AN ABRIDGEMENT of all SEA-LAWES. Gathered forth of 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 Seafarers, within his Majesty's Dominions of Great Britain, Ireland, and the adjacent Isles thereof. By WILLIAM WELWOD, professor of the Civil Law. LONDON, Printed by the Assigns of joan Man and Benjamin Fisher, 1636. TO THE HIGH AND mighty Prince, james, King of Great Britain, France and Ireland, etc. IT pleased your M. some years past, most graciously to accept of this birth, in the great weakness and in fancy thereof. Therefore is it, that now being strong, and by all warrants inarmed, it most thankfully returns, offering service to your M. even for all the coasts of your Highness' dominions, upon hope to merit your former grace. Your M. most humble subject, and daily orator, W. Welwod. To the right Honourable, LUDOVICK, Duke of Lenox his Grace, etc. Henry, Earl of North-hampton, etc. and Charles, Earl of Nottingham, etc. Lord's Admirals of England and Ireland, of Scotland and the Isles, and of the Cinque Ports. HAving intended a painful & new labour, upon a rare and necessary argument, as for all Seafarers, so also properly pertaining to your Honours, my most noble Lords; I could not but of due salute your Honours, as the keepers of Sea-lawes, for a refreshing remembrance, and needful consideration of that most honourable estate and high office, presently, and (I hope) happily allotted unto you: I mean, the Admiralty of his M. dominions; a charge both ancient from many hundreth years in this I'll, and most honourable by the personages your predecessors, bearing the same: as being all, either sons, brothers, uncles, or cousins to Princes, or (at least) for action most famous. With all the which, that your Honours may the better rank and match, surely, as the condition of these days craves, so the best disposed wish, that as you be every other way Noble, your nobility may be crowned with a careful attention to the special parts of the Admiralty requiring the same, to a memorial surpassing all ancestors: I mean the conservacy, jurisdiction and privileges thereof. The jurisdiction, albeit it be most faithfully and diligently exercised, and namely in England by Sir Daniel Dunn, and Doctor Trevor, most learned, sincere, and worthy colleagues, judges in the high court there: yet the daily thwarting and curbing of the process of the judicature, urges a clearing or designing of the limits and marches, to a better distinguishing thereof from all other jurisdictions ordinary; without which, due justice can neither be administered, concerning the sea customs (of which no court else can take knowledge) for stranger's traffiquing here (importing no small stain to the King his justice) nor yet for his M. liege's traffiquers on sea, whose contracts and charter-parties ordinarily bear the clause of ruling by law of Olero●; a foreign law, as all the other laws of the Admiral 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 justitia popularius. Consequently therefore, the privileges due for the maintenance of the Admiralty and jurisdiction thereof, would be vindicat 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 loyal subjects, traders on Sea: specially, for Fishers and others, happily disposed to adventure and exercise the trade of fishing, to the end, that not only a peaceable, but also a full and plentiful fishing may be enjoyed by the inhabitants of his M. kingdoms, even according to that which God so freely and bountifully offers into their very doors. For which cause, the barbarity of the Islanders would be repressed, and strangers stayed from scarring, scattering, and breaking the shoals of our fishes; namely, upon our coasts of Scotland. There could be no better employment for some (at least) of his M. ships and companies, Ne vel illi usqu● turbent, aut isti intercipiant, quod nos capere oportet. But, I break from this purpose, remitting the same to the 27 Title of this book; hoping for a comfortable out-bearing and maintaining of that necessary 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, devote to serve your Honours in my calling. William Welwod. The Contents. THe Prohem, containing the origin of the Sea-law. page 1 1 The order of this Treatise. 22 2 Of the judge ordinary in Seafaring causes, with his jurisdiction and priviledge●. 26 3 Of the Admiral Clerk. 45 4 Of the Advocates, and other officers, assistants for the speedier proceeding. 49 5 Of the manner of proceeding in Seafaring causes. 52 6 Of persons ordinary in ships. 64 7 Of fraughting of ships. 71 8 Of the Master of the ship his power and duty over the ship. 83 9 Of the Master his duty to the Merchant and passenger, and of his privileges. 90 10 Of the Master's duty to the Mariners. 99 11 Of the duties and privileges of Mariners. 103 12 Of the Clerk of a ship. 113 13 Of a Pilot or Steirsman. 116 14 Of money bend to Sea, or upon the Sea. 119 15 Of the outreaders or furnishers, the hyrers, and owners of ships; and of actions for them, and against them. 124 16 Of sundry partners of ships, and their discords. 130 17 Of casting of goods, and contribution therefore. 136 18 Of contribution for Pirates. 142 19 Of contribution for spoiled goods 144 20 Of contribution for disburdening of ships for their easier entry to the port, and other chances. ●45 21 Of the common manner of contribution, and execution thereof. 152 22 Of privileged ships. 156 23 Of shipwreck. 161 24 Of things found on the Sea, or within the floud-marke. 168 25 Of things taken upon Sea. 175 26 Of Fishers, fishing, and traffiquers therewith. 187 27 Of the community and propriety of Seas. 200 28 Of war-ships, and of the Captains and company thereof. 237 29 Of Ferryers' and Watermen. 243 30 Of Shipwrights. 248 The Proheme containing 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, situate 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 Sailing; and that not only to the great increase of their power and wealth every way, as by which they did command and daunt all other people about their coasts and seas; in such manner, that neither Pirate, nor any sort of enemy, or disturber of their peace and traffic, durst then appear a Gellius, lib. 7. Cap. 3. : but also by the communicating of their trade, and discipline on sea, they did make neighbour Princes, and Cities, willingly Tributars unto them b Strab. geogr. lib. 12. cap. 14. . And further, as Strabo writeth c Ibid. to the crowning of their renown, they surpassed all other Nations in knowledge of equity in marine business; which they manifested by making of Sea-lawes. For, the very Emperors of Rome, Tiberius Caesar, Hadrian, Vespasian, Traian, successively, did refer all seafaring debates and controversies, to the judgement of the Rhodian law. d Vide Il. Rhodior. in prin. And so likewise exemplarilie, did their successor Antoninus, by his rescript yet extant e L. deprecatio ad L. Rhod. e● c. rhodiae leges. distinct. 2. : wherein, answering to one Eudemon 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 controversy Eudemon be decided by the law of the Rhodians. So far did the Romans (who always excelled all other Nations, in devising of humane laws) yield and give place to the Rhodians in the sea laws. And by their example, finding seafaring and traffic on sea, redound to a great common wealth, as plainly pronounced f L. 1. sect. licet. de exerc. act. Ulpian, one of the fathers of their laws; the Roman Emperors, and namely Claudius, g Suety. ca 218. brought in new forms of actions, and devised a kind of new and sure commodities and gain for trafiquers; by taking upon them the hazard of ship and goods: to which end also is erected by English laws, the office of Assurance. It is true, that the first making of Sea laws, is otherwise by some attributed to others, as by Dionysius to the Phoenicians, because of Merchant trade h De situ orbis. . And Plinius, for that same cause ascribes the Art of sailing to the Carthaginians. i Lib. 7. nature. histor. vide ●zechiam. c. 27. and consequently, would seem to attribute to these two Nations also for their necessity, the skill of sailing. To be brief, by the space of a thousand years, the sea, at least the Mediterranean, was only 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 deceits and Sophistry of calumniators and wilful vexers of their neighbours, as also for other needful doubts k Dotimus in lib. suo legoli. . At last, when all sorts of laws by the eversion and renting of the Roman Empire, was as it were for a long time buried, necessity forced the Rulers of Rome, Anno Dom. 1075. to make new sea laws and statutes: and so successively, every chief seafaring town upon the Mediterranean coast, to add other ordinances; as they of Marseilles did, Anno Dom. 1162. and they of Genua, Anno Dom. 1186. And they of Peloponnesus, called Morea, Anno Dom. 1200. and the Commonwealth of Venice, Anno Dom. 1215. And the Emperors of Constantinople, Paleolog. Anno Dom. 1262. and Constantine, 1270. and james King of Arragon that same year; and Peter King of Arragon, Anno Dom. 1340. and they of Barcelona, Anno Dom. 1434. which laws being all collected and amassed, serve the Mediterraneans unto this day. But on the great Ocean, which is our sea, the first laws we knew to be made, were devised by them of the Island of Oleron, situate on the sea coast of France, beside S. Martin against the mouth of Charante and the Marraes, near to the entry of Garumna: which are therefore called La roold ' Oleron; as by which the controversies on the sea coast of France toward the Ocean were ordinarily decided, in the town of the said I'll, called thereupon, Lavile de droict, or Oleron. As where the skilled Skippers in that law did dwell, and had cognition of all such occurrent debates and questions. Now these laws of Oleron, were afterward translated 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 Vide act. par. lia. Scot . As also the Kings of England have done before m Vide statut. Ang. : for Edward the third, by a solemn inquisition of eighteen most famous persons for skill in seafaring, assembled at Quinborow from diverse parts, Anno 1375. set down certain articles concerning the Admiralty and seafaring, into old French: as may be seen in an old parchment authentic book yet extant; which articles one Thomas Roucghton of that same, turned afterward in Latin, and entitled de officio admiralitatis Angliae. Likewise Frederick the second of Denmark, in his general convention, at Coppenhaven, Anno 1561: sets down a compend of Statutes, for ruling of his Seafaring subjects; but for most part all one with Lafoy rooled ' Oleron. Also the French King Henry the third, added his new constitutions to these of Francois, 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, divers, and late Statutes and Ordinances made and set forth these sixteen hundreth years, by the nations, people, and Princes above written, in the decision of causes, and judging of seafaring controversies; that fragment of the Rhodian law, extant and Latinized by Simon Shardius, entitled by him, Leges navales Rhodiorum & selectae Leges Rhodiorum, with the interpretations and commentations, devised thereupon by the old Roman jurisconsults insert in the Pandects; together with the constitutions made by the Roman Emperors, contained in the Cod. and Novels 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. In which Countries, albeit there hath been, and yet remains a great number of professors and doctors of the Roman civil law, who have written largely thereupon; yet few or none hath taken in hand to write pertinently or expressly, upon the laws concerning seafaring, the traffic on sea, and by sea, with the duties requisite of every seafaring person, of all sorts and degrees. It is true that julius Ferrettus in his observant devoir to the Emperor Charles the fifth, prepared a discourse for the addressing of Navies with convenient and expert Governors, and all sort of necessaries for hostility on the sea, entitled de iure & re nautica, 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, son also to the said julius. Petrus 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 learned title, de nautis, navibus & navigationibus, but cometh not close to this our argument; for he holds straightly within the compass of the civil law, protesting also his pretermissions and remissions of many chief matters to certain Doctors, who also writes but obiter of the sea matters, and none speaks of the sea customs, which is our principal argument: To the end of which book is annexed an half sheet of paper, bearing consilia Roderici Suarij de usu maris & Navibus vehendis; a turn of small contentment. 