proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter; (u) though if the same be not appealed from in fifteen days, it is final, by the statute 25 Hen. VIII, c. 19.

But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described (v) to be twofold; the less, and the greater excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments: the greater proceeds farther, and excludes him not only from these, but also from the company of all christians. But, if the judge or any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king. (w)

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Heavy as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for non-payment of fees, or costs, or for other trivial causes. The common law therefore compassionately steps in to the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Cæsar, (x) whoever were interdicted by the Druids from their sacrifices, “in numero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur." And so with us by the common law an excommunicated person is disabled to do any act that is required to be done by one that is probus et legalis homo. He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him. (y) Nor is this the whole: for if, within forty days after the sentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop's certificate, a significavit, or from its effect a writ de excommunicato capiendo; and the sheriff shall thereupon take the offender, and imprison him in the county goal, till he is reconciled to the church, and such reconciliation certified by the bishop; upon which another writ de excommunicato deliberando, issues out of chancery to deliver and release him. (z) This process seems founded on the charter of separation (so often referred to) of William the Conqueror. "Si aliquis per superbiam elatus ad justitiam episcopalem venire noluerit, excommunicetur; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur." And in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII, c. 20, and 32 Hen. VIII, c. 7, which enact, that upon complaint of any contempt or misbehaviour to the ecclesiastical judge by the defendant in any suit for tithes, any privy consellor, or any *two justices of the peace (or, in case of disobedience to a definitive sentence, any two justices of the peace), may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless

(u) Chap. 5.

(w) 2 Inst. 623.

(v) Co. Litt. 133.

(x) De bello Gall. l. 6, c. 13.

(y) Litt. 201.

(z) F. N. B. 62.

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notion which some are too apt to entertain, that the courts of Westminsterhall are at open variance with those at doctors' commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of sufficient compulsive powers would otherwise be sure to attend it.

II. I am next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Ric. II, c. 2, to be this: "that it hath cognizance of contracts touching deeds of arms or of war, out of the realm, and also of things which touch war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining." So that wherever the common law can give redress, this court hath no jurisdiction, which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster-hall, if not directly, at least by fiction of law; as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton: for the locality, or place of making it, is of no consequence with regard to the validity of the contract.

The words, "other usages and customs," support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and quality. Whence it follows, that the civil jurisdiction of this [*104] court of chivalry is principally in two points; the redressing injuries of honour, and correcting encroachments in matters of coat-armour, precedency, and other distinctions of families.

As a court of honour, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster: and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the ancient law of the land were appointed to be given in the court of chivalry. (a) But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein. (b) And it hath always been most clearly holden, (c) that as this court cannot meddle with anything determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common law cognizance. And, therefore, this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honour may require. (d) Neither can this court, as to the point of reparation in honour, hold plea of any such word or thing, wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.

*As to the other point of its civil jurisdiction, the redressing of [*105] encroachments and usurpations in matters of heraldry and coatarmour, it is the business of this court, according to Sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the king's patent or act of par

(a) Year-book, 37 Hen. VI, 21. Selden of duels, c. 10. Hal. Hist. C. L. 37.
(b) Salk. 533. 7 Mod. 125. 2 Hawk. P. C. c. 4.

(d) 1 Roll. Abr. 128.

(c) Hal. Hist. C. L. 37.

liament (which cannot be overruled by this court) have not already determined it.

The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat. (e) But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice: whereby such falsity and confusion have crept into their records (which ought to be the standing evidence of families, descents, and coat-armour), that though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom. (f) But their original visitation books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees. (g) And it is much to be wished that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent *for the recovery of an estate, or succession to a title of honour, more difficult than that of an ancient. This will be indeed [*106] remedied for the future, with respect to claims of peerage, by a late standing order (h) of the house of lords; directing the heralds to take exact accounts, and preserve regular entries of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter, the principal king-at-arms. But the general inconvenience, affecting more private successions, still continues without a remedy.

III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. These courts have jurisdiction and power to try and determine all maritime causes; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any county. (i) For the statute 13 Ric. II, c. 5, directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15 Ric. II, c. 3, declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or by water; nor of any wreck of the sea: for that must be cast on land before it becomes a wreck. (j) But it is otherwise of things flotsam, jetsam, and ligan; for over them the admiral hath jurisdiction, as they are in and upon the sea. (k) If part of any contract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from its jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular. ()*Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen's wages, [*107] are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land; (m) yet, in general, if there be a contract made in England, and to be executed upon the seas, as a charter-party or covenant

(e) Co. Litt. 261. (f) 2 Roll. Abr., 686. 2 Jon., 224, (i) Co. Litt., 260. Hob. 79. (3) See boo kl, ch. 8. (m) 1 Ventr., 146.

(g) Comb., 63.
(k) 5 Rep., 106.

