TIT. I.
The order of this Treatise.

AS the affaires of the sea concernes onely sea-faring and med­lers therewith: even so all doubts, differences, and con­troversies, rising upon the same, and their cases must also concerne the same persons, which are eyther chiefly Owners, Out-tra­ders or hyrers, Masters, Pilots, Mariners, Clerkes, [Page 23] Merchants, Passengers. Of whom the owner is hee, to whom the ship or any part pertaines in property. The out-trader or hirer, hee to whom as hirer or partner for a voyage or more, or a lon­ger time, during the hyring and lease of the shippe, the profits and commodities thereof redoundsL. 1. de, exer­cit. act..

And the Master is hee to whom the whole care and charge of the shippe is com­mitted L. 1. ad l. Rhod.. The rest are all knowne. Now their persons whiles happens all to fall forth in one man; as one to be Master, owner, and out­trader; [Page 24] and againe to be all divers and distinct: and therfore the actions to beare out accordingly. Likewise the cognition of their de­bates pertaines not to every Iudge indifferently, but only to the Admirall of the sea: which thing this Abridge­ment shall orderly and sum­marily declare; beginning at the Iudge ordinary to sea-fare causes, the members of the Court, and manner of proceeding there: next, the persons ordinary in shippes, with the fraughting thereof, as belonging to the chiefe uses of shipping: thirdly, the [Page 25] power, duty, and priviledge of every one of the foresaid in ships: fourthly, the ma­nifold causes of losses and dammage in sea-faring, with the redresse thereof: fiftly, the priviledged ships, ship­wracke, shippes 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 Iudge ordinary, in sea-faring causes, with his jurisdi­ction, and priviledges.

AS for the Iudge of the Sea, wee have first to consider, how at the beginning of the Roman Empire, there was a speciall difference betwixt the per­sons to whom the charge of shipping was given, and them to whom the commandement of Fleets [Page 27] and Navies was committed; and betwixt the persons who exercised the jurisdiction in sea-faring 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 speciall or­dinance called Lex Decia) were stiled Duum viri nava­les; Livius lib. [...]. as the Governours of these Fleets were called Archigubernij, L. Seius Satur­ninus ad S. C. trebell. and the Iusticiaries of sea-faring de­bates, Magisteriani: even so amongst the Grecians, the [Page 28] Commanders of their fleets were stiled [...]. And after the Empire seated at Constan­tinople, Magnus dux classis, and Drungarius magnus, Vide frag­menta ascripta Polybio. as the chiefe carrier of the Pinsell or flagge. His stile afterward was Admiratus, from Amiras, a word of the Sarazens, signifying an Overseer, or a Cap­taine on sea or on land; for Mirar is to see, as the Spaniard useth it. From this word Amiras, commeth the word Amirante to the Ita­lians for the Leader of their fleets, as well as L'amirag­lio: albeit they tearme [Page 29] their sea-faring Iudges, Li consoli del mare, and such like from the same word Admi­rall, which most part of the Nations of Europe use in the same meaning; as first and chiefly France, where Childebert the first, one thou­sand yeeres sithence, in­stituted an Admirall as Cap­taine and Commander of his Armie upon sea, like as he did then ordaine a Mar­shall for the governement of his Gen d'armerie on land. Onely the Spaniard called this Leader and Comman­der of his fleets and navies, Adelantado: as who should [Page 30] goe before the rest.

Briefly, the word Admi­rall, how ever this day it be used or abused, for to signifie the chiefe shippe, which was Navis praetoria to the Ro­mans, as the chiefe Com­mander of the fleet; yet that word Great Admirall, notes properly the man whom the Romans called Praefe­ctum maris, and the Greci­ans, Thalassiarcham: to wit, the Governour of the sea. And thus farre concerning names and styles for the Commanders and Guberna­tors of ships, fleets, and seas.

But concerning the jurisdi­ction [Page 31] of the sea, and the exercises of justice amongst sea-faring men; at first a­mongst the Romans, it was allowed to every President on the coasts, and afterward other Iudges were specially constitute at the sea sides, called Magisteriani: Vide Alberic. ad novell. 17. & 24. but their Iudges were all coun­table to their higher Iudge, styled Praefectus praetorio sub­limissimus, from whom was no appellatiō or advocatiō L. à procon­sulibus. C. de appell.

Sithence, in these latter daies, for the readier obedi­ence to the great Admirall of the Sea, it is by common consent of Nations, suc­cessively [Page 32] agreed, that in con­sideration of the Admirals their soveraine commande­ment, their speciall prefer­ment, and power upon the lives of men within the sea floud; that therefore they should also have a soveraine jurisdiction onely proper to themselves, over all sea-faring men within their bounds, and in all sea-faring causes and debates, civill and criminall. So that no o­ther Iudge of any degree, at least in Scotland, may meddle therewith, but one­ly by way of assistance; and that by commission and in [Page 33] difficile causes, as was found in the action intended by Antoin de la tour, against one Christian Marteis, 6 Novem. Anno 1542.Tòm. 1. c. [...]35 regist. Scot.

In which jurisdiction, the first power necessary, is to constitute a Vice-Admirall and Captaines to supply his absence on sea; as also Depu­ties, for particular parts on the coasts, with the Crow­ners to view the dead bodies found on sea, or found on the coasts thereof, and Commissioners or Iudges generall, for exercising justice in his high Court on land, with Clerkes, Pro­curers, [Page 34] Doome-sayers, Mar­shals, and other Officers, for the exercising of their said jurisdiction both in peace and warre: and therefore to sit and hold Courts where they please; to execute ju­stice, to imprison and re­laxe; and to command the Kings prisons and bor­roughs their prisons, to re­ceive and keepe their war­ders and prisoners.L' Admirall de France.

Finally, their authority should be distinctly acknow­ledged in all things pertai­ning to sea-faring.

It is true, that in Scotland before the erection of our [Page 35] Admirall after the exam­ple of other Nations, the Deanes of Gild were ordi­narily Iudges in civill de­bates, betwixt Mariner and Merchant, as the Water-bai­ly betwixt Mariner and Ma­riner, like as the high Iustice was Iudge in their criminals. Which actions all now fal­ling forth betwixt the per­sons aforesaid, of due apper­taines to the jurisdiction of the Admirall; and therefore his Iudge depute or Commis­sar, called Iudge Admirall, and none other, should sit, cognost, determine and minister iustice in the foresaid [Page 36] 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 shippes, fraughts, hyres, money lent upon casualties and hazard at sea, and all other businesses whatsoever a­mongst sea-farers, done on sea, this side sea, or beyond sea; not forgetting the cog­nition of writs and appeales from other Iudges, and the causes and actions of Repre­sals or Letters of Marque: [Page 37] yea, to take stipulations, cog­nossians, and insinuations, in the bookes of the Admi­raltie: and to doe all other things without which the jurisdiction of the Admiral­tie cannot stand nor beare out; and therefore to arrest and put in execution, to in­quire within and without liberties, by the oathes of xij. men upon all offences.Vide diploma­ta admiralior. in utroque regno. Vide latè de off. Admir. Ang

As first, touching the re­vealers of the King & Coun­trey their secrets over sea, in time of warre.

Item, against Pyrats, their Assisters or Abbetters, Out­treaders and Receptors.

[Page 38] Item, against fortifiers of the Kings enemies, and ha [...]ers of his friends.

Item, against the breakers of the Admirals arrestments and attachments.

Item, against goods for­bidden, and merchandise not customed, and yet shipped and transported.

Item, against the resisters of the Admirall his officers, in executing his precepts.

Item, against the forestal­lers, regraters, and dearthers of corne, fish, drinke, fire-wood, victuals carried over sea.

Item, against pleaders be­fore [Page 39] other Iudges than before the Iudge Admirall, in cau­ses pertaining to his iurisdi­ction; as also against the Iudges cognoscing therupon

Item, against them which give Sea-brieves, Testimo­nials, or such like, over sea, without power or licence from the Admirall.

Item, against transporters and carriers of traitors, re­bels, manifest transgressors, and fugitives from iustice, over sea.

Item, against hirers and fraughters of ships of other nations, when they may be served by their own nation:

[Page 40] Item, against such as cast in ballasting, sand, or what else, in harbours, or chan­nels, that may defile or spoyle the same.

Item, against shippe and boat-wrights, extortio­ning the Lieges 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 mens bloud on sea, or any Port or river below the first bridge next the sea: or them who are lamed or [Page 41] hurt through faulty and ill geare in ship.

Item, against Customers or Water-bailies, taking more custome or anchorage than wont.

Item, against such as ab­sent themselves from wap­pinshewing or mustering; which the Admirall may or­daine twise a yeere in time of warre, and once in two yeares in time of peace, up­on all dwellers at Ports and Harbors, or within one mile neere thereunto.L' Admirall de France.

Item, all sorts of transgres­sions committed by sea-men, ferry-men, water-men, as [Page 42] well in floud rivers and creekes from the first bridge, as on the seas; Fishers, Pi­lots; Shipwrights, pressed men contemning the autho­rity of the Admirall: and after due cognition, to levie and apply to his owne use the penalties and amercia­ments of all transgressors aforesaid, as due unto the Admirall; together with the goods of Pirats, Felons, capitall faulters, their recei­vers, assisters, attainted, con­vict, condemned, outlawed or horned.

Item, wayffe or stray goods, wreck of sea, cast goods.

[Page 43] Item, deo dando, that is to say, the thing, whether Boat or Ship, &c. that caused the death of a man, or where­out-of a man did perish.

Item, shares, lawfull 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 Ietson, which is cast forth of the sea to the shoare and coast, with an­chorages, beaconages, meare swine, Sturgeons & Whales, &c. and all fish of ex­traordinary greatnesse, cal­led regall fishes; which all [Page 44] are allowed in great Brit­taine, France, and other no­ble kingdomes, to the Admi­rals, by their Soveraigne; for the better maintenance of their estate, iurisdiction, and conservancie on seas, rivers, flouds, roads, ports, har­bours, channels, sayling, fi­shing, and all trading there, as altogether and chiefly committed to the care, main­tenance, and protection of the Great Admirall.

TIT. III.
Of the Admirall Clerke.

THe Clerke of the Ad­mirall Court, beside that he should be ve­ry skilfull, faithfull, and give his solemne oath thereupon at his admission; and beside the poynts of his office re­quisite and common to all Clerkes of other Courts, hee should have divers Registers, as for congees, saueconducts, pasports, [Page 46] sea-briefes; as without which no shippe should passe to the sea in time of warre, not yet to farre voyages in time of peace:L' Admirall de France. which no other Iudges nor Governours should give forth, but the Admirall onely.Eodem.

Item, one other Register for the reports of the Skippers and Captains, at their return to the Admirall also.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.Secundum act. parliam. Iac. [...]. cap. 27.

And because no man ought [Page 47] to take upon him to be a Master or Pilot without due tryall of his skill: even so ought his triall to be regi­stred in the Admirall his bookes.L' Admirall de France. But within the water of Thames, this tryall and registration of Pilots, pertaines to the Trinitie-house.Looke the Charter of the Trinity house on Thames.

Lastly, all money lent to hazard upon the sea, called of old Pecunia trajectitia, for certaine profit, called Foe­nus nauticum, for the which the Lender was wont to beare the perill, against the manners of these avarici­ous daies; their lendings (I say) [Page 48] and billes of assurance, should be done before the Admirall Clerke.L' Admirall de France.

To conclude, no other Clerke or Writer, may med­dle or pen things concerning the sea-faring, without li­cence of the Admirall.Kintor. art. 45

TIT. IV.
Of the Advocates and other Officers assistants for the better and speedier proceeding in the Admirall Court.

