, or a penalty to the king through some crime. x Oleron. Denmarke. Kintore. y Baldus, in l corti iuris. Loc. z l nemo de reg iur et l pleruque de in ius voc.

_____

TIT. XII. Of the Clerke of a ship.

In ships of great bulk and burden, a clerk is most needful: who being put in by men of chiefe power, and sworn solemnly before some judge, as the use is in Italie (or at least before owners and mariners) that he shall write nothing but the truth, nor leave ought unwritten; being, I say, to constitute, neither merchant nor mariner may put in nor take out a-anything of the ship without his knowledge. Sa that what-so-ever goods or other thing shall happen through storm or otherwise to be cast, stollen, or spoyled, that hath not been presented or shewn to the clerk, it shall no way be upset by contribution, or any search made therefore. And if it come safe to land, the skipper may take what fraught he likes therefore. Also the clerk may take of that which is delivered to him, and sell thereof for the ship’s need, but must satisfie the owner thereof: for he must be always countable of his receits a: But however he doe, he may neither take in, nor give forth goods by night, but in day light b. Vide statuta Ang. a Il Consolato. b L’Amiral de France.

_____


35


[36] TIT. XIII.

Of a Pilot or Steirsman

If a master hire a steirsman, not onely for to guide his shippe in through shalds, or other dangers at a time only, but also for a whole voyage, and to be ready therefore against a certaine day, and he faile to keep that day, he shall not only pay master and merchants damage or stay, but also the fraught that is lost thereby; except sickness, or some very lawful excuse qualifie it a. a Oleron at arg l ult ad l Rhod. A steirfman, after the time he hath brought the ship in sure harbour, is no further bound or liable; for then should the master see to her bed and her lying, and bear all the rest of the burden, charge, and danger: so that if before she come into the port or some safety, either the or goods perish or be spoiled, the pilot makes good the same: yea, if his fault or ignorance be so grosse, that the company sees any manifest and present wrack to all thereby, then may they lead him to the hatches and strike off his head b. Yea, if without any seening danger, certain of the skilfull’st mariners deem that he is not so skilful, as hee set himselfe forth to be, then shall hee both lose his hire, and double the same to the Admirall and master, or else passe thrice under the ships keil c. b Oleron et il consolat. c Denmark.

_____

TIT. XIIII. Of money lent to Sea, called Nauticum foenus.

Great is the difference, or at least should be, betwixt money lent, amongst men, to use on land, and that money which is lent to sea; for this


36


[37] money is called pecunia Trarectitia, because that upon the hazard of the lender it is carried over sea. So that if the ship perish, or that all be spoiled, the money loses to the lender a. But on the contrary, money on land is delivered on the peril of the borrower: so that the profit of this is the price of the only simple loan; therefore generally called usura: but the profit of the other loan is called, usura maritima, or foenus nauticum, which is not the price of the loane, but of the hazard and danger which the lender takes upon him, during the loane b: which is understood to be a certain day or voyage, or whatever of time agreed upon. And therefore if the money miscarry, either before, the voyage begun, or after the term appointed for the full loan; then the peril appertains to the borrower thereof, and not to the lender c: I meane of perils proceeding from storms, violence, spoil, or such like occasions, which cannot be eschewed by any diligence of the borrower; and therefore in case the borrower imploy the lent money upon lawful goods, or that by his defrauding of the due customs the same be confiscate, the lender is freed of such hazards d. It is also to be noted, that money lent upon the sea without hazard, and yet with security, should, pay no profit, suppose it were unbooked in the clerks book with the profit contrary to that which is lent on land e: so that albeit money be lent within the ship during the voyage, to the need of the company; and if, before the day appointed for the rendring, shipwrack or spoyle happen, then should the loss come in contribution between them f; because if, that money beene lying by the lender still unlent, it had been in common a L 1 de foen naut. [Digest XXII, 2, 1.] b L periculi eod. [See generally Digest XXII, 2.] c Vide passim dd ll de foen naut [Digest XXII, 2.] & dd ll naval Rhod. [Rhodian Sea Laws.] d Vide l 3 C de foen naut. [Code 23, 3.] e Arts 15 & 16. Leg naval. [Rhodian Sea Laws ch 15, 16] f Art 17 eod. [Rhodian Sea Laws ch 17.]


37


[38] danger of shipwreck or spoil with the rest. But if the time appointed were past, with the hazards aforesaid; then shall the borrower repay the borrowed money free from all contribution g. g d art 17. Further, in case the borrower deteines any such lent money, as is aforesaid, beyond the terme appointed for the repaying, he shall at his return not only pay the profit agreed upon before the voyage, but also augment the same according to the greater time, and yet shall not pay the profit of that first condition, but only after the common rate h. h Art 18 eod.

_____

TIT. XV. Of the outreaders, or outriggers, or furnishers, hyrers,

and of the owners of ships, and of actions for them and against them.

It is not only permitted to him, who contracts with the master of a ship, or that hath any other action or claim against him, as matter of the ship, to pursue him; but an the out-trader, setter, or exercitor thereof, as him who placed the master; and therefore ought to make good the masters deede and fact a. This out-trader we take to be him to whom the commodity of the ship b redounds; fo that he may lay his action upon any of them; Ne in plures adversarios distrabatur qui cum uno tantum contraxit c. a Parag exercitor inst de ob ex quasi delic. TT naut caup. b eod ibid. c d l 1, 2 & 3. eod. But the rest of the owners or out-traders shall relieve this man pro rata, of their portions; except the handling of the ship be so severally divided


38


[39] amongst them: or that the master have not his power and commission of them all d: or that the master have obliged himselfe beyond his commission; as if he have taken up money to mend the ship, when as shee needs it not: or that hee have no commission at all; in which case the lender hath to blame his own folly for by the common rule of lawe, men should knowe well the persons and their conditions, with whom they have to bargain c. And yet in case evident need be of mending, and, money be lent thereto; suppose the master should spend it otherwise, yet ought the outreader to satisfie the creditor f. But above all, that money which is lent for victuals to the ships company, should be repaied, as preferd before all other sort of debts ff: But a merchant contracting with a mariner; that is not a master, shall have no action against the outreader, except for a fault done by the mariner, specially if hee hath been hyred and put in by the out-treader. d l 4 in prin eod. e d l 2 et l qui cum alio de reg iur. f l ult de excer act. ff Per l. interdum cum seq. Qui potior in pig. Again, albeit by the common lawe of the sea, the out-traders may not pursue persons obliged to the skipper, yet are they permitted to pursue upon the masters contract, as they had been contracters principall g; because in such dealings he sustains the out-treaders person: and because the great common-wealth that is procured by this kinde of traffique h, worthily such priviledges to the out-treaders and exercers of shipping are granted. And yet is not the master always bound to satisfie all counts to the outreaders: specially, in case it happen some passengers to be non fuluendo, the master is not holden to pay for them, be- g Passim d l 1. h d l 1 parag 10.


39


[40] cause it becomes not the master, in the acceptation of passengers, to search out so narrowly their meanes and ability i. i l 2 §6 d l Rhod. And again, the outreader is not holden alwayes to answer for the masters sloath, but for his own selfe k. k Oleron.

_____

TIT XVI. Of sundry partners of ships, and their discords.

Moreover, concerning the owners of the ship, in case they cannot agree amongst themselves to remain in partnership; seeing by the lawe they cannot be constrained thereunto a: yea, not albeit a paction had been made never to sunder b; then is there many considerations required in their funding. And first, if their common ship or cray be put in building; or that she be but presently bought: in these cases it is thought convenient, that she shall be imployed one voyage, first, upon the common out-trade and hazard, before any of these partners be heard to sunder and discharge their part. And after that, if they cannot agree, he who defines to be free, should offer to the rest, and set his part on such a price as he will either hold or sell, which if he will not do, and yet refuses to out-trade with the rest, then may the rest rigge forth the ship at their own charges, and also upon the hazard of the wilful refuser, so far as his part extends, without any count to him of any deal or part of profite at her returne c: but they a l fin C pro locio & pass inst & D eod. b L in hoc parag si conveniat pro soc. c Denmark cum ll hic seq.


