cluded, 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;(t) though if the same be not appealed from n 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(u) 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 further, and excludes him not only from these, but also from the company of all Christians. But, if the judge of 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) 10

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 nonpayment of fees, or costs, or for other trivial causes. The common law therefore compassionately steps in to the aid of the ecclesiastical jurisdiction, [*102 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 certificates, a significavit; or, from its effects, a writ de excommunicato capiendo: and the sheriff shall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and such reconciliation certified by the bishop; under 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, vocetur semel, secundo, et tertio: quod si nec ad emendationem venerit, excommuniceter; 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

10 The recent act, 53 Geo. III. c. 127, prohibits excommunication and the writ de excommunicato capiendo as a mode of enforcing performance or obedience to ecclesiastical orders and decrees; and, instead of the sentence of excommunication in those cases, the court is to pronounce the defendant contumacious, and the ecclesiastical judge is to send his significavit in the prescribed form to the chancery, from which a writ de contumace capiendo is to issue in the prescribed form, and which is to have the same force as the ancient writ. There is a similar act as to Ireland, 54 Geo. III. c. 68. In other cases not of disobedience to the orders and decrees of the court, there may be excommunication, and a writ de excommunicato capiendo, as heretofore. In the proceedings under this statute, it must clearly appear that the ecclesiastical court had jurisdiction, and that the form of proceedings has been duly observed. 5 Bar. & Ald. 791. 3 Dowl. & R. 570, ante, 87, note 1.-CHITTY.

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 of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any* two justices of the peace (or, in case of disobedience to a definitive *103] 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 notion which some are too apt to entertain, that the courts at Westminster hall 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 thep within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and restuing 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 *104] *quality. Whence it follows, that the civil jurisdiction of this 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 antient law of the land was 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 any thing 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 (a) Year-book, 37 Hen. VI. 21. Selden of Duels, c. 10. Hal. Hist. C. L. 37.

(6) Salk. 533. 7 Mod. 125. 2 Hawk. P. C. 11.
() Hal. Hist. C. L. 37.

"In the ecclesiastical courts the maxim is that nullum tempus occurrit ecclesiæ, or that there is no limitation to a prosecution for a spiritual offence; and it was thought a great grievance that the peace of families might be disturbed by a prosecution for a crime of incontinence committed many years before. It was therefore enacted by the 27 Geo. III. c. 44 that no prosecution should be commenced in the spiritual courts for defamation after six months, or for fornication or incontinence, or for striking or brawling in a church or churchyard, after eight months; and that in no case parties who had intermarried should be prosecuted for their previous fornication.-CHRISTIAN.

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 en[*105 croachments and usurpations in matters of heraldry and coat-armour: 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 parliament (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 coatarmour,) 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 [*106 the recovery of an estate or succession to a title of honour, more difficult than that of an antient. This will be indeed 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)12 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

(d) 1 Roll. Abr. 128.

(e) Co. Litt. 261.

(f) 2 Roll. Abr. 686. 2 Jon. 224.

(9) Comb. 63.

(A) 11 May, 1767.
(1) Co. Litt. 260. Hob. 79.

12 See much learning respecting the jurisdiction of the court of admiralty in the case of Le Caux vs. Eden, Doug. 572.-CHRISTIAN.

either by land or 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.(l) *107] *Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen's wages, 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 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 further holden, that the admiralty court cannot hold plea of any contract under seal.(o)"

(5) See book i. ch. 8.
(*) 5 Rep. 106.

Co. Litt. 261.

()1 Ventr. 146.

() Hob. 12. Hal. Hist. C. L. 35.
(°) Hob. 212.

13 The case referred to in the text is that of Palmer vs. Pope, Hobart's Rep. p. 79 and p. 212; but it does not seem to warrant the position. The libel in the admiralty court there stated an agreement, made super altum mare, that Pope should carry certain sugars, and that the agreement was after put in writing, in the port of Gado, on the coast of Barbary; a breach was then assigned. The court resolved "that a prohibition lay, because the original contract, though it were made at sea, yet was changed when it was put in writing and sealed, which, being at land, changed the jurisdiction; but if it had been a writing only without seal, a mere remembrance of the agreement, it had made no change." By this is to be understood that the sealed contract destroyed the original parol contract, which a mere writing would not have done; and as that new contract was made on land, though out of the king's dominions, still it was not within the admiralty jurisdiction. It cannot, therefore, be inferred from this case that the admiralty court cannot hold plea of any contract under seal. The same point, however, is undoubtedly laid down in Opy vs. Addison and others, 12 Mod. 38. S. C. Salk. 31. Day vs. Searle, 2 Strange, 968, (which, however, was decided only on the authority of the preceding case,) and Howe vs. Nappier, 4 Burr. 1950. Perhaps, however, upon an examination of the authorities, it would appear that there is nothing to warrant the position that the admiralty court has not jurisdiction where the specialty contract is made on the sea and to be performed on the sea, or where it relates to a subject-matter over which the court has jurisdiction. The 4 Inst. p. 135, which has been cited to support this, does not go so far; and the case of Menetone vs. Gibbons, 3 T. R. 267, virtually overruled the cases on which lord Mansfield relied in Howe vs. Nappier, because there it was determined that the admiralty court had jurisdiction respecting an hypothecation bond, though executed on land and under seal, because it had jurisdiction over the subject-matter of the hypothecation of ships, and it was expressly negatived that the circumstance of the instru ment being under seal could deprive them of their jurisdiction. Now, the cases alluded to were suits for mariners' wages, and it was admitted that the admiralty had jurisdiction over the subject-matter; but it was said that the special agreement and the seal took it

