two juftices of the peace (or, in cafe of difobedience to a definitive sentence, any two juftices of the peace) may commit the party to prifon without bail or mainprize, till he enters into a recognizance with fufficient fureties 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 ecclefiaftical jurisdiction, may serve to refute that groundless notion which fome are too apt to entertain, that the courts of Weftminster-hall are at open variance with thofe at doctors' commons. It is true that they are fometimes obliged to use a parental authority, in correcting the exceffes of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental affiftance in repreffing the infolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of fufficient compulfive powers would otherwise be sure to attend it. II. I AM next to confider the injuries cognizable in the court military, or court of chivalry. The jurifdiction 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 dif"cuffed by the common law; together with other ufages and cuftoms to the fame matters appertaining." So that wherever the common law can give redrefs, this court hath no jurisdiction which has thrown it entirely out of ufe as to the matter of contracts, all fuch being ufually 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 fuppofe it made at Northampton; for the locality, or place of making it, is of no confequence with regard to the validity of the contract. THE words, "other ufages and cuftoms," fupport the claim of this court, 1. To give relief to fuch of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the diftinction of degrees and quality. Whence Whence it follows, that the civil jurisdiction of this court of chivalry is principally in two points; the redreffing injuries of honour, and correcting encroachments in matters of coatarmour, precedency, and other diftinctions of families. : As a court of honour, it is to give fatisfaction to all fuch as are aggrieved in that point; a point of a nature fo nice and delicate, that it's wrongs and injuries efcape the notice of the common law, and yet are fit to be redreffed fomewhere. Such, for instance, as calling a man coward, or giving him the lie; for which, as they are productive of no immediate damage to his perfon or property, no action will lie in the courts at Westminster and yet they are fuch injuries as will prompt every man of fpirit to demand fome honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry. But modern refolutions have determined, that how much foever fuch a jurifdiction may be expedient, yet no action for words will at prefent lie therein ‘. And it hath always been most clearly holden, that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary fatisfaction or damages; inafmuch 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 fibi ipfi imponere, or to take the lie that he has given upon himfelf, or to make fuch other fubmiffion as the laws of honour may require. Neither can this court, as to the point of reparation in honour, hold plea of any fuch 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 cafes the common law has pointed out his proper remedy by action. As to the other point of it's civil jurisdiction, the redreffing of incroachments and ufurpations in matters of heraldry and coat-armour: it is the business of this court, according to fir Matthew Hale, to adjust the right of armorial enfigns, bearings, crefts, fupporters, pennons, &c; and also rights of place or precedence, where the king's patent or act of parliament (which cannot be overruled by this court) have not already determined it, THE proceedings in this court are by petition, in a fummary way; and the trial not by a jury of twelve men, but by witneffes, or by combat. 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 jurifdiction, it has fallen into contempt and difufe. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly difregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who confider it only as a matter of lucre and not of justice: whereby fuch falfity and confusion have crept into their records, (which ought to be the standing evidence of families, descents, and coat-armour) that, though formerly fome credit has been paid to their testimony, now even their common feal will not be received as evidence in any court of juftice in the kingdom. But their original vifitation-books, compiled when progreffes were folemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to regifter fuch marriages and defcents as were verified to them upon oath, are allowed to be good evidence of pedigrees. And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquifitions poft mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their ufual progreffes, has rendered the proof of a modern descent, e Co. Litt. 261. 2 Roll. Abr. 686. 2 2 Jon. 224. g Comb. 63. for for the recovery of an eftate or fucceffion to a title of honour, more difficult than that of an ancient. This will be indeed remedied for the future, with refpect to claims of peerage, by a late ftanding order of the houfe of lords; directing the heralds to take exact accounts and preferve regular entries of all peers and peeresses of England, and their respective defcendants; and that an exact pedigree of each peer and his family fhall, on the day of his first admiffion, be delivered to the house by garter, the principal king at arms. But the general inconvenience, affecting more private fucceffions, ftill continues without a remedy. III. INJURIES cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. Thefe courts have jurifdiction and power to try and determine all maritime causes; or fuch injuries, which, though they are in their nature of common law cognizance, yet being committed on the high feas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty caufes must be therefore caufes arifing wholly upon the fea, and not within the precincts of any county j. For the ftatute 13 Ric. II. c. 5. directs that the admiral and his deputy fhall not meddle with any thing, but only things done upon the fea; 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 fea: for that must be caft on land before it becomes a wreck. But it is otherwise of things flotsam, jetfam, and ligan; for over them the admiral hath jurifdiction, as they are in and upon the fea *. If part of any contract, or other caufe of action, doth arise upon the fea, and part upon the land, the common law excludes the admiralty court from it's jurifdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular. Therefore, b 11 May, 1767. j Co. Litt. 260. Hob. 79. Sce book I. ch. 8. k 5 Rep. 106. 1 Co. Litt. 261. though though pure maritime acquifitions, which are earned and become due on the high feas, as feamen's wages, are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land "; yet, in general, if there be a contract made in England and to be executed upon the feas, as a charter party or covenant that a ship shall sail to Jamaica, or fhall be in fuch a latitude by fuch a day; or a contract made upon the fea to be performed in England, as a bond made on fhipboard to pay money in London or the like thefe kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of common law ". And indeed it hath been farther holden, that the admiralty court cannot hold plea of any contract under feal o. AND alfo, as the courts of common law have obtained a concurrent jurifdiction with the court of chivalry with regard to foreign contracts, by fuppofing them made in England; fo 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 fuit from the courts of admiralty to thofe of Westminsterhall P. This the civilians exclaim against loudly, as inequitable and abfurd; and fir Thomas Ridley 4 hath very gravely proved it to be impoffible, for the flip in which such cause of action arises to be really at the royal exchange in Cornhill. But our lawyers juftify this fiction, by alleging (as before) that the locality of fuch contracts is not at all effential to the merits of them; and that learned civilian himself feems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a fon killed in battle is supposed to live for ever for the benefit of his parents'; and that, by the fiction of poftliminium 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'. m Ventr. 146. n Hob. 12. Hal. hm. C. L. 35. • Hob. 212. P 4 Inft. 134. 9 View of the civil law, b. 3. p. 1. §.3. WHERE |