illustrated by Lord Coke, in his Commentary upon Blackstone has also defended this fiction, although he appears to regard it, for the purpose only of giving concurrent jurisdiction to the courts of common law, where, indeed, it appears justifiable enough, for it is only when it is used as a means of obtaining exclusive jurisdiction over foreign contracts, and prohibiting from entertaining such questions, a court which required no such fabulous aid, that absurdity attaches to the fiction. These are the words of the learned commentator: "And also, as the courts of common law have obtained a concurrent jurisdiction with the Court of Chivalry with regard to foreign contracts, by supposing them made in England; so, it is no uncommon thing for a plaintiff to feign that a contract really made at sea was made at the Royal Exchange, or other inland place, in order to draw the cognizance of the suit from the courts of admiralty to those of Westminster Hall. This the civilians exclaim against loudly, as inequitable and absurd; and Sir Thomas Ridley hath very gravely proved it to be impossible for the ship in which such cause of action arises to be really at the Royal Exchange in Cornhill. But our lawyers justify this fiction, by alleging (as before) that the locality of such contracts is not at all essential to the merits of them; and that learned civilian himself seems to have forgotten how much such fictions are CHAP. I. CHAP. I. adopted and encouraged in the Roman law, that a son killed in battle is supposed to live for ever for the benefit of his parents; and that, by the fiction of postliminium and the lex Cornelia, captives when freed from bondage, were held to have never been prisoners, and such as died in captivity were supposed to have died in their own country." It would not be difficult, were it necessary to provoke a further comparison between these fictions from the Roman law, quoted by the learned commentator, and that which is now under discussion, not much to the credit of the latter: respecting those of the Roman law, there was at least some purpose which justified their adoption; the end justified the means; and if the other be viewed as a means of prohibiting a court of justice from entertaining a question which fairly belonged to it, it is not quite so recommendable, and it was in this view, doubtless, that the wounded civilians complained of it. They endeavoured in vain to convince the higher powers that their jurisdiction was raised above the temptation of encroachment or conquest, that, without wishing to enlarge the limits of their courts, they were only actuated with a love of justice, and respect for their native dignities; but their outcries were little listened to by their rapacious invaders. The practitioners in Doctors' Commons were not the only sufferers from this useless conflict; the merchants, the people, called loudly for a cessation of hostilities: the crown was appealed to. It may not be uninteresting to the reader to observe the nature of the application and the result. On the eleventh of February, in the eighth year of King James I., the judges of the King's Bench and Admiralty being present, the following was read before the king, and was then alleged to have been an agreement, made in the year 1575, between the judges: THE JUDGES' AGREEMENT. The 7th of May, 1575. It is agreed by the Lord Chief Justice and his colleagues, that after sentence given by the delegates, no prohibition shall be granted; and yet if there be no sentence, if a prohibition be not sued within the next tearm following sentence in the Admiral Court, or within two tearms next after, at the farthest, no prohibition shall pass to the delegates. They have agreed, that the Judge of the Admiralty and the party defendant shall have counsil in court, and plead the stay, if there may appear evident cause. This is agreed upon by the said Lord Chief Justice and his collegues. The Request of the Judge of the Admiraltie to the Lord Chief Justice of her Majesties Bench and his Collegues. That after judgment or sentence definitive given in the Court of the Admiralty in any cause and appeal made from the same to the High Court of Chancery; that it may please them to forbear granting of any writ of prohibition, either to the judge of the said court, or to Her Majesties delegates, at the suit of him by whom such appeal shall be made, seeing by choyce of remedie that way, in reason he ought to be contented therewith, and not to be relieved any other way. Also, that prohibitions be not granted hereafter upon bare suggestions or surmises, without summary examination and proof made thereof, wherein it may be lawful to the Judge of the Admiralty and the party defendant, by the favour of the court, to