FOr the more upright proceeding, and easier dispatch of causes and plaints in the Admirall Court, it is found needful that all Procurers, before they be heard, sweare solemnly first, that they should doe nothing maliciously; but as soone as they finde▪ their [Page 50] action to be unrighteous in any part of the processe, they shall tell it to their client: and if the client will insist, then to shew it to the Iudge.

Secondly, that they shall not reveale 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.Il consolato del mare.

To conclude, the oath of fidelity is likewise to bee solemnly taken of the rest of the officers of Court: for the due execution of [Page 51] their offices, namely, at their admissions.Eodem.

TIT. V.
The manner of proceeding in Sea-faring causes.

THe debates of sea-fa­rers, and sea-faring actions, should be de­cided according to the recei­ved Lawes and Statutes of the sea: which fayling, then the customes and consue­tudes of these are to be fol­lowed. 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.Innoc [...]nt. in e. vlim de [...]erb. Sig.

[Page 53] And if neither law writ­ten, or unwritten custome, nor consuetude occurres or appeares, the last refuge is to the opinions and senten­ces of skilled and upright men in the profession and exercise of sea-faring; because it is old and common, that the judgement of skilled and well practised men, should be followed in their owne trade and calling.Per l. 1. de vent inspic.

But in the manner of pro­ceeding, it is a perpetuall pri­viledge, Quod velo le vato. L. de submer­sis C. de nauf. lib. 11. That is to say briefely and summarily, causes should be cognosced, and without [Page 54] the solemnitie of other ordi­nary Courts & judgements, onely looking to God and the truth; so that the Iudge should doe, if it were possible, as God himselfe.Vide rotam genuae, & DD.

Plaints then of sea-farers should be most summarily cognosced, but specially of shipwracke; for it were a cruelty to vexe so miserable persons with the tedious ordinary proceedings of Courts, in so much as they need not to put their petition in writing. [...]artol. Lu [...]ius & Iohannes ad d. l: de submersis.

And because that sayling tends to a great Common­wealth, therefore least sea-farers [Page 55] should bee wearied with pleas, and so either lose their right, or their trade,Secundum l. illum de Pet. hered. summary processe should be common to them all.

Which sort of processe is so urged by the Doctors of Law, that they counsell Iudges, who feare appellati­ons or advocations, to pre­vent the same by a present execution;DD. i [...] c. pro­posu [...]. de sor. comp [...]. namely, in causes of spoyle or wrack: so that upon every interloquu­tor, they may proceed to exe­cution, making restitution presently. Providing alwaies, that caution bee first found by the spoyled, to satisfie [Page 56] the sentence of the Iudge of the appellation, in case it shall happen to be made.L' Admirall de France.

This is also a priviledge of the sea-faring Iudicature, that albeit by the common rules of the law, where no Litiscontestation is past, no witnesse should bee received, nisi ad aeternam rei memoriam, ac adversario ad id citato; yet in shipwracke, as a case very pittifull, any of the shippe-broken men may come to the Iudge of that part where the wrack hap­pens, and by witnes brought with him, prove the wracke and spoile;Si quis. 10. C. de naufrag. to the end [Page 57] that if any owner should pursue his goods, for to re­cover them, hee might be justly repelled by an excepti­on of an innocent losse:L. Fin. ad l. Rhod. which should be done within a yeer and a day; namely, by such as were in service to the Prince and country.L. quoties. de naufrag.

The like is to be observed also in causes of spoyle; where by the lawes of Eng­land, it is sufficient for the spoyler to prove his goods by his marke, &c.Vide sta­tut. Ang.

In which doing, no citati­on is required; and that against the common law:L. de unoqu [...] ­que. dere iudica. & L. quoties. C de naufrag. lib. 11. yea, the death of the ship-broken [Page 58] may not onely bee proved by the rest living, but also by the persons, who were present at the prepara­tion of their voyage, even their owne parents and children, if none of the ship-broken be on live.De l. quoties.

And as this is a priviledge extraordinary for such chances; even so ordinari­ly may Merchants and Ma­riners sayling together, beare witnesse each one to other of their society within ship, if they have neyther to lose nor gaine thereby; and namely Mariners, for or against the Skipper when [Page 59] the voyage is ended, and when they are free from his commandement.Il conselato artic. 221. & 222. For by the consent of the Do­ctors, when the truth can­not be otherwise tryed, then unable persons may be heard.

Item, to the end that this trade bee not hindred by calumniators, and wilfull vexers of their neighbours under colour of Law: it is provided, that not onely the common caution, Iudicio si­sti, & Iudicatum solvi, bee kept on the part of the defender; but also that the pursuer shall finde caution, de expensis solvendis, if hee [Page 60] faile in proofe.Consent of [...]ll sea lawes.

Likewise, in case the par­ty pursued be contumax, and will not compeire to defend himselfe, or his shippe, or things challenged; namely, after three or foure citati­ons directed from the high Court of the Admiraltie, called quatuor defaltae (for that citation called Vnum pro omnibu [...], is not sufficient to convince one of contu­macy) specially in the claime or vindication of a shippe, any part thereof, or any o­ther such like thing or goods; then may the Iudge ordaine his Marshall or officer, by [Page 61] his sentence called primum decretum, to put the plain­tiffe in possession thereof, at least to the worth of the suit: Providing notwithstan­ding, that if the party com­peir within a yeare and a day after, offering the ex­pence 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 Iudge may proceed and adjudge the propriety of the ship to the plaintiffe.De offic. Ad­mi. Ang. in fin. cum ibi citatis.

Neither is it needfull to execute summons or cita­tions [Page 62] in such cases, else­where but where the ship or quarrelled goods in question lies, or at the part usuall of their haunting.Ibid.

Further, as this way it is provided for the snibbing and staying of calumniators in iudgement: even so it is ordained against malici­ousnesse out of iudgement of such persons who one­ly to hinder and stay their neighbours, vexes them with needlesse arrestments; that upon caution such a [...] ­restments be speedily losed, except it be either for fraught already deserved, or ma­riners [Page 63] wages, or such cases wherein by law the shippe is obliged; or else for service to the Prince:Il conselato 4 [...] as also if ar­restment be used, eyther up­on goods, or mariner ready to saile, the same may bee loosed, upon caution to make forth-comming so much goods as the mariner hath within ship-boord.Denmarke.

TIT. VI.
Of persons ordinary in ships.

TOuching persons or­dinary for sayling in ships, they are of di­vers orders, and therefore diversly stiled: as first, hee who beares charge over all the shippe and kippage, is commonly called by us, and most part of nations, both now and of old, and special­ly by the Romane lawes, Navicularius, or Magister [Page 65] Navis: L. 1. & pas­sim. ad l. rhod. & l. 1. parag▪ [...]naur, caup. that is, as wee speake, Master of the ship; by the Dutches, Skipper; & by the Grecians, Nauarchus or Nauclerus; Vide l. semper de iur. immun i­ta. & l. 3. C. de navicular. Vide Vegetium de re militar. by the Ita­lians, Patrono. But if the ship be a warfaring ship, the principal person is common­ly called Captaine by us and other neere nations. The next to the Master, is hee who directs the ship in the course of her voyage, called by the French-men, Pilot; by Vs and the Dutche, Steirsman; by the Romans, Gubernator; Vide lege [...] na­vales Rhodior. by the Italians, Nochiero, Il consolato▪ Pilotto, & Nau­archus, as Gerretus writes.

[Page 66] The third person is com­monly called the Masters mate or companion, chiefly if the Master be Steirsman himselfe: this man is called by the Grecians and Ro­mans Proreta: Vide dd. Il. navales, & Plautum in ruden [...]. his charge is to command all before the mast.

The fourth person is hee who attends upon the mending of the faulty parts in the ship, called by us and the Dutches, Timberman or Shipwright; by the old Gre­cians and Romans, Naupe­gus or Naupagus: Vide dd. Il selec. Rhod. but by the late Grecians, Calaphates: for which cause the Emperor [Page 67] Michael was called Calapha­tes, because his father had beene a Shipwright in Paphlagonia; as witnesseth Egnatius and Volateranus, Lib. 23▪ and therefore the Veneti­ans and Italians name their Timberman Calafat­te. Vide il con­sola.

The next person in order, is hee who beares the charge of the shippes boat, called by us Boatsman; by the Italians, Barchierie; by the Grecians and Ro­manes, Carabita: for Carabus notes the boat of the ship.Vide dd Il. Selec.

The sixt person requisi [...]e in any shippe of great bur­then, [Page 68] is a Clerke; by the Ita­lians, Scrivano, Vide il con­sol. whose of­fice is to write up and make accompt of all things recei­ved or delivered in the ship, together with all the ordina­ry and needfull expenses made upon ship & kippage: who for his more faithfull discharge, should at his en­try be sworne before the or­dinary Sea-Iudge; as is ordi­narily practised in Ancona, and other parts of Italy. 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 keepes her conti­nually [Page 69] in harbours; called therefore by the Grecians, Nauphylakes; by the Romans, Dietarius; L. 1. parag 2, naut. caup. and by the Ita­lians, Guardiano. Il consolato. All the foresaids are distinct in offi­ces and names, and there­fore accordingly should also be distinguished in hyres and fees, after the custome of the Country. The rest of the persons of the kippage, are under the common stile of mariners, which the Ro­mans call Nautas: but they name those of the lowest and base degree, as may bee the boyes and prenti­ses in ship, Mesonautae, Vide Budaeum ad l. 1. naut. caup. [Page 70] and Nautebatae, as who should bee ready at com­mand, to climbe upon the tewes, or to such common service in the ship.Vide l. debet. parag. haec actio. naut. caup.

TIT. VII.
The fraughting of Ships.

NO Shippe should be fraughted without a charter-partie written and subscribed,Il naval. rhod. select. art. 20. contai­ning both the Master and Merchant, and the name of the Ship, that no doubt may arise;Vide Bartol. in l que [...] rerum. parag. Si navem. de leg 1. argu­mento l. Labeo de. Supel. ligat. &c. and likewise, that the Master shall finde a suffi­cient Steirsman, Timberman, Shipman, and Mariners convenient, Shippe-tycht, masts, sayles, tewes, strong [Page 72] anchors, and boat fit for the ship, with fire, water, and salt, on his own expences.Cap 17. & 130. art. Iaco [...]. 3. Vide de Il. Rhod. And this charter partie, a­mong all the westerne Mer­chants, and those of the great Ocean, usually is made to per [...]orme all things requisite by the lawes of Oleron. d. art. 20.

And if there be no Wri­ting, but an Earnest, then the Merchant, if hee repent or rew, loseth his Earnest: but the Skipper, if he repent, loseth the double of the ear­nest or arlesArt. 19. Il. naval. Rhod.

If the ship be not ready at the day appointed in the charter-party to goe to sea, [Page 73] the Merchant may not one­ly free himselfe 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 appeares to consent of new) but also shal or may obtaine all charges, scathes and interest:Oleron. Ex­cept the Master shew some excuse of a notorious neces­sitie, or of a chance that could not bee eschewed: and then hee loseth onely his fraught, because hee hath not deserved it.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, d, l. ex condu­cto. he shall pay the Skipper and shippes dam­mage, or according to the [Page 74] Rhodian law, shall entertain the kippage and company tenne dayes; and if then he stay longer, shall pay the fraught of all accordingly: [...] navalium. and further, shall upset all hurt and damage hapning by fire, water, or otherwise, after the time appointed.Art. 29. cod.

It is true, that the Rhodi­ans charge the Merchant in this case onely with halfe fraught, & the Skipper with the whole fraught if he faile: albeit that the Romans inflict the pain of the whole fraught upon the Mer­chant: d l. si in lege, & l. ult. ad l. rhod. & d. l. ex conducto. specially, if hee take forth his goods againe; [Page 75] for then is the fraught thought to be deserved.l. ult. loca [...].

