ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations.(x)1 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 fre (*) 2 Show. 232. Comb. 474. (v) Hale, Hist. C. L. 36. Co. Litt. 11. 14 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 which the statutes of Richard were made to restrain, but which has no jurisdiction in matters of prize, and the prize court. Both 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, to the lord high admiral, requiring the 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, and to hear and determine according to the course of the admiralty and the law of nations:" and upon this a warrant issues to the judge. The manners of proceeding and the systems of litigation and jurisprudence are different in the two courts. The jurisdiction of this last court is exclusive; for it has been determined solemnly, that though for taking a ship on the high seas an action will lie at common law, yet when it is taken as prize, though wrongfully taken and there were no colour for the taking, no action can be maintained. Nor is the jurisdiction confined to captures at sea. Captures in port or on land, where the surrender has been to a naval force or a mixed force of the army and navy, are equally and exclusively triable by the prize court. The reasonableness and convenience of these determinations are beautifully enforced, in the judgments of Mr. J. Buller in Le Caux vs. Eden, and of lord Mansfield in Lindo vs. Rodney and another, Douglas's Rep. 594, 620. Though the prize court proceeds under a commission issuing at the commencement of each war, its jurisdiction is not peremptorily terminated by the peace, but all questions of prize between the two nations will still be tried by this court. Thus, where a vessel, having been captured by an American privateer in time of war, was recaptured after the period prescribed for the cessation of hostilities by the treaty of peace, and the American commander claimed the vessel to be restored to him by suit in the prize court, the jurisdiction of the court was affirmed and a prohibition refused. Ex parte Lynch, 1 Maddock's R. 15. The Harmony, S. C. 2 Dodson's R. 78.-Coleridge. The court of admiralty has now, by stat. 3 & 4 Vict. c. 65, an express jurisdiction to try questions of booty at war; and by 13 & 14 Vict. cc. 26, 27, jurisdiction in questions relating to the attack and capture of pirates is vested in the admiralty court here and in all vice-admiralty courts abroad. Offences committed within the jurisdiction of the admiralty courts may now be tried in the ordinary criminal courts. 7 & 8 Vict. c. 2. 12 & 13 Vict. c. 96.-STEWART. The text is incorrect in stating that in prizes "between two other nations which are taken at sea and brought into our ports" the courts of admiralty have jurisdiction to determine the same according to the law of nations. The condemnation of property thus taken in war must be pronounced by a prize court of the government of the captor, sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be that the sovereign of the captors has a right to inspect their behaviour, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally; but it is not lawful for such a court to act in a neutral territory. Neutral ports are no intended to be auxiliary to the operations of the powers at war; and the law of nations has clearly ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations. 1 Kent's Com. 103.-SHARSWOOD. [*109 quently by arrest of the defendant's person;(2) and they also take reconizances or stipulations of certain fidejussors in the nature of bail,(a) and in case of default may imprison both them and their principal.(b) They may 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 did 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 which 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 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 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 judgment; but without specifying any particular judgment, for that (if erroneous) may *be set aside in the course of appeal, or by writ of error or false judg[*110 ment and upon further neglect or refusal, the judges of the inferior court may be punished for their contempt by writ of attachment returnable in the king's bench of 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 inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature; and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution of an office;15 but it issues in all cases where the (Clerke prax. cur. adm. § 13. (*) Ibid. 11. 1 Roll. Abr. 531. Raym. 78. Lord Raym. 1256. (*) 1 Roll. Abr. 531. Godb. 193, 260. (e) 1 Ventr. 1. (d) 1 Keb. 552. () Bro. Abr. tit. Error, 177. 15 Supposing the injured party to have a complete and specific redress by suit at law, it is conceived that the circumstance of its being a more tedious method will not be sufficient to warrant the court in granting a mandamus. But where the remedy is inadequate, the writ may issue. Thus, where a party refuses to do some act which by law he ought to do, and the nonfeasance of which is injurious to the public, though this be an indictable offence, that will not prevent the issuing of a mandamus, for the indictment will not directly compel the performance of the act: the offender may be fined or imprisoned, but if he be obstinate, the party injured has no complete remedy. Rex vs. Severn and Wye Railroad Company, 2 B. & A. 646. Neither does the instance put of an admission to an office seem to be in point; for though a mandamus will undoubtedly lie for such a purpose, yet it does lie specifically, because the party without it would have no legal remedy by action. It is proper also to add another qualification. If the right in dispute be strictly and wholly private, the court will not interfere: a mandamus is properly a writ to compel the performance of public, or at least official, duties; and therefore the court, considering the Bank of England as a mere corporation of private traders, party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, &c.: it lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particular to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king's bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them: and this, not only by re*111] straining their excesses, but also by quickening *their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment; (g) to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below: whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition, a rule is made, (except in some general cases where the probable ground is manifest,) directing the party complained of to show cause why a writ of mandamus should not issue: and, if he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some reason to the contrary; to which a return, or answer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment. But if he, at the first, returns a sufficient cause, although it should be false in fact, the court of king's bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no further on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a peremptory mandamus to the defendant to do his duty.16 Thus much for the injury of neglect or refusal of justice. (9) Raym. 214. so far as regarded its internal management of its own concerns, refused to issue a mandamus upon the application of a member to compel the directors to produce their accounts in order to declare a dividend of all their profits. Rex vs. The Bank of England, 2 B. & A. 620. Rex vs. London Assurance Company, 5 B. & A. 599. As the writ of mandamus is exclusively confined to the court of King's Bench, and has been called one of the flowers of that court, no writ of error will lie to any other jurisdiction, if there should be any thing improper, either in the granting it, or in the proceedings under it. On the subject of mandamus and the traversing the return if false in fact, in certain cases, see post, 264.-COLERidge. 16 However, by stat. 1 W. IV. c. 21, s. 3, the prosecutor may now in all cases of mandamus (as he could by stat. 9 Anne, c. 20, in certain special cases) plead to or traverse the matters in any return, and proceed and obtain damages as in an action for a false return, without the necessity of bringing such action as heretofore; and, by s. 6, the costs on all applications for mandamus are to be in the discretion of the court. And now, by stat. 6 & 7 Vict. c. 67, on such return being made, the person prosecuting the writ may object to the validity of such return by way of demurrer, and thereupon the writ and return and the demurrer shall be entered upon record, and proceedings shall be taken as upon a demurrer to pleadings; and, by s. 2, upon judgment being given thereon, error may be brought for reversing the same in like manner as in ordinary civil actions.-STEWART. 2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition. [*112 *A prohibition is a writ issuing properly only out of the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery, (h) common pleas,(i) or exchequer;(k) directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises; (1) to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings:(m) or it may be directed to the courts Christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes,(n) or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal, law; else the same question might be determined different ways, according to the court in which the suit is depending an impropriety which no wise government can or ought to endure, and which is therefore a ground of prohibition. And if either the [*113 judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it;(0) and an action will. lie against them, to repair the party injured in damages. So long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper object of it; even from the time of the constitutions of Clarendon, made in opposition to the claims of archbishop Becket in 10 Hen. II., to the exhibition of certain articles of complaint to the king by archbishop Bancroft in 3 Jac. I., on behalf of the ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminster hall,(p) much may be collected concerning the reasons of granting and methods of proceeding upon prohibitions. A short summary of the latter is as follows: The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom; upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea." But sometimes the point The Supreme Court of the United States has power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States. Act of Congress, Sept. 24, 1789, 1 Story's Laws, 59.-SHARSWOOD. The general grounds for a prohibition to the ecclesiastical courts are either a defect may be too nice and doubtful to be decided merely upon a motion; and ther., for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare a prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition or fiction (which is not traversable)(q) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion that the matter suggested is a good and suf*114] ficient ground of prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any further. On the other hand, if the superior court shall think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, the writ of prohibition is not absolutely final and conclusive. For though the ground be a proper one in point of law, for granting the prohibition, yet if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always pursue the sugges tion,) and so plead to issue upon it; denying the contempt, and traversing the custom upon which the prohibition was grounded; and if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.18 (9) Barn. Not. 4to, 148. of jurisdiction, or a defect in the mode of trial. If any fact be pleaded in the court below, and the parties are at issue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition hes. Or where the spiritual court has no original jurisdiction, a prohibition may be granted even after sentence. But where it has jurisdiction, and gives a wrong judgment, it is the subject-matter of appeal and not of prohibition. Lord Kenyon, 3 T. R. 4. But when a prohibition is granted after sentence, the want of jurisdiction must appear upon the face of the proceedings of the spiritual court. Ibid. Cowp. 422. See also 4 T. R. 382. See also 2 H. BI. 69, 100. 3 East, 472.-CHRISTIAN. 18 The ancient practice as to the writ of prohibition has been much simplified and improved by stat. 1 W. IV. c. 21.-STEWART. The Supreme Court of the United States hath power to issue writs of prohibition to the federal district courts, when proceeding as courts of admiralty and maritime jurisdiction. Act of Congress, Sept. 24, 1789, 1 Story's Laws, 59.-SHARSWOOD. 80 |