[105] mined, that how much foever such a jurisdiction may be expedient, yet no action for words will at prefent lie therein ". And it hath always been moft 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 mosft 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 thefe cafes the common law has pointed out his proper remedy by action. As to the other point of it's civil jurifdiction, the redreffing of incroachments and ufurpations in matters of heraldry and coat-armour it is the bufinefs of this court, according to fir Matthew Hale, to adjust the right of armorial enfigns, bearings, crefts, fupporters, pennons, &e; 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 refolutions of the fuperior courts it is now confined to fo 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 beft families in the kingdom, is now b Salk. 533. 7 Mod. 125. 2 Hawk. P. C. 11. c Hal. hift. C. L. 37. d1 Roll. Abr. 128. greatly 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 confufion have crept into their records, (which ought to be the standing evidence of families, defcents, and coat-armour) that, though formerly fome credit has been paid to their teftimony, now even their common feal will not be received as evidence in any court of justice 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 ftate of families, and to register such 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 defcent, for the recovery of an estate or fucceffion to a title of honour, [106] more difficult than that of an ancient. This will be indeed remedied for the future, with refpect to claims of peerage, by a late standing order of the house of lords; directing the heralds to take exact accounts and preferve regular entries of all peers and peereffes of England, and their refpective de scendants; 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, still 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 com11 May, 1767. f 2 Roll. Abr. 686. 2 Jon. 224. g Comb. 63. mitted 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 causes must be therefore caufes arifing wholly upon the sea, and not within the precincts of any county. For the ftatute 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 fea: for that must be caft on land before it becomes a wreckj. But it is otherwife of things flotfam, 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 cause of action, doth arise upon the fea, and part upon the land, the common law excludes the admiralty court from it's jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular'. Therefore, [107] 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 jurifdiction, 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 such 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 these kinds of mixed contracts belong not to the admiralty jurifdiction, 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. AND alfo, as the courts of common law have obtained a concurrent jurifdiction with the court of chivalry with regard to foreign contracts, by supposing 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 hath very gravely proved it to be impoffible, for the fhip in which fuch caufe of action arifes to be really at the royal exchange in Cornhill. But our lawyers justify 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 seems to have forgotten how much fuch fictions are adopted and encouraged in the Roman law: that a fon killed in battle is fuppofed 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 fuch as died in captivity were fuppofed to have died in their own country, WHERE the admiral's court hath not original jurifdiction [108] of the cause, though there fhould arife in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclufive jurifdiction of the common law. And fo, vice verfa, if it hath jurisdiction of the original, it hath alfo jurifdiction of all confequential questions, though properly determinable at common law". Wherefore, among other reafons, a fuit for beaconage of a beacon ftanding on a rock in the fea may be brought in the court of admiralty, the admiral having an original jurifdiction over beacons w. In cafe of prizes alfo in time of war, between our own nation and another, or between two other nations, which are taken at fea, and brought into our ports, the courts P 4 Inft. 134. q View of the civil law, b. 3. p. 1. § 3. : Inft. 1. tit. 25.. • Fƒ. 49. 15. 12. § 6. Ff. 49. 15. 18, v Comb. 462, 23 13 Rep. 53. 2 Lev.25. Hirdr.133. of admiralty have an undisturbed and exclufive jurifdiction to determine the fame according to the law of nations *. 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 occafion requires; fuch as the Rhodian laws and the laws of Oleron y. For the law of England, as has frequently been obferved, doth not acknowlege or pay any deference to the civil law confidered as fuch; but merely permits it's use in fuch cafes where it judged it's 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 ufage; fo that out of this compofition a body of jurifprudence is extracted, which owes it's authority only to it's reception here by confent of the crown and people. The first procefs in thefe courts is frequently by arrest of the defendant's perfon2; and they alfo take recognizances or ftipulation of certain fidejuffors in the nature of bail, and in cafe of default may [109] imprifon both them and their principal. They may alfo fine and imprison for a contempt in the face of the court. And all this is fupported by immemorial usage, grounded on the neceffity of fupporting a jurifdiction fo extenfive; though oppofite to the usual doctrines of the common law : these being no courts of record, becaufe in general their process is much conformed to that of the civil law. IV. I AM next to confider fuch injuries as are cognizable by the courts of the common law. And herein I fhall for the prefent only remark, that all poffible injuries whatsoever, that did not fall within the exclufive cognizance of either the ecclefiaftical, military, or maritime tribunals, are for that very * 2 Show. 232. Comb. 474. by Roll. Abr. 531. Godb. 193. 260. c 1 Ventr. 1. di Keb. 552. e Bro. Abr. t. error. 177. reafon |