have counsel, and to plead for the stay thereof, if there shall appear cause. That the Judge of the Admiralty, according to such ancient order as hath been taken 2 Ed. I. by the king and his council, and according to the letters patents of the Lord Admiral for the time being, and allowed of by The chief point now in ques- other kings of this land ever since, and by cus tion. This is likewise agreed upon, for things to be performed either upon, or beyond the seas, though the charter-partie be made upon the land, by the statute of 32 H. VIII. c. 14. tome, time out of memory of man, may have and enjoy the cognition of all contracts, and other things arising as well beyond as upon the sea, without any let, or prohibition. That the said Judge may have and enjoy the knowledge and breach of charter-parties made between masters of ships and merchants, for voyages to be made to the parts beyond the seas, and to be performed upon, and beyond the sea, according as it hath been accustumed, time out of mind, and according to the good meaning of the statute of 32 H. VIII. c. 14., though the same charter-parties happen to be made within the Roialme. If any writ of this nature be directed in the causes before specified, they are content to return the bodies again to the Lord Admirall's Goal, upon certificate made of the cause to be such, or if it be for contempt, or disobedience done to the court in any such cause. That writs of corpus cum causa be not di rected to the said Judge in causes of the nature aforesaid; and if any happen to be directed, that it may please them to accept the return thereof, with the cause, and not the body, as it hath always been accustumed. This agreement, it appears, continued till Lord Coke slighted it, as a supposed agreement, because not subscribed by any of the judges*, and prohibitions were granted by him to the Admiralty, as Prynne says, "more than ever before." However, in the ninth year of King Charles I. an. 1632, the lord admiral and Sir Henry Martyn, then judge of the Admiralty, made 'great complaint' to the king and the lords of his council, "before whom," continues Prynne, "the matters in difference between the Admiralty and Judges were several times heard and debated at large; and at last these ensuing articles were drawn up, read, agreed, and resolved at the council-board by the King himself, and no lesse than twenty-three of his council, (two of them the Lord Keeper Coventry and Lord Privy Seal Mountague, eminent lawyers) yea, ratified by the subscriptions of all the Judges, being twelve in number, very eminent learned lawyers, and of the grand lawyer, Mr. William Noy, then King's attorney, as well as of Sir Henry Martyn, then Judge of the Admiralty, entered in the Council Table Register of causes, and the original thereof kept * "The supposed agreement mentioned in this article hath not, as yet, been delivered unto us, but having heard the same read over before his Majesty out of a paper not subscribed with the hand of any Judge, we answer that for so much thereof as differeth from these answers, it is against the laws and statutes of this realm; and therefore the judges of the King's Bench never assented thereunto, as is pretended, neither doth the phrase thereof agree with the terms of the laws of the realm." Coke's 4th Institutes, by his Majesty's command in the council chest in form following: At Whitehall 18th of February 1632. Present The King's Most Excellent Majesty. CHAP. I. Lord Keeper, Lord Archb. of York, Lord Treasurer, Lord Privy Sal, Earl Marshall, Earl of Dorset, -Earl of Carlisle, Earl of Holland, Earl of Darby, Lord Chanc. of Scotland, Lord V. Wimbleton, Lord Vis. Wentworth, Lord Bishop of London, Mr. Treasurer, Mr. Secretary Coke, Mr. Secretary Windebanke. "This day his Majesty being present in council, the articles and propositions following for the accommodating and settling of the differences concerning prohibitions arising between his Majesty's Courts of Westminster and his Court of Admiralty, were fully debated, and resolved by the Board. And were then likewise upon reading the same as well before the Judges of his Highnesse said Courts at Westminster, as before the Judge of his said Court of Admiralty, and his Attorneygeneral, agreed unto and subsigned by them all in his Majesty's presence, and the transcript thereof ordered to be entered into the register of Council Causes and the original to remain in the Councill chest. "1. If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personally done BEYOND THE SEAS, or upon the sea, no prohibition is to be awarded. "2. If suit before the admiral for freight, or mariners' wages, or for the breach of charter-parties for voyages to be made beyond the sea, though the charter-parties |