'Tis true that Simon Shardius, Anno 1561. promised this same compend and collect of sea laws forth of all laws (which presently by God's grace I intent) but by death prevented, could not perform it. To conclude then, since no man, as I can understand, hath set his pen to this my argument and purpose, for the due information of every sort of seafaring persons in every order, whether Commanders, judges, Skippers, Mariners, Merchants, Passengers, Fishers, Ferryers', Watermen, etc. concerning their several duties, privileges and powers, and all manner of things pertaining or incident to sea and seafarers; I thought good, after the insight and deep consideration of all the laws and ordinances aforesaid, to mend a weak piece of labour, which I intended many years since, entitled the Sea law of Scotland; and to frame the same in a very harmonical collection of all sea-lawes, And upon the conscience of my profession of the civil law, having no employment or 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 clearly perceive: that is to say; Because that whereas the most civil, wise, and politic nations, have even most carefully distinguished the jurisdiction of the sea from the jurisdiction of the land in all respects: yet nevertheless some men press always, upon what intent I wot not, to confound the same. And the multitude of these who do acknowledge the foresaid distinction, as specially the Mariners, through ignorance contemn all other law but the rule of Oleron. In these respects (I say) I have with great pain and travel, concluded the publication of this work; which if it please (as I pray) God to bless with the own effect, I have reward enough. TIT. I. The order of this Treatise. AS the affairs of the sea concerns only seafaring and meddlers 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 hyrers, 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 L. 1. de, exercit. act. . And the Master is he to whom the whole care and charge of the ship is committed b L. 1. ad l. Rhod. . The rest are all known. Now their persons whiles happens all to fall forth in one man; as one to be Master, owner, and out-trader; and again to be all diverse and distinct: and therefore the actions to bear out accordingly. Likewise the cognition of their debates pertains not to every judge indifferently, but only to the Admiral of the sea: which thing this Abridgement shall orderly and summarily declare; beginning at the judge ordinary to seafare causes, the members of the Court, and manner of proceeding there: next, the persons ordinary in ships, with the fraughting thereof, as belonging to the chief uses of shipping: thirdly, the power, duty, and privilege of every one of the foresaid in ships: fourthly, the manifold causes of losses and damage in seafaring, with the redress thereof: five, the privileged ships, shipwreck, ships and things taken and found on the sea, or within the floud-marke thereof: and lastly, of Fishing, Fishers, Ferryers' and Watermen, and Shippewrights. TIT. 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 special difference betwixt the persons to whom the charge of shipping was given, and them to whom the commandment of Fleets and Navies was committed; and betwixt the persons who exercised the jurisdiction in seafaring debates, as followeth. For amongst the Romans in the beginning, first the builders, forth●eakers, or furnishers, and preparers of Ships and Navies with all necessaries (by a special ordinance called Lex Decia) were styled Duum viri navales; a Livius lib. ●. as the Governors of these Fleets were called Archigubernij, b L. Seius Saturninus ad S. C. treble. and the justiciaries of seafaring debates, Magisteriani: even so amongst the Grecians, the Commanders of their fleets were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. And after the Empire seated at Constantinople, Magnus dux classis, and Drungarius magnus, c Vide fragmenta ascripta Polybio. as the chief carrier of the Pinsell or flag. His style afterward was Admiratus, from Amiras, a word of the Saracens, signifying an Overseer, or a Captain on sea or on land; for Mirar is to see, as the Spaniard useth it. From this word Amiras, cometh the word Amirante to the Italians for the Leader of their fleets, as well as L'amiraglio: albeit they term their seafaring judges, Li consoli del mare, and such like from the same word Admiral, which most part of the Nations of Europe use in the same meaning; as first and chiefly France, where Childebert the first, one thousand years sithence, instituted an Admiral as Captain and Commander of his Army upon sea, like as he did then ordain a Marshal for the government of his Gen d'armerie on land. Only the Spaniard called this Leader and Commander of his fleets and navies, Adelantado: as who should go before the rest. Briefly, the word Admiral, how ever this day it be used or abused, for to signify the chief ship, which was Navis praetoria to the Romans, as the chief Commander of the fleet; yet that word Great Admiral, notes properly the man whom the Romans called Praefectum maris, and the Grecians, Thalassiarcham: to wit, the Governor of the sea. And thus far 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 seafaring men; at first amongst the Romans, it was allowed to every Precedent on the coasts, and afterward other judges were specially constitute at the sea sides, called Magisteriani: d Vide Alberic. ad novel. 17. & 24. but their judges were all countable to their higher judge, styled Praefectus praetorio sublimissimus, from whom was no appellation or advocation e L. à proconsulibus. C. de appel. Since, in these latter days, for the readier obedience to the great Admiral of the Sea, it is by common consent of Nations, successively agreed, that in consideration of the Admirals their sovereign commandment, their special preferment, and power upon the lives of men within the sea flood; that therefore they should also have a sovereign jurisdiction only proper to themselves, over all seafaring men within their bounds, and in all seafaring causes and debates, civil and criminal. So that no other judge of any degree, at least in Scotland, may meddle therewith, but only by way of assistance; and that by commission and in difficile causes, as was found in the action intended by Antoin de la tour, against one Christian Marteis, 6 Novem. Anno 1542. f Tòm. 1. c. ●35 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 Crowner's to view the dead bodies found on sea, or found on the coasts thereof, and Commissioners or judges general, for exercising justice in his high Court on land, with Clerks, Procurers, Doome-sayers, Marshals, and other Officers, for the exercising of their 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 keep their warders and prisoners. g L' Admiral de France. Finally, their authority should be distinctly acknowledged in all things pertaining to seafaring. It is true, that in Scotland before the erection of our Admiral after the example of other Nations, the Deans of Gilled were ordinarily judges in civil debates, betwixt Mariner and Merchant, as the Water-baily betwixt Mariner and Mariner, like as the high justice was judge in their criminals. Which actions all now falling forth betwixt the persons aforesaid, of due appertains to the jurisdiction of the Admiral; and therefore his judge depute or Commissar, called judge Admiral, and none other, should sit, cognost, determine and minister justice in the foresaid causes: as likewise upon all complaints, contracts, offences, pleas, exchanges, assecurations, debts, counts, charter-parteis, covenants, and all other writings concerning lading and unlading of ships, fraughts, hyres, money lent upon casualties and hazard at sea, and all other businesses whatsoever amongst seafarers, done on sea, this side sea, or beyond sea; not forgetting the cognition of writs and appeals from other judges, and the causes and actions of Represals or Letters of Marque: yea, to take stipulations, cognossians, and insinuations, in the books of the Admiralty: and to do all other things without which the jurisdiction of the Admiralty cannot stand nor bear out; and therefore to arrest and put in execution, to inquire within and without liberties, by the oaths of xii. men upon all offences. h Vide diplomata admiralior. in utroque regno. Vide latè de off. Admire. Ang As first, touching the revealers of the King & Country their secrets over sea, in time of war. Item, against Pirates, their Assisters or Abbetters, Out-treaders and Receptors. Item, against fortifiers of the King's enemies, and ha●●ers of his friends. Item, against the breakers of the Admiral's arrestments and attachments. Item, against goods forbidden, and merchandise not customed, and yet shipped and transported. Item, against the resisters of the Admiral his officers, in executing his precepts. Item, against the forestallers, regraters, and dearthers of corn, fish, drink, firewood, victuals carried over sea. Item, against pleaders before other judges than before the judge Admiral, in causes pertaining to his jurisdiction; as also against the judges cognoscing thereupon Item, against them which give Sea-brieves, Testimonials, or such like, over sea, without power or licence from the Admiral. Item, against transporters and carriers of traitors, rebels, manifest transgressors, and fugitives from justice, over sea. Item, against hirers and fraughters of ships of other nations, when they may be served by their own nation: Item, against such as cast in ballasting, sand, or what else, in harbours, or channels, that may defile or spoil the same. Item, against ship and boat-wrights, extortioning the Liege's or subjects. Item, against taking away the boigh from the anchor, or cutters of cables, or other tewes. 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 gear in ship. Item, against Customers or Water-bailies, taking more custom or anchorage than wont. Item, against such as absent themselves from wappinshewing or mustering; which the Admiral may ordain twice a year in time of war, and once in two years in time of peace, upon all dwellers at Ports and Harbours, or within one mile near thereunto. i L' Admiral de France. Item, all sorts of transgressions committed by seamen, ferry-men, watermens, as well in flood rivers and creeks from the first bridge, as on the seas; Fishers, Pilots; Shipwrights, pressed men contemning the authority of the Admiral: and after due cognition, to levy and apply to his own use the penalties and amerciaments of all transgressor's aforesaid, as due unto the Admiral; together with the goods of Pirates, Felons, capital falters, their receivers, assisters, attainted, convict, condemned, outlawed or horned. Item, wayffe or stray goods, wreck of sea, cast goods. Item, deo dando, that is to say, the thing, whether Boat or Ship, etc. that caused the death of a man, or whereoutof a man did perish. Item, shares, lawful prizes or goods of the enemy. siclike Lagon, that which was found lyand at the sea ground, and Flotson that is found swimming upon sea; and jetson, which is cast forth of the sea to the shore and coast, with anchorages, beaconages, mere swine, Sturgeons & Whales, etc. and all fish of extraordinary greatness, called regal fishes; which all are allowed in great Britain, France, and other noble kingdoms, to the Admirals, by their Sovereign; for the better maintenance of their estate, jurisdiction, and conservancie on seas, rivers, floods, roads, ports, harbours, channels, sailing, fishing, and all trading there, as altogether and chiefly committed to the care, maintenance, and protection of the Great Admiral. TIT. III. Of the Admiral Clerk. THe Clerk of the Admiral Court, beside that he should be very skilful, faithful, and give his solemn oath thereupon at his admission; and beside 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-briefes; as without which no ship should pass to the sea in time of war, not yet to far voyages in time of peace: a L' Admiral de France. which no other judges nor Governors should give forth, but the Admiral only. b Eodem. Item, one other Register for the reports of the Skippers and Captains, at their return to the Admiral also. c Eodem. 