40


[41] must be bound to him to bring her home safe, or the value of his part. And justly; because that as ships were invented in common for the use of all men, even of them which dwell in the mountains, as on the coasts of the sea d: so were they ordained and builded for sayling, and not to lie idle and unoccupied e. But if the persons, who have most part of the ship, refuse to abide in partnership with him who hath a small part, that neither he can sell his part at that price, without great loss, nor yet is able for poverty to attain to their parts, then are they all bound to put the ship to an appraisment f. Otherwise, the scoffe, which Casselius, a Roman lawyer, used against two wilful partners of a ship, may alto be used against such: that is to say, while they asked him by what way they might divide and part their ship, Casselius answered; If ye divide her, then neither of you shall have her g. d l arboribus parag naves de ususfruct. e Glossa in l si navis et iuris in l utiq; part culpae de rei vindic et l arboribus parag navis de usufruct. f Consolato. g Macrobius lib 2 c 6. And if for lack and want of buyers in that place, the poor partner can neither eschew the oppression of the richer, nor yet the rich satisfie the poor-man, perchance also wilfull; then may the judge ordinary deal and decree in this case, as he may in omnibus aliis bonae fidei actionibus: that is to say, consider all the circumstances of the persons, their motions, the matter of their debate, with all the merits thereof, and make up a full consideration of all together, that every man may obtain and receive his own due right h. h Secundum citata, etsecundum l bona fides. Deposit.

_____


41


[42] TIT XVII.

Of casting of goods, and the like; and of and contribution to be made therefore. Concerning contribution or scot and lot, as we speak, it is ordinarie: and first, it is practised upon ships so stormestead, that for relief, of lives and goods, calling of goods must be made. In that case the master shall consult with the mariners: who if they consent not, and yet the storme and danger continue, then may the master cast some goods notwithstanding a. But if the merchant be present, let him begin to cast h, and next the mariners: but if the marriner keepe back any part that should be cast, to his own use, he shall render the double c. a Oleron. b Il consolato. c Art 39Il naval select. But when afterward the master shall come to land, he must, with the most part of his company sweare that he did cast goods for no other cause but for the safety of ship, goods, and lives d. Secondly, when goods are cast, they shall be upset and compensed by a contribution of ship, and such goods as are safe thereby e: and not only of goods paying fraught and burdensome, but of cloathing, money, jewels, and such like f, which are not weightie. d Oleron. e l 1 et 2 ad l rhod. f d l 2, et Oleron. For, it is most righteous, that the losse be common to all things which are safe thereby g. Except things born upon a mans body, victualls and such like, put in ship to be spended, and therefore should not scot and lott, with other goods: in so much, that when they become scant and wanting, each man is bound to com- g eod.


42


[43] municate the same one to other h. h d l 2. But here it may bee asked, whether yet should all kind of cast goods be upset and made good by contribution, as for example, the goods transported above the overlap, and goods forbidden to be transported i. Sure, if such goods happen to be the cause of any scath and danger, the master, who received the same within his ship, shall i l 17 et c 130 actor Iacob 3. bear the loss, and also be criminally pursued therefore k. k Arg l Unic. C ne quid oner public. But if goods unadvisedly, without consent of the owner thereof, be cast out, on the suddaine; then may he himself upon his conscience esteem his owne goods to the just worth, because the company hath that way by the rash dealing lost the priviledge they had to estimate that goods l. l Per l fideiussor D qui satidd cog. In like manner the ship-gear and apparel, wracked by storme, imports no more contribution, then if a workeman break or spoil his work-tooles or instruments in his ordinary work m, except in the avoiding of a danger, as the helving the mast over-board,n or the slipping of a tow-anchor, or boat upon just fear, or at the desire of the merchants o. But that should be always proved by the oaths of the ship-men: for concerning all facts within house or ship, credit must be given to the domesticks and company familiar p. Also if goods be put in without the master and clerks knowledge; if they be cast they shall have no contribution q. m d l 2 et l navis eod. n l amissae eod, et Oleron. o d l 1 et il Consolato del mare. p Per l consensus. C de repud [Code V, 17] et L quoties. C de naufrag [Code XI, 6] et c veniens extr de testib [Code IV, 20] et c 2 de probat. [Code IV, 19.] q Il consolato del mare.

_____


43


[44] TIT. XVIII.

Of contribution for pirates. If ship or goods be redeemed from a pirate, contribution shall be made therefore by all; becaude the redemption is made for the safety of all. But if the pirate bee once master of all, and yet take but fore special goods, whether from ship or merchant, and not as a contentation for the sparing of the rest, it should appear in this case, that seeing the remnant is not safe hereby, but freely spared, that no contribution should be made for the taken goods. For oftentimes pirats take but things at their pleasure, and not of mind to spoil a. Yet now adayes because this chance, of taking at pleasure, concerns (in common judgment) the rest of the goods, as subject to that fame pleasure of the pirat; therefore should it be also in common upset by all, to whom that chance is common. a Vide late l ad l rhod.

_____

TIT. XVIIII. Of contribution for spoyled and spilt goods.

If through the losing of any cast goods, or upon any needful occasion, the remaining goods be spoiled either with wet, or otherwayes; a contribution shall be made, proportionable for so much as they are made worse a. a Vide l navis 4 ad l rhod.

_____


44


[45] TIT. XX.

Of contribution for lightning and disburdening of ships for their easier entrie to the

port, and for other chances. If it be needful to lighten a ship of burden, for her easier entry to port or chanell, the two parts of the losse fall upon the goods, and the third part on the ship; except that the ship surpass in worth the loading, or that the charge of goods be not the cause of her inability to enter, but some bad quality proceeding of the ship it selfe a: or that otherwaies it be provided in the charter-party, that the goods shall be fully delivered at the port covenanted and appointed; for then condition makes lawe b: in which case it is to be also observed, that if by occasion of lightning, the goods which are put in the boat or lighter perish, the ship and remaining goods in ship shall upset the same. but on the contrary, if the ship and remaining goods perish after the lighter is once safe, no contribution shall be set upon the goods in the lighter: because the rule is constant, that only then should goods be liable to contributions, when ship and goods come safe to port c. a Oleron. b L 1 verse quod convenit. depos. c d l navis et l amissae ad l Rhod. Item, contribution should be for the pilots fee, that is taken in to guide her into an unknown port d; as also to raise the ship off ground, when the fault is not in the master e. d Oleron. e eod. Even so if two ships rush and crosse one over another, and the company sweare their innocencie, as that it lay not in their power to stay the same, contribution


45


[46] must bee made for one equal upset of both their losses f. But not so, if one of them perish, because of that mishap, there can be no due proportion of the loss: for if it were otherwise, a malicious skipper might of purpose set an old weak ship against a strong ship, in hope of some upset and recompence. And yet for redress of the lost ship, an action may be to the owner against the negligent master, or the mariner who loosed her, or cut her cable g: which action is called Legis Aquiliae, for damage and scathe done. and therefore if such a chance befals in the day light, by a ship under saile against a ship riding at anchor, then the master of that sayling ship shall make good the damage or scath of the other, to the extremity: and the like shall be done, if in the night the ryding ship hold fire and light forth, or make any crying to forewarne the other h. f eodem et l quemadmodum. Parag si navis ad l Aquil. [Digest IX, 1.] g d l quemadmodum parag si vais ad l Aquil. h Art 3.6. ll naval Rhod. [Rhodian Sea Laws ch 3, 6.] It also pertains to this argument, if some sort of goods, as salt, or corne, be laid on heap by divers partners, into a ship without distinction, and that the master deliver to any of them their dew measure, and before the rest receive their measures, the remaining salt or corn washes or looses, he that had the good luck to be first served, enjoys it fully without any contribution to the rest of the partners i: because when this goods was put into the ship, it was delivered to the master, tanquam in creditum; and so he is become owner, as of lent money: which men are not holden to render in the self-same pieces, but in valour or such like coyne k; except there be som other condition past before: which in all affairs maketh law l. Neither can this be imputed for any fault to the master, because of necessity he behoveth to make delivery to one, first, before another m. i [Missing] k Inst in pr quib mode re contrah ob te l 2 si cert peti. l l quod convenit de verb ob. m Vide d l in menuae.

