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either ky land or water; nor of any wreck of the sea : for that must be cast op land before it becomes a wreck.(1) 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 *107]
another, the common or general law takes place of the particular.(1)
*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)"
(1) See book i. ch. 8.
Co. Litt. 261.
(m) 1 Ventr. 146.
18 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 towe 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 quand hoc. Captures within he 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 concurreni 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, though there should arise in it a question that is proper for the cogni
[*108 zance 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, thuugh 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.() 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
() Ff. 49, 15, 18. () View of the Civil Law, b. iii. p. 1, 8 3.
(*) 13 Rep. 53. 2 Lev. 25. Hardr. 183. • Fr. 49, 15, 12, 2 6.
(P) 4 Inst. 134.
(W) Comb. 462.
(*) Inst. 1, tit. 25.
()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 Juiliciary 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. Joit and others, 2 Gallison, 398, that the admirulty 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. 34. Cutler vs. Rae, 7 ibid. 729. United States vs. The Tew Bedford Bridge, 1 Woodb. and Minot, 401.-SuaRSWOOD.
ports, the courts of admiralty have an undisturbed and exclusive jurisdiction io determine the same according to the law of nations.(2x)”
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 'ts 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) Halo, 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 oourt, 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, wnero 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. Fæ 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 nou 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.
quently by arrest of the defendant's person ;(2) and they also take recug uzunces 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
[*109 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
I 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 judgment: and upon further neglect or refusal, the judges of the inferior
[*110 court may be punished for their contempt by writ of attachment returnable in the king's bench or common pleas.(f)
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 praz. cur. adm. & 13.
( Bro. Abr. tit. Error, 177.
(9) 1 Ventr. 1.
(5) 1 Roll. Abr. 531. Godb. 193, 260.
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 lio for such a purpose, yet it does lie specifically, because the party without it would have po 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 pro perly a writ to compel the performance of public, or at least official, duties; and there fore 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. Å 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 afix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recité 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 entor up judgment;(9) 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 Thus much for the injury of neglect or refusal of justice.
() 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 account 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 Berch, 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 grasting it, or in the pro ceedings 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 man. damus (as he could by stat. 9 Anne, c. 20, in certain special cases) plead to or traverso 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 civi} notione. -STEWART.