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 Secundum act. parliam. jac. ●. cap. 27. And because no man ought to take upon him 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 L' Admiral de France. But within the water of Thames, this trial and registration of Pilots, pertains to the Trinitie-house. f Look the Charter of the Trinity house on Thames. Lastly, all money lent to hazard upon the sea, called of old Pecunia trajectitia, for certain profit, called Foenus nauticum, for the which the Lender was wont to bear the peril, against the manners of these avaricious days; their lend (I say) and bills of assurance, should be done before the Admiral Clerk. g L' Admiral de France. To conclude, no other Clerk or Writer, may meddle or pen things concerning the seafaring, without licence of the Admiral. h Kintor. art. 45 TIT. IU. Of 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 and plaints in the Admiral Court, it is found needful that all Procurers, before they be heard, swear 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, they shall tell it to their client: and if the client will insist, then to show it to the judge. Secondly, that they shall not reveal their clients secret to the adversary, nor yet collude with him to betray their client. And lastly, that they shall propone neither dilator nor peremptor against their conscience. a Il consolato del mare. To conclude, the oath of fidelity is likewise to be solemnly taken of the rest of the officers of Court: for the due execution of their offices, namely, at their admissions. b Eodem. TIT. V. The manner of proceeding in Seafaring causes. THe debates of seafarers, and seafaring actions, should be decided according to the received Laws and Statutes of the sea: which failing, than the customs and consuetudes of these are to be followed. a Perladeprecatio ad l. Rhod. Bald. in l observan. in sect. antiquam de off. proc●ns. because all dispositions and ordinances commonly take their interpretation from consuetudes and uses. b Innocent. in e. ulim de ●erb. Sig. And if neither law written, or unwritten custom, nor consuetude occurs or appears, the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of seafaring; because it is old and common, that the judgement of skilled and well practised men, should be followed in their own trade and calling. c Per l. 1. de vent inspic. But in the manner of proceeding, it is a perpetual privilege, Quod velo le vato. d L. de submersis C. de nauf. lib. 11. That is to say briefly and summarily, causes should be cognosced, and without the solemnity of other ordinary Courts & judgements, only looking to God and the truth; so that the judge should do, if it were possible, as God himself. e Vide rotam genuae, & DD. Plaints then of seafarers should be most summarily cognosced, but specially of shipwreck; 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 bartol. Lu●ius & johannes ad d. l: de submersis. And because that sailing tends to a great Commonwealth, therefore least seafarers should be wearied with pleas, and so either lose their right, or their trade, g Secundum l. illum de Pet. hered. summary process should be common to them all. Which sort of process is so urged by the Doctors of Law, that they counsel judges, who fear appellations or advocations, to prevent the same by a present execution; h DD. i● c. proposu 〈◊〉. de sor. comp ●. namely, in causes of spoil or wrack: so that upon every interlocutor, they may proceed to execution, making restitution presently. Providing always, that caution be first found by the spoiled, to satisfy the sentence of the judge of the appellation, in case it shall happen to be made. i L' Admiral de France. This is also a privilege of the seafaring judicature, that albeit by the common rules of the law, where no Litiscontestation is past, no witness should be received, nisi ad aeternam rei memoriam, ac adversario ad id citato; yet in shipwreck, as a case very pitiful, any of the shippe-broken men may come to the judge of that part where the wrack happens, and by witness brought with him, prove the wrack and spoil; k Si quis. 10. C. de naufrag. 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 loss: l L. Fin. ad l. Rhod. which should be done within a year and a day; namely, by such as were in service to the Prince and country. m L. quoties. de naufrag. The like is to be observed also in causes of spoil; where by the laws of England, it is sufficient for the spoiler to prove his goods by his mark, etc. mm Vide statut. Ang. In which doing, no citation is required; and that against the common law: n L. de unoqu●que. dear iudica. & L. quoties. C de naufrag. lib. 11. 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 live. 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 each one to other of their society within ship, if they have neither to lose nor gain thereby; and namely Mariners, for or against the Skipper when the voyage is ended, and when they are free from his commandment. p Il conselato artic. 221. & 222. For by the consent of the Doctors, when the truth cannot be otherwise tried, then unable persons may be heard. 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, & judicatum solvi, be kept on the part of the defender; but also that the pursuer shall find caution, de expensis solvendis, if he fail in proof. q Consent of ●ll sea laws. Likewise, in case the party pursued be contumax, and will not compeire to defend himself, or his ship, or things challenged; namely, after three or four citations directed from the high Court of the Admiralty, called quatuor defaltae (for that citation called Vnum pro omnibu●, is not sufficient to convince one of contumacy) 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 Marshal or officer, 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 year and a day after, offering the expense made to the pursuer, and caution to obey the definitive, 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 De office Admi. Ang. in fin. cum ibi citatis. Neither is it needful to execute summons or citations in such cases, elsewhere but where the ship or quarrelled goods in question lies, or at the part usual of their haunting. s Ibid. Further, as this way it is provided for the snibbing and staying of calumniators in judgement: even so it is ordained against maliciousness out of judgement of such persons who only to hinder and stay their neighbours, vexes them with needless arrestments; that upon caution such a●restments be speedily loosed, except it be either for fraught already deserved, or mariners wages, or such cases wherein by law the ship is obliged; or else for service to the Prince: t Il conselato 4● as also if arrestment be used, either upon goods, or mariner ready to sail, the same may be loosed, upon caution to make forthcoming so much goods as the mariner hath within shipboard. u Denmark. TIT. VI Of persons ordinary in ships. TOuching persons ordinary for sailing in ships, they are of diverse orders, and therefore diversely styled: as first, he who bears charge over all the ship and kippage, is commonly called by us, and most part of nations, both now and of old, and specially by the Roman laws, Navicularius, or Magister Navis: a L. 1. & passim. ad l. rhod. & l. 1. parag▪ ●●naur, caup. that is, as we speak, Master of the ship; by the Duchess, Skipper; & by the Grecians, Navarchus or Nauclerus; b Vide l. semper de iur. immun ita. & l. 3. C. de navicular. Vide Vegetium de re military. 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 Frenchmen, Pilot; by Us and the dutch, Steirsman; by the Romans, Gubernator; c Vide lege● navales Rhodior. by the Italians, Nochiero, d Il consolato▪ Pilotto, & Navarchus, as Gerretus writes. The third person is commonly called the Master's mate or companion, chiefly if the Master be Steirsman himself: this man is called by the Grecians and Romans Proreta: e Vide dd. Il. navales, & Plautum in rudeness. his charge is to command all before the mast. The fourth person is he who attends upon the mending of the faulty parts in the ship, called by us and the Duchess, Timberman or Shipwright; by the old Grecians and Romans, Naupegus or Naupagus: f Vide dd. Il selec. Rhod. 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, * Lib. 23▪ and therefore the Venetians and Italians name their Timberman Calafatte. g Vide il consola. The next person in order, is he who bears the charge of the ships boat, called by us Boatsman; by the Italians, Barchierie; by the Grecians and Romans, Carabita: for Carabus notes the boat of the ship. h Vide dd Il. Selec. The sixth person requisite in any ship of great burden, is a Clerk; by the Italians, Scrivano, i Vide il consol. whose office is to write up and make account of all things received or delivered in the ship, together with all the ordinary and needful expenses made upon ship & kippage: who for his more faithful discharge, should at his entry be sworn before the ordinary Sea-Iudge; as is ordinarily practised in Ancona, and other parts of Italy. k Ferretus de re & iure navali. 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, Nauphylakes; by the Romans, Dietarius; l L. 1. parag 2, naut. caup. and by the Italians, Guardiano. m Il consolato. All the foresaids are distinct in offices and names, and therefore accordingly should also be distinguished 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 may be the boys and prentices in ship, Mesonautae, n Vide Budaeum ad l. 1. naut. caup. and Nautebatae, as who should be ready at command, to climb upon the tewes, or to such common service in the ship. o Vide l. debet. parag. haec actio. naut. caup. TIT. VII. The fraughting of Ships. NO Ship should be fraughted without a charter-party written and subscribed, a Il naval. rhod. select. art. 20. containing both the Master and Merchant, and the name of the Ship, that no doubt may arise; b Vide Bartol. in l que● rerum. parag. Si navem. de leg 1. argumento l. Labeo de. Supel. ligat. etc. and likewise, that the Master shall find a sufficient Steirsman, Timberman, Shipman, and Mariners convenient, Shippe-tycht, masts, sails, tewes, strong anchors, and boat fit for the ship, with fire, water, and salt, on his own expenses. c Cap 17. & 130. art. Iaco●. 3. Vide de Il. Rhod. And this charter party, among all the western Merchants, and those of the great Ocean, usually is made to perform all things requisite by the laws of Oleron. d d. art. 20. And if there be no Writing, but an Earnest, than the Merchant, if he repent or rue, loseth his Earnest: but the Skipper, if he repent, loseth the double of the earnest or arles e Art. 19 Il. naval. Rhod. If the ship be not ready at the day appointed in the charter-party to go to sea, the Merchant may not only free himself of her, * Per legem item parag. Si in lege l. ca except he hold his peace and discharge her not (for then by his silence he appears to consent of new) but also shall or may obtain all charges, scathes and interest: f Oleron. Except the Master show some excuse of a notorious necessity, or of a chance that could not be eschewed: and then he loseth only his fraught, because he hath not deserved it. g Per l. si, ex conducto, & l. si item fundus, & l. haec distinctio & d. l. si in. lege. loca. But if the fault be in the Merchant, h d, l. ex conducto. he shall pay the Skipper and ships 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 〈…〉 navalium. and further, shall upset all hurt and damage happening by fire, water, or otherwise, after the time appointed. k Art. 29. cod. It is true, that the Rhodians charge the Merchant in this case only with half fraught, & the Skipper with the whole fraught if he fail: albeit that the Romans inflict the pain of the whole fraught upon the Merchant: m d l. si in lege, & l. ult. ad l. rhod. & d. l. ex conducto. specially, if he take forth his goods again; for than is the fraught thought to be deserved. n l. ult. loca●. But if the ship in her voyage become unable without the Master's fault, or that the Master or Ship be arrested by some Magistra●e in her way, the Master may either mend his ship, or fraught another: but in case the Merchant agree not thereunto, than the Master shall at least obtain his fraught, so far as he hath deserved it. o Oleron, & l. ult. adc. Rhod. 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 ships perish that voyage, and that no fault nor fraud be found with the Master. p d. l ult. 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 & necessaries, according to the clause ordinary ●f charter parties, or that the other ship in which the goods were last put in, be not sufficient, or that the Master hazard forth to sea in an unlikely time. q d. l. item. Yea, in former times it was forbidden expressly, as by the Emperor's Gratian, Theodosius, and Valentinian, to hazard upon sea from November till April r l. 3. de nauf C. Theodos. & l 3. de nauf C. jallin. lib. 11. As also by the Kings of Scotland, from S. judes' day till Candlemas s V●de act. par. And always it is accounted by the laws for a fault, to make forth of a Port in time of a manifest storm. t l. unique parag. fin. & l qui petitorio. parag. fin. de vend. l. item queritor. sect. si navicularius. C. ●oca● & l. u●t. de naufrag. Item, if a Skipper set forth his ship for a certain charge, and then takes in any more, he ought to lose his fraught justly. u la ro●l● Oleron. And in such a case, when goods be cast through storm, it shall not be made good by any contribution, but by the Skipper his own purse. x art. 2● l●g. naval. rhod. And if he over-burden the ship above the birth mark, he shall pay a fine. y Denmark. Item, if a Ship Port at any other Port than she was fraughted to, against the Masters 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 〈◊〉 oath of the Skipper and two of his Mariners: z Oleron. or else the Skipper may be in further danger. Where also it is to be observed, that for the in-going to sundry diverse ports by the way, imports not a diversity or a multiplication of voyages * DD. in l. qu● romae parag. Callimachus. de verb oblige. But if any man compel the Skipper to overburden ship or boat, he may be therefore accused criminally, and pay the damage happening thereby. a l. unica C. ne quid on●r pub. lib. 1●. Item, if any Skipper set his ship to an unfree man, and not of substance, and other qualities prescribed by king james the third, b c. 17 etc. 〈…〉 act. r. jac. ●. he and his Mariners shall under-lie 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 Il consolato deal ma●e. It is imputed for a fault to the Master, if he direct his course by ways either dangerous through Pirates, enemies, or other evil aventures, and holds not forth his due rout, d l. pe●. parag. si navis. loc. & l. si pecuniam. de cond. indeb. & l. qui fiscalis C. de navicul. lib. 11. & l. quum proponas de naut. ●oen. and damage happen thereby. It is likewise counted a fault, if the Master carry the pencil or flag of other Nations than his own, and thereby incurs scathe and loss of any thing. e Per. l. quum proponas. ad l. rhod. For, as packquets, pipes, hogsheads, and such like, should be marked by the proper marks of the Merchants to whom they appertain: f Per l. ●. C. d● nav. b. non excus & l. minim●. de espisc. aud●en▪ even so should ships be discerned one from another, by their own pencil or flag Item, if coffers, pipes, pakquets, etc. be delivered close and sealed, and afterward shall be received open and loose, the Master is to be charged therefore, until a due trial and consideration of that matter. g Bat●. in l. in actionib. in fin. de in lit. iurand, & in l. unic. furt. advers. naut. 