_____


46


[47] TIT. XXI.

Of the common manner of contribution, and execution thereof. In setting of contribution or rates, things mutt be estimate in manner following. First, the goods cast, spoiled, or rest; to the price they cost, if their chances did happen before midde voyage: but if after the midde voyage, then to the price the rest of the same goods attain to at the market because there is here a consideration rather of loss and scath then of any gaine a. And because damage and loss should be drawn as it were in streite, and gaine and vantage spredde forth and extend, according to Harmenopolus sentence; spoyled and lost goods should bee set to the common worth, and not after mens affections b: except only in goods unadvisedly cast: wherein for the correction of the rashness of the casters (as who thereby appear to have amitted their own priviledge; the estimation of the goods is permitted to the conscience of the merchant of owner thereof c. Vide supra tit 17. a L 2 in fin ad l rhod et Il Consolato. b d l navis et l pretia vbi Bartolus vt ad l 7. C de prog. militar lib 12. c Per l fi fideiussor. Qui satisd. cog. Secondly, concerning the persons whole losses are under contribution, he should first deal with the master to retain all the same goods on the bottom of the ship in his keeping, until the rate be set and executed d: or else may omit all other persons, and pursue the skipper ex conducto: which also ceases, if the cast goods be found againe e. d l 2 ad l rhod. e d l 2 in fin. Lastly, concerning the master of the ship his pri-


47


[48] viledge, it is not only upon the detinew, and keeping of the goods and geere brought within his ship, which are thought as by a privy band to be obliged and given him in pledge for the fraught, by common content of lawyers, but also for the due, and timely satisfaction of such contributions; becauwe the imposed taxation, as likewise the fraught, is thought to stick firmly to the said goods: and therefore the master may hold his hand thereon, until satisfaction be made f, albeit that commonly the withholding of other mens goods be not allowed g. f l 1 de dol mal excep [Digest XLIV, 4] et l si non forte de cond in de. [Digest XII, 6.] g l 1 parag rediguntur. D quod vi aut clam. [Digest XLIII, 24.]

_____

TIT. XXII. Of priviledged ships.

Shippes or boats, serving the country or the Prince, have great prerogatives. For first, they go free from all imposts, customs, and arrestments a, not only in forth-going, but also in their return, according to Frederick the emperor his constitution b. Yet if a skipper serving the Prince or country, wilfully falls on coasts and by-courses where he should not, to their hurt and hinderance, he merits death c: and the commanders or officers in chief parts, who wittingly suffer such skippers to lye and slugger, incur a forfeiture of all their goods d. a l 1 de nauc, C lib 11. [Code XI, 2, 1.] b Auth ne filius pro patre. c l 5 de nauicular C lib 11. [Code XI, 2, 5.] d l ult eod. And if any man shall force the skipper, of these or any other ships, to take in more than his just charge, not only should he upset all hurt and loss, but also bee publickly punished e. e Art 49 ll selector naval. And as these are the conditions of ships serving the


48


[49] Prince; so is it to be known, that all sorts of ships are subject to this service, upon command f: otherwise in case they refuse, their ships call be confiscate, except they report a testimony from the Admiral of very lawful excuse g. f Vide Tit De navibus non excusandis C. [Code 11, IV.] g de officie Admiralitatis Angliae. Yea, further is to be noted, that masters of ships and ferriers, once so professed, are bound to serve as well subjects in common, as the Prince h; except they have left the trade, or be under a safe conduct, or have taken in more than they can well carrie a ship-board i. h Albericas ad Tit naut caup & in L unic furt adver naut caup. i Bartolus & Baldus in L unic. And this is a common priviledge to all sorts of loaded and burdened ships to have the nearest place to the shore for their discharge and unloading; and therefore the ships lightened, to give them place k. k Wisby c 10. Lastly, even the perfons who build, purchase, or dress ships expresly for a common-wealth to their country, are accounted amongst the priviledged l: yea the frequenters of sayling are also priviledged in all courts m. l Qui navium privileg creditorum. m C Innocentius de for comp.

_____

TIT. XXIII. Concerning shipwrack.

Strangers incurring shipwrack in Scotland should have the same favour of us, that we use to receive of them in the like case a; so that no confiscation should be used against them, except they use to do so to us, or that they be very pirats, or enemies to christianity b: otherwise, who steals any such miserable goods, shall pay four-fold to the owner, if a 138 Actor Iacob 1. b L 1 C de naufragis. [Code XI, 6.] & Auth naufrag in C de furt. [Code VI, 2.]


49


[50] he be pursued within a year and a day c; and as much to the Prince or his admiral: yea, the onely stealing of a nail, or the worth thereof, maketh the thief guilty of all, to the rendring of all the remaining goods d. c L 1 in pr de incendio ruina naufragio. [Digest XLVII, 9, 1, pr.] L in eum cum auth seq de furt. d L 1 in fin de incendio ruina naufragio. [Digest XLVII, 9, 3, 8.] Yea, by the Emperor Antonius his ordinance, this thief or robber of such goods should be battoned, and banished for three years, if he be of any honest rank; but if he be base of condition, should be sent scourged to the gallies or metal mines e. e Pedius 4 eod. [Digest XLVII, 9, 4, pr and 1.] And if any man should be so cruelly wicked, as to hinder the ship-broken men from help in danger, he shall be recounted for a murtherer f. f Arg l Saccularii de extraord crim. And therefore may no man hinder ships from forth-laying of tews and anchors upon land *: as was decided betwixt Couper and Seagy, anno 1498, mense julii g. * Gaius l 5 de rer divis. [Digest I, 8.] g Tom 1, reist Scot. In like manner, if any man should be so accursed as to hold forth a lanthorn in the night, of intention to draw on ships to danger, in place of good port, or harbour or safe road, that wicked person should be punished to the death h. h Per d arg l Saccularii. Yea, though no harm happen, yet may the Admiral punish him at his pleasure i: and therefore even fishers are forbidden to fish with light in the night, lest that sailers thereby be deceived with the false shew of an harbour ii. i Per l 10 de incendio ruina naufragio. [Digest XLVII, 9, 10.] ii l ne piscatores eod. [Digest XLVII, 9, 10.] But for the better eschuing of these cruel evils, Hadrian the emperor ordained, that all men having possessions on the coasts should attend carefully upon such chances; otherwise, to be answerable for all things missing by stealth or robbery k. k l ne quid. Eod & auth naufragia C de furt.


50


[51] item, if no man in due time claim such a wracke, it fell of olde to the prince his customers, according to that of Hermogenes and Fortunatianus l, Naufragia ad publicanos pertinento; but now-adayes to the admiral, by the Prince’s grant. l m Cod Theodo. But concerning the action for shipwrack, it should be intended within a year and a day,m and sped by the judge within two years.n

m l si quis C de naufrag lib 11. n Vide l de Submersis eod. Where it is to be marked, that if the ship only perith and the goods are safe, in that case the goods shall pay the fifth or the tenth penny, according to the easie or difficult winning and saving of the said goods o; for gold, silk, silver, and such like things of easie transportation, should pay less than goods of greater weight and difficult transporting, as being in greater hazard:p except the skipper carry in his ship to a port or part where he should not, nor the merchant would not; for then is the merchant free, of all the skippers loss,q and no way should upset, the spoiled or broken ship.r

o Art 37 leg naval Rhod. [Rhodian Sea Laws ch 37.] p Art 40 eod. q Art 39 eod. r Art 37 eod. But in cases of wrack, the laws of England are also to be seene: as, Westm, l 3, E 1. vid prerog regis 12.