But if the ship in her voy­age become unable with­out the Masters fault, or that the Master or Ship bee arrested by some Magistra [...]e in her way, the Master may either mend his shippe, or fraught another: but in case the Merchant agree not ther­unto, then the Master shall at least obtaine his fraught, so farre as he hath deserved it.Oleron, & l. ult. adc. Rhod.

For otherwise, except the Merchant consent, or necessitie constrain the Skip­per, to put the goods in [Page 76] another ship worse than his owne, 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.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.d. l. item. [Page 77] Yea, in former times it was forbidden expresly, as by the Emperours Gratian, Theodo­sius, and Valentinian, to ha­zard upon sea from Novem­ber till Aprilll. 3. de nauf C. Theodos. & l 3. de nauf C. Iallin. lib. 11. As also by the Kings of Scotland, from S. Iudes day till Candlemas V [...]de act. par. And alwaies it is accounted by the lawes for a fault, to make forth of a Port in time of a manifest storme.l. u [...]i (que) 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.la ro [...]l [...] Oleron.

And in such a case, when goods bee cast through [Page 78] storme, it shall not be made good by any contribution, but by the Skipper his owne purse.art. 2 [...] l [...]g. naval. rhod. And if hee over­burden the ship above the birth marke, he shall pay a fine.Denmarke.

Item, if a Ship Port at a­ny other Port then she was fraughted to, against the Masters will, as by storm, or some force; then the goods shall be transpor [...]ed 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:Oleron. or else the Skipper may bee in [Page 79] further danger.

Where also it is to be ob­served, that for the in-going to sundry divers ports by the way, imports not a diversi­tie or a multiplication of voyagesDD. in l. qu [...] romae parag. Callimachus. de verb oblig.

But if any man compell the Skipper to overburden ship or boat, he may be ther­fore accused criminally, and pay the damage happening thereby.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 Iames the third,c. 17 &c. [...] act. r. Iac. [...]. hee and his Mariners shall under-lie [Page 80] the paines contained therein.

Item, if a Merchant put in more goods in ship than was conditioned, then may the Skipper take what fraught he please.Il consolato del ma [...]e.

It is imputed for a fault to the Master, if he direct his course by waies either dan­gerous through Pirats, ene­mies, or other evill aven­tures, and holds not forth his due rout,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 dam­mage happen thereby.

It is likewise counted a fault, if the Master carry the pensell or flagge of other Nations than his owne, and thereby incurres scath and [Page 81] losse of any thing.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 appertaine: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 owne pensell or flagge

Item, if coffers, pipes, pakquets, &c. be delivered close and sealed, and after­ward shall be received open and loose, the Master is to be charged therefore, untill a due tryall and consideration of that matter.Bat [...]. in l. in actionib. in fin. de in lit. iurand, & in l. unic. furt. advers. naut.

The Master also must be an­swerable, [Page 82] for that harme which the rats for want of a cat doe in the ship to any merchandise.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 hee to whom the whole power and charge of the ship is com­mitted: 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 [Page 84] the ship.d. l. 1 And to that ef­fect, if need be, in a strange countrey to borrow money with advise of the kippage or, company,Oleron. upon some of the tackle, or to sell some of the Merchants goods; provided, that the highest price that the rest of the goods is sold for at the mar­ket, be repayed to the Mer­chant: which being done, the fraught of that goods so sold and repayed, shall be re­payed by the Master to the owner of the ship, as well as the fraught of the rest of the Merchants goods, except the ship perish in the voyage; [Page 85] in which case onely the price that the sold goods were bought for, shall be rende­red: Eod. And for no other cause, no not in the chance of shipwracke, may the Master take on or conquest money, specially, by-selling of Merchants goods.Eod. And thus far cōcerning his power

As for the Masters duty, he ought first before he loose or make saile, to seeke and obtaine the consent of the most part of the kippage or company; yea, if hee be not very skilfull, he should doe no other thing of impor­tance without their advise: [Page 86] otherwise, hee shall under­goe what-ever dammage happens by his doings;Eod. and specially if he loose forth of any harbour without an ex­pert Pilot,l. item Magi­ster locat. yea, or in the harbour the ship happen to fallover.Oleron.

And as the Skipper his rashnesse and unskilfulnesse 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,Denmarke. or the pumpe to be faultie, or a sufficient decking to be lacking;Leges naval. Rhod. art. 11. and specially, from corn, victuall, and such [Page 87] like goods, which should be most carefully kept, and fen­ced from water and spoy­ling.Eod. art. 38. Otherwise, the neg­ligent Skipper is holden to make good all scath or dam­mage comming thereby, be­side that the fraught of such spoiled goods is lost; except thatArt. 44. eod. the ship or crear was open from the begin­ning, and fraughted without any overlap:Vide. l. 1. pa­rag. quadam de exercit. which two kindes of ships, are tearmed by the Iurisconsult, Emphra­ctae & Rephractae, d. l. 1 parag. quaedam.

Further, this duty is requi­red of the Master, that ac­cording to the Act made by [Page 88] King Iames the third of Scot­land, he give up the names of all persons transported in his ship, before he make saile:c 27 actor. per lac 3 & l' Ad­miral de France. As likewise at his return, the just Inventarie of the goods of any persons which shall happen to depart this life in that voyage;L' Admirall. to the end, that not onely the lieges at home, nearest to the dead, may succeed to their right: but also concerning stran­gers so deceased, and their goods, that the same may be put in sure keeping, forth­comming for three yeeres space; but by the custome of England, one yeare, untill [Page 89] the nearest of the dead-mans kinne come and claime the same.Il consolat del mar. at. delmar. Of which goods in the meane time, the bed­ding with the pertinents thereof, may be of due taken by the Master and his mate, to their uses; as also such cloathing, 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 burie, or cure at least, the over-putting of the dead in the Sea.Eod.

TIT. IX.
Of the Masters duty to the Merchant and Passenger; and of his priviledges.

THe Master ought to render againe what­ever he receives with­in his ship, to him who deli­vered the same, as well vi­ctuall as clothing and mer­chandise, goods, or other thing:T. T. nau [...], caup. where we take goods to be delivered, if either it be put in the ship, or in pre­sence [Page 91] of the Master or Clerk as his deputie, layd to the ships side,l. 1. in fin. eodem. and both wayes, the perill to appertain to the Master.l. 3. eod.

Which thing also is ex­tended to boatsmen, and to the Ferryers:d. l. 1. parag. [...] and yet is it surest to deliver goods before witnesse, and that either to the Master, Clerke, or Skip­per his deputies thereto:Art. 12 ll. navalium. for the master is not holden for such things as are put in ship without his, and his companies knowledge;l. 1. depositi. because where men are found ignorant, they are al­so esteemed not to consent. [Page 92] But if the Merchant or Pas­senger keepe his goods by himselfe, as money or such thing in his coffers, and then alledge the lacke therof, then is the Skipper and his kip­page onely to purge them­selves by their oath:Eod. art. 13. but if afterward notwithstanding they be found guilty, the de­nyer shall pay the double, and also be punished for perjurie.Art. 14. eod.

Even so, the Master is ly­able for all damage su­stained through evill hooks, cordels, blocks or lines; namely, if the mariner fore­shew the said things to be [Page 93] faulty: and alwaies the mari­ners shall help the Skipper in common to pay the said damage.Oleron.

Item, if any scath or dam­age happen to the Merchant or Passengers goods, through unreasonable stowing or breaking up, the master shall not onely refound or make good the same, but also lose his fraught, and twenty pound in Scotland to the King,Eod. &c. 17. &c. 130. act. Iacob. 3. or his Admirall as his successor now; and for lacke of proofe in this case, the Skipper and his kippage shal be put to their oath.Oleron. Further, what ever shal hapē [Page 94] through fault, negligence or chance eschewable, or by the deed of passengers and others than himselfe or his kippage, the Skipper is hol­den to answer and pay for all, to the uttermost pen­ny: d. l. 1. in fin. & l si vendita de perie. rei. vend. & l. 5. & 6. naut. caup. for if such dammage happen by a mariner, the Skipper shall refound the double,d. l 6. & l. 7. eod. but hee may re­pett it from the mariner.d. l. 7. But it is not so if the damage bee 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 [Page 95] master.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 duely fore­warn each man to keepe his owne goods, and they agree thereunto.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;Bartol. & Ia­son in l. non solum parag. mortem. de nou oper. nunc. which cō ­ditions aforesaid, are most justly layd upon the master, because he ought to hire good men, and no evill per­son in his company:Instit. de ob. qu [...] ex delict. parag fin. for it is in his owne free will to chuse his company, and he should not be ignorant of [Page 96] the men he hath to doe with;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 & spoile.l. 1. in fin. naut. caup.

Lastly, if through the Ma­sters fault, confiscation, or other damage happe [...]s, as for non-payment of the custom, or false bils of the goods cu­stomable, or for transporting of unlawfull goods, the Ma­ster shall refound the same with the interest.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 wel pur­sue [Page 97] for the spoyled goods onely:Accursius in l. 5. naut. caup. per l. mela ad l. aq. even so may the Master pursue the stollen goods; as he who must one­ly, at least, chiefly, answer therefore.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 foure mariners sweare no fault to have been in them, the Ma­ster shall goe free.La reol d' O­leron.

And yet must we not over­passe this observation, that if the Master offer the just [Page 98] custom, anchorage, or what­ever other duty pertaines to any Customers, and he, be­cause of their unrighteous refusall, makes saile, the wea­ther and his necessity so re­quiring, then may he be just­ly defended afterward a­gainst that Customer.Per l. quantae: de pu [...]. Neither yet should a ship that hath once paid her an­chorages, pay againe, if she be forc't through tempest backe to the same Port.Per l. fin. pa­rag. si propter necessi [...]atem eod.

TIT. X.
The Masters duty to the Mariner.

SEeing the Master is the ordinary ruler over his owne kippage or com­pany, he ought to keepe them in peace so long as they eate his bread.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 onely answe­rable for the fact of all with­in ship-boord;Per. l. 1. de exerc. act. & l. fin. naut. caup. and then by [Page 100] his authority, repeit or reco­ver from the other mariner, the charges, with all that is lost to the hurt man therby:Art. 5. ll. na­ual. except that he who is hurt or lamed, have provoked the other by evident invasi­on, assault, or stroaks.Art. 6. eod.

And if a mariner become sick, the Skipper shall cause him to be layd in a house, with all sustentation necessa­ry and usuall in the ship, but shall not stay the ship untill he be healed; and when he recovers health, shall give him his hire: or if he dye, shall give it to the wife or nearest friends.Per. l. ulr. ad l. Rhod. But if a [Page 101] mariner be not hurt in the ships service, the Skipper shall hire another in his place; who if he draw more hyre, then that mariner shall refound the superplus.Oleron. And alwaies the Master ought to lēd his mariners if they lackEod.

Item, if through the Ma­sters fault, the ships boat pe­rish with any mariners in it, as through spoyld tews, &c. then shal the Master pay one whole yeeres hyre to the heires of the drowned:Art 46. il. naval.

Item, he ought to give his mariners, flesh upon Son­day, Tuesday, and Thurs­day; and upon other dayes, [Page 102] fish, or such like, with suffici­ent drinke: but no meate to them that sleepe not in the ship.ll consolato. And yet the quality and quantity of mariners food and hyres, goeth di­versly, according to the di­vers customes of Countries, and the conditions made at the entry to their voyage.