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 Per l. item quae parag si ●ull●. 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 l. 1. de exercit. act. which power is prescribed, partly by the owner or outreader, and partly by the common law of the sea: as, to set her forth for fraught; to take in passengers; to mend and furnish the ship. b d. l. 1 And to that effect, if need be, in a strange country to borrow money with advice of the kippage or, company, c Oleron. 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 repaid to the Merchant: which being done, the fraught of that goods so sold and repaid, shall be repaid 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 rendered: d Eod. And for no other cause, no not in the chance of shipwreck, may the Master take on or conquest money, specially, by-selling of Merchant's goods. e Eod. And thus far concerning his power As for the Master's duty, he ought first before he lose or make sail, to seek and obtain the consent of the most part of the kippage or company; yea, if he be not very skilful, he should do no other thing of importance without their advice: otherwise, he shall undergo whatever damage happens by his doings; f Eod. and specially if he lose forth of any harbour without an expert Pilot, g l. item Magister locat. yea, or in the harbour the ship happen to fallover. h Oleron. And as the Skipper his rashness and unskilfulness is thus-wise corrected: even so his negligence and sloth is to be punished. As first, by suffering the overlap and cowbridge to be unticht, i Denmark. or the pump to be faulty, or a sufficient decking to be lacking; k Leges naval. Rhod. art. 11. and specially, from corn, victual, and such like goods, which should be most carefully kept, and fenced from water and spoiling. l Eod. art. 38. Otherwise, the negligent Skipper is holden to make good all scathe or damage coming thereby, beside that the fraught of such spoiled goods is lost; except that m Art. 44. eod. the ship or crear was open from the beginning, and fraughted without any overlap: n Vide. l. 1. parag. quadam de exercit. which two kinds of ships, are termed by the jurisconsult, Emphractae & Rephractae, nn d. l. 1 parag. quaedam. Further, this duty is required of the Master, 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 sail: n c 27 actor. per lac 3 & l' Admiral de France. As likewise at his return, the just inventary of the goods of any persons which shall happen to depart this life in that voyage; o L' Admiral. to the end, that not only the liege's 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, forthcoming for three years' space; but by the custom of England, one year, until the nearest of the deadman's kin come and claim the same. p Il consolat del mar. at. delmar. Of which goods in the mean time, the bedding with the pertinents thereof, may be of due taken by the Master and his mate, to their uses; as also such clothing, and other thing then presently upon that persons body, may be delivered to the boatsman and servants of the ship, as who ought therefore to bury, or cure at least, the over-putting of the dead in the Sea. q Eod. TIT. IX. Of the Master's duty to the Merchant and Passenger; and of his privileges. THe Master ought to render again whatever he receives within his ship, to him who delivered the same, as well victual as clothing and merchandise, goods, or other thing: a T. T. nau●, caup. where we take goods to be delivered, if either it be put in the ship, or in presence of the Master or Clerk as his deputy, laid to the ships side, b l. 1. in fin. eodem. and both ways, the peril to appertain to the Master. c l. 3. eod. Which thing also is extended to boatsmen, and to the Ferryers': d d. l. 1. parag. ● and yet is it surest to deliver goods before witness, and that either to the Master, Clerke, or Skipper his deputies thereto: e Art. 12 ll. navalium. for the master is not holden for such things as are put in ship without his, and his companies knowledge; f l. 1. depositi. 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 allege the lack thereof, then is the Skipper and his kippage only to purge themselves by their oath: f Eod. art. 13. but if afterward notwithstanding they be found guilty, the denier shall pay the double, and also be punished for perjury. g Art. 14. eod. Even so, the Master is liable for all damage sustained through evil hooks, cordels, blocks or lines; namely, if the mariner foreshow the said things to be faulty: and always the mariners shall help the Skipper in common to pay the said damage. h Oleron. Item, if any scathe 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 Eod. etc. 17. etc. 130. act. jacob. 3. or his Admiral as his successor now; and for lack of proof in this case, the Skipper and his kippage shall be put to their oath. k Oleron. Further, what ever 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 uttermost penny: l d. l. 1. in fin. & l si vendita de perie. rei. vend. & l. 5. & 6. naut. caup. for if such damage happen by a mariner, the Skipper shall refound the double, m d. l 6. & l. 7. eod. but he may repett it from the mariner. n d. l. 7. But it is not so if the damage be done by a mariner to another, except he be a Merchant also, or by a Merchant or Passenger to one another, then shall not the double be sought of the master. o Vide d. l. 7 & l. unic. furt. ad naut. caup. Neither yet is the master holden for anything without the ship, or yet within the same, if he duly forewarn each man to keep his own goods, and they agree thereunto. p l. fin. naut. caup. & per l. itaque de ed. edict. Such is the force of due protestation, according to the opinions of the most famous Doctors; q Bartol. & jason in l. non solum parag. mortem. de now oper. nunc. which conditions aforesaid, are most justly laid upon the master, because he ought to hire good men, and no evil person in his company: r Instit. de ob. qu● ex delict. parag fin. for it is in his own free will to choose his company, and he should not be ignorant of the men he hath to do with; s l. quicu● alio. de rog. iur. otherwise, if the master were not so obliged to all such duties and diligence for the Merchant & Passenger, there should be great occasion of stealth & spoil. t l. 1. in fin. naut. caup. Lastly, if through the Master's fault, confiscation, or other damage happens, as for nonpayment of the custom, or false bills of the goods customable, or for transporting of unlawful goods, the Master shall refound the same with the interest. u Seund. fin. l. ult. ad l. Rhod. & l. quum proponas C. de naut. s●●nor. But concerning the pursuits of these aforesaids, as the Merchant may well pursue for the spoiled goods only: x Accursius in l. 5. naut. caup. per l. mela ad l. aq. even so may the Master pursue the stolen goods; as he who must only, at least, chiefly, answer therefore. y Per. l itaque de furtis. And yet for all this, in case for want of these things, which the Merchant at the fraughting promised to be done at the entry to the voyage, any of the aforesaid losses happens, and therewith the Master and four mariners swear no fault to have been in them, the Master shall go free. z La reol d' Oleron. And yet must we not overpasse this observation, that if the Master offer the just custom, anchorage, or whatever other duty pertains to any Customers, and he, because of their unrighteous refusal, makes sail, the weather and his necessity so requiring, then may he be justly defended afterward against that Customer. a Per l. quantae: de pu●. 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 Per l. fin. parag. si propter necessi●atem eod. TIT. X. The Master's duty to the Mariner. SEeing the Master is the ordinary ruler over his own kippage or company, he ought to keep them in peace so long as they eat his bread. a Oleron. And if any mariner hap 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 Per. l. 1. de exerc. act. & l. fin. naut. caup. and then by his authority, repeit or recover from the other mariner, the charges, with all that is lost to the hurt man thereby: c Art. 5. ll. naval. except that he who is hurt or lamed, have provoked the other by evident invasion, assault, or strokes. 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 Per. l. ulr. ad l. Rhod. But if a mariner be not hurt in the ships service, the Skipper shall hire another in his place; who if he draw more hire, than that mariner shall refound the superplus. f Oleron. And always the Master ought to lend his mariners if they lack g Eod. Item, if through the Master's fault, the ships boat perish with any mariners in it, as through spoilt tews, etc. then shall the Master pay one whole years hire to the heirs of the drowned: h Art 46. i'll. naval. Item, he ought to give his mariners, flesh upon Sunday, Tuesday, and Thursday; and upon other days, fish, or such like, with sufficient drink: but no meat to them that sleep not in the ship. i ll consolato. And yet the quality and quantity of mariners food and hyres, goeth diversely, according to the diverse customs of Countries, and the conditions made at the entry to their voyage. TIT. XI. Of the duties and privileges of Mariners. Mariner's owe all due obedience to the Master, not only in flying from him in his wrath so far as they can, but also in suffering; yet may they after one stroke 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 half hire, with all the goods he hath within shipboard. a Oleron, & il consolato. But if in this strife a mariner useth any armour or weapons, than should the rest of the mariners bind 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 he hath within shippe-boord. b Il consolato. cap. 160. Yea in case any number of the mariners would conspire to force the Skipper to pass to any other Port, than to the which he was fraughted, then may they be accused criminally, and punished, as for a capital crime. c Denmark. 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 obtain his hire. d Oleron. Mariner's ought each one to help and assist others on the sea: or else he that refuseth, loseth his hire; and the oath of his fellows shall be a proof against him. e Eodem. Mariners in a strange Port, should not leave the ship without the master's licence, or fastening her with four ●ewes; or else the loss lights upon them. They should also await upon the ship until she be discharged, and ballasted new, f Denmark. Oleron. and the tackle taken down. And if a mariner, in time of losing and lading, labour not with the rest of the company, but goes idle and absents himself, he shall pay a fine to the rest, prorata, at the Master's discretion. g Denmark. At least, the half of the kippage or company, aught in strange country port or road to stay aboard: and the rest who go aland, albeit with licence, should keep sobriety, and abstain from suspected places, or else should be punished in body and purse, like as be who absents himself when the ship is ready to sail. h Denmark. Yea, if he give out himself for worthier than he is in his calling, he shall lose his hire, half to the Admiral, and the other half to the master: i Eodem. but this especially aught to be executed against an unworthy Pilot. k Eodem. The mariner also forfeits his hire if the ship break in any part, & he help not with all his diligence to save the goods. l Oleron. 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 Eodem. except it be otherwise provided. A mariner may carry as much meat forth of the ship as he may eat at a meal, but no drink. 