_____

TIT. XXIIII. Of things found on the sea, or within

the flood-mark. Shippes, goods or geare, or whatsoever other things found within the sea on found thereof, are of three sorts: as, either found on the stream flo-


51


[52] ting, and then are called floatson: or found on the sea-bottom, and, drawn up from the same by doukers and other means; and then are called lagon: or found on land, but within the sea-flood, as cast forth there by storm and the water; and then are called ietson. Concerning floatson and ietson, whether things be cast up by shipwrack, or else left as lost through calling in norms, the finders thereof, as some lawyers think,a should do therewith as with other goods found upon land: that, is, to proclaim the same to be forthcoming to the just owner; because the loser or tynner of such goods remaineth still owner and proprietor thereof:b and if no man claim, the finder to keep it to himself, if he be poore.c But according to the olde Rhodian law, whether the finder be rich or poore, he may claim, or rather retain the fifth part, for the safe keeping.d If a Douker find drowned Goods upon eight Cubits deep, he gains the third part; and if on fifteen Cubits, then he obtains the half; but upon one Cubit, only the tenth part.e

a Faber et alii, inst de rer diuis, § pen. b Per l Pomponius, parag fin de acquir rer dom. [Digest, XLI, 1.] c Faber d parag. Pen. d Art 45 and 46, ll naval Rhod. [Rhodian Sea Laws ch 45, 46.] e dd Art. Yet if the finder be Rich, and hath found Goods by chance, he should rather give it to the Church or poor, as some say.f

f Auth omnes peregrini communis de successionib. But now-adayes this goeth far otherwise; first, because persons endued with the superiority or signiory of any part of the Sea Coast, do claim all or a part of these things, whether cast forth of Ships, or otherwise coming upon their land g which otherwise before was allowed to the finder.h

g Oleron. h Oleron. Even so, when ships or boats were found on the Sea, or at the coast thereof, without any living creature there-


52


[53] in, and no man claiming the same for the space of a year and a day, then was the halfe allowed to the finder, and the remanent to the Prince, as a derelict:i but since the erection and constitution of Admiralls, this kind of found goods are diversly parted; for in France, the King draweth a third, the Admiral a third, and the finder a third.k And of old, in England, although such things were divided betwixt the Admirall and the finder,l yet now they are left to the arbitrement of both Admiralls in England and Scotland, to consider the finder or taker with a condigne portion, for his travels, charges, and hazard in all circumstances;m even with the half at least, according to that which Tryphonius sets downe, concerning things found on land.n Yet if the finder conceal such goods, whether anchors, timber, jewels, dead men with money or jewels about them, &c. hee not only loseth his just part, but may be also fined at the will of the Admiral.o And thus far concerning things found by the labour and travels of men. i Vide stat Regis Alex. Scot. k L’Amiral de France. l Vide de officie Admiralitatis Angliae. m Per diplomata. n L si qui 63 in fin de acq rer dom. [Digest, XLI, 1.] o L’amiral de France & de depl. If whales, great grosse fishes, ships, or boats without any living in them, by force of wind and waves only, be driven to any coast or land, then all and whole appertains to the admiral: and so generally all casualties whatsoever.p

p Per dd diplo & de officie Admiralitatis Angliae.

_____

TIT. XXV. Of things taken upon Sea.

NOW followeth to treat of goods taken upon sea, which are of three sorts: for either they are taken from pirats, and sea-thiefes; or from


53


[54] professed enemies in lawful warfare; or from such as not processing open war allows taking rest to be exercised against us. Which kind of taking is covered with the title of letters of Marque, called, Ius Rrepresaliarum. And first, touching that which is taken from pirats, sith the goods which they have wrongfully taken from others, whether they be found in their own, or in their successors’ possession, are esteemed to be a just prey to any taker, so that account be made thereof to the Admiral: in case the taker find the goods of his country-man or friend with the pirat, hee should make the same forth-coming to the just owner claiming the same; his cost, charges, and hazard, being alwaies considered and allowed a; so that if any man buy or redeem his neighbours’ ship from a pirat or enemy, he must receive the price thereof from the owner b. But if no man claim the goods taken from a pirat, then should the same be delivered to the Admiral, who ought to consider the taker with his due part thereof. a Per l Pomponius, de acquir rer dom. [Digest, XLI, 1.] b Per l mulier de cap & post. If a ship or goods be taken by a professed enemy, who hath not brought it in praesidia vel locum tutum, for the making of a prescription, or a right, and afterward the same is taken back, and recovered by any friend, and the just owner claim the same, it ought to be renewed to the owner; for that by the law, Huismodi res non tam capta quam recepta intelligitur c. But when such goods be come a just and lawful prize to the taker, then should the admiral have a tenth part: for so of old the tenth part of lawful spoil was offered to God, in a manner; as we may learn by that which c Per d l Pomponius, & per l in bello parag si quis servum in pr de capt & post.


54


[55] Abraham, returning from victory over five Kings, offered to Melchisedeck d: and the remnant of the spoil should be proportionally divided amongst the takers, according to the law of God, set down by Moses e, and practiced by king David f; and yet not only amongst sevcral persons, according to every man his proved travel and hazard g. So that the ship that facts no sail, fights not, nor hazards not with the rest, should have no part with the rest thereof h. Provided always, that first and formost, the prisoners, captives, and taken goods of preyes, be in due time presented to the captain, to be disposed by the admiral: so that if any man break bulk, meddle, or dispose of any of those goods before, he may be punished, and the receiver or buyer prisoned, until caution be found, that these goods shall be forth-coming to the admiral, and just owner, according to a decision past betwixt the King of Scotland, and Maubray, Anno 1487. 17 Junii i. d Genesis 14. e Deuteronomy 20. f 1 Reg 30. g C dictat alquis parag 23 q c jus spilitia redist. h L’Amiral de France. i Tom 1, c 24, Regis Scot. If two forraine Nations be at war, and the one take a ship from the other, and bring her into a Port or road within the bounds of a neutral Nation, alike friend to both, then may the Admiral of that neutral nation ordain that ship so taken and brought within the said bounds to be restored to her owner; and the Persons Captive's to their former liberty, even as if she had been brought back to her own Port and Country again k. k Per l postliminum parag de cap & postlon. Besides that, generally in all cases, the action and cause of liberty, as priviledged, should be favourably confidered l: and it is the honourable practice of princes, to make their countries an asylum, or sanctuary, to all l Per L libertas de reg jur.


55


[56] distressed strangers that be not pirats. Lastly, concerning letters of Merqu, as we speak or droit de Merque, as French-men term it, sive ius represaliarum, and goods and things taken under that title upon sea: surely, as farre as we may, we should prease to keep Gods Law set down by Moses m, praised by King Amasia n, and confirmed by the Prophets o: that the father should not be punished for the sonne, nor the sonne for the aather, but a difference to be always put, betwixt the guiltie and the innocent. Which thing moved Emperors to make constitutions for the repressing of represalies in certain respects p. m Deuteronomy 24, 16. n 2 Reg 14, 6 & 2 Cor 15. o Jer 29, 3. Ezek 18, 20. p Vide authen 1mo c ne filius pro patre Notwithstanding, if our patience be so oppressed with the increase of robberies, spoils, and violence upon sea, by men falsley professing friends, in such sort that upon no supplications, intercession, nor other travels, the Princes of these wrongful Nations (who onely can and should repress and redress) will do justice, or neglect to do their office; then because such a dealing imports a just cause of lawful hostility and warfare, I see not but that fuch a calamitie may and ought to be repressed, at least by these represalies and letters of Merqe q; specially sith that cause, in effect, resembles a war denounced without solemnities of clarigation. q Vide Bartol, late de represal. And therefore, both according to the lawes of England, letters of Merqe are allowable, and according to the old custome of Scotland; and the tenour of the Act of Parliament made by James the First of Scotland r, concerning ship-wrack, to be followed for a rule to such cursed cases, that is to say, that other Nations should have the like favour of us, that they shew to us. r c 131. Actor.


