View of the Admiral Jurisdiction, Chapter 5
CHAP. V.
Of Laws and Juriſdictions in general; with the ſeveral kinds and degrees thereof.
IT is recorded in the Hiſtorical part of the Law by that famous Lawyer of Millayne, Jaſon Maynus, (who flouriſhed about the year of our Lord 1500, and taught at Padua, where he dyed Anno 1519. aVal. Forſt. Hiſt. Jur. Civil. l. 3. c. 40.upon this ſubject of Juriſdictions, that Raphael Fulgoſius, that Jaspis virtutum, utroque jure ſtupor, as his Epitaph in S. Anthonies Church at Padua (where he alſo dyed above one hundred years before the other) ſtyles him, bIbid. c. 32.when he was a young Student in the Laws, was wont to ſay that of other matters and points of Law he could attain to ſome underſtanding by his private ſtudy and chamber-diſquiſitions, but in this point of Jurisdictions he could underſtand nothing at all but what he heard in the Schools Voce Magiſtra. cJaſon. in ff. de Juriſdict. Om. Jud. Rub. nu. 1.Of ſuch difficulty is the ſubject matter of this Treatiſe, and yet with what confidence do ſome illiterate perſons, (like boyes at foot-ball) toſs and play with Jurisdictions, even almoſt to the tripping up the heels of Magiſtracy it ſelf. Jurisdictions are things of much tenderneſs as well as profoundneſs, and muſt be gently touch'd as well as deeply weigh'd; if perſons in Juridical Authority be ſtyled Mortal Gods, then Jurisdictions are in ſome ſenſe things Sacred, and may not be approached unto but with Civil reverence; Nor is the acquiſition of the profound knowledge of the Law touching Juriſdictions a pomeridian work for ſollicitous ſtudents, much leſs obvious to rural capacities.
A right underſtanding what Law is, gives the cleareſt proſpect to a diſcovery what Jurisdictions are; the Civilians do ſuccinctly and fully define Law, Lex est Sanctio Sancta, jubens honesta, prohibens contraria. Law is a Decree not to be violated, commanding things honeſt, forbidding the contrary. Plato in his definition of Law, ſays It is a Reaſonable Rule, leading and directing De Legibu…men to their due end for a publick good, ordaining penalties for them that tranſgreſs, and reward for them that obey. And Cicero defines it to be the higheſt and chief L. 1. De Legibus.reaſon graffed in nature, commanding thoſe things which are to be done, and forbidding the contrary. And of all Laws, thoſe of the Empire, next to the Jus Divinum, ſeem to challenge the precedency in all Forraign Kingdomes and States; though in this as not in their proper ſphere they diſplay not their beams with that luſtre, for want of that encouragement and employment they deſerve; It is every mans duty to have the beſt and higheſt thoughts of the Laws of his own Country, yet to oppoſe them to the Ancient Emperial Laws, either as to the Theory thereof, with their numerous hoſt of moſt Learned Interpreters, or as to the Practick, in the Pleadings of the higheſt Courts of the greateſt part of the Chriſtian world, in the many Judgements and Deciſions of the ſeveral Rotes of Italy at Rome, at Naples, at Florence, at Genoa, at Bononia, at Mantua, at Peruſium, and the reſt; in the Judgements of the Imperial Chamber at Spire, which is the laſt reſult of the German Nation; in the Deciſions of Granado and other places of Spain, and other Kingdomes; as in the Arreſts of the ſeveral Courts of Parliament in France, as Paris, Aix, Burdeaux, Grenoble, and the reſt; To oppoſe any Municipal Laws (ſave our own) to the Ancient Emperial Laws in the latitude aforeſaid, recitaſſe est refutaſſe, the very recital thereof is confutation enough, ſaving the honour due to the Laws of our Native Country.