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

MAriners owe all due obedience to the Ma­ster, not onely in fly­ing from him in his wrath so farre as they can, but also in suffering; yet may they af­ter one stroake defend them­selves. In case of rebellion of mariners against their master, which is thought then to be done, when the [Page 104] Master hath thrise lifted the Towell from before any mariner, and yet he sub­mits not himselfe, then may he not onely be commanded forth of the ship at the first land, but also if he make o­pen strife and debate against the master, hee shall lose his halfe hire, with all the goods he hath within ship-boord.Oleron, & il consolato.

But if in this strife a ma­riner useth any armour or weapons, then should the rest of the mariners binde him, prison him, and pre­sent him to justice; so that if any of them refuse to lay to his hand, and to assist, he [Page 105] shall lose his hire, with all that he hath within shippe-boord. Il consolato. cap. 160. Yea in case any number of the mariners would conspire to force the Skipper to passe to any other Port, than to the which he was fraughted, then may they be accused criminally, and punished, as for a capi­tall crime.Denmarke.

And yet, if a rebellious mariner repent in time, and offer amends for a simple re­bellion, and the Skipper not­withstanding refuse; he may follow the ship, and obtain his hire.Oleron.

Mariners ought each one to [Page 106] helpe and assist others on the sea: or else he that refuseth, loseth his hire; and the oath of his fellowes shall be a proofe against him.Eodem.

Mariners in a strange Port, should not leave the ship without the masters li­cence, or fastning her with foure [...]ewes; or else the losse lights upon them. They should also await upon the ship untill she be discharged, and ballasted new,Denmark. Oleron. and the tackle taken downe.

And if a mariner, in time of loosing and lading, labour not with the rest of the com­pany, but goes idle and ab­sents [Page 107] himselfe, he shall pay a fine to the rest, prorata, at the Masters discretion.Denmark.

At least, the halfe of the kippage or company, ought in strange country port or roade to stay aboord: and the rest who goe a-land, al­beit with licence, should keepe sobriety, and abstaine from suspected places, or else should be punished in body and purse, like as bee who absents himselfe when the ship is ready to saile.Denmark. Yea, if he give out himselfe for worthier than he is in his calling, he shall lose his hire, halfe to the Admirall, [Page 108] and the other half to the ma­ster: Eodem. but this especially ought to be executed against an unworthy Pilot.Eodem. The mariner also forfets his hire if the ship breake in any part, & he help not with al his di­ligence to save the goods.Oleron.

If it chance any otherwise than well to the Master, the mariners are then holden to bring backe the ship to the port from whence she was fraughted, without delay,Eodem. except it be otherwise provi­ded.

A mariner may carry as much meat forth of the ship as he may eate at a meale, but no drink.Eodem.

[Page 109] 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.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.Il consolato.

If a ship passe further than the mariner was hired, his hire should be accordingly augmented; except he be hired, as the French man speakes, a mareages, mais non à deniers. Oleron. If a Mariner runne away [Page 110] with his hire undeserved, he deserves the gallowes.Denmark, & Oleron.

If a mariner be hired for a simple mariner, and after­ward in the voyage findes hiring tobe a Pilot or a Ma­ster, he may passe with pro­vision to render his former hire: evē so is it if he mary.Eodem.

Mariners are not onely holden to loose and deliver goods over-boord; but also if no Porters nor Caryers be in those parts, to carry the same themselves, for such hire as other workmen should have had therfore.Il consolato del ma [...]e.

If it happen a ship to be prized for debt or other­wise [Page 111] 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.Eodem.

Lastly, a mariner should neither be arrested nor taken forth of a ship making to saile, for any debt (but onely his hire, and as much other goods as he hath in the ship arrested therefore, according to the quantitie of the debt, and the master to be an­swerable for all:Oleron. Den­marke. Kinror. because the ship is compared to a mans dwelling house;Bald. in l. cer­ti iuris. loc. and by the Civill law, a mans [Page 112] dwelling house is his most sure refuge)l. nemo. de reg. iur. & l. plerunque. de in ius voc. except for a sworne debt, or a penalty to the King through some crime.

TIT. XII.
Of the Clerke of the ship.

IN ships of great bulk and burden, a Clerke is most needfull: who being put in by men of chiefe power, and sworne solemnly before some Iudge, as the use is in Italie (or at least before ow­ners and mariners) that he shall write nothing but the truth, nor leave ought un­written; being, I say, so constitute, neither Mer­chant nor mariner may [Page 114] put in or take out any thing of the ship without his knowledge. So that whatso­ever goods or other thing shall happen through storme or otherwise, to be cast, stol­len, or spoyled, that hath not beene presented or shewne to the Clerke, 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 Clerke may take of that which is delivered to him, and sell thereof for the ships need, but must satisfie the owner [Page 115] thereof: for he must be al­waies countable of his re­ceits: Il consolato. But howsoever he doe, he may neither take in, nor give forth goods by night, but in day light.L' Admirall 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 onely, but also for a whole voyage, and to be ready therefore against a certaine day, and he faile to keepe that day, he shall not onely pay Master and Merchants damage or stay, but also the fraught that is lost thereby: except sicknes, or some very [Page 117] lawfull excuse qualifie it.Oleron, & arg bult. ad l. rhod.

A Steirsman, after the time he hath brought the shippe in sure harbour, is no further bound or liable; for then should the Master see to her bed and her lying, and beare all the rest of the burden, charge, and danger: so that if before she come into the Port or some safety, eyther she or goods perish or be spo led, the Pilot makes good the same: yea, if his faul [...] or ignorance be so grosse, that the company sees any mani­fest and present wracke to all thereby, then may they leade him to the hatches and [Page 118] strike off his head.Oleron & il consolat. Yea, if without any seeing dan­ger, certaine of the skilfull'st mariners deeme that he is not so skilfull as he set him­selfe forth to be, then shall he both lose his hire, and double the same to the Ad­mirall and Master, or else passe thrise under the ships keil.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 shippe perish, or that all b [...] spoiled, the money loses to [Page 120] the lender.L. r. de foen. naut. But on the contrary, money on land is delivered on the perill of the borrower: so that the pro­fit of this, is the price of the onely simple loane; there­fore generally called usura: but the profit of the other loane is called usura mariti­ma, or soenus nauticum, which is not the price of the loane, but of the hazard and danger which the lender takes upon him during the loane:L. periculi. eod. which is under­stood to be to a certaine day or voyage, or what-ever of time agreed upon. And therefore if the money mis­carry, [Page 121] eyther before the voy­age begun, or after the tearme appointed for the f [...]ll loane; then the perill pertaines to the borrower thereof, and not to the len­der: Vide passim ad. ll. de foen. naut. & ad. ll. naval. Rhod. I meane of perils pro­ceeding from stormes, vio­lence, spoyle or such like oc­casions, which cannot be es­chued by any diligence of the borrower; and therefore in case the borrower im­ploy the lent money upon lawfull goods, or that by his defrauding of the due customes, the same be con­filcat, the lender is freed of such hazards.Vide l. 3. C. de foen. naut. It is also [Page 122] to be noted, that mony lent upon the Sea, without ha­zard, and yet with security, should pay no profit, suppose it were unbooked in the Clerks book with the profit; contrary to that which is lent on land: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 rendring, shipwracke or spoyle happen, then should the losse come in contributi­on betweene them;Art. 17. eod. be­cause if that money had been lying by the lender, still un­lent, it had bin in common [Page 123] danger of shipwrack of spoil with the rest. But if the time appointed were past with the hazards aforesaid, then shall the borrower repay the borrowed money, free from all contribution.d. art. 17.

Further, in case the bor­rower deteines any such lent mony as is aforesaid, beyond the terme appointed for the repaying, he shall at his re­turne not onely pay the pro­fit agreed upon before the voyage, but also augment the same according to the greater time, and yet shal not pay the profit of that first condition, but onely after the common rate.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 onely permitted to him who contracts with the Master of a ship, or that hath any other acti­on or claime 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 [Page 125] ought to make good the Masters deed and fact.Parag. exerci­tor. iust. de ob. ex quasi delic. T. T. naut. coup. This outreader we take to be him to whom the com­modity of the shipeod. ibid. re­dounds; so that he may lay his action upon any of them; Ne in plures adversarios distra­hatur qui cum uno tantum con­traxit. d. l. 1. 2. & 3. eod.

But the rest of the owners or outreaders shal relieve this man prorata▪ of their portiōs; 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:l. 4 in prin. eod. or that the master [Page 126] have obliged himselfe 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 owne folly: for by the common rule of Law, men should know well the persons and their conditions, with whom they have to bargaine.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 satisfie [Page 127] the creditor.l. ult▪ de exer. act. But above all, that money which is lent for victuals to the ships company, should be repay­ed, as preferd before all o­ther sort of debts.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 beene hyred and put in by the outreader.

Againe, albeit by the com­mon law of the Sea the out­readers may not pursue persons obliged to the Skip­per, yet are they permitted to [Page 128] pursue upon the Masters contract, as they had bin contracters principall;Passim. d. l. 1. be­cause in such dealings he su­staines the out [...]aders person: and because of the great common-wealth that is Pro­cured by this kinde of traf­fique, d. l. 1. parag. 10. worthily such pri­viledges to the outreaders and exercers of shipping are granted. And yet is not the Master alwaies bound to satisfie 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 [Page 129] not the Master, in the accep­tation of Passengers, to search out so narrowly their meanes and ability.l. 2. sect. 6. [...] l. Rhod.

And againe, the outrea­der is not holden alwayes to answer for the Masters sloath, but for his owne selfe.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 remaine in Partner­ship; seeing by the law they cannot be constrained there­unto: l. fin. C. proso­cio. & pass. inst. & D. eod. yea, not albeit a Paction had bin made never to sunder;L. in hoc pa­rag. si conveniat. pro soc. then is there many considerations requi­red in their sundring. And [Page 131] first, if their common Ship or Cray be put in building; or that she be but presently bought: in these cases it is thought convenient, that she shall be imployed one voy­age first, upon the common 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 hee will eyther hold or sell, which if he will not doe, and yet refuses to outread with the rest, then may the rest rigge [Page 132] forth the ship at their owne charges, and also upon the hazard of the wilfull refuser, so farre as his part extends, without any count to him of any deale or part of profit at her returne:Denmark. cum ll. hic seq. but they must bee bound to him to bring her home safe, or the value of his part.

And justly; because that, as shippes were inven [...]ed in common, for the use of all men; even of them that dwell in the moun­taines, as on the coasts of the sea:l. arboribus parag. naves de usufr. so were they ordained and builded for sayling, and not to lye idle [Page 133] and unoccupied.Glossa in l. si navis. & iuris. in l. uti (que) 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 hee can sell his part at that price, without great losse, nor yet is able for povertie to at­taine to their parts, then are they all bound to put the ship to an appraisement.consolato. Otherwise, the scoffe which Casselius, a Romane 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 [Page 134] divide and part their ship, Casselius answerd; If ye di­vide her, then neither of you shall have her.Maerobius lib. 2. c. 6.

And if for lacke and want of buyers in that place, the poore partner can neither es­chew the oppression of the richer, nor yet the rich satis­fie the poor man, perchance also wilfull; then may the Iudge ordinary deale and decree in this case, as he may In omnibus alijs 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, [Page 135] and make up a full conside­ration of all together, that every man may obtain and receive his own due right.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 speake, it is ordi­nary: and first, it is practised upon shippes so stormestead that for reliefe of lives and goods, casting of goods must be made: In that case the master shall consult with the mariners: who if they [Page 137] consent not, & yet the storm and danger continue, then may the master cast some goods notwithstanding:Oleron. But if the merchāt be present, let him begin to cast,Il consolato. next the mariners: but if the mari­ner keep back any part that should be cast, to his own use, he shal render the double.Art 3 [...]. Il ma­val. select.