56


[57] Now being agreed that letters of Merque are lawful, as they are by Statutes, customs, and reason, specially upon a matter of great importance, and after a due warning, intimation, and on requisition; so that it be done by the Prince, and solemnly s: then what goods happen to be taken by that means should be brought and presented as aforesaid before the Admiral t; that a just inventory may be taken thereof for diverse good respects. s Per gloss in c episcopus 18. dist & DD in c si contra & c 1 de milite vasallo qui contumax. t Per l si quis in servitute de furt et l ait praetor parag si debitore. Quae in fraud cred.

_____

TIT. XXVI. Of Fishers, fishing, and traffiquers therewith.

Albeit hunting, hawking, and fishing, be of one kind, as subject to a like law and liberty a, because what wilde beast, foule, or fish be once taken by any man, commonly it becometh his own proper by the lawes of Nations; yet is there a difference twixt these three for, albeit hunting and hawking be almost everywhere lawfull, yet fishing is forbidden in other mens ponds, stanks, and lakes b, as comparable with theft. a L 1 in fin de acquir rer dom [Digest XLI, 1.] et parag ferae insti de rer divis. [Digest I, 8.] b L iniuriarii 13. parag fin in fin de iniur. [Digest XLVIII, 10.] Yea, now a-daies, in rivers, and in parts of the seas nearest to the possessions of men having grant and infeftment from the King, may fishing be forbidden, but no private man, without the grant of the prince, upon any pretence, or allegation of long consuetude and prescription, may acquire the propriety of any such part of the sea, as to prohibit others to fish there also c; c L praesrip de usucap. [Digest XLI, 3.]


57


[58] for such prescriptions only pertaine to Princes. To return to the quality of fishing; sith it is not only allowable to all sorts of persons d, but also commendable, and always to be preferred to all other trades and traffiques upon sea, not only for necessaries, but also for the great good and profit redounding thereby; all civill and vertuous Princes have diversly forth-shewn their care, for the entertaining and advancing thereof; as, by ordinances to build ships and boats to that purpose e; and by their wise appointing of certain only times for the fishing, as namely, of salmon, under paines not only of fynes but also of forfeitures, and of death, according to the manner of the offence, and contempt of their Decrees and Statutes f. Which, Princes also ( for the increase of fishes) have, as it were, with common consent, forbidden the making, setting and using of crowes, yarts, dammes, sosses, tramelets, parkings, dyking and herry-waters, in any waters g where the sea ebbes and flows, under pain of confiscation of all the goods of the tranfgressors in Scotland h. d C 1 & 2 de cler vanat & c 1 in cleric & mon. e Vide late act Parl Scot. f Vide statuta, et constit & act regun Franc, Angl & Scotiae. g Vide statut Angl & Scotiae & L’Amiral de France. h Jac 6. Par 6 c 89. Yea, albeit that any man were of old infefted with keeping of crwisses, weares, and kiddles, &c, yet must he keep the Saturdays slop: that is, to list the same from Saturday at after-noone till Monday; and also to make each heck or mesh of his crwisse three inches wide i, except for taking of smelts, loches, and such like that will never be bigger: as also, for to set the fame upon the waters, that the mid-stream may have the just space of six foot wide, under the pain of five pound m. and thus far concerning the maintenance and increase of fishes, by our Scottish laws and custome. i Jac 1, p 100 c 11. Jac 6, p 7 c 11. m Jac 3, p 10, c 73.


58


[59] It followeth, to set down concerning the fishers, their safety and priviledges. Wherein it is provided, first, that all ships sayling into the parts where herring are taken, at left during the taking thereof, shall let down sail after day-light past, let their Anchor fall, and keep watch with lanthorn and light, untill day-light appear again, lest other wise the poor fishers should be over-run, or their nets broken: their pain in Denmarke is death to the tranfgressors n: and the Fithers are likewise forbidden to use light in their fishing by night, left they deceive saylers with, the false shew of a port nn. n Denmark. nn Ulpian in l ne piscatores de incend rui naufr. Likewise, left any of the fishers harm or hurt one another, it is diversly provided, as also concerning the right measure of their nets in length and in breadth o; as may be seene by the Statutes of sundry Nations, Vide Statuta Angliae. o Vide L’Amiral de France. And specially therefore it is agreed of long time sithence, by the Sea-farers on the Forth of Scotland p; first, that no ground-draffe or drag-net be set before March, nor upon deeper water than fourteen fathome. p Vide Forman his register. Item, that none shall lie to their neighbors when he shall be asked concerning the length and depth of his tewe, when he is in driving: neyther yet wittingly and wilfully to suffer his tewes and nets to flit, and run over one another, under the pain of ten pound for every transgression of the premised articles. Item, above all, that from the sunset on Sunday, no man lay nor hale nets or great lines, or exercise any labour under the aforefaid pain. Item, For the further incouraging of fishers in the


59


[60] Well and North Isles of Scotland, there is a Statute that no other customs be sought of the fishers in the said Isles, but only the kings customs, under the pains due to manifest oppressors against them who exact the fame q. q Mar p 6, c 54. Lastly, concerning fishers, and traffiquers with fishies, it is ordained, that not only all fish slaine and taken neere to the coast of Scotland be brought and presented to the market places where the takers or slayers thereof dwell r: but also all fishes taken in the North and West Isles or Firths, to be brought directy to the towns where the fishers dwell (that the need of the country may be first serued s) and presented to the market places: from which none may carry them away to pack and peil, but onely betwixt the hours of eleven and two in the afternoon, under the pain of confiscation. In which markets, it is lawful to the provost and bailiffes to set down prices, and to compel the packer and peiler to sell again for the need of the lieges t. Which being done, they may transport the remainder where they please u. And in case they contemne, then their fishies to be escheate, two parts to the king, and the third to the magistrate x. r Iacob 5, p 9, c 98. s Iacob 6, p 4, c 60. t Iacob 6, p 4, c 60. u Iacob 6, p 4, c 60. x Iac 6, p 6, c 86. Likewise, concerning the barrelling of fishes, it is ordained, that the measures prescribed of old shall be kept: videlicet, each barrel of herring, or of white fish, to be of twelve gallons y; and the barrel of salmon, of fourteen gallons, according to the measure of Hamburg z, under the pains of escheting thereof from the packer, and of five pound to be lifted from the Couper a: Ans therefore hoop irons to be made in each town for the trial and gaging thereof b. Vide Satuta Angliae. Tit of Fishing; in the Abridgements. y Iacob 5, p 4, c 57. Iac 6, p 4, c 247. z Iac 3, p 10, c 276. a Iac 3, p 10, c 76. b Iac 3, p 14, c 100,

_____


60


[61] TIT. XXVII.

