第9章 II. (4)

Secondly, The second special Jurisdiction wherein the Civil Law is allow'd, at least as a Director or Rule in some Cases, is the Admiral Court or Jurisdiction. This jurisdiction is derived also from the Crown of England, either immediately by Commission from the King, or mediately, which is several Ways, either by Commission from the Lord High Admiral, whose Power and Constitution is by the King, or by the Charters granted to particular Corporations bordering upon the Sea, and by Commission from them, or by Prescription, which nevertheless in Presumption of Law is derived at first from the Crown by Charter not now extant.

The Admiral Jurisdiction is of Two Kinds, viz. Jurisdictio Voluntaria, which is no other but the Power of the Lord High Admiral, as the King's General at Sea over his Fleets; or Jurisdictio Contentiosa, which is that Power of Jurisdiction which the Judge of the Admiralty has in Foro Contentioso; and what I have to say is of this later Jurisdiction.

The Jurisdiction of the Admiral Court, as to the Matter of it, is confined by the Laws of this Realm to Things done upon the High Sea only; as Depredations and Piracies upon the High Sea;Offences of Masters and Mariners upon the High Sea; Maritime Contracts made and to be executed upon the High Sea; Matters of Prize and Reprizal upon the High Sea. But touching Contracts or Things made within the Bodies of English Counties, or upon the Land beyond the Sea, tho' the Execution thereof be in some Measure upon the High Sea, as Charter Parties, or Contracts made even upon the High Sea, touching Things that are not in their own Nature Maritime, as a Bond or Contract for the Payment of Money, so also of Damages in Navigable Rivers, within the Bodies of Counties, Things done upon the Shore at Low-Water, Wreck of the Sea, &c. These Things belong not to the Admiral's Jurisdiction:

And thus the Common Law, and the Statutes of I 3 Rich. 2. cap.

15. 15 Rich. 2. cap. 3. confine and limit their Jurisdiction to Matters Maritime, and such only as are done upon the High Sea.

This Court is not bottom'd or founded upon the Authority of the Civil Law, but hath both its Power and Jurisdiction by the Law and Custom of the Realm, in such Matters as are proper for its Cognizance; and this appears by their Process, viz. The Arrest of the Persons of the Defendants, as well as by Attachment of their Goods; and likewise by those Customs and Laws Maritime, whereby many of their Proceedings are directed, and which are not in many Things conformable to the Rules of the Civil Law; such are those ancient Laws of Oleron, and other Customs introduced by the Practice of the Sea, and Stile of the Court.

Also, The Civil Law is allowed to be the Rule of their Proceedings, only so far as the same is not contradicted by the Statute of this Kingdom, or by those Maritime Laws and Customs, which in some Points have obtain'd in Derogation of the Civil Law: But by the Statute 28 Hen. 8. cap. 15. all Treasons, Murders, Felonies, done on the High Sea, or in any Haven, River, Creek, Port or Place, where the Admirals have to pretend to have Jurisdiction, are to be determined by the King's Commission, as if the Offences were done at Land, according to the Course of the Common Law.

And thus much shall serve touching the Court of Admiralty, and the Use of the Civil Law therein.

Thirdly, The Third Court, wherein the Civil Law has its Use in this Kingdom, is the Military Court, held before the Constable and Marshal anciently, as the Judiciis Ordinarii in this Case, or otherwise before the King's Commissioners of that Jurisdiction, as Judices Delegati.

The Matter of their Jurisdiction is declared and limited by the Statutes of 8 R. 2. cap. 5. and 1 3 R. 2. cap. 2. And not only by those Statutes, but more by the very Common Law is their Jurisdiction declared and limited as follows, viz.

First, Negatively. They are not to meddle with any Thing determinable by the Common Law. And therefore, inasmuch as Matter of Damages, and the Quantity and Determination thereof, is of that Conuzance; the Court of Constable and Marshal cannot, even in such Suits as are proper for their Conuzance, give Damages against the Party convicted before them, and at most can only order Reparation in Point of Honour, as Mendacium sibi ipsi imponere: Neither can they, as to the Point of Reparation, in Honour, hold Plea of any such Words or Things, wherein the Party is relievable by the Courts of the Common Law.

Secondly, Affirmatively: Their Jurisdiction extends to Matters of Arms and Matters of War, viz.

First, As to Matters of Arms (or Heraldry), the Constable and Marshal had Conuzance thereof, viz. Touching the Rights of Coat-Armour, Bearings, Crests, Supporters, Pennons, &c. And also touching the Rights of Place and Precedence, in Cases where either Acts of Parliament or the King's Patent (he being the Fountain of Honour) have not already determined it, for in such Cases they have no Power to alter it. Those Things were anciently allowed to the Conuzance of the Constable and Marshal, as having some Relation to Military Affairs; but so restrain'd, that they were only to determine the Right, and give Reparation to the Party injured in Point of Honour, but not to repair him in Damages.

But, Secondly, As to Matters of War. The Constable and Marshal had a double Power, viz.

1. A Ministerial Power, as they were Two great ordinary Officers, anciently, in the King's Army; the Constable being in Effect the King's General, and the Marshal was employed in marshalling the King's Army, and keeping the List of the Officers and Soldiers therein; and his Certificate was the Trial of those whose Attendance was requisite. Vide Littleton, ? 102.