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 ship stay upon the preparation for his portage. o Eodem. So that in case the ship be fully laden before the goods for his portage be brought in, he shall have the just fraught of so much goods. p Il consolato. If a ship pass further than the mariner was hired, his hire should be accordingly augmented; except he be hired, as the French man speaks, a mareages, mais non à deniers. q Oleron. If a Mariner run away with his hire undeserved, he deserves the gallows. r Denmark, & Oleron. If a mariner be hired for a simple mariner, and afterward in the voyage finds hiring tobe a Pilot or a Master, he may pass with provision to render his former hire: even so is it if he marry. s Eodem. Mariners are not only holden to lose and deliver goods overboard; 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 Il consolato deal ma●e. If it happen a ship to be prized for debt or otherwise to be forfeited, yet should the mariners hire be paid; and if she prosper, to receive their pay in the same money that the fraught is paid with. u Eodem. Lastly, a mariner should neither be arrested nor taken forth of a ship making to sail, for any debt (but only his hire, and as much other goods as he hath in the ship arrested therefore, according to the quantity of the debt, and the master to be answerable for all: x Oleron. Denmark. Kinror. because the ship is compared to a man's dwelling house; y Bald. in l. certi iuris. loc. and by the Civil law, a man's dwelling house is his most sure refuge) z l. nemo. de reg. iur. & l. plerunque. de in ius voc. except for a sworn debt, or a penalty to the King through some crime. TIT. XII. Of the Clerk of the ship. IN ships of great bulk and burden, a Clerk is most needful: who being put in by men of chief power, and sworn solemnly before some judge, as the use is in Italy (or at least before owners and mariners) that he shall write nothing but the truth, nor leave aught unwritten; being, I say, so constitute, neither Merchant nor mariner may put in or take out any thing of the ship without his knowledge. So that whatsoever goods or other thing shall happen through storm or otherwise, to be cast, stolen, or spoilt, that hath not been presented or shown to the Clerk, it shall no way be up●set 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 ships need, but must satisfy the owner thereof: for he must be always countable of his receipts: a Il consolato. But howsoever he do, he may neither take in, nor give forth goods by night, but in day light. b L' Admiral de France. Vide statuta Ang. TIT. XIII. Of a Pilot or Steirsman. IF a Master hire a Steirsman not only for to guide his ship in through shalds or other dangers at a time only, but also for a whole voyage, and to be ready therefore against a certain day, and he fail to keep that day, he shall not only pay Master and Merchant's damage or stay, but also the fraught that is lost thereby: except sickness, or some very lawful excuse qualify it. a Oleron, & arg bult. ad l. rhod. A Steirsman, after the time he hath brought the ship in sure harbour, is no further bound or liable; for than 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 she or goods perish or be spo led, the Pilot makes good the same: yea, if his faul● or ignorance be so gross, 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 Oleron & il consolat. Yea, if without any seeing danger, certain of the skilfullest mariners deem that he is not so skilful as he set himself forth to be, then shall he both lose his hire, and double the same to the Admiral and Master, or else pass thrice under the ships keil. c Denmark. TIT. XIV. 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 money is called pecunia Traiectitia, because that upon the hazard of the lender it is carried over Sea. So that if the ship perish, or that all b● spoiled, the money loses to the lender. a L. r. de foes. naut. 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 soenus nauticum, which is not the price of the loan, but of the hazard and danger which the lender takes upon him during the loan: b L. periculi. eod. which is understood to be to 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 f●ll loan; then the peril pertains to the borrower thereof, and not to the lender: c Vide passim ad. ll. de foes. naut. & ad. ll. naval. Rhod. I mean 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 employ the lent money upon lawful goods, or that by his defrauding of the due customs, the same be confilcat, the lender is freed of such hazards. d Vide l. 3. C. de foes. naut. 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 Clerk's book with the profit; contrary to that which is lent on land: e Art. 15. & 16 Leg. naval. 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 rendering, shipwreck or spoil happen, than should the loss come in contribution between them; f Art. 17. eod. because if that money had been lying by the lender, still unlent, it had been in common danger of shipwreck of spoil with the rest. But if the time appointed were passed with the hazards aforesaid, then shall the borrower repay the borrowed money, free from all contribution. g d. art. 17. Further, in case the borrower detains any such lent money as is aforesaid, beyond the term 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 Art. 18. eod. TIT. XV. Of the Outreaders, or Outriggers, Furnishers, Hyrers, and of the Owners of Ships, and of actions for 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 Master of the ship, to pursue him; but also the outreader, setter, or exercitor thereof, as him who placed the Master; and therefore aught to make good the Master's deed and fact. a Parag. exercitor. just. de ob. ex quasi delic. T. T. naut. coup. This outreader we take to be him to whom the commodity of the ship b eod. ibid. redounds; so that he may lay his action upon any of them; Ne in plures adversarios distrahatur qui cum uno tantum contraxit. c d. l. 1. 2. & 3. eod. But the rest of the owners or outreaders shall relieve this man prorata▪ of their portions; except the handling of the ship be so severally divided amongst them: or that the Master have not his power and commission of them all: d l. 4 in prin. eod. or that the master have obliged himself beyond his commission; as if he have taken on money to mend the ship, when as she needs it not: or that he have no commission at all; in which case the lender hath to blame his own folly: for by the common rule of Law, men should know well the persons and their conditions, with whom they have to bargain. e d. l. 1. & l. qui cum ali● de reg. iur. 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 satisfy the creditor. f l. ult▪ de exer. act. But above all, that money which is lent for victuals to the ships company, should be repaid, as preferred before all other sort of debts. ff Per l. interdum. cum seq. Qui p●tior in pig. 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 he hath been hired and put in by the outreader. Again, albeit by the common law of the Sea the outreaders may not pursue persons obliged to the Skipper, yet are they permitted to pursue upon the Master's contract, as they had been contracters principal; g Passim. d. l. 1. because in such dealings he sustains the out●●aders person: and because of the great commonwealth that is Procured by this kind of traffic, h d. l. 1. parag. 10. worthily such privileges to the outreaders and exercers of shipping are granted. And yet is not the Master always bound to satisfy all counts to the outreaders: specially, in case it happen some passengers to be Non solvendo, the Master is nor holden to pay for them, because it becomes not the Master, in the acceptation of Passengers, to search out so narrowly their means and ability. i l. 2. sect. 6. 〈◊〉 l. Rhod. And again, the outreader is not holden always to answer for the Master's sloth, but for his own self. 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 law they cannot be constrained thereunto: a l. fin. C. prosocio. & pass. inst. & D. eod. yea, not albeit a Paction had been made never to sunder; b L. in hoc parag. si conveniat. pro soc. then is there many considerations required in their sundering. 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 employed one voyage first, upon the common outread and hazard, before any of these Partners be heard to sunder & discharge their part. And after that, if they cannot agree, he who desires 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 outread with the rest, then may the rest rig 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 profit at her return: c Denmark. cum ll. hic seq. but they 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 that dwell in the mountains, as on the coasts of the sea: d l. arboribus parag. naves de usufr. so were they ordained and builded for sailing, and not to lie idle and unoccupied. e Glossa in l. si navis. & iuris. in l. utique para. culp● de r●iundic. & l. arborib. parag navi●. de usufruct. 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 appraisement. f consolato. Otherwise, the scoff which Casselius, a Roman lawyer, used against two wilful partners of a ship, may also 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 Maerobius 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 satisfy the poor man, perchance also wilful; 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 Secundum citata, & Secundum. l. bona fides. Deposit. TIT. XVII. Of Casting of goods in a voyage, and the like; and of Contribution to be made therefore. COncerning contribution or scott and lot, as we speak, it is ordinary: and first, it is practised upon ships so stormestead that for relief of lives and goods, casting of goods must be made: In that case the master shall consult with the mariners: who if they consent not, & yet the storm and danger continue, then may the master cast some goods notwithstanding: a Oleron. But if the merchant be present, let him begin to cast, b Il consolato. next the mariners: but if the mariner keep back any part that should be cast, to his own use, he shall render the double. c Art 3●. Il maval. select. But when afterward the master shall come to land, he must with the most part of his company swear that he did cast goods for no other cause but for the safety of ship, goods, and lives d Oleron. Secondly, when goods are cast, they shall be upset and compensed by a contribution of Ship and such goods as are safe thereby: e l. 1. & 2. ad l. rhod. and not only of goods paying fraught and burdensome, but of clothing, money, jewels, and such like, f d. l. 2. & oleron which are not weighty. For, it is most righteous, that the loss be common to all things which are safe thereby. g eod. Except things borne upon a man's body, victuals and such like, put in ship to be spended, and therefore should not scott and lot, with other goods: in so much, that when they become scant and wanting, each man is bound to communicate the same one to other. h d. l. 2. But here it may be asked, whether yet should all kind of cast goods, be up-set and made good by contribution, as for example, the goods transported above the overlap, and goods forbidden to be transported i l. 17. etc. 130 actor. jacob. 3. Sure, if such goods happen to be the cause of any scathe and danger, the master who received the same within his ship, shall bear the loss and also be criminally pursued therefore. k Arg. l Vnie. C. ne quid oner. public. But if goods unadvisedly, without consent of the owner thereof, be cast out, on the sudden; then may he himself upon his conscience esteem his own goods to the just worth, because the company hath that way by their rash dealing, lost the privilege they had to estimate that goods. l Per. l. si fide. iussor. D. qui satisd. cog. In like manner the ship gear and apparel wracked by storm, imports no more contribution, then if a workman break or spoil his work-tooles, or instruments in his ordinary work, m d. l. 2 & l. navis eod. except in the avoiding of a danger, as the helving the mast overboard, n l. amissae. eod. & Oleron. or the slipping of a Tow-anchor or boat upon just fea●●, or at the desire of the Merchant's. o d. l. 1. & i'll consol. del. mar. 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 domestics and company familiar. p Per. l. conse●su. C. de repud: & l. qu●ties. C. de naufrag. etc. veniens. extr. de testib. etc. 2. de pr●bat. Also if goods be put in without the master and clerks knowledge; if they be cast, they shall have no contribution. q Il consolato del mar. TIT. 18. Of contribution for Pirates. IF ship or goods be redeemed from a Pirate, contribution shall be made therefore, by all; because the redemption is made for the safety of all. But if the Pirate be once Master of all, and yet take but some 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 Pirates take but things at their pleasure, and not of mind to spoil. a Vide lat●. l. 2. ad l. rhod. Yet now adays because this chance of taking at pleasure, concerns (in common judgement) the rest of the goods as subject to that same pleasure of the Pirate; therefore should it be also in common upset by all to whom that chance is common. TIT. XIX. Of contribution for spoiled and spilt goods. IF through the losing of any cast goods, or upon any needful occasion, the remaining goods be spoilt either with wet, or otherways; a contribution shall be made, proportionable for so much as they are made worse. a Vide l. navis 4. ad. l. rhod. TIT. XX. Of contribution for lightning and disburdening of ships for their easier entry to the Port, and for other chances. IF it be needful to lighten a ship of her burden, for her easier entry to Port or channel, the two parts of the loss 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 itself: a Oleron. Or that otherways it be provided in the charter-party, that the goods shall be fully delivered at the Port covenanted and appointed; for then condition makes law: b L. 1. verse quod convenit. depos. 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 d. l. navis. & 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 Oleron. as also to raise the Ship off ground when the fault is not in the Master. e Eod. Even so if two ships rush and cross one over another, and the company swear their innocence, as that it lay not in their power to stay the same, contribution must be made for one equal upset of both their losses. f eod. & l. quemadmodum. parag. si navis ad. l. Aquil. 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 recompense. 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 d. l. quemadmodum. parag. si navis ad. l. Aquil which action is called Legis Aquiliae, for damage and scathe done. And therefore if such a chance befall in the day light, by a ship under sail against a ship riding at anchor, than the Master of that sailing ship, shall make good the damage or scathe of the other, to the extremity: and the like shall be done, if in the night the riding ship hold fire and light forth, or make any crying to forewarn the other. It also pertains to this argument, h Art. 3. 