fir Matthew Hale, to adjust the right of armorial enfigns, bearings, crefts, fupporters, pennons, &c; and alfo 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 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 such falfity and confufion 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 seal 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 register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees. And it is much to be wifhed, 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

e Co. Litt. 261.

2 Roll. Abr. 686. 2 Jon. 224.

* Comb, 63.
h 11 May, 1767.

heralds

12

2

heralds to take exact accounts and preferve regular entries of all peers and peereffes 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 jurisdiction 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 causes must be therefore caufes arifing wholly upon the fea, and not within the precincts of any county (4). For the statute 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 j. 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 jurifdi&tion; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular. Therefore,

(4) See much learning respecting the jurifdiction of the court

of admiralty in the cafe of Le Caux v. Eden, Doug. 572.

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 fhip shall fail 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 shipboard to pay money in London or the like thefe 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 also, as the courts of common law have obtained a concurrent jurisdiction 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 fea, 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 ship in which fuch caufe of action arifes to be really at the royal exchange in Cornhill. But our lawyers juftify this fiction, by alleging (as before) that the locality of such contracts is not at all effential to the merits of them; and that learned civilian himself feems to have forgotten how much fuch 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 pofliminium 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'.

WHERE the admiral's court hath not original jurisdiction of the 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. And fo, vice versa, if it hath jurisdiction of the original, it hath alfo jurifdiction of all confequential queftions, though properly determinable at common law". Wherefore, among other reasons, 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. In cafe of prizes also 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 of admiralty have an undisturbed and exclusive jurisdiction to determine the fame according to the law of nations *,

THE proceedings of the courts of admiralty bear much refemblance to thofe of the civil law, but are not entirely founded thereon and they likewife adopt and make use of other laws, as occafion requires; fuch as the Rhodian laws and the laws of Oleron. 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 prefent 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 process in these courts is frequently by arrest of the defendant's perfon2; and they also take recognizances or ftipulation of certain fidejuffors in the nature of bail, and in cafe of default may

▾ Comb. 462.

13 Rep. 53 2 Lev. 25. Hardr. 183. WI Sid. 158.

* 2 Show. 232. Comb. 474.

y Hale, hift. C. L. 36. Co. Litt. II. z Clerke prax. cur. adm. § 13.

a Ibid. § 11. 1 Roll. Abr. 531. Raym. 78. Leid Raym, 1286.

imprifon

imprison both them and their principal. They may also fine and imprison for a contempt in the face of the court o. And all this is fupported by immemorial usage, grounded on the neceffity of fupporting a jurifdiction fo extenfived; though oppofite to the ufual doctrines of the common law: thefe being no courts of record, because in general their process is much conformed to that of the civil law.

IV. I AM next to consider such injuries as are cognizable by the courts of the common law. And herein I fhall for the present only remark, that all poffible injuries whatsoever, that did not fall within the exclufive 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 fettled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury it's proper redrefs. The definition and explication of these numerous injuries, and their refpective legal remedies, will employ our attention for many subfequent chapters. But, before we conclude the prefent, I fhall just mention two fpecies of injuries, which will properly fall now within our immediate confideration: and which are, either when justice is delayed by an inferior court that has proper cognizance of the caufe; or, when fuch 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, iffues 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 fide or on the other, when they ought fo to do. In this cafe a writ of procedendo fhall be awarded, commanding them in the king's name to proceed to judgment; but without fpeci1 Keb. 552.

b 1 Roll. Abr. 531. Godb. 193. 260.
< 1 Ventr. 1.

d

e Bro. Abr. t. error. 177.