Of the Community and Propriety of the Seas. Having of late seen and perused a very learned, but a subtle treatise (incerto Authore) intituled Mare liberum, conteyning in effect a plain Proclamation of a libertie common for all of all Nations to fish indifferently on all kind of Seas, and consequently, a turning of undoubted proprieties to a community; as the fifth chapter thereof at large discovers, (wherein the unknown author protesteth, that he may for his warrant use the authority and words of such old writers, as have been esteemed most mighty in the understanding and judging upon the natural condition of things here below) and the difcourse being covered with the maintenance of a liberty to sail to the Indians, I thought always expedient by occasion of this argument of fishing contained in my former Title, by Gods Grace, to occur thereunto, as manifestly direct, at least (in my weak fight) tending to the prejudice of my most worthy Prince and his subject; and that not only by arguments derived from the first verity of the nature of things, but also from his own proofs, warrants, and their authors. And yet before I go any further, I cannot passe the Author his ridiculous pretence, in both Epistle and beginning of his discourse; as for a liberty onely


61


[62] to saile on seas: a thing far off from all controversie, at least upon the Ocean; specially, since passage upon land, through all Regions Christian, is this day so indifferently permitted to all of all Nations, even to Turks, Jews, Pagans, not being professed enemies; and therefore much less to be restrained on sea in all respects. So that I cannot but perswade both my selfe, and other loyal subjects, that the said pretence is but a very pretence: and so much the more to be suspected as a drift against our undoubted right and propriety of fishing on this side the seas. Now remembring the first ground, whereby the author would make mare liberum, to be a position fortified by the opinions and sayings of some old poets, orators, philosophers, and (wrested) jurisconsults, that land and sea, by the first condition of nature, hath been, and should be common to all, and proper to none: against this I mind to use no other reason, but a simple and orderly reciting of the words of the holy spirit, concerning that first condition natural of land and sea from the very beginning; at which time, god having made, and so carefully toward man disposed the four elements, two to swim above his head, and two to lye under his feet: that is to say, the earth and water, both wonderfully for that effect ordered to the up-making of one and a perfite globe, for their more mutual service to mans use: according to this, immediately after the creation, God saith to man a, Subdue the earth, and rule over the fish; which could not be, but by a subduing of the waters also. a Genesis, 1, 28.


62


[63] And again; after the flood, God saith, Replenish the Earth b: and for the better performance hereof, God, in his justice against the building of Babylon, scattered mankind, over all the face of the earth c; therefore is it that Moses faith d, These are the isles of the nations divided in their lands. So that hereby is evident that things here done are not so naturally too common; sith God the author of nature is also as well author of the division, as of the composition: And yet howsoever, in his justice as is laid, yet in his mercy also and indulgent care for the welfare and peace of man-kind. For those are sentences both vulgar and sure, set down by the Roman Jurisconsults e, Communio parit discordiam. Quod communiter possidetur, vitio naturali negligitur. Habet commnunio rerum gerendarum difficultatem f. b eod c 9, v 1. c eod c 11, v 8. d eod c 10, v 5. e Ulpian l qui neque de rep cor qui sub tutel. f l pater parag dulcisime de leg 2. Afterward, the earth, by the infinite multiplication of mankind, being largely replenished, and therefore of necessity thus divided, and things upon the Earth not sufficient for the necessaries and desires of man in every region, followed of force the use of trading upon the Seas; not only for the ruling of the fish therein, according to the commandment given by the Creator at the beginning, but also for transporting of things neccessary for the use of man. For the which, and other causes abovementioned, the waters became divisible, and requiring a partition in like manner with the Earth; according to that of Baldus: Videmus, de jure gentium, in mare esse regna distincta, sicut in terra arida g. g Ad legem de rer divis. [Digest I, 8.] And thus far have we learned, concerning the community and propriety of land and sea, by him who is


63


[64] the great creator and author of all; and therefore of greater authority and understanding than all the Grecian and Roman Writers, Poets, Orators Philosophers, and Jurisconsults, howsoever famous: whom the author of Mare liberum protests he may use and lean to without offence. Now, sith the weakness of this his first and principal ground doth this way appear; let any man judge upon the truth of that which Cicero (his man) sets down g, Sunt privata natura nulla; and likewise of all other his authors their opinions, for, the fortification of an original Community of things. g 1. Officior. It followeth to examine the chief warrants of Mare liberum; and to confider, how far they may bear forth to a common liberty, for fishing on all Seas indifferently. The author cites Ulpian, a renowned jurisconsult indeed, and Martian their sentences, alledging h that Ulpian should say i, Ante oedes meas aut praetorium ut piscari aliquem prohibeam, usurpatum quidem est, sed nullo jure, adeo ut contempta ea usurpatione, injuriarum agere potest. sc. prohibitus. That is to say, if I should forbid any man to fish before my house, he may mis-know such an usurpation, and intend action of injury against me for a wrongful slaying him from fishing there. h Pagina 25. i L injuruarum parag ult & parag si quis de injur. But as I read k, Ulpian his words are thus, Sunt qui putant injuriarum me agere posse: That is, there are men who think I may intend action, &c. It is true also, that Martian faith, Nemo ad littus piscandi causa, accedere prohibetur l. And yet neither of these two jurifconsults pronounceth absolutely in these cases, but k D parag si quis. l L 4 de rer divis. [Digest I, 8.]


64


[65] upon another, higher warrant: And therefore Ulpian adds, Sæpissime rescriptum est nec piscari, &c, prohibere posse.m That is, it is by writ most often answered, &c. Which Martian expounds most clearly, when he saith, Nemo igitur ad littus maris pisandi causa accedere prohibetur; and subjoyns his warrant, Idque divus pius piscatoribus formianis rescripsit n: That is, No man is forbidden to come to the sea-side and fish; as the Emperor Divus Pius did write to the fishers of Formian. So that you fee the Emperors to have been warrants to these lawyers, and their written opinions, concerning the voyage of the sea. m De parag si quis in fin. n D l 4, de rer divis. [Digest I, 8.] Now, to pass the propriety which hereby we see these Emperors did claim on the Seas, I ask first, To whom did the Emperors write such resolutions? Was it not to the professed subjects of their own Empire? And what? Even the usage of the seas, and coasts of their Empire, to be indifferently common to every one of their own Subjects: And how? Iure gentium; that is, according to the Law kept by all other Nations, to every one of their own Nation in like cases. Moreover, albeit these and other Roman Lawyers pronounce so, concerning the community of the sea-shoar, and coast, that private men may build Houses within the flood-mark, and appropriate them to themselves, according to that which Neratius writes, Quod in littore quis ædiftcat, ejus sit o: That is, what a man builds on shoar, it bccometh his own; yet upon this condition, Tamen decretum Prætoris adhibendum est ut id facere liceat, saith Pomponius p: That is, providing the Praetor his decree be interponed thereunto; or that the Prince give grant, as Ulpian writes q; Vel o L quod in littore de acq rer dom. [Digest XLI, 1.] P L quamvis de de acq rer dom. [Digest XLI, 1.] Q L prohibere parag quod et si Quod vi aut clam.


65


[66] ut princeps concedat. As for the remnant of these sorts of warrants alledged for Mare liberum, sith they sing all one song for the common use to the people, and propriety to the prince, if men will but only mark them; I need not say further upon them. So that every man may fee the use of the word commune, and the meaning of iure gentium among thsse Lawyers, whereupon this Mare liberum appears so to be founded that it cannot be shaken. For, commune, there is nothing else but publicu, quasi populicu; signifying a thing common for the usage of any of one sort of people, and not for all of all nations: According to that of Modestinia, Roma communis patria est r. r L Roma ad municpal. Neither yet doth that word, iure gentium, mean any law set down by common consent of all nations; but only notes the example of the law, or custom of other Nations: As if they would say, the liberty of fishing on our seas, and of other doing there and at shoar should be common to every one of the Roman Empire, like as the same is common to all of all other nations on their seas, and their shoars. Likewise, that of Placentinus, Quod mare sit in nullius bonis, nisi solius Dei: that is, God is onely Lord of the Sea; and so say we with King David, that the land also is the Lords s. But that of Faber t, Mare esse in primævo jure quod omnia erant communia, I need no otherwise to refute now, than I have done above alreadie. s Psalm. t Ad parag littorum inst de rer divis, [Digest I, 8.] And these are the authors and warrants, whereupon Mare liberum infers his conclusion, Demonstratum igitur nec populo, nec privato jus aliquod in mare competere posse, quum occupationem, nec natura, nec


66


[67] publici usus ratio permittat u. Which, how it followeth upon the premises, let men judge; sith neither these his Authors make for him; neither yet the reason inserted in the conclusion bears out; which is, quum occupationem nec natura, nec publici usus ratio permittat: that is, neither nature, nor the common need, suffers the sea to be acquired in property to any occupation. u Pag 28. For answer, first concerning the nature of the sea, as supposed impossibly occupable or acquirable; is this so thought, because the sea is not so solid, as is the land, that men, may trade thereon, as upon land? or that it is continually flowing to and fro? surely, that lack of solidity for man his trading thereon by foot, shall not hinder the solid possession of it, far less the occupation and acquiring, if we will give to the sea, that which the jurisconfults indulgently grant to the land, which also cannot be denied. Paulus the jurisconsult saith x, Qui fundum possere velit, non utique omnes glebas eius circumambulet, sed sufftcit quamlibet partem eius introire, dam mente et cogitatione hac sit ut totum possidere velit usque ad terminum: That is, it is not needful for him who would possess himself in any part of the land, to go about and tread over the same; but it is sufficient to enter in upon any thereof; with a mind to possess all the rest thereof, even to the due marches. And what can stay this to be done on sea, as well as on Land? And thus far concerning the solidity. x In l possideri de acquir poss. As for the flowing condition of the Sea, howsoever it be liquid, fluid, and unstable in the particles thereof, yet in the whole body it is not so: be-


67


[68] cause it keeps the prescribed bounds strictly enough concerning the chief place and limits thereof 1. 1 [MARGINAL NOTE] Psalm 104, 9.