6. 11▪ naval. rhod. if some sort of goods, as salt, or corn, be laid on heap by diverse partners, into a ship without distinction, and that the Master deliver to any of them their due measure, and before the rest receive their measures, the remaining salt or corn, washes or loses, he that had the good luck to be first served, enjoys it fully without any contribution to the rest of the partners: (ay) 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 value or such like coin; k Iust. in pr. qu●b. mod. re contrab. ob. ●e. l. 2. si cert. peti. except l quod convenit de verb. ob. there be some other condition passed before: which in all affairs maketh law. Neither can this be imputed for any fault to the master, because of necessity he behooveth to make delivery to one, first, before another. m Vidd. l. in menave. TIT. XXI. Of the common manner of contribution, and execution thereof. IN setting of contribution or rates, things must be estimate in manner following. First, the goods cast, spoiled, or reft; to the price they cost, if their chances did happen before mid voyage: but if after the mid 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 scathe than of any gain. a l. 2. in fin. ad l. rhod. & il consolato. And because damage and loss should be drawn as it were in streite, and gain and vantage spread forth and extend, according to Harmenopolus sentence; spoilt and lost goods should be set to the common worth, and not after men's affections: b d. l. navis & l. pretia. ubi bartol. ut ad. l. 7. C. de prog. military. lib. 12. 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 privilege) the estimation of the goods is permitted to the conscience of the Merchant or owner thereof. ( c Per. l. si ●ideiussor. Qu●. satisd. cog. Vide supratit. 17. Secondly, concerning the Persons, whose 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 l. 2 ad l. rhod. or else may omit all other persons, and pursue the Skipper ex conducto: which also ceases, if the cast goods be found again. e d. l. 2. in fin. Lastly, concerning the Master of the Ship his privilege, it is not only upon the detinew, and keeping of the goods and gear 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 consent of lawyers, but also for the due and timely satisfaction of such contributions; because 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 l. 1. de dol. mal. excep. & l. si non sortem. de cond. in the. albeit that commonly the withholding of other men's good be not allowed. g l. 1. parag, rediguntur. D. quod vi ●ut clam. TIT. XXII. Of privileged ships. Ship's or boats serving the Country, or the Prince, have great prerogatives. For first they go free from all Imposts, Customs, and Arrestments, a l. 1. de navicul. c. lib. 11. not only in forth-going, but also in their return, according to Frederick the Emperor his constitution. b Auth. 〈◊〉 filiu● pre patre. Yet if a Skipper serving the Prince or Country, wilfully falls on coasts and by-courses where he should not, to their hurt and hindrance, he merits death: c l. 5. de navicular. C. lib. 11. and the commanders or officers in chief parts, who wittingly suffer such Skippers to lie and slugger, incur a forfeiture of all their goods. 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 be publicly punished. e Art. 49. Il. selectar. naval. And as these are the conditions of ships serving the Prince; so is it to be known that all sorts of ships are subject to this service, upon command: f Vide Tit. de navib. non excusand. C. otherwise in case they refuse, their ships shall be confiscate, except they report a testimony from the Admiral of very lawful excuse g de office admire. Ang. 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 Albericus ad tit. naut. caup. & in l. unic. furt. adver▪ naut. caup. except they have left the trade, or be under a safe conduct, or have taken in more, than they can well carry a shipboard. i Bart. & Bald. in d. l. unic. And this is a common privilege to all sort 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 Wis●i● c. 10. Lastly, even the persons who build, purchase, or dress ships expressly for a commonwealth to their. Country, are accounted amongst the privileged: l Qui navium de privileg. creditorum. yea the frequenters of sailing are also privileged in all Courts. m C. Innocentius. de for. comp. TIT. XXIII. Concerning Shipwreck. Stranger's incurring shipwreck in Scotland, should have the same favour of us that we use to receive of them in the like case; a 138. actor. jacob. 1. so that no confiscation should be used against them, except they use to do so to us, or that they be very Pirates, or enemies to Christianity: b L. 1. C. de naufrag. & auth. naufragia, C. de furt. otherwise, who steals any such miserable goods, shall pay fourfold to the owner, if he be pursued within a year and a day; c l. 1. in pr. de incend. ruin. l. in eum cum auth. seq. de furt. and as much to the Prince or his Admiral: yea, the only stealing of a nail, or the worth thereof, maketh the thief guilty of all, to the rendering of all the remaining goods. d l. 3. in fin. de incend ru. nauf. 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 Galleys or metal mines. e l. Pedius 4. eod. 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 murderer. f Arg. l. Sacc●larij de extraord. crim. And therefore may no man hinder ships from forthlaying of Tews & Anchors upon land: * Gaius l. 5. de rer. divis. as was decided betwixt Couper and Seagy, Anno 1498. mense julij, g Tom. 1. regis●. Scot In like manner, if any man should be so accursed as to hold forth a Lantern in the night, of intention to draw on ships to a danger, in place of a good port or harbour or safe road, that wicked person should be punished to the death. h Per d. arg. l Saccula. ●i. Yea, though no harm happen, yet may the Admiral punish him at his pleasure: i Per l. 10. de incend. ruin. nauf. And therefore even Fishers are forbidden to fish with light in the night, lest that Sailors thereby be deceined with the false show of an harbour. ii l. ne piscatores eod. But for the better eschewing 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 l. ne quid eod. & auth. naufragia. C. de furt. Item, if no man in due time claim such a wrack, it fell of old to the Prince his customers, according to that of Hermogenes and Fortunatianus, l m. Cod. Theodo. Naufragia ad publicanos pertinento; but nowadays to the Admiral, by the Princes grant. But concerning the action for shipwreck, it should be intended within a year and a day, m l. si quis. C. de naufrag. lib 11. and sped by the judge within two year. n Vide l. de Submersis. eod. Where it is to be marked, that if the ship only perish and the goods are safe, in that case the goods shall pay the fifth or the tenth penny; according to the easy or difficult winning and saving of the said goods; o Art. 37. leg. naval. Rhod. for gold, silk, silver, & such like things of easy transportation, should pay less than goods of greater weight and difficult transporting, as being in greater hazard: p Art. 40. eod. except the Skipper carryin his ship to a port or part where he should not, nor the Merchant would not; for than is the Merchant free of all the Skippers loss, q Art. 39 eod. and no way should upset the spoiled or broken ship. r Art 37. eod. But in cases of wrack, the laws of England are also to be seen: as, Westm. 1. 3. E. 1. vid. praerog. regis 12. TIT. XXIV. Of things found upon the Sea, or within the floud-marke. Ship's, goods, or gear, or whatsoever other things found within the Sea or flood thereof, are of three sorts: as, either found on the stream floating, 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-floud, as cast forth there by storm and the water; and then are called jerson. Concerning Floatson and Ie●son, whether things be cast up by shipwreck, or else left as lost through casting in storms, the finders thereof, as some Lawyers think, a Faber & alij inst. de rer. divis. sect. pen. 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 ●ynner of such goods remaineth still owner and proprietar thereof: b per l. Pomponius. parag. fin. de acquir. rer. dom. and if no man claim, the finder to keep it to himself if he be poor. c Faber. d. parag. pen. But according to the old Rhodian law, whether the finder be rich or poor, he may claim or rather retain the fifth part, for the safe keeping d Art. 45. & 46 Il. nava●. Rhod. If a Douker find drowned goods upon eight cubits deep, he gains the third part; and if on fifteen cubits, than he obtains the half; but upon one cubite, only the tenth part. 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 Auth. omnes peregrini communio de successionib. But nowadays 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 Oleron. which otherwise before was allowed to the finder: h Eod, Even so, when ships or boats were found on the sea, or at the coast thereof, without any living creature therein, and no man claiming the same for the space of a year and a day, than was the half allowed to the finder, and the remanent to the Prince, as a derelict: i Vide statu. regis Alex. Scot but since the erection and constitution of Admirals, this kind of found goods are diversely par●ed; for in France, the King, draweth a third, the Admiral a third, and the finder a third. k L' Admiral de France. And of old, in England, although such things were divided 'twixt the Admiral and the finder, l Vide de off. Adm. Ang●. yet now they are left to the arbitrement of both Admirals in England and Scotland, to consider the finder or taker with a condign portion, for his travels, charges, and hazard in all circumstances; m Per diplomata. even with the half at least, according to that which Tryphonius sets down, concerning things found on land. n l. Si is qui. 63. in fin. de acq. rer. dom. Yet, if the finder conceal such goods, whether anchors, timber, jewels, deadmen with money or jewels about them, etc. he not only loseth his just part, but may be also fined at the will of the Admiral. o L' Admiral de France. & d. depl. And thus far concerning things found by the labour and travels of men. If Whales, great gross fishes, ships, or boats, without any living in them, by force of wind and waves only, be driven to any coast or land, than all and whole appertains to the Admiral: and so generally, all casualties whatsoever. p Per dd. diplo. & de off. Adm. 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 Pirates, and sea-thiefes'; or from professed enemies in lawful warfare; or from such as not professing open war, allows taking reft to be exercised against us. Which kind of taking, is covered with the title of letters of Marque, called Ius represaliarum. And first, touching that which is taken from Pirates, 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 Pirate, he should make the same forthcoming to the just owner claiming the same; his cost, charges and hazard, being always considered and allowed; a Per l. Pomponius de acq. rei dom. so that if any man buy or redeem his neighbour's ship from a Pirate or enemy, he must receive the price thereof from the owner. b Per l. mulier. de cap. & post. But if no man claim the goods taken from a Pirate, then should the same be delivered to the Admiral, who ought to consider the taker with his due part thereof. 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 restored to the owner; for that by the law, Huiusmodi res non tam capta quam recepta intelligitur. c Per d. l. Pomponius, & per l. in bello. parag. si quis seruum in pr●ae capt. & post. But when such goods become 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 Abraham returning from victory over five Kings, offered to Melchisedeck: d Gen. 14. and the remnant of the spoil should be proportionally divided amongst the takers, according to the law of God, set down by Moses, e Deu. 20. and practised by King David; f 1 Reg. 30, and yet not only amongst several persons, according to every man his proved travel and hazard. g c. dicat aliquis parag. 23. q. 5. etc. ius milita. re dist. 1. So that the ship that sets no sail, fights not, nor hazards not with the rest, should have no part with the rest, thereof. h L' Admiral de France. Provided always, that first and foremost, the prisoners, captives, and taken goods of preys, 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 forthcoming to the Admiral, and just owner, according to a decision passed betwixt the King of Scotland and Maubray, Anno 1487. 17. junij. i Tom. 1. c. 24. ●●gist. Scot If two foreign 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 captives, to their former liberty, even as if she had been brought back to her own Port and Country again. k Per. l. postliminium. parag. postliminio. de. cap. & postlim. Besides that, generally in all cases, the action and cause of liberty, as privileged, should be favourably considered: l Per l. libertas. de reg. iur. and it is the honourable practice of Princes, to make their Countries an Asylum, or sanctuary, to all distressed strangers that be not Pirates. Lastly, concerning letters of Merque, as we speak, or droict de Merque, as Frenchmen term it, sive ius represaliarum, and goods and things taken under that title upon sea; surely, as far as we may, we should press to keep God's law set down by Moses, m Deut. 14. 