(h) 11 May, 1767.
(1) Co, Litt., 261.

that a ship shall sail to Jamaica, or shall be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London or the like; these kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of common law. (n) And indeed it hath been farther holden, that the admiralty court cannot hold plea of any contract under seal. (0) (4)

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. (p) This the civilians exclaim against loudly, as inequitable and absurd; and Sir Thomas Ridley (7) 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 adopted and encouraged in the Roman law; that a son killed in battle is supposed to live forever for the benefit of his parents; (r) and that by the fiction of postliminium and the lex Cornelia, captives, when freed from bondage, were held to have never been prisoners, (s) and such as died in captivity were supposed to have died in their own country. (t)

*Where the admiral's court hath not original jurisdiction of the [*108] cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law. (u) And so vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law. (v) Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons. (w) In case of prizes also in time of war, between our own nation and another, or between two other nations, (5) which are taken at sea, and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations. (x) (6)

(n) Hob. 12. Hal. Hist. C. L., 35. (p) 4 Inst., 134.

(g)

(0) Hob., 212. View of the civil law, b. 3, p. 1, § 3. (t) Ff. 49, 15, 18. (u) Comb. 462. (v) 13 Rep., 53. 2 Lev., 25. Hard., 183. (w) 1 Sid., 158.

(r) Inst. 1, tit. 25.
(x) 2 Show., 232. Comb. 44

(8) Ff. 49, 15, 12, § 6.

(4) In the United States the admiralty and prize jurisdiction is in the district courts of the United States, and is very full and complete in civil cases. See 1 Kent, 353, et seq.; Conklin's Treatise, part 3; Parsons on Maritime Law. Late decisions of the supreme court of the United States seem to give these courts substantially the same jurisdiction in respect to the great interior lakes which they possess in respect to the ocean.

The criminal jurisdiction of these courts is only such as by acts of congress is conferred upon them; U. Š. v. McGill, 4 Dall., 426; U. S. v. Bevans, 3 Wheat., 336; U. S. v. Wiltberger, 5 Wheat., 76; Tyler v. People, 8 Mich., 320. These acts, however, are designed to confer jurisdiction of all cases properly cognizable in admiralty.

(5) This remark is not accurate. The validity of maritime captures must be determined in a court of the captor's government, sitting either in his own country or in that of its ally. Wheat. Int. Law, part 4, c. 2, §§ 13-16; Halleck Int. Law, 749, and authorities cited; 1 Kent, 103.

(6) Mr. Justice Coleridge calls attention to the fact that the author takes no notice of what is very material, that there are, in fact, two courts: the admiralty court, or, more properly, the instance court, of which he has hitherto been speaking, and the prize court. Both these courts have, indeed, the same judge, but in the former he sits by virtue of a commission under the great seal, which enumerates the objects of his jurisdiction, but specifies nothing relative to prize; while in the latter he sits by virtue of a commission which issues in every war, under the great seal of the lord high admiral, requiring the

The proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires; such as the Rhodian laws and the laws of Oleron. (y) For the law of England, as has frequently been observed, doth not acknowledge or pay any deference to the civil law considered as such; but merely permits its use in such cases where it judged its determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being corrected, altered and amended by acts of parliament and common usage; so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently by arrest of the defendant's person: (2) and they also take recognizance or stipulations of certain fidejussors in the nature of bail, (a) and in case

of default may *imprison both them and their principal. (6) They may [*109] also fine and imprison for a contempt in the face of the court. (c) And all this is supported by immemorial usage, grounded on the necessity of supporting a jurisdiction so extensive; (d) though opposite to the usual doctrines. of the common law; these being no courts of record, because in general their process is much conformed to that of the civil law. (e)

IV. I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that do not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason within the cognizance of the common law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress. The definition and explication of these numerous injuries and their respective legal remedies, will employ our attention for many subsequent chapters. But before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration: and which are, either when justice is delayed by an inferior court that has proper cognizance of the cause; or, when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.

1. The first of these injuries, refusal or neglect of justice, is remedied either by a writ of procedendo, or of mandamus. A writ of procedendo ad judicium issues out of the court of chancery, where judges of any subordinate court do delay the parties; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king's name to proceed to judg ment; but without specifying any particular judgment, for that (if errroneous) may be set aside in the course of appeal, or by writ of error or false judgment: and upon farther neglect or refusal, the judges of the infe- [*110] rior court may be punished for their contempt, by writ of attachment, returnable in the king's bench or common pleas. (ƒ)

A writ of mandamus is, in general, a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or

(y) Hale, Hist. C. L. 86. Co. Litt. 11.

(a) Ibid. § 11. 1 Roll. Abr. 531. Raym. 78.
(c) 1 Ventr. 1.
(d) 1 Keb. 552,

(z) Clerke prax. cur. adm. § 13. Lord Raym. 1286. (b) 1 Roll. Abr. 531. Godb. 193, 260. (e) Bro. Abr. t. error, 177. (f) F. N. B. 153, 154, 240.

court of admiralty, and the lieutenant and judge of the same court, "to proceed upon all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are or shall be taken," &c.

Now by statute 3 and 4 Vic., c. 65, the court of admiralty has jurisdiction of questions of booty at war, and by statute 13 and 14 Vic., cc. 26 and 27, jurisdiction of questions relating to the attack and capture of pirates. And by statute 7 and 8 Vic., c. 2, and 12 and 13 Vic., c. 96, offenses committed within the jurisdiction of the admiralty might be tried in the ordinary criminal courts; but the independent criminal jurisdiction of the high court of admiralty is now taken away. See ante, note 1, p. 30.