But when afterward the master shall come to land, he must with the most part of his company sweare that he did cast goods for no o­ther cause but for the safe­ty of shippe, goods, and livesOleron. Secondly, when goods are cast, they shall be [Page 138] upset and compensed by a contribution of Ship and such goods as are safe there­by: l. 1. & 2. ad l. rhod. and not onely of goods paying fraught and burdensome, but of cloath­ing, money, jewels, and such like,d. l. 2. & oleron which are not weigh­ty.

For, it is most righteous, that the losse be common to all things which are safe thereby.eod. Except things borne upon a mans body, victuals and such like, put in ship to be spended, and ther­fore should not scott and lott, with other goods: in so much, that when they be­come [Page 139] scant and wanting, each man is bound to com­municate the same one to o­ther. d. l. 2.

But here it may be asked, whether yet should all kinde 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 transportedl. 17. &c. 130 actor. Iacob. 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 beare the losse and also be criminally pursued there­fore. Arg. l Vnie. C. ne quid oner. public.

[Page 140] But if goods unadvisedly, without consent of the ow­ner thereof, be cast out, on the sudden; then may he himselfe upon his conscience esteeme his owne goods to the just worth, because the company hath that way by their rash dealing, lost the priviledge they had to esti­mate that goods.Per. l. si fide. iussor. D. qui satisd. cog.

In like manner the ship geare and apparell wracked by storme, imports no more contribution, then if a work­man breake or spoyle his work-tooles, or instruments in his ordinary work,d. l. 2 & l. navis eod. except in the avoyding of a [Page 141] danger, as the helving the maste over-boord,l. amissae. e­od. & Oleron. or the slipping of a Tow-anchor or boate upon just fea [...], or at the desire of the Mer­cha [...]ts.d. l. 1. & il consol. del. mar. But that should be alwayes proved by the oaths of the ship-men: for concerning all facts within house or ship, credit must be given to the domesticks and company familiar.Per. l. conse [...] ­su. C. de repud: & l. qu [...]ties. C. de naufrag. &c. veniens. extr. de testib. &c. 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.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 speciall goods, whether from ship or Mer­chant, and not as a conten­tation for the sparing of the rest, it should appeare in this [Page 143] case, that seeing the remnant is not safe hereby, but freely spared, that no contribution should be made for the taken goods. For oftentimes Pirats take but things at their plea­sure, and not of minde to spoyle.Vide lat [...]. l. 2. ad l. rhod. Yet now adayes because this chance of taking at pleasure, concernes (in common judgement) the rest of the goods as subject to that same pleasure of the Pi­rat; therefore should it be al­so in common upset by all to whom that chance is com­mon.

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

IF through the losing of any cast goods, or upon any needfull occasion, the remaining goods be spoyled either with wet, or other­wayes; a contribution shall be made, proportionable for so much as they are made worse.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 needfull to lighten a ship of her burden, for her easier entry to Port or channell, the two parts of the losse fall upon the goods, and the third part on the ship; except that the shippe surpasse in worth the loading, or that the charge of goods bee not [Page 146] the cause of her inability to enter, but some bad quality proceeding of the ship it selfe:Oleron. Or that otherwayes it be provided in the charter-partie, that the goods shall be fully delivered at the Port covenanted and appointed; for then condition makes law: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 [Page 147] once safe, no contribution shall be set upon the goods in the Lighter: because the rule is constant, that onely then should goods be liable to contributions, when ship and goods come safe to Port.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 unknowne Port;Oleron. as also to raise the Ship off ground when the fault is not in the Master.Eod.

Even so if two ships rush and crosse one over another, and the company sweare their innocencie, as that it lay not in their power to stay [Page 148] the same, contribution must be made for one equall up­set of both their losses.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 losse: for if it were otherwise, a malitious Skip­per, might of purpose set an old weake ship against a strong ship, in hope of some upset and recompence. And yet for redresse of the lost shippe, an action may be to the owner, against the neg­ligent Master, or the Ma­riner who losed her, or cut her cable:d. l. quemad­modum. parag. si navis ad. l. Aquil which action is called Legis Aquiliae, for [Page 149] dammage and scathe done. And therefore if such a chance befall in the day light, by a ship under saile a­gainst a ship riding at anchor, then the Master of that sai­ling ship, shall make good the dammage 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 pertaines to this ar­gument,Art. 3. 6. 11▪ naval. rhod. if some sort of goods, as salt, or corne, be laid on heap by divers part­ners, into a shippe without [Page 150] distinction, and that the Ma­ster deliver to any of them their due measure, and before the rest receive their mea­sures, the remaining salt or corne, washes or looses, he that had the good luck to be first served, enjoyes it fully without any contribution to the rest of the partners:(i) because when this goods was put into the ship, it was delivered to the master, tan­quam in creditum; and so he is become owner, as of lent money: which men are not holden to render in the selfe same pieces, but in value or such like coyne;Iust. in pr. qu [...]b. mod. re contrab. ob. [...]e. l. 2. si cert. peti. exceptquod convenit de verb. ob. [Page 151] there be some other conditi­on past before: which in all affaires 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.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 midde voyage: but if after the midde voy­age, then to the price, the rest of the same goods at­taine [Page 153] to at the market; be­cause there is here a conside­ration, rather of losse and scathe than of any gaine.l. 2. in fin. ad l. rhod. & il consolato. And because domage and losse should be drawne as it were in streite, and gaine and vantage spredde forth and extend, according to Harmenopolus sentence; spoy­led and lost goods should bee set to the common worth, and not after mens affections:d. l. navis & l. pretia. ubi bartol. ut ad. l. 7. C. de prog. milit [...]r. lib. 12. except one­ly in goods unadvisedly cast: wherein for the cor­rection of the rashnesse of the casters (as who thereby appeare to have amitted [Page 154] their owne priuiledge) the estimation of the goods is permitted to the conscience of the Merchant or owner therof. (Per. l. si [...]ide­iussor. Qu [...]. satisd. cog. Vide supratit. 17.

Secondly, concerning the Persons, whose losses are un­der contribution, he should first deale with the master, to retaine all the same goods on the bottome of the ship, in his keeping, untill the rate be set and executed: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 a­gaine.d. l. 2. in fin.

Lastly, concerning the [Page 155] Master of the Ship his privi­ledge, it is not onely upon the detinew, and keeping of the goods and geere brought within his ship, which are thought as by a privie 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 sticke firmely to the said goods: and therefore the Master may hold his hand thereon, untill satisfaction be made,l. 1. de dol. mal. excep. & l. si non sortem. de cond. in de. albeit that com­monly [Page 156] the with-holding of other mens good be not al­lowed.l. 1. parag, re­diguntur. D. quod vi [...]ut clam.

TIT. XXII.
Of priviledged ships.

SHips or boats serving the Country, or the Prince, have great prerogatives. For first they goe free from all Imposts, Customs, and Arrestments,l. 1. de navi­cul. c. lib. 11. not onely in forth-going, but also in their returne, according to Frede­ricke the Emperour his con­stitution. Auth. [...] filiu [...] pre patre. Yet if a Skip­per serving the Prince or Countrey, wilfully falles on coastes and by-courses [Page 158] where he should not, to their hurt and hinderance, he me­rits death:l. 5. de navi­cular. C. lib. 11. and the com­manders or officers in chiefe parts, who wittingly suffer such Skippers to lye and slug­ger, incurre a forfeiture of all their goods.l. ult. eod.

And if any man shal force the Skipper of these or any other ships to take in more than his just charge, not one­ly should he upset all hurt and losse, but also be pub­likely punished.Art. 49. Il. selectar. naval.

And as these are the con­ditions of ships serving the Prince; so is it to be knowne that all sorts of ships are sub­ject [Page 159] to this service, upon command:Vide Tit. de navib. non ex­cusand. C. otherwise in case they refuse, their ships shall be confiscat, except they report a testimony from the Admirall of very lawfull ex­cusede offic. admir. 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;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 moe, then they can well carry a ship-board.Bart. & Bald. in d. l. unic.

And this is a common priviledge to all sort of loa­ded [Page 160] and burdened ships, to have the neerest place to the shore, for their discharge and unloading; and therefore the ships lightened, to give them place.Wis [...]i [...] c. 10.

Lastly, even the persons who build, purchase, or dresse shippes expresly for a common-wealth to their. Country, are accounted a­mongst the priviledged:Qui navium de privileg. creditorum. yea the frequenters of say­ling are also priviledged in all Courts.C. Innocenti­us. de for. comp.

TIT. XXIII.
Concerning Shipwracke.

STrangers incurring shipwracke in Scotland, should have the same favour of us that we use to receive of them in the like case;138. actor. Iacob. 1. so that no confiscation should be used against them, except they use to doe so to us, or that they be very Pi­rats, or enemies to Christiani­ty: L. 1. C. de nau­frag. & auth. naufragia, C. de furt. otherwise, who steals any such miserable goods, [Page 162] shall pay foure-fold to the owner, if he be pursued with­in a yeere and a day;l. 1. in pr. de incend. ruin. l. in eum cum auth. seq. de furt. and as much to the Prince or his Admirall: yea, the onely stealing of a naile, or the worth thereof, maketh the thiefe guilty of all, to the ren­dring of all the remaining goods.l. 3. in fin. de incend ru. nauf.

Yea, by the Emperour Antonius his ordinance, this thiefe or robber of such goods should be battoned, and banisht for three yeares, if he be of any honest ranke; but if he be base of conditi­on, should be sent scourged to the Gallies or metall [Page 163] mines.l. Pedius 4. eod.

And if any man should be so cruelly wicked, as to hin­der the ship-broken men from helpe in danger, hee shall be recounted for a mur­therer.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 Iulij, Tom. 1. regis [...]. Scot.

In like manner, if any man should be so accursed as to hold forth a Lanterne in the night, of intention to draw on ships to a danger, in place of a good port or har­bour [Page 164] or safe roade, that wic­ked person should be puni­shed to the death.Per d. arg. l Saccula. [...]i.

Yea, though no harme happen, yet may the Admi­rall punish him at his plea­sure: Per l. 10. de in­cend. ruin. nauf. And therefore even Fishers are forbidden to fish with light in the night, lest that Sailers thereby be decei­ned with the false shew of an harbour.l. ne piscato­res eod.

But for the better eschu­ing of these cruell evils, Ha­drian the Emperour ordai­ned, that all men having possessions on the coasts, should attend carefully upon such chances; otherwise, to be [Page 165] answerable for al things mis­sing by stealth or robbery.l. ne quid eod. & auth. naufra­gia. C. de furt.

Item, if no man in due time claime such a wracke, it fell of old to the Prince his customers, according to that of Hermogenes and Fortuna­tianus, m. Cod. Theo­do. Naufragia ad pub­licanos pertinento; but now-adayes to the Admirall, by the Princes graunt.

But concerning the action for shipwracke, it should be intended within a yeere and a day,l. si quis. C. de naufrag. lib 11. and sped by the Iudge within two yeere.Vide l. de Submersis. eod.

Where it is to be marked, that if the shippe onely pe­rish and the goods are safe, in [Page 166] that case the goods shall pay the fift or the tenth penny; according to the easie or dif­ficult winning and saving of the said goods;Art. 37. leg. naval. Rhod. for gold, silk, silver, & such like things of easie transportation, should pay lesse than goods of greater weight and diffi­cult transporting, as being in greater hazard:Art. 40. eod. except the Skipper carry-in his ship to a port or part where hee should not, nor the Mer­chant would not; for then is the Merchant free of all the Skippers losse,Art. 39. eod. and no way should upset the spoyled or broken ship.Art 37. eod.

[Page 167] But in cases of wracke, the lawes of England are also to be seene: as, Westm. 1. 3. E. 1. vid. praerog. regis 12.

TIT. XXIV.
Of things found upon the Sea, or within the floud-marke.