Which discourse gives us occasion of force to answer to a scoffe cast in by the author of Mare liberum, concerning the possibility asto of marches and limits, for the division of the seas y: Mundum dividunt (saith the aforesaid suthor of Mare liberum) non ullis limitibus, aut natura, aut manu positis, sed imaginaria quadam linea: quod si recipitur, et geometrae terras, & Astfronomicoelum nobis eripient: That is, they divide the world, not by any marches, put either by nature, or by the hand of man, but by an imaginary or fantastick line: which kind of doing being embraced, the geometers may steale away the Earth, and the astronomers the Heavens from us. y Pag 31. It is true, that there are not, in every part of the sea, isles sensible, (as Guernsey is to England in the narrow seas) or sands (as the washes at the west seas of England) nor rocks, or other eminent and visible marks above water, for the designation of the bounds (or laying out limits) of the divisible parts thereof: but GOD, who is both the distributer and first author of the division and distinction of both land and sea, hath given an understanding hart to man for the same effect, as well as for all other necessarie actions wherein he hath to imploy himself: So that to a very wonder, God hath diversly informed men by the helps of the compasse, counting of courses, sounding, and other ways, to find forth, and to design finitum in infinito; so farre as is expedient for the certain reach and bounds of Seas, properly pertaining to any prince or people.


68


[69] Which bounds Bartrolus z hardily extends and allows for Princes and People at the sea-side, an hundred miles of sea forth from their coasts *, at least; and justly, it they exercise a protection and conservancie so far: And this reach is called by the Doctors, Districtas maris, & territorium a. It is true, Baldus b esteemeth potestatem, jurisdictionem & districtum, to be all one. z in § nullis in tractat de insula. * Per l notione de verb Sig. [Digest L, 16] a Gloss in c ubi periculum parag porro de electionin lib 6. b m l si testamentu. De inst & subst. To conclude then, since Papinian writes in finalibus quæstionibus vetera monumenta sequenda esse c; what more evident monuments for our King his right in the narrow seas, than these Isles of Guernsey &c? And for the Eastern Seas, direct from Scotland, what is more anciently notorious than that covenant betwixt Scotish men and Hollanders, concerning the length of their approaching toward Scotland by way of fishing? c Lan finalib com divid. And thus far through occasion of answering to that alledged impossibility, of acquiring the sea by occupation, because (as would appear) of the unsolidity thereof, for any foot treading. It rests to touch the other cause natural, for that other impossibility, which may be the continual flux and instability of the sea; in such sort, that it would appear not ay to be one and the self same body, but dayly changeable. For answer, I must remember that which the jurisconsult sets down so prettily d: Suppose (says he) a certain colledge of judges, or a legion of souldiers, or the particular parts of a ship, or of a mans body, should so continually and often be changed and altered, that none of that first colledge or legion could be found alive, nor yet any part of the ship or body could be so certainly demonstrate, that it might be affirmed for d In l proponebatur de jud.


69


[70] the very same that it was at the first; yet.if that colledge or legion be in number full, and the ship or man whole and able in all the frame, they shall be accounted and esteemed not to be new, but to be the very same which they were at the beginning: even so, however the sea many waies and hourly changes, in the small parts thereof, by the ordinary rush on land, mixture with other waters, swelling in itselfe, exhalation and back receipts thereof by rain; yet since the great body of the sea most constantly keeps the set place prescribed by the creator, I see not in this respect neither, wherefore the nature of the sea should not yield to occupation and conquest. And thus far concerning Mare liberum his last and great conclusion, against all appropriation thereof by people or princes. I call it his last great conclusion, because of other two passing before, whereof the first is this; mare igitur proprium alicuius fieri non potest, quia natura iubet esse commune e: and for what reason? even because Cicero,Virgil, and Plautus have paid so. To whom I could also assent concerning the great, huge, and main body of the sea. His next conclusion is this; Est igitur mare in nurmero eorum quæ in commercio non sunt, hoc esti, quæ proprii iuris fieri non possunt f: that is, The sea to be of that order of things, which cannot be appropriate to any man. His warrants for his conclusion also are the Roman lawyers, whom I said to be wrested by Mare liberum; and therefore must shew the same, contrary to his purpose indeed. Martianus g, as the author of Mare liberum largely grants h, saith, that if any private man have himself alone, by any lawful space of time sufficient for a prescription, kept and exerciscd fishing in e Pag 21. f Pag 25 g L si quisquam divers & temp praescrip. h Pag 24.


70


[71] any creeke, or nooke of sea, which they call diverticulum; hee may forbid all others to fish therein: which Papinianus i also confirmeth. The which, as I accept, so I would further demand of him, By what reason should a private man, who hath no other care nor respect but to himself alone, be thus priviledged and preferred to a prince? who not for himself, but for his people also in common, yea, and for the safety of all traders passing his coasts, with great charges and care protects and conserveth the seas neerest unto him: shall not this prince be acknowledged, at least with the good which that sea, conserved by him, offers so directly to him? And I pray you say, what lesse authority had Leo then the rest of the Roman emperors, to grant to every one in particular, having possessions at the sea side, as much of the sea as was neerest against their landes k, with the fishing thereof? What then, shall not princes be equalled, in these cases, with subjects? Or rather, have not all princes a like right and power within their own precinct and bounds, as these Roman princes had? i L praesriptio de usu cap. k Novel const 102, 103 & 104. But now to draw neerer to the chief point of our purpose, and so to the end thereof: as I accepted Mare liberum his former large grant, so now also I do more heartily embrace the next, which is this: when after these his conclusions, he had said in tanto mari siquis piscatu arceret, insanae, cupiditatis notam non effugeret l: he subioynes according to that of Cicero m, Quando sine detrimento suo quis potest alteri communicare in iis quae sunt occupanti utilia & danti non molesta, quid ni faceret: and subioyns afterward n, Et si quiequam eorum prohibere posset, puta piscaturam, qua dici quodammodo potest pisces exhauriri: that is to say, If l Pag 30. m Off 1. n Pag 35.


71


[72] the uses of the seas may be in any respect forbidden and stayed, it should be chiefly for the fishing, as by which the fishes may be said to be exhausted and wasted; which dayly experience these twenty years past and more, hath declared to be over-true: for whereas aforetime the white fishes dayly abounded, even into all the shoars on the eastern coast of scotland; now (forsooth) by the near and dayly approaching of the buses fishers the sholes of fishes are broken, and so far scattered away from our shoars and coasts, that no fish now can be found worthy of any pains and travels; to the impoverishing of all the sort of our home-fishers, and to the great damage of all the nation: Whereby, I see at last the author of Mare liberum not so addict to serue any mans particular desires, as to answer (forsooth ) to his protection of the lawes; that is, to allow the proper right for every man and nation, and to hurt none; according to the three general precepts of all laws, set down by Caius o, and after him by Tribonianus p: Honeste vinere; alterum non lædere; & ius suum cuique tribuere: whereof the second tries and rules the rest, according to the vulgar sying out of Pomponius q, Neminem debere cum alterius damno locupletari: and that of Tryphonius r, ex aliena jactura lucrum haurire non oportet. And therefore I would meet him with his deserved courtesie; even to proclaim Mare liberum alto: I mean that part of the main sea or great ocean, which is far removed from the just and due bounds above mentioned, properly pertaining to the nearest lands of every nation. Atque ita esto mare vastum liberrimum. o In l justitia, de rer divis. [Digest I, 8.] p Parag juris praecepta de just & jur. q L nemo de reg jur & l 14 de cond indeb & l jure doc. r L rescriptum de distract pig.

