Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/248

 234 //. FROM THE llOO'S TO THE 1800'S Roll of Oleron and other ; but that is only in the case of ship- ping and for merchants and mariners ; " ^ on which Zouch remarks : ^ " I suppose no man will deny that the Civil and Imperial laws, the Roll of Oleron and others. . . are of force in the Admiralty of England," and again, ^ " the kingdom of England is not destitute of Special laws for the regulating of sea businesses, which are distinct from the Common laws of the realm, as namely, the Civil laws and others of which the books of Common law take notice by the names of Ley Mer- chant and Ley Mariner " . . . " Businesses done at sea are to be determined according to the Civil law, and equity thereof, as also, according to the customs and usages of the sea. . . for instruments made beyond the sea have usu- ally clauses relating to Civil law and to the Law of the Sea." * This work of Zouch's was written in reassertion of the privileges of the Court of Admiralty in opposition to the en- croachments of the Courts of Common law,^ who secured for their jurisdiction cases which properly fell within the cogni- zance of the Admiralty, by the fiction that the contract sued on was made in Cheapside, whereas, as the Civilians gravely remarked, a ship could not come to Cheapside because there was no water. The Common Law Courts also prohibited the Admiralty from trying certain classes of cases ; on which Zouch says : ® "It may be thought reasonable that such con- tracts being grounded upon the Civil law, the law amongst Merchants, and other maritime laws, the suits arising about the same should rather be determined in those courts, where the proceedings and judgments are according to those laws, than in other Courts, which take no notice thereof." So Selden had said ^ " Juris civilis usus ah antiquis saecvlis etiam nunc retinetur in foro maritimo, seu Curia Admiralita- tis," and Duck: ^ " Jus autem dicit Admiralitas ex Jure Civili Romanorum, et ejus Curia consuetudinihus."^ Godolphin, writing in 1661, says " all maritime affairs are regulated » Reading on the Statute of Sewers. 1st ed. 1622. Ed. 1686, p. 42. •Zouch, p. 95. 'ibid. p. 89. ^Ihid. p. 118. •Coke, iv. 134; see also i. f. 11 b. "Civil Law in certain cases, not only in Courts Ecclesiastical, but in the Admiralty, in which is ob- served la ley Olyroun, 5 Rich. I." ' p. 103. '' ad Fletam, viii. •(1676) ii. 8, 3, 24. 'Godolphin, p. 40.