SHips, goods, or geare, or whatsoever other things found within the Sea or floud thereof, are of three sorts: as, either found on the streame floting, and then are called Floatson: or found on the Sea bottom, and drawne up from the same by Doukers and other meanes; and then are called Lagon: [Page 169] or found on land, but with­in the Sea-floud, as cast forth there by storme and the wa­ter; and then are called Ier­son.

Concerning Floatson and Ie [...]son, whether things be cast up by shipwrack, or else left as lost through casting in stormes, the finders thereof, as some Lawyers thinke,Faber & alij inst. de rer. di­vis. sect. pen. should doe therewith, as with other goods found upō land: that is, to proclaime the same to be forth-comming to the just owner; because the loser or [...]ynner of such goods remaineth still ow­ner and proprietar thereof:per l. Pom­ponius. parag. fin. de acquir. rer. dom. [Page 170] and if no man claime, the finder to keepe it to himselfe if he be poore.Faber. d. pa­rag. pen. But accor­ding to the old Rhodian law, whether the finder be rich or poore, he may claime or rather retaine the fift part, for the safe keepingArt. 45. & 46 Il. nava [...]. Rhod. If a Douker finde drowned goods upon eight cubits deepe, hee gaines the third part; and if on fifteene cu­bits, then he obtaines the halfe; but upon one cubite, onely the tenth part.dd. art.

Yet if the finder be rich, and hath found goods by chance, hee should rather give it to the Church or [Page 171] poore, as some say.Auth. omnes peregrini com­munio de suc­cessionib.

But now-adayes this go­eth farre otherwise; first, be­cause persons endued with the superiority or signiory of any part of the Sea-coast, do claime all or a part of these things, whether cast forth of ships, or otherwise com­ming upon their land,Oleron. which otherwise before was allowed to the finder:Eod,

Even so, when shippes or boats were found on the sea, or at the coast thereof, with­out any living creature ther­in, and no man claiming the same for the space of a yeere and a day, then was the halfe [Page 172] allowed to the finder, and the remanent to the Prince, as a derelict:Vide statu. re­gis Alex. Scot but since the erection and constitution of Admiralls, this kinde of found goods are diversly par [...]ed; for in France, the King, draweth a third, the Admirall a third, and the finder a third.L' Admirall de France. And of old, in England, although such things were divided twixt the Admirall and the fin­der,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 condigne portion, for his travels, [Page 173] charges, and hazard in all circumstances;Per diploma­ta. even with the halfe at least, according to that which Tryphonius sets downe, concerning things found on land.l. Si is qui. 63. in fin. de acq. rer. dom. Yet, if the finder conceale such goods, whether an­chors, timber, jewels, dead­men with money or jewels about them, &c. he not one­ly loseth his just part, but may be also fined at the will of the Admirall.L' Admiral de France. & d. depl. And thus farre concerning things found by the labour and tra­vels of men.

If Whales, great grosse fishes, ships, or boats, with­out [Page 174] any living in them, by force of winde and waves onely, be driven to any coast or land, then all and whole appertaines to the Admirall: and so generally, all casual­ties whatsoever.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 Pirats, and sea-thiefes; or from professed enemies in lawfull warfare; or from such as not profes­sing open warre, allowes ta­king reft to be exercised a­gainst us. Which kinde of taking, is covered with the [Page 176] title of letters of Marque, called Ius represaliarum.

And first, touching that which is taken from Pirats, sith the goods which they have wrongfully taken from others, whether they be found in their owne, or in their successors possession, are esteemed to bee a just prey to any taker, so that account be made thereof to the Admirall: in case the ta­ker finde the goods of his country man or friend with the Pirat, hee should make the same forth-comming to the just owner claiming the same; his cost, charges and [Page 177] hazard, being alwaies consi­dered and allowed;Per l. Pom­ponius de acq. rei dom. so that if any man buy or re­deeme his neighbours ship from a Pirat or enemy, hee must receive the price there­of from the owner.Per l. mulier. de cap. & post. But if no man claime the goods taken from a Pirat, then should the same be delivered to the Admirall, 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 [Page 178] the same is taken back, and recovered by any friend, and the just owner claime the same, it ought to be re­stored to the owner; for that by the law, Huiusmodi res non tam capta quàm recepta intelligitur. 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 lawfull prize to the taker, then should the Admirall have a tenth part: for so of old, the tenth part of lawfull spoile, was offered to God, in a manner; as we may learne by that which Abra­ham returning from victory over five Kings, offered to Melchisedeck: Gen. 14. and the rem­nant [Page 179] of the spoile should be proportionally divided a­mongst the takers, accor­ding to the law of God, set downe by Moses, Deu. 20. and practised by King David; 1 Reg. 30, and yet not onely amongst severall persons, according to every man his proved tra­vell and hazard.c. dicat aliquis parag. 23. q. 5. &c. ius milita. re dist. 1. So that the ship that sets no saile, fights not, nor hazards not with the rest, should have no part with the rest, there­of. L' Admirall de France. Provided alwaies, that first and formost, the prisoners, captives, and ta­ken goods of preyes, be in due time presented to the [Page 180] Captaine, to be disposed by the Admirall: so that if any man breake bulk, meddle, or dispose of any of those goods before, he may be punished, and the receiver or buyer prisoned, untill caution bee found, that these goods shall be forth-comming to the Admirall, and just owner, according to a decision past betwixt the King of Scotland and Maubray, Anno 1487. 17. Iunij. Tom. 1. c. 24. [...]gist. Scot.

If two forraine Nations be at warre, and the one take a shippe from the other, and bring her into a Port or road within the bounds of a [Page 181] neutrall Nation, alike friend to both, then may the Ad­mirall of that neutrall Nati­on ordaine 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 beene brought backe to her owne Port and Countrey a­gaine.Per. l. post­liminium. parag. postliminio. de. cap. & postlim.

Besides that, generally in all cases, the action and cause of liberty, as priviledged, should be favourably consi­dered: Per l. libertas. de reg. iur. and it is the honoura­ble practice of Princes, to make their Countreyes an [Page 182] Asylum, or sanctuary, to all distressed strangers that bee not Pirats.

Lastly, concerning letters of Merque, as we speake, or droict de Merque, as French­men tearme it, sive ius repre­saliarum, and goods and things taken under that title upon sea; surely, as farre as we may, we should prease to keepe Gods law set downe by Moses, Deut. 14. 16. practised by King Amasia, 2 Reg 14. 6. & 2 Chr. 25. 4. and confir­med by the Prophets:Ier. 29. 3. Ezech. 18. 20. that the father should not be pu­nished for the sonne, nor the sonne for the father, but a difference to be alwaies put [Page 183] betwixt the guilty and the in­nocent. Which thing moved Emperours to make consti­tutions for the repressing of represalies in certaine re­spects.Vide an [...]hent. imo. C. ne filiu [...] pro patre.

Notwithstanding, if our patience be so oppressed with the increase of robberies, spoyles, and violence upon sea, by men falsely professing friends, in such sort that up­on no supplication, interces­sion, nor other travels, the Princes of these wrongfull Nations (who onely can and should represse and redresse) will doe justice, or neglect to doe their office; then be­cause [Page 184] such a dealing imports a iust cause of lawfull hosti­lity and warfare, I see not but that such a calamity may and ought to be repressed, at least by these represalies and letters of Merque;Vide Bartol. latè de represal. speci­ally, sith that cause, in effect, resembles a warre denoun­ced without solemnities of clarigation.

And therefore, both ac­cording to the lawes of Eng­land, letters of Merque are allowable; and according to the old custome of Scot­land; and the tenor of the Act of Parliament made by Iames the first of Scotland, [...]. 131. actor. [Page 185] concerning shipwracke, to be followed for a rule to such cursed cases, that is to say, that other Nations should have the like favour of us, that they shew to us.

Now being agreed that letters of Merque are law­full, as they are by statutes, customes 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:Per gloss. in c episcopus. 18. dist. & DD. in c. si contra. &c. 1. de milite vasallo qui con­tumax. then what goods happen to be taken by that meanes, should bee brought and presented as [Page 186] aforesaid before the Admi­rall; 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 di­vers good respects.

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

ALbeit hunting, haw­king, and fishing, be of one kinde, as sub­ject to a like law and liber­ty, l. 1. in fin. de acq. rer. [...]om. & parag ferae in­sti. de rer. divis. because what wilde beast, fowle, or fish be once taken by any man, common­ly it becommeth his owne proper by the lawes of Nati­ons; yet is there a difference twixt these three: for, albeit [Page 188] hunting and hawking be al­most every where lawfull, yet fishing is forbidden in o­ther mens ponds, stanks and lakes,l. iniuriorum 13. parag. fin. in fin. de iniur. Iacob. 3. act 60. & Iacob. 5. p. 4. cap. 12. as comparable with the [...]t.

Yea, now a-daies, in ri­vers, and in parts of the Seas neerest 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 prohibite [Page 189] others to fish there also;l. prascrip de usucap. for such prescriptions onely pertaine to Princes.

To returne to the quality of fishing; sith it is not one­ly allowable to all sorts of persons,c. 1. & 2. de cler. venat. &c. 1. in cleric. & mon. but also com­mendable, and alwaies to be preferred to all other trades and traffiques upon sea, not onely for necessaries, but also for the great good and profit redounding thereby; all ciuill and vertuous Prin­ces have diversly forth­showne their care, for the entertaining and advancing thereof: as, by ordinances to build shippes and boats [Page 190] to that purpose;Vide late. act. parl. Scot. and by their wise appointing of cer­taine onely times for the fi­shing, as namely, of Salmon, under paines not onely of Fynes, but also of forfeitures, and of death, according to the manner of the offence, and contempt of their de­crees and statutes.Vide statuta, & constit. & act. regū 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 crowes, yarrs, dammes, fosses, tramelets, parkings, dyking and herry­waters, in any watersVide statut. Angl. & Scot. & l' Admir. de France. where the sea ebbes and [Page 191] flowes, under paine of con­fiscation of all the goods of the transgressors in Scot­land. Iac. 6. parl. 6. cap. 89.

Yea, albeit that any man were of old infefted with keeping of crwiffes, weares, and kiddles, &c. yet must he keepe the Saturdaies slop: that is, to lift the same from Saturday at after-noone till Monday; and also to make each heck or mesh of his crwiffe three inches wide,Iac. 1. p. 1. c 11. Iac. 6. p. 7. c. 11. except for taking of smelts, loches, and such like that will neuer be bigger: as also, for to set the same upon the wa­ters, that the mid-streame [Page 192] may have the iust space of sixe foot wide, under the paine of five pound.Iac 3. p. 10. cap. 73 And thus farre concerning the maintenance and increase of fishes, by our Scottish lawes and custome.

It followeth, to set downe concerning the Fishers their safety and priviledges. Wher­in it is provided, first, that all Shippes sayling into the parts where Herring are ta­ken, at least during the ta­king thereof, shall let downe [...]aile after day light past, let their Anchor fall, and keepe watch with Lanterne and light, untill day light appeare [Page 193] again, lest otherwise the poor Fishers should be over-run, or their nets broken: their paine in Denmarke, is death to the transgressors:Denmarke. and the Fishers are likewise for­bidden to use light in their fi­shing by night, lest they de­ceive saylers with the false shew of a port.Vlpian in l. ne pifcatores de incend. [...]ui. naufr.

Likewise, lest any of the Fi­shers harme or hurt one ano­ther, it is diversly provided, as also cōcerning the right mea­sure of their nets in length & in bredth;Vide l' Admi­rall de Franc. as may be seen by the Statutes of sundry na­tions Vid statuta Angliae.

And specially therfore it is [Page 194] agreed of long time sithence, by the Sea-farers on the Forth of Scotland; Vide Forman his Register. first, that no ground-draffe or drag-net, be set before March, nor upon deeper water then fourteene fa­thome.