It will not be denyed but that the Great Legiſlator of Heaven and Earth is the Fountain of all Laws, that is, Law properly ſo called, had its Origination from God himſelf. This is an undoubted Poſition not only in L. int. Cler. C. de Sum. Trin.Chriſtian Religion, but ſuch as the Doctors of the Gentiles and Heathens themſelves will eaſily admit; for even among them ſuch as aſſumed the Legiſlative Authority, and took upon them to preſcribe Laws, would at the enactment thereof invocate their falſe Gods, and endevour to father them on one or other of their heatheniſh Deities, as Minos who Cic. Phil. 11. L. 2. ff. de Legib.gave Laws to the Cretians, on Jupiter: Numa, who gave Laws to the Romans, on Aegeria Nympha: Zoroaſter, who to the Bractians and Perſians, on Horomaſis: Triſmegiſter, who to the Egyptians, on Mercurius: Coel. Rhod. l. 18. c. 19.Charondas, who to the Thurians, on Saturn: Lycurgus, who to the Lacedemonians, on Apollo: Draco and Solon, who to the Athenians, on Minerna: Mahomet, Plat. in Min.who to the Arabians, on the Angel Gabriel. Thus all agree in this, that Law hath the image and ſuperſcription of ſome ſupernaturall Powers, and is more Ancient then Adams Fall, as is evident by neceſſary though ſad conſequences; for without Law there had been no Tranſgreſſion. In immediate Rom. 2. 14, 15ſubordination to the Divine and Natural Law written in the tables of the heart, came the Jus Gentium, or the Law of Nations, when men firſt began to have mutual Commerce with each other, for thereby was introduced a kind of Neceſſity for all Nations to obſerve ſome certain Rules as Law, without which no Society of men in way of reciprocal negotiations could ſubſiſt; which Law doth indeed flow from the Law of Nature; Tuſc. 1.inſomuch that Cicero was of opinion, that in all matters and affairs of the world whatever was the Conſent and Concurrent approbation or allowance of all Nations, that was to be underſtood the Law of Nature; Next unto which is the Jus humanum & Civile, being a diſtinct Law both from the Law of Nature and alſo from the Jus Gentium, and ſeems to be then born into the world, when men firſt of many Individuals began to compact themſelves into one Society, and when they firſt began to incorporate themſelves into Bodies Politick, which in the worlds infancy ſeems to be when Cain built the City Enoch; for Civil Laws ſeem 11. 4. 17.to have their Origination then when Cities began firſt to be built, Magiſtrates to be conſtituted, and Ordinations of Government to be committed to writing; for indeed Civil Law properly ſo called, is no other … …mnes pop. …f. de juſt. & …ure.then that which every City conſtituted and enacted for it ſelf, and for its own peculiar government; which Law alſo hath its foundation laid in the Law of Nature, from whence as from a Fountain are derived divers leſſer channels and rivulets according to the great variety of Places, Perſons, Times and Tranſactions; And the Civil Law of the Roman Empire in common acceptation and mode of ſpeech is now for the Antiquity, Excellency, Univerſality, and Authority thereof called The Civil Law by way of Eminency, the Name and Appellation of the Civil Law being now properly appropriated to the Emperial Law and Conſtitutions, as that Law which was the Law Currant in all the Dominions of the Roman Empire, and is at this day in moſt parts of the whole Chriſtian world. Beſide theſe Laws peculiar to a due adminiſtration of Juſtice in matters meerly ſecular, there was alſo at the worlds Infancy a kind of Sacerdotal Law or Law of the Prieſthood, when men congregated firſt began to adore the …reat God in the way of a Publick wor…hip; for in the firſt Conſtitution of Common-weals and Cities, it was neceſſary to eſtabliſh certain Laws peculiar to the Prieſthood; for it cannot be imagined, but that when men Gen. 4.firſt began to offer their firſt-fruits and to ſacrifice to God, there was then ſome Law in being for the worſhip of the Deity; nor ought it to be doubted but that in thoſe days there was a true Church of Beleevers, as alſo true Sacrifices, and (as ſome hold) true Sacraments; and therefore not to be conceived but that there was alſo ſome Eccleſiaſtical Law then in force, which afterward became much more clear under Moſes Law. And by way of additament to this, in tract of time was the Canon Law eſtabliſhed in every Chriſtian Common-wealth, which received not (as ſome ſuppoſe) it's Original at that time when the General and Univerſall Councils began to be firſt held, as under Conſtantine, but in the days of the Apoſtles themſelves, who gave divers Rules and made many Canons touching Divine W…rſhip, and in order to the ſalvation of Souls. And thus Laws being introduced into the world, it could not be but there muſt be Jurisdictions alſo, without which the Law is but a dead Letter. For the clearer underſtanding whereof, know
That the word [Jurisdictio] without the Letter [c] etymologizeth it ſelf. dIn Arb. Jurisd. lit. a.For it is not ſo called from [Juris] and [dictio] as ſome would have it, but from [Juris and [ditio]. And ſo Jurisdictio is quaſi juris poteſtas. eInſt. jur. Civil. in Proem. Par. quorum.But this pleaſeth not Calvin, who in this matter following Ferrand▪ fFerrand. l. 1. Explicat. in lib. 3. Juriſdict.would derive it from [Juris & dictio] and doth charge Accurſius with an errour in Judgement for holding it to be derived from [Juris & ditio] though he confeſſes that Bartol himſelf and many others do follow Accurſius therein; whoſe opinion ſeems to have the beſt congruity with reaſon in the energy of Law, though Ferrand's Opinion ſeems to out-weigh, if the comprized matter ſhould be ballanced only by the letters of the word; but indeed of the two Accurſius hath by farre the more numerous Retinue.