away.

It will be observed that the reasoning in this note on the case of Palmer vs. Pope proceeds further than the text, and assumes that in the case of contracts it is not necessary to bring the matter within the precincts of a county in order to oust the admiralty of jurisdiction. In that case it is expressly laid down that the jurisdiction is limited to the seas only, that the libel must allege the matter to have arisen super altum mare, and that if it arise upon any continent, port, or haven, in the world, of the king's dominions, the statutes take away the jurisdiction. This must be qualified, it is conceived, by the principle laid down in Menetone vs. Gibbons. See H. C. L. c. 2.-Coleridge.

And now, by stat. 3 & 4 Vict. c. 65, s. 6, the court may in certain cases adjudicate on claims for services and repairs, although not on the high seas: and by 9 & 10 Vict. c. 99 its jurisdiction in matters of wreck and salvage is regulated.-STEWART.

All civil injuries cognizable in the court of admiralty in England are in like manner cognizable in the district courts of the United States, which are courts of admiralty quoad hoc. Captures within the waters of the United States or within a marine league of the coasts, by whomsoever made, are likewise cognizable therein,-saving to suitors, in all

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 (q) 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 no original jurisdiction of the cause, [*108 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, which are taken at sea, and brought into our

(P) 4 Inst. 134.

(4) View of the Civil Law, b. iii. p. 1, § 3.

() Inst. 1. tit. 25.

(*) Ff. 49, 15, 12, 26.

() Ff. 49, 15, 18.

(*) Comb. 462.

() 13 Rep. 53. 2 Lev. 25. Hardr. 183.
(w) 1 Sid. 158.

cases, the right of a common-law remedy where the common law is competent to give it. Act Sept. 24, 1789, 1 Story's Laws, 56. Act of June 5, 1794, 1 Story's Laws, 353. Seamen's wages are there also recoverable; and a summary method of compelling payment, by application to the district judge, or, in case of his residence being more than three miles from the place, or of his absence, to any judge or justice of the peace, is given by the act for the government of seamen in the merchants' service; saving to them the right of maintaining an action at common law. Act of July 20, 1790, 1 Story's Laws, 105.

It was at first questioned whether the district courts had jurisdiction under the act of Congress as prize courts, in virtue of the clause vesting in them all civil causes of admiralty jurisdiction. The Supreme Court of the United States settled this question by deciding that the district courts of the United States possessed all the powers of courts of admiralty, whether considered as instance or as prize courts. Glass vs. The Sloop Betsy, 3 Dallas, 6.

In regard to the powers of the district courts as instance courts, it seems to be settled that the federal courts, as courts of admiralty, can only exercise such criminal jurisdiction as is expressly conferred upon them by acts of Congress. United States vs. Hudson & Goodwin, 7 Cranch, 32. United States vs. Coolidge, 1 Wheaton, 415. The Judiciary Act of 1789 provides that the trial of all issues in fact in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury. In regard to the extent of the powers of the district courts in civil causes of admiralty jurisdiction, it was held, in De Lovio vs. Boit and others, 2 Gallison, 398, that the admiralty has jurisdiction over all maritime contracts, wheresoever the same may be made or executed, and whatever may be the form of the stipulations; that it has also jurisdiction over all torts and injuries committed upon the high seas and in ports or harbours within the ebb and flow of the tide; and that the like causes are within the jurisdiction of the district courts of the United States, by virtue of the delegation of authority in all civil causes of admiralty and maritime jurisdiction. The doctrines of this case have been denied, and the question has been much discussed in subsequent cases. Ramsay vs. Allegre, 12 Wheat. 638. Bains vs. The Schooner James and Catherine, Baldwin, 544. Waring vs. Clarke, 5 Howard, 441. New Jersey Steam. Nav. Co. vs. Merchants' Bank, 6 ibid. 344. Cutler vs. Rae, 7 ibid. 729. United States vs. The New Bedford Bridge, 1 Wood and Minot, 401.-SHARSWOOD.