Item, that none shall lye 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 runne o­ver one another, under the paine of ten pound for every transgression of the premi­sed [Page 195] articles.

Item, above all, that from the Sun-set on Sonday, no man lay nor hale nets or great lines, or exercise any labour, under the foresaid paine.

Item, for the further in­couraging of Fishers in the West and North Isles of Scotland, there is a Statute that no other customes be sought of the Fishers in the said I [...]es, but only the Kings customes; under the paines due to manifest oppressors against them who exact the same.Mar. p. 6. c. 5 [...]

Lastly, concerning Fishers [Page 196] and traffiquers with fishes, it is ordained that not onely all fish slaine and taken neere to the coast of Scotland, be brought and presented to the market places, where the takers or slayers thereof dwell:Iacob. 5. p. 9. c. 98. but also all fishes taken in the North and West Isles or Firths, to be brought directly to the townes where the Fishers dwell (that the need of the countrey may be first ser­ved) Iac. 6 p. 4. c. [...]0. and presented to the market places: from which none may carry them away to packe and peil, but one­ly betwixt the houres of ele­ven [Page 197] and two in the after­noone, under the paine of confiscation. In which mar­kets, it is lawfull to the Pro­vost & Bail [...]ffes to set downe prices, and to compell the packer and peiler to sell a­gaine for the need of the Lieges.Iac. 5. p. 7. c. 98 Which being done, they may transport the remainder where they please.Iac. 6. p 4. c. 60 And in case they contemne, then their fishes to be eschete, two parts to the King, and the third to the Magistrate▪ Iac. 6. p. 6. c. 86

Likewise, concerning the barrelling of fishes, it is ordained that the measures [Page 198] prescribed of old shall be kept: videlicet, each barrell of Herring, or of white fish, to be of twelve galons;Iac. 5. p. 4. c. 57 Iac. 6 p. 4. c. 147. and the barrell of Salmon of fourteene galons, according to the measure of Hamburg, Iac. 3. p. 10. c. [...]76. under the paines of escheting there of from the pa [...]ker, and of five pound to be lifted from the Couper.Iac. 3 p. 10 c. 76. And therefore hoop irons to be made in each towne, for the tryall and gaging thereofIac. 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 seene and perused a very learned, but a subtle Treatise (incerto authore) in­tituled Mare liberum, contai­ning in effect a plaine Pro­clamation of a liberty com­mon for all of all Nations, to fish indifferently on all kinde of Seas, and conse­quently, a turning of un­doubted [Page 200] proprieties to a community; as the fift chap­ter thereof at large discovers (wherein the unknowne Authour protesteth, that he may for his warrant use the authority and words of such old Writers as have beene esteemed most mighty in the understanding and judging upon the naturall condition of things here below) and the Discourse, being co­vered with the maintenance of a liberty to saile to the Indians; I thought alwaies expedient by occasion of this argument of fishing con­tained in my former Title, [Page 201] by Gods grace, to occurre thereunto; as manifestly di­rect, at least (in my weake sight) tending to the preju­dice of my most worthy Prince and his subjects; and that not onely by arguments derived from the first verity of the nature of things, but also from his owne proofs, warrants, and their Au­thors.

And yet before I goe any further, I cannot passe the Authour his ridiculous pre­tence, in both Epistle and beginning of his Discourse; as for a liberty onely to saile on Seas: a thing farre [Page 202] off from all controversie, at least upon the Ocean; speci­ally, since passage upon land through all Regions Chri­stian, is this day so indiffe­rently permitted to all of all Nations, even to Turkes, Iewes, Pagans, not being professed enemies; and ther­fore much lesse to be restrai­ned on Sea in all respects. So that I cannot but perswade both my selfe, and other loy­all 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 [Page 203] side the Seas.

Now remembring the first ground, whereby the Authour would make Mare I [...]herum, to be a position for­tified by the opinions and sayings of some old Poets, Orators, Philosophers, and (wrested) Iurisconsults, that Land and Sea, by the first condition of nature, hath beene and should be com­mon to all, and proper to none: against this I minde to use no other reason, but a simple and orderly reciting of the words of the holy Spi­rit, concerning that first con­dition naturall of Land and [Page 204] Sea from the very beginning; at which time, God having made and so carefully to­ward man disposed the foure Elements, two to swimme above his head, and two to lye under his feet: that is to say, the Earth and Water, both wonderfully for that effect ordered to the up-ma­king of one and a perfect Globe, for their more mutu­all service to mans use: accor­ding to this, immediately af­ter the creation, God saith to man,Genes. 1. 28. Subdue the earth, and rule over the fish: which could not be, but by a subdu­ing of the waters also.

[Page 205] And againe, after the Floud, God saith, Replenish the earth: eod. c. 9. v. 1. and for the bet­ter performance hereof, God in his justice against the building of Babylon, scat­tred man-kinde over all the face of the earth;eod c. 11. v 8. there­fore is it that Moses saith,eod. c. 10 v. 5. These are the Iles 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 cōposi­tion: and yet howsoeuer, [Page 206] in his justice as is said, yet in his mercy also and indulgent care, for the welfare and peace of mankinde. For those are sentences both vul­gar and sure, set downe by the Romane Iurisconsults,Vlp. l qui ne­que. de reb eor. quisub [...]utel. Communio parit discordiam. Quod communiter possidetur, vitio naturali negligitur. Ha­bet communio rerum gerenda­rum difficultatem. l. pa [...]er. parag. duluss [...]iè de leg. 2.

Afterward, the earth, by the infinite multiplication of mankinde, being largely re­plenished, and therefore of necessity thus divided▪ and things upon the earth not sufficient for the necessaries [Page 207] and desires of man in every region, followed of force the use of trading vpon the seas; not onely for the ruling of the fish therein, according to the commandement 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. Ad legem 1▪ de rer. divis.

[Page 208] And thus farre have we learned, concerning the com­munity and propriety of land and sea, by him who is the great Creator and authour of all; and therefore of grea­ter authority and understan­ding then all the Grecian and Romane Writers, Poets, Orators, Philosophers, and Iurisconsults, who-so-ever famous: whom the author of Mare liberum protests he may use and leane [...]o without of­fence.

Now, sith the weaknesse of this his first and principal ground doth this way ap­peare; let any man judge [Page 209] upon the truth of that which Cicero (his man) sets down,1. officior. Sunt privata natur a nulla; and likewise of all other his au­thors their opinions, for the fortification of an originall community of things.

It followeth to examine the chiefe warrants of Mare liberum; and to consider how farre they may beare forth to a common liberty for fi­shing, on all seas indifferent­ly.

The author cites Vlpian, a renowned Iurisconsult in­deed, and Martian their sen­tences; alleagingpagina 25. that Vlpian should say,l. iniuriarum. parag. ult. & parag. si quis de in iur. Ante [Page 210] 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 intend action of injury against me, for a wrongfull staying him from fishing there.

But as I read,d. p [...]rag. si quis. Vlpian his words are thus; Sunt qui pu­tant iniuriarum me agere posse: that is, there are men who thinke, I may intend action, &c. It is true also, that Mar­tian [Page 211] saith, Nemo ad littus pis­candi causa accedere prohibe­tur. l. 4. de. rer. divis. And yet neither of these two Iurisconsults, pro­nounceth absolutely in these cases, but upon another high­er warrant: and therefore Vlpian addes, Saepissime rescrip­tum est n [...]c piscari, &c. prohi­bere posse. d. parag. si quis in fin. That is, it is by writ most often answe­red, &c. Which Martian ex­pounds most clearely, when he saith, Nemo igitur ad littus maris piscandi causa accedere prohibetur; and subjoynes his warrant, Id (que) Divus Pius piscatoribus Formianis re­scripsit: d. l [...]. de rer▪ divis. that is, No man [Page 212] is forbidden to come to the sea side and fish; as the Em­perour Divus Pius did write to the Fishers of Formian. So that you see the Emperours to have been warrants to these Lawyers, and their writ­ten opinions, concerning the voyage of the sea.

Now, to passe the propri­ety which hereby we see these Emperours did claime on the seas, I aske first, to whom did the Emperours write such resolutions? was it not to the professed sub­jects of their owne Empire? and what? even the usage of the seas, and coasts of their [Page 213] Empire, to be indifferently common to every one of their own subjects: and how? Iure gentium; that is, according to the law kept by all other nations, to every one of their own nation in like cases.

Moreover, albeit these and other Romane 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: l. quod in lit­tore. de aeq. rer. dom. that is, what [Page 214] a man builds on shoare, it be­commeth his owne; yet up­on this condition, Tamen de­cretum praetoris adhibendum est ut id facere liceat, saith Pomponius: l. quamvis. de acq. rer dom. that is, provi­ding the Praetor his decree be interponed thereunto; or that the Prince give grant, as Vlpian writes;l. prohibere. parag quod et si. Quod vi aut elam. Vel ut prin­ceps concedat. As for the rem­nant of these sorts of war­rants alledged for Mare libe­rum, sith they sing all one song for the common use to the people, and propriety to the Prince, if men will but onely marke them; I need not stay further upon them. [Page 215] So that every man may see both the use of the word commune, and the meaning of Iure gentium among these Lawiers, whereupon this Mare liberum appeares so to be founded, that it cannot be shaken. For, commune, 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. l. Roma. ad municipal.

Neither yet doth that word, Iure gentium, meane a­ny law set downe by com­mon [Page 216] consent of all nations; but onely notes the example of the law, or custome of o­ther nations: as if they would say, the liberty of fishing on our seas, and of other doing there and at shoare, should be common to every one of the Romane Empire, like as the same is common to all of all other nations, on their seas, and their shoares.

Likewise, that of Placen­tinus; Quod mare sit in nul­lius bonis, nisi solius dei: that is, GOD is onely Lord of the sea; and so say we with King David, that the land [Page 217] also is the Lords.Psalme. But that of Faber, 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 inferres his conclusion; Demonstra­tum igit ur nec populo, nec pri­vato ius aliquod in mare competere posse, quum occupa­tionem, nec natura, nec publici usus ratio permittat. Pag. 28. Which, how it followeth upon the premisses, let men judge; sith neither these [Page 218] his Authors make for him, neither yet the reason inser­ted in the conclusion beares 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 [Page 219] fro? Surely, that lacke of so­lidity for man his trading thereon by foot, shall not hinder the solid possession of it, farre lesse the occupation and acquiring, if we will give to the sea, that which the Iu­risconsults indulgently grant to the land, which also can­not be denied. Paulus the Iurisconsult saith,In l. possideri. de acquir. poss. Qui fundum possidere velit, non u­tique omnes glebas eius circum­ambulet, sed sufficit quamlibet partem eius introire, dum men­te & cogitatione hac sit ut to­tum possidere velit usque ad terminum: that is, it is not needfull for him who would [Page 220] possesse himselfe in any part of the land, to goe about and tread over the same; but it is sufficient to enter-in up­on any thereof, with a mind to possesse 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 farre 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 keepes the prescribed bounds strictly enough,Psal. 104. 9. concerning the [Page 221] chiefe place and limits there­of.

VVhich discourse, gives us occasion of force to an­swere to a scoffe cast in by the Author of Mare liberum, concerning the possibility also of marches and limits, for the division of the seas:Pag. 38. Mundum dividunt (saith the fore [...]aid Authour 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, [Page 222] put either by nature, or by the hand of man, but by an imaginary or fantastick line: which kinde of doing being embraced, the Geometers may steale 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 Washes at the West seas of England) nor rockes, or other eminent and visible markes above water, for the designation of the bounds (or laying-out the limits) of the divisible parts [Page 223] thereof: but GOD, who is both the distributer and first Author of the diuision 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 himselfe: so that to a very wonder, God hath diversly informed men by the helpes of the Compasse, counting of courses, sounding, and o­ther waies, to finde forth, and to designe finitum in infinito; so farre as is expedient for the certaine reach & bounds of seas, properly pertaining [Page 224] to any Prince or people.