_____


72


[73] TIT. XXVIII.

Of Warfare Ships, and of the Captains and Companies thereof And since we have written above of priviledged ships a (amongst which the warfare-ships of Princes are first and chief) and somewhat of the conservacie of the seas, in the last Title; I cannot here pass the warfare-ships unmentioned, albeit not in such large manner and measure as their imployment nowadays requires. As for the matter fit for their building, and things necessary for their forth setting and preparation to sea, I must refer the same to Iulius Ferretus, and to Vegetius, who have written largely thereupon. Some touch I have here subjoyned, in the last Title of this book, concerning the materials: as likewise somewhat is permitted concerning their priviledges, in that Title of priviledged ships. Therefore would I here tet down (but very briefly) something concerning the captains, commanders, and companies of the Prince his warfare ships, the graces and vertues required in them, with their duties, powers, and preferment. a Titile 22. Captains of Princes warfare ships should be men, first, fearing God, because they must continually walk in the midst of the wondrous works of God. Next, they should be stout, hardy, and couragious. Thirdly, vigilant, diligent, and careful; and therefore very temperate on sea b: specially, because their imployment, as it is full of hazard and danger, even so are their occa- b Ferretus.


73


[74] sions and opportunities sudden and momentary. Therefore their commandment and power over their company, not only surpasseth the power of masters and commanders of private ships, but also that of the captains on land; and therefore their honour and estimation every way higher also, because of their greater charge, care, and hazard. Their duty toward their company, is first, that they chuse such as be free from hayous and scandalous offences c. Next, that they suffer none of their company to he idle, but to punish as well the sluggard as the rebellious d: yea, even those who are irreverent towards them e; and again, should with all loving care see to the due food of their company, hear their mutuall plaints, hold them in peace by all obedience, visit, refresh, and with all helps comfort the hurt and diseased f. As for the captains their other ditties to the Prince and Admiral, with their own priviledges, they are all gathered out of olde customs, and at large set down in that book called L'Admiral de France. c per l 4, De re militari. [by Flavius Vegetius Renatus, Roman military writer of the late 3rd and early 4th

centuries.] d per l 6, eod. e per l 13, eod f per l 12, eod.

_____

TIT. XXIX. Of Watermen and Ferriers.

Ferryers and watermen are bound to serve all true lieges for their due fare a; so that they may be compelled thereunto b: and most justly, becaufe it was in their owne hand and power from the beginning to give and apply themselves to that calling and trade, or not. And if therefore they fail, it shall a per l 1, parag 6, furt adueri naut. b l 1 7 l cum navarcharum. C de navicul lib 10 & l litica de public.


74


[75] be, according to the law of Scotland, a point of dittay or inditement against them in the first Justice-Court: And if they transgress unto the third time, they may be suspended from their trade c, except they can alledge a just cause; as, of feud or hostility. c Jac 3, par 13, c 95. Item, It is ordained, for the easier boating and landing of men and beast, that ferriers make, and have ready, fit and convenient bridges, or else to lose their boats d. d Jac 3, par 31, c 20. Lastly, ferriers and water men are no less bound, than skippers and masters of ships, to render again whatever they receive to be carried within their boats e. e L l parag naut caupon. But concerning their ordinary fares and hires, it is neither needful nor expedient in this place to recite the divers statutes made thereupon; because that first they are at great length set down in the statutes of England and Scotland: next, because their fraughts have been, according to the rate of times, changed and altered even to the triple, as specially in Scotland f. so that now also, according to the condition of this time; their portage, fraughts or fare, may be of new considered by His Majesty, or Admirals, according to the qualitie of the boats, and the space of passage and time, either shorter, longer, or hazardfuller, during their service; but with a due proviso, for the repressing of their rude and uncivill manners. For truly, if the Roman jurisconsults might of old by any reason call mariners, in generall, Pessimim genus hominum g, (which in these later dayes for the most part is amended, partly through Chriftianitie and civil conversation, and partly by good laws, Praise be to God) f Vide act Jac 3, parl 3, c 20 & parl 7, c 61 & Mariae parl 5, c 21. g Vide tit naut caup et titi furt advers.


75


[76] then may we now use that same still, at lean against the most part of watermen and ferriers; as requiring to be reformed, or at least by correction repressed *. * Secund l 3, naut caup.

_____

TIT. XXX. Of Shipwrights.

To conclude this treatise, there remaineth a special sort of persons to be considered and respelted, as the forgers and framers of the instrumentall causes of all sea-faring; to wit, shipwrights, and builders of ships or boats, called by the Romans, imitating the Grecians, naupegi: and by the Italians, following the later Grecians, calafatti, as is above described a; and therefore subject to the jurisdiction of the Admiralty b (as accountable to the Admiral and his judges) as accessories of sea-causes, for their skill, diligence, and dutiful discharge in every respect, by a frame not onely likely and comely, but a work also strong, ticht, and durable: or else they must undergo the pains of the law, called lex aquilia; that is to say, all costs and seath happening by their unskilfulness, or whatever other fault or amisse c. a Tit 6. b Per diplom admiralior, utriusque regni. c Per TT ad l Aquil. [Digest IX, 1.] And therefore, first touching the materials, they should not only furnish the same good and sufficient, but also, if the furniture pertain not to them, they must refuse to take from the furnshers bad and unmeet geare and stuff for the work d. As for example, Aller, Beech-Trees, and such like brickle and naughty tym- d Per l 2 de naut foen & per Vegetium de re Militari.


76


[77] ber for salt-water, or for the seas. Neither should they put green tymber in work; but ought to foresee if they can, that their wood be cut down either at the wane of the moon, and in the deep of winter, or at such time as experience declares wood to be most solid and durable. For timber cut at the contrary times, is commonly full of moysture; and therefore beeing afterward dried, becomes clung, and open to receive water. The like care and skill is required in the iron, and all other necessaries, to the end that the works may prove stong, durable, tight, and comely. This being done, it resteth to consider their hires and fees: which because they ordinarily depend on the conditions agreed upon with the party, which commonly is cavelled withall before a full performance of their work, upon surmises and quarrels; therefore to occur to all such doubts and discords, the contracts of such bargains should be (after the example of other sea-faring dealings) made before the Admiralls deputie, or Judge, and registred in their bookes d. d Vide sup of the Admirall Clerke. Last of all, as shipwrights were of old e, so are they also of late, forbidden f, under pain of treason, to communicate their skill and art to enemies and barbarous people. e l fin C. de poen. f Vide de officie Admiralitatis Angliae. Likewise, they are forbidden (as are also all other societies of handy-crafts-men and trades-men) to conspire among themselves to enhance their wages, or hire, or to receive excessive wages h. g Vide C de monop et ibi DD. [To which passage in the text this footnote should refer is not stated in the

original.] h Vide de officie Admiralitatis Angliae.

FINIS

***** May 2011. Original rendered into digital full text format by Colin Mackenzie, Barrister (Gray’s Inn), Advocate

(Scotland). Original page numbers in square brackets. Original footnotes have been moved from page end to

paragraph end. Any added material is in green Tahoma font. No changes in substance except where indicated by

a green Tahoma footnote.


77

an abridgement of all sea-lawes; - maritime law...

Documents