16. practised by King Amasia, n 2 Reg 14. 6. & 2 Chr. 25. 4. and confirmed by the Prophets: o jer. 29. 3. Ezech. 18. 20. that the father should not be punished for the son, nor the son for the father, but a difference to be always put betwixt the guilty and the innocent. Which thing moved Emperors to make constitutions for the repressing of represalies in certain respects. p Vide an●hent. imo. C. ne filiu● pro patre. Notwithstanding, if our patience be so oppressed with the increase of robberies, spoils, and violence upon sea, by men falsely professing friends, in such sort that upon no supplication, intercession, nor other travels, the Princes of these wrongful Nations (who only 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 such a calamity may and aught to be repressed, at least by these represalies and letters of Merque; q Vide Bartol. latè de represal. specially, sith that cause, in effect, resembles a war denounced without solemnities of clarigation. And therefore, both according to the laws of England, letters of Merque are allowable; and according to the old custom of Scotland; and the tenor of the Act of Parliament made by james the first of Scotland, r ●. 131. actor. concerning shipwreck, 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 show to us. 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 one requisition; so that it be done by the Prince, and solemnly: s Per gloss. in c episcopus. 18. dist. & DD. in c. si contra. etc. 1. de milite vasallo qui contumax. than what goods happen to be taken by that means, should be brought and presented as aforesaid before the Admiral; t Per l. si quis in servitute. de furt. & l. ait praetor. parag. si debitorem. Quae infraud. cred. that a just Inventary may be taken thereof, for diverse good respects. 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 l. 1. in fin. de acq. rer. ●om. & parag ferae insti. de rer. divis. because what wild beast, fowl, or fish be once taken by any man, commonly it becometh his own proper by the laws of Nations; yet is there a difference 'twixt these three: for, albeit hunting and hawking be almost every where lawful, yet fishing is forbidden in other men's ponds, stanks and lakes, b l. iniuriorum 13. parag. fin. in fin. de iniur. jacob. 3. act 60. & jacob. 5. p. 4. cap. 12. as comparable with the●t. Yea, now adays, 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 l. prascrip de usucap. for such prescriptions only pertain to Princes. To return to the quality of fishing; sith it is not only allowable to all sorts of persons, d c. 1. & 2. de cler. venat. etc. 1. in cleric. & mon. but also commendable, and always to be preferred to all other trades and traffics upon sea, not only for necessaries, but also for the great good and profit redounding thereby; all civil and virtuous Princes have diversely forthshowne their care, for the entertaining and advancing thereof: as, by ordinances to build ships and boats to that purpose; e Vide late. act. parl. Scot and by their wise appointing of certain only times for the fishing, as namely, of Salmon, under pains 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 Vide statuta, & constit. & act. regum Franc. Angl. & Scotiae. Which Princes also (for the increase of fishes) have, as it were with common consent, forbidden the making, setting, and using of crows, yarrs, dams, fosses, tramelets, parkings, dyking and herrywaters, in any waters g Vide statut. Angl. & Scot & l' Admir. de France. where the sea ebbs and flows, under pain of confiscation of all the goods of the transgressors in Scotland. h jac. 6. parl. 6. cap. 89. Yea, albeit that any man were of old infefted with keeping of crwiffes, wears, and kiddles, etc. yet must he keep the Saturdays slop: that is, to lift the same from Saturday at afternoon till Monday; and also to make each heck or mesh of his crwiffe three inches wide, i jac. 1. p. 1. c 11. jac. 6. p. 7. c. 11. except for taking of smelts, loches, and such like that will never be bigger: as also, for to set the same upon the waters, that the midstreame may have the just space of six foot wide, under the pain of five pound. m jac 3. p. 10. cap. 73 And thus far concerning the maintenance and increase of fishes, by our Scottish laws and custom. It followeth, to set down concerning the Fishers their safety and privileges. Wherein it is provided, first, that all Ships sailing into the parts where Herring are taken, at least during the taking thereof, shall let down ●aile after day light passed, let their Anchor fall, and keep watch with Lantern and light, until day light appear again, lest otherwise the poor Fishers should be overrun, or their nets broken: their pain in Denmark, is death to the transgressors: n Denmark. and the Fishers are likewise forbidden to use light in their fishing by night, lest they deceive sailors with the false show of a port. nn Ulpian in l. ne pifcatores de incend. ●ui. naufr. Likewise, lest any of the Fisher's harm or hurt one another, it is diversely provided, as also concerning the right measure of their nets in length & in breadth; o Vide l' Admirall de Franc. as may be seen by the Statutes of sundry nations Vid statuta Angliae. And specially therefore it is agreed of long time sithence, by the Seafarers on the Forth of Scotland; p Vide Forman his Register. first, that no ground-draffe or drag-net, be set before March, nor upon deeper water than fourteen fathom. Item, that none shall lie to their neighbours when he shall be asked concerning the length and depth of his tewe, when he is in driving: neither 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 foresaid pain. Item, for the further encouraging of Fishers in the West and North Isles of Scotland, there is a Statute that no other customs be sought of the Fishers in the said I●es, but only the King's customs; under the pains due to manifest oppressors against them who exact the same. q Mar. p. 6. c. 5● Lastly, concerning Fishers and traffiquers with fishes, it is ordained that not only all fish slain and taken near to the coast of Scotland, be brought and presented to the market places, where the takers or slayers thereof dwell: r jacob. 5. p. 9 c. 98. but also all fishes taken in the North and West Isles or Firths, to be brought directly to the towns where the Fishers dwell (that the need of the country may be first served) s jac. 6 p. 4. c. ●0. and presented to the market places: from which none may carry them away to pack and peil, but only betwixt the hours of eleven and two in the afternoon, under the pain of confiscation. In which markets, it is lawful to the Provost & Bailiffs to set down prices, and to compel the packer and peiler to sell again for the need of the Liege's. t jac. 5. p. 7. c. 98 Which being done, they may transport the remainder where they please. u jac. 6. p 4. c. 60 And in case they contemn, than their fishes to be escheat, two parts to the King, and the third to the Magistrate▪ x jac. 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 galons; y jac. 5. p. 4. c. 57 jac. 6 p. 4. c. 147. and the barrel of Salmon of fourteen galons, according to the measure of Hamburg, z jac. 3. p. 10. c. ●76. under the pains of escheting there of from the pa●ker, and of five pound to be lifted from the Couper. a jac. 3 p. 10 c. 76. And therefore hoop irons to be made in each town, for the trial and gauging thereof b jac. 3. p. 14. c. 100 Vid. statuta Angliae. Tit. of fishing; in the Abridgements. 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) entitled Mare liberum, containing in effect a plain Proclamation of a liberty 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 Discourse, 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 God's grace, to occur thereunto; as manifestly direct, at least (in my weak sight) tending to the prejudice of my most worthy Prince and his subjects; 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 pass the Author his ridiculous pretence, in both Epistle and beginning of his Discourse; as for a liberty only to sail on Seas: a thing far off from all controversy, 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 persuade both myself, 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 remembering the first ground, whereby the Author would make Mare I●herum, 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 lie 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 perfect Globe, for their more mutual service to man's use: according to this, immediately after the creation, God saith to man, a Genes. 1. 28. Subdue the earth, and rule over the fish: which could not be, but by a subduing of the waters also. And again, after the Flood, God saith, Replenish the earth: b eod. c. 9 v. 1. 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 eod c. 11. v 8. therefore is it that Moses saith, d eod. c. 10 v. 5. 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 said, yet in his mercy also and indulgent care, for the welfare and peace of mankind. For those are sentences both vulgar and sure, set down by the Roman jurisconsults, e Vlp. l qui neque. de reb eor. quisub ●utel. Communio parit discordiam. Quod communiter possidetur, vitio naturali negligitur. Habet communio rerum gerendarum difficultatem. f l. pa●er. parag. duluss●●iè 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 necessary for the use of man. For the which, and other causes above mentioned, the waters became divisible, and requiring a partition in like manner with the earth; according to that of Baldus: Videmus, de iure gentium, in mare esse regna distincta, sicut in terra arida. g Ad legem 1▪ de rer. divis. And thus far have we learned, concerning the community and propriety of land and sea, by him who is the great Creator and author of all; and therefore of greater authority and understanding then all the Grecian and Roman Writers, Poets, Orators, Philosophers, and jurisconsults, who-so-ever famous: whom the author of Mare liberum protests he may use and lean ●o 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 1. officior. Sunt privata nature a nulla; and likewise of all other his authors their opinions, for the fortification of an original community of things. It followeth to examine the chief warrants of Mare liberum; and to consider how far they may bear forth to a common liberty for fishing, on all seas indifferently. The author cities Ulpian, a renowned jurisconsult indeed, and Martian their sentences; alleging h pagina 25. that Ulpian should say, i l. iniuriarum. parag. ult. & parag. si quis de in iur. Ante aedes meas aut praetorium ut piscari aliquem prohibeam, usurpatum quidem est, sed nullo iure, adeo ut contempta ea usurpatione, iniuriarum agere potest. sz. prohibitus. That is to say, if I should forbid any man to fish before my house, he may mis-know such an usurpation, and intent action of injury against me, for a wrongful staying him from fishing there. But as I read, k d. p●rag. si quis. Ulpian his words are thus; Sunt qui putant iniuriarum me agere posse: that is, there are men who think, I may intend action, etc. It is true also, that Martian saith, Nemo ad littus piscandi causa accedere prohibetur. l l. 4. de. rer. divis. And yet neither of these two jurisconsults, pronounceth absolutely in these cases, but upon another higher warrant: and therefore Ulpian adds, Saepissime rescriptum est n●c piscari, etc. prohibere posse. m d. parag. si quis in fin. That is, it is by writ most often answered, etc. Which Martian expounds most clearly, when he saith, Nemo igitur ad littus maris piscandi causa accedere prohibetur; and subjoins his warrant, Idque Divus Pius piscatoribus Formianis rescripsit: n d. l ●. de rer▪ divis. 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 see the Emperors to have been warrants to these Lawyers, and their written opinions, concerning the voyage of the sea. 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? jure 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-shoare, and coast, that private men may build houses within the floud-marke, and appropriate them to themselves, according to that which Neratius writes, Quod in littore quis aedificat, eius fit: o l. quod in littore. de aeq. rer. dom. that is, what a man builds on shore, it becometh his own; yet upon this condition, Tamen decretum praetoris adhibendum est ut id facere liceat, saith Pomponius: p l. quamvis. de acq. rer dom. that is, providing the Praetor his decree be interponed thereunto; or that the Prince give grant, as Ulpian writes; q l. prohibere. parag quod et si. Quod vi aut elam. Velure ut princeps concedat. As for the remnant of these sorts of warrants alleged 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 stay further upon them. So that every man may see both the use of the word commune, and the meaning of jure gentium among these Lawyers, whereupon this Mare liberum appears so to be founded, that it cannot be shaken. For, common, there is nothing else but publieum, q●asi populicum; 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 Modestinus, Roma communis patria est. r l. Roma. ad municipal. Neither yet doth that word, jure 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 shore, 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 shores. Likewise, that of Placentinus; Quod mare sit in nullius bonis, nisi solius dei: that is, GOD is only Lord of the sea; and so say we with King David, that the land also is the Lords. s Psalm. But that of Faber, t Ad parag. littorum inst. de rer. divis. Mare esse in primaevo iure quo omnia erant communia, I need no otherwise to refute now, than I have done above already. And these are the Authors and warrants whereupon Mare liberum infers his conclusion; Demonstratum igit ur nec populo, nec privato ius aliquod in mare competere posse, quum occupationem, nec natura, nec publici usus ratio permittat. u Pag. 28. 