Which bounds Bartolus insect. nullius in tractat. de insula. hardily extends and allowes 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. Gloss in c. ubi periculum. pa­rag. porro. de electionib. lib. 6. It is true, Baldus 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; l. in▪ finalibus. com. divid. what more [Page 225] evident monuments for our King his right in the narrow seas, then these Isles of Gern­sie? &c. And for the Eastern seas, direct from Scotland, what is more antiently no­torious than that covenant twixt Scottish men and Hol­landers, concerning the length of their approaching toward Scotland by way of fishing?

And thus farre through oc­casion of answering to that alleadged impossibility, of acquiring the Sea by occu­pation, because (as would appeare) of the unsolidity therof, for any foot treading. [Page 226] It rests to touch the other cause naturall, for that other impossibility, which may be the continuall fluxe and in­stability of the Sea; in such sort, that it would appeare not aye to be one and the selfe same body, but daily changeable. For answer, I must remember that which the Iurisconsult sets downe so prettily:In l propon [...] ­ba [...]ur. de iud., Suppose (sayes he) a certaine Colledge of Iudges, or a Legion of Soul­diers, or the particular parts of a Ship, or of a mans bo­dy, should so continually and often be changed and altred, that none of that first [Page 227] Colledge or Legion could be found alive, nor yet any part of the Shippe 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 Colledge 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 waies and hour­ly changes, in the small parts thereof, by the ordinary rush on land, mixture with other [Page 228] waters, swelling in it selfe, ex­halation and backe receipts thereof by raine; yet since the great body of the Sea most constantly keepes the set place prescribed by the Creator, I see not in this re­spect neither, wherefore the nature of the Sea should not yeeld to occupation and con­quest. And thus farre 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 [Page 229] alicuius fieri non potest, quia natur a iubet esse commune: 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 maine 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: Pag. 25. that is, The Sea to be of that order of things, which cannot bee appropriate to any man. His warrants for his conclu­sion also are the Romane Lawyers, whom I said to be [Page 230] wrested by Mare liberum; and therefore must shew the same, contrary to his pur­pose indeed. Martianus, l. si quisquam divers & temp. praescrip. as the Authour of Mare liberum largely grants,Pag. 24. saith, that if any private man have him­selfe alone, by any lawfull space of time sufficient for a prescription, kept and exer­cised fishing in any [...]reeke or nooke of Sea, which they call Diverticulum; hee may forbid all others to fish ther­in: which Papinianus 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, [Page 231] who hath no other care nor respect but to himselfe alone, be thus priviledged and pre­ferred to a Prince? who not for himselfe; but for his peo­ple also in common, yea and for the safety of all traders passing his coasts, with great charges and care protects and conserveth the Seas nee­rest unto him: shall not this Prince be acknowledged, at least with the good which that Sea, conserved by him, offers so directly to him? And I pray you say, What lesse authority had Leo than the rest of the Romane Em­perours, to grant to every [Page 232] one in particular, having possessions at the Sea side, as much of the [...]ea as was nee­rest against their lands,Novell. 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 neerer to the chiefe point of our pur­pose, and so to the end there­of: as I accepted Mare li­berum his former large graunt, so now also doe I more heartily embrace the [Page 233] next, which is this; When after these his conclusions, he had said in tanto Mari siquis piscatu arceret, insanae cupidi­tatis notam non effugeret: pag. 30. he subjoynes according to that of Cicero, Off. 1. Quando sine detrimento suo quis potest alteri communicare in ijs quae sunt occupanti utilia & danti non molesta, quid ni faceret: and subjoynes afterward,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 bee in any re­spect forbidden and stayed, [Page 234] it should be chiefly for the fi­shing, as by which the fishes may be said to bee exhaust and wasted; which, daily ex­perience these twenty ye [...]res past and more, hath decla­red to be over true: for wher­as aforetime the white fishes daily abounded even into all the shoares on the Easterne coast of Scotland; now for­sooth by the neere and daily approaching of the busse Fi­shers the sholes of fishes are broken, and so farre scattered away from our shores and coasts, that no fish now can be found worthy of any paines and travels; to the im­pover [...]shing [Page 235] 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 mans particular desires, as to answer (forsooth) to his pro­fession of the lawes, that is, to allow the proper right for every man and nation, and to hurt none; according to the three generall precepts of all lawes, set down by Caius, in l. iustitia. de rer. divis. and after him by [...]ribonia­nus: Parag iuris praecepta. de iust. & iur. Honestè vivere; alte­rum non laedere; & ius suum cuique tribuere: whereof the second tryes and rules the [Page 236] rest; according to the vulgar saying out of Pomponius, 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, l. rescriptum de distract. pig. Ex aliena iactura lucrum haurire non o­portet. And therefore I would meet him with his deserved courtesie; even to proclaime Mare liberum also: I meane that part of the maine Sea or great Ocean, which is farre removed from the just and due bounds above mentio­ned, properly pertaining to the neerest Lands of every Nation. Atque ita esto mare vastum liberrimum.

TIT. XXVIII.
Of War-fare shippes, and of the Captaines and Companies thereof.

ANd since wee have written above of pri­viledged shippesTit. 22. a­mongst which the warfare-ships of Princes are first and chiefe) and somewhat of the conservacy of the Seas, in the last title; I cannot here passe the warfare-shippes un­mentioned, albeit not in such large manner and measure [Page 238] as their imployment now-a-dayes requires. As for the matter fit for their building, and things necessary for their forth-setting and pre­paration to Sea, I must refer the same to Iulius Ferretus, and to Vegetius, who have written largely thereupon. Some touch I have here sub­joyned, in the last Title of this Booke, concerning the materials: as likewise some­what is premitted concer­ning their priviledges, in that Title of priviledged shippes. Therefore would I here set downe (but very briefly) some thing concerning the [Page 239] Captaines, Commanders, & Companies of the Prince his warfare-ships, the graces & vertues required in them, with their duties, power and preferment.

Captaines of Princes war­fare-shippes should be men, first, fearing God, because they must continually walke in the midst of the wondrous workes of God. Next, they should be stout, hardy, and couragious. Thirdly, vigi­lant, diligent, and carefull; and therefore very tempe­rate on Sea:Ferretus. specially, be­cause their imployment, as it is full of hazard and danger, [Page 240] even so are their occasions and opportunities sudden and momentanie. There­fore their commandement and power over their com­pany, not onely surpasseth the power of Masters and Commanders of private shippes, but also that of the Captaines on land; and therefore their honour and estimation every way high­er also, because of their grea­ter charge, care, and ha­zard. Their duty toward their company, is first, that they chuse such as bee free from hainous and scanda­lous offences.per. l. 4. de re militar. Next, [Page 241] that they suffer none of their company to bee idle, but to punish as well the sluggard as the rebellious:per l. 6. eod. yea, e­ven those who are irreve­rent towards them;per. l. 13. eod. and againe, should with all lo­ving care see to the due food of their company, heare their mutuall plaints, hold them in peace by all obe­dience, visit, refresh, and with all helpes comfort the hurt and diseased.per l. 12. eod: As for the Captaines their other duties to the Prince and Ad­mirall, with their owne pri­viledges, they are all gathe­red out of old customes, [Page 242] and at large set downe in that Booke called L' Admirall de France.

TIT. XXIX.
Of Watermen and Ferriers.

FErryers and Water­men are bound to serve all true Lieges for their due fare;per l. 1. parag. si furt. advers. naut. so that they may be compelled thereunto:l. 1. & l. cum navarchorum. C. de navicul. lib 10 & l. liti­ca de public. and most, justly, because it was in their owne hand and power from the beginning to give and apply themselves to that calling and trade, or not. And if therefore they [Page 244] faile, it shall be, according to the law of Scotland, a point of dittay or inditement a­gainst them in the first Iu­stice-court; and if they trans­gresse unto the third time, they may be suspended from their trade,Iac. 3. parl. 13. c. 95. except they can alleadge 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.Iac. parl. 31. c. 20.

Lastly, Ferriers and Wa­termen [Page 245] are no lesse bound, than Skippers and Masters of shippes, to render againe what-ever they receive to bee carried within their Boats.l. 1. parag. naut. caupou.

But concerning their ordi­nary fares and hires, it is neither needfull nor expedi­ent in this place to recite the divers statutes made there­upon; because that first they are at great length set downe in the Statutes of England and Scotland: next, be­cause their fraughts have beene, according to the rate of times, changed and altered even to the triple, as [Page 246] specially in Scotland Vide act. Iac. 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 Majestie, or Ad­miralls, 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 uncivill manners. For truely, if the Roman Iu­risconsults might of old by any reason call Mariners, in generall, Pessimum genus ho­minum, Vide tit. naut. [...]. up. &. tit. furt. [...]vers. (which in these [Page 247] latter dayes for the most part is amended, partly through Christianity and civill con­versation, & partly; by good lawes, praise be to God) then may wee now use that same still, at least against the most part of Watermen and Ferri­ers; as requiring to be refor­med, or at least by correcti­on repressed.Secund. l. 3. naut. caup.

TIT. XXX.
Of Shipwrights.

TO conclude this Treatise, there remai­neth a speciall sort of persons to be considered and respected, as the forgers and framers of the instrumentall causes of all Sea-faring; to wit, Shippe-wrights, and builders of Ships or Boats, called by the Romans, imita­ting the Grecians, Naupegi: and by the Italians, follow­ing [Page 249] the latter Grecians, Cala­fatti, as is above described;Tit. 6. and therefore subject to the jurisdiction of the Admiral­ty Per diplom. admiralior. u­triusque regni. as accountable to the Admirall and his Iudges) as accessories of sea causes, for their skill, diligence, and du­tifull discharge in every re­spect, by a frame not onely likely & comely, but a worke also strong, ticht, and dura­ble: or else they must under­goe the pains of the law, cal­led Lex Aquilia; that is to say, all costs and scath happening by their unskilfulnesse, neg­ligence, or what-ever other fault or amisse.Per T. T. ad l. Aquil.

[Page 250] And therefore, first touch­ing the materials, they should not onely 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 vnmeet geare and stuffe for the worke.Per l. 2. de naut [...]. & per Vegetium de re militar As for ex­ample, Aller, Beech trees, and such like brickle and naughty timber for salt-wa­ter, or for the seas. Neither should they put greene tim­ber in worke; but ought to fore-see if they can, that their wood be cut downe either at the wane of the Moone, and in the deepe of Winter, or at [Page 251] such time as experience de­clares wood to be most so­lide and durable. For timber cut at the contrary times, is commonly full of moysture; and therefore being after­ward dryed, 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 workes 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 [Page 252] also commonly is cavelled withall before a full perfor­mance of their worke, upon surmises and quarrels; there­fore to occurre to all such doubts and discords, the con­tracts of such bargaines should be (after the example of other seafaring dealings) made before the Admiralls deputy▪ or Iudge, and regi­stred in their bookes.Vide sup. of the Admirall Clerke.

Last of all, as Shippe­wrights were of old,l. fin: C. de poen. so are they also of late, forbidden, Vide de off. Adm. Ang. under paine of treason, to communicate their skill and Art to enemies and barba­rous people.Vide C. de m [...]n [...]p. & ibi. DD.

[Page 253] Likewise, they are forbid­den (as are also all other so­cieties of handy-crafts-men and trades-men) to conspire among themselves to en­hance their wages, or hire, or to receive excessive wa­ges.Vide de off. Adm.