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 (9) 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 for ever 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 not original jurisdiction of the [*108] 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 (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 ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations (x).

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 ewes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently by arrest of the defendant's person (2); and they also take recognizances or stipulations of certain fidejussors in the nature of bail (a), and in case of default may

[109] *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 that 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.

I. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo (21), 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 particu[*110] lar judgment, for that (if erroneous) may be set aside in the course of appeal, or by writ of error or false judgment: and upon farther 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 or common pleas (ƒ).

A writ of mandamus13is, 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; but it issues in all cases where the 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 particularly 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 restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. A [*111] 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 shew cause why a writ of mandamus should not issue and, if he shews 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 farther on the mandamus (22), (23). 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 (24). Thus much for the injury of neglect or refusal of justice.

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.

*A prohibition (25) is a writ issuing properly only out of the [112]

(g) Raym. 214.

(22) In New-York the party prosecuting the writ may plead or demur to the return, and an issue in fact or in law may be joined. (2 R. S. 586, § 55, &c).

(23) In the case of a peremptory mandamus no writ of error lies. Dean of Dublin v. The King, Br. P. C. 73. Edit. 1803. 1 P. W. 348 -351. But since stat. 9 Ann. c. 20, which allows special matter to be pleaded to a mandamus, it seems that a writ of error lies upon a judgment thereon, because it is in the nature

of an action done. Case by the name of Dean and Chapter of Dublin v. Dowgatt. Ibid. Bull. N. P. 104, S. C. See 3 Sim. R. 8.

(24) See further upon the writ of mandamus, p. 264. post.

(25) As to the writ of prohibition in general, see Com. Dig. tit. Prohibition; Bac. At. tit. Prohibition; 2 Saund. index, tit. Prohibition; and see an excellent illustration of the nature and object of this proceeding, given by the court in 2 Hen. Bla. 533.

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 (1), or exchequer (k) (26); 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 (); 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 [113] no wise government can or ought to endure, and which is there

fore a ground of prohibition. And if either the 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 (o); 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 (27), (28): The party aggrieved in the court below applies to the superior court, setting forth in a sugges

(h) 1 P. Wms. 476.

(i) Hob. 15.

(k) Palmer. 523.

(1) Lord Raym. 1408.

(26) In New-York it issues only from the Supreme Court; the return may in like man. ner be denied or demurred to. (2 R. S. 587, ◊ 61).

(m) Finch. L. 451.

(n) Cro. Eliz. 666. Hob. 188.

(0) F. N. B. 40.

(p) 2 Inst. €01-618.

(27) See Lee's Prac. Dit. tit. Prohibition. (28) As to the mode of proceeding in New. York, see 2 R. S. 587, § 61, &c.

tion 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 (29). But sometimes the point may be too nice and doubtful to be decided merely upon a motion and then, 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 sufficient ground of prohibition in point of law, then judgment with nomi- [*114] nal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any farther. 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 suggestion), 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.

(q) Barn. Not. 4to. 148.

(29) The general grounds for a prohibition to the ecclesiastical courts are, either a defect 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 lies. Or where the spiritual court has no original jurisdiction, VOL. II.

14

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. Bl. 69. 100. 3 East, 472.