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. 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 a●d 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 jurisconsults indulgently grant to the land, which also cannot be denied. Paulus the jurisconsult saith, x In l. possideri. de acquir. poss. Qui fundum possidere velit, non utique omnes glebas eius circumambulet, sed sufficit quamlibet partem eius introire, dum ment & cogitation 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 enterin 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. 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: because it keeps the prescribed bounds strictly enough, Psal. 104. 9 concerning the chief place and limits thereof. Which discourse, gives us occasion of force to answer to a scoff cast in by the Author of Mare liberum, concerning the possibility also of marches and limits, for the division of the seas: y Pag. 38. Mundum dividunt (saith the fore●aid Author of Mare liberum) non ullis limitibus, aut natura, aut manupositis, ●ed imaginaria quadam linea: quod si recipitur, & Geometrae terras, & Astronomi coelum 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 fantastic line: which kind of doing being embraced, the Geometers may steal away the earth, and the Astronomers the heavens from us. It is true, that there are not in every part of the sea Iles sensible (as Gernsey is to England in the narrow seas) or sands (as the Washeses at the West seas of England) nor rocks, or other eminent and visible marks above water, for the designation of the bounds (or layingout the 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 heart to man for the same effect, as well as for all other necessary actions wherein he hath to employ himself: so that to a very wonder, God hath diversely informed men by the helps of the Compass, counting of courses, sounding, and other ways, to find forth, and to design finitum in infinito; so far as is expedient for the certain reach & bounds of seas, properly pertaining to any Prince or people. Which bounds Bartolus z insect. nullius in tractat. de insula. hardily extends and allows for Princes and people at the sea side, an hundreth miles of sea forth from their coasts, * Per l notionem de verb. Sig. at least; and justly, if they exercise a protection & conservacy so far: and this reach is called by the Doctors, Districtus maris, & territorium. a Gloss in c. ubi periculum. parag. porro. de electionib. lib. 6. It is true, Baldus b m l. si testamentum. de inst. & subst. esteemeth potestatem, iurisdictionem & districtum, to be all one. To conclude then, since Papinian writes in finalibus quaestionibus vetera monumenta sequenda esse; c l. in▪ finalibus. come. divid. what more evident monuments for our King his right in the narrow seas, than these Isles of Gernsie? etc. And for the Eastern seas, direct from Scotland, what is more anciently notorious than that covenant 'twixt Scottish men and Hollanders, concerning the length of their approaching toward Scotland by way of fishing? And thus far through occasion of answering to that alleged 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 aye to be one and the self same body, but daily changeable. For answer, I must remember that which the jurisconsult sets down so prettily: d In l propon●ba●ur. de iud. , Suppose (says he) a certain College of judges, or a Legion of Soldiers, or the particular parts of a Ship, or of a man's body, should so continually and often be changed and altered, that none of that first College 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 the very same that it was at the first; yet if that College or ●egion 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 ways and hourly changes, in the small parts thereof, by the ordinary rush on land, mixture with other waters, swelling in itself, 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 nature a iubet esse common: e Pag. 21. and for what reason? Even because Cicero, Virgil, and Plautus have said 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 numero eorum quae in commercio non ●unt, hoc est, quae proprij iuris fieri non possunt: f Pag. 25. 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 show the same, contrary to his purpose indeed. Martianus, g l. si quisquam diverse & temp. praescrip. as the Author of Mare liberum largely grants, h Pag. 24. saith, that if any private man have himself alone, by any lawful space of time sufficient for a prescription, kept and exercised fishing in any wreeke or nook of Sea, which they call Diverticulum; he may forbid all others to fish therein: which Papinianus i l. praescriptio de usu cap. 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 privileged 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 nearest 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 less authority had Leo than the rest of the Roman Emperors, to grant to every one in particular, having possessions at the Sea side, as much of the ●ea as was nearest against their lands, k Novel. const. 102. 103. & 104. with the fishings thereof? What then, shall not Princes be equalled, in these cases, with subjects? Or rather, have not all Princes a like right & power within their own precinct and bounds, as these Roman Princes had? But now to draw nearer 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 do I 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 pag. 30. he subjoins according to that of Cicero, m Off. 1. Quando sine detrimento suo quis potest alteri communicare in iis quae sunt occupanti utilia & danti non molesta, quid ni faceret: and subjoins afterward, n pag. 35. Et si quicquam eorum prohibere posset, puta piscaturam, qua dici quodammodo potest pisces exhauriri: that is to say, If 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, daily experience these twenty ye●res past and more, hath declared to be over true: for whereas aforetime the white fishes daily abounded even into all the shores on the Eastern coast of Scotland; now forsooth by the near and daily approaching of the buss Fishers the shoals of fishes are broken, and so far scattered away from our shores 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 serve any man's particular desires, as to answer (forsooth) to his profession of the laws, 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 in l. iustitia. de rer. divis. and after him by ●ribonianus: p Parag iuris praecepta. de just. & iur. Honestè vivere; alterum non laedere; & ius suum cuique tribuere: whereof the second tries and rules the rest; according to the vulgar saying out of Pomponius, q l. nem● de reg. iur. & l. 14. de cond. indeb. & l. iu●e. de iure dot. Neminem debere cum alterius damno locupletari: and that of Tryphonius, r l. rescriptum de distract. pig. Ex aliena iactura lucrum haurire non oportet. And therefore I would meet him with his deserved courtesy; even to proclaim Mare liberum also: 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. TIT. XXVIII. Of War-fare ships, and of the Captains and Companies thereof. ANd since we have written above of privileged ships a Tit. 22. amongst which the warfare-ships of Princes are first and chief) and somewhat of the conservacy of the Seas, in the last title; I cannot here pass the warfare-shippes unmentioned, albeit not in such large manner and measure as their employment nowadays requires. As for the matter fit for their building, and things necessary for their forthsetting and preparation to Sea, I must refer the same to julius Ferretus, and to Vegetius, who have written largely thereupon. Some touch I have here subjoined, in the last Title of this Book, concerning the materials: as likewise somewhat is premitted concerning their privileges, in that Title of privileged ships. Therefore would I here set down (but very briefly) some thing concerning the Captains, Commanders, & Companies of the Prince his warfare-ships, the graces & virtues required in them, with their duties, power and preferment. Captains of Prince's warfare-shippes 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 courageous. Thirdly, vigilant, diligent, and careful; and therefore very temperate on Sea: b Ferretus. specially, because their employment, as it is full of hazard and danger, even so are their occasions and opportunities sudden and momentany. 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 choose such as be free from heinous and scandalous offences. c per. l. 4. de re military. Next, that they suffer none of their company to be idle, but to punish as well the sluggard as the rebellious: d per l. 6. eod. yea, even those who are irreverent towards them; e per. l. 13. eod. and again, should with all loving care see to the due food of their company, hear their mutual plaints, hold them in peace by all obedience, visit, refresh, and with all helps comfort the hurt and diseased. f per l. 12. eod: As for the Captains their other duties to the Prince and Admiral, with their own privileges, they are all gathered out of old customs, and at large set down in that Book called L' Admiral de France. TIT. XXIX. Of Watermen and Ferriers. Ferryers' and Watermen are bound to serve all true Liege's for their due fare; a per l. 1. parag. si furt. advers. naut. so that they may be compelled thereunto: b l. 1. & l. cum navarchorum. C. de navicul. lib 10 & l. litica de public. and most, justly, because it was in their own 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 be, according to the law of Scotland, a point of dittay or indictment against them in the first justice-court; and if they transgress unto the third time, they may be suspended from their trade, c jac. 3. parl. 13. c. 95. except they can allege a just cause; as, of feud or hostility. Item, it is ordained, for the easier boating and landing of men and beasts, that Ferriers make, and have ready, fit and convenient bridges, or else to lose their Boats. d jac. parl. 31. c. 20. Lastly, Ferriers and Watermen are no less bound, than Skippers and Masters of ships, to render again whatever they receive to be carried within their Boats. e l. 1. parag. naut. caupou. But concerning their ordinary fares and hires, it is neither needful nor expedient in this place to recite the diverse 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 Vide act. jac. 3 arl 3. c. 20. & arl. 7. c. 61. & ●ariae. parl. 5. ●. 21. 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 quality 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 uncivil manners. For truly, if the Roman jurisconsults might of old by any reason call Mariners, in general, Pessimum genus hominum, g Vide tit. naut. ●. up. &. tit. furt. ●●vers. (which in these latter days for the most part is amended, partly through Christianity and civil conversation, & partly; by good laws, praise be to God) then may we now use that same still, at least against the most part of Watermen and Ferriers; as requiring to be reform, 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 respected, as the forgers and framers of the instrumental causes of all Seafaring; to wit, Shippewrights, and builders of Ships or Boats, called by the Romans, imitating the Grecians, Naupegi: and by the Italians, following the latter Grecians, Calafattis, as is above described; a Tit. 6. and therefore subject to the jurisdiction of the Admiralty b Per diplom. admiralior. utriusque regni. 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 only likely & 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 scathe happening by their unskilfulness, negligence, or whatever other fault or amiss. c Per T. T. ad l. Aquil. 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 furnishers bad and unmeet gear and stuff for the work. d Per l. 2. de naut 〈◊〉. & per Vegetium de re military As for example, Aller, Beech trees, and such like brickle and naughty timber for salt-water, or for the seas. Neither should they put green timber in work; but aught 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 moisture; and therefore being 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 strong, durable, right, 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 also commonly is cavelled withal 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 seafaring dealings) made before the Admiral's deputy▪ or judge, and registered in their books. d Vide sup. of the Admiral Clerk. Last of all, as Shippewrights were of old, e l. fin: C. de poen. so are they also of late, forbidden, f Vide de off. Adm. Ang. under pain of treason, to communicate their skill and Art to enemies and barbarous people. g Vide C. de m●n●p. & ibi. DD. Likewise, they are forbidden (as are also all other societies of handycraftsmen and tradesmen) to conspire among themselves to enhance their wages, or hire, or to receive excessive wages. h Vide de off. Adm. FINIS.