So that Jurisdictio taken in the large ſenſe, as the Genus generaliſſimum or Pleniſſima Jurisdictio, is nothing elſe but Poteſtas gL. poteſtas. De verb. Sig.de jure Publico introducta hL. 1. Par. hujus, ff. de Juſt.cum neceſſitate juris dicendi iL. munerum. Par. judicandi, ff. de Muneribus.& aequitatis ſtatuendae. kL. placui…. Cod. de Judiciis.The word [Jurisdictio] taken in this large ſenſe, doth properly ſignifie that Office or Function which the lawful Magiſtrate doth hold and exerciſe by the ordinary right of his juſt power and authority.lL. 1. ff. de Juriſd. & Jaſ. in Rub. & l. 10 nu. 10. ibid.
Of Juriſdictions taken in this large ſenſe, there are three ſpecies or kinds in the Law; There is Imperium Merum, Imperium Mixtum, & Jurisdictio ſimplex. And it is called Imperium, becauſe it proceeds from the Authority of the Judge, and not from any right inherent or reſiding in the party.
The firſt of theſe, viz. Imperium Merum, is that Juriſdiction, which reſpecting only the Publick utility is exerciſed Officio Judicis Nobili, and by way of Accuſation. mBart. in Arb. Juriſd. lit. c.This hath the power of the Sword contra homines facinoroſos, and all Capital Offenders. nCorvin. de Juriſd. & Fulgos, l. 3. de Juriſd. nu. 1.And is ſo called from its purity, ſimplicity and immixture with either of the other kinds of Juriſdictions. oBart. ubi ſupra.Of this Imperium Merum Bartoll makes Six ſeveral degrees pBart. ib.which Jaſon contracts into Four, but Zaſius into Three.
Of theſe Six degrees of Imperium Merum, the Firſt is Merum Imperium Maximum; 1.And this reſides only in the Prince, or in the Supreme Authority. qL. 1. ff. de Conſt. Princip.In this Bartol doth lodge the Legiſlative Faculty or power of enacting Laws; alſo the calling a General Council, or the ſummoning a Parliament; alſo the power of Confiſcation of Delinquents goods. In a word, under this Merum Imperium Maximum are contained all things competible to Princes or the Supreme Magiſtrate. rCacialup. in L. Imperium, ff. de juriſd. om. Jud.And to theſe particulars which Bartol mentions under this head, the DD do add one more, and that is the creating of Tabellions General or Publick Notories.sJun. & alii in C. cum Pub. Tabellio, de fin. juſt. & Bald. in tit. de Juriſd. om. Jud.
The Second degree is Merum Imperium Majus. This extends to the taking away 2.of life, and hath the power of the Sword. tBart. ubi ſupra, lit. c.Under this head alſo is that Poteſtas gladii in homines facineroſos forementioned; uBart. de Juriſd. nu. 8.but derivative from the Prince.
The Third degree is Merum Imperium Magnum, under which head is comprehended 3.Deportation or perpetual baniſhment. wIbid. nu. 9.But theſe two laſt degrees Jaſon comprehends under one and the ſame head, xJaſ. in l. 3. ff. de Juriſd. nu. 24. in prin.For ſays he, under the power of the Sword in facineroſos homines is comprehended three kinds of Capital Cauſes, viz. Firſt, when the Life Natural is taken away either in whole or in part, as by diſmembration, amputation, or mutilation. yCyn. in l. ſi quis non dicā. q. 19. C. de Epiſc. & Cler. & in L. Tranſigere, q. 4. c. de Tranſact.Secondly, when the Life Civil is taken away, as by loſs of Liberty and by perpetual impriſonment; for ſuch are dead in Law. Thirdly, when a man is deprived of his Franchiſe, Freedome or Priviledges which he had in any place by a Natural or Civil Right.zJaſ. ubi ſup.
The Fourth degree is Merum Imperium Parvum, under which head is comprehended 4.Relegation or temporal exilement; aBart. & Jaſ. ibid. & l. nulli, C. de ſent.which is no more then an extermination, whereby a man is commanded out of the confines of his own Country for a ſeaſon. And although Deportatio & Relegatio be often uſed promiſcuouſly in the Law for one and the ſame, yet the Law diſcriminates them by very different Characters; For in Deportation there is a perpetual, in Relegation but a temporal baniſhment. And as they differ in the Circumſtance of Time, ſo alſo in the Circumſtance of Place; For in Relegation the party is only circumſcribed, and it's part of his puniſhment that he ſhall not go out of the limits of ſuch a certain place. So Shimei the Benjamite that curſed David in his way to Mahanaim, was after Davids death confined by his ſon Solomon unto Hieruſalem, 1 King. c. 2. v. 8, 36, &c.and not to paſs over the Brook Kidron; who upon occaſion of his going afterwards to Gath, exceeded the limits of his circumſcription, and for ſo doing was put to death by Benaiah at the Kings command. But now in Deportation the party is not ſo confined to or circumſcribed by any certain place, but is quite baniſhed and exiled out of all the precincts of his own Country. Again, in Deportation the party cannot take his goods with him, in Relegation he may; but this difference holds not always. Likewiſe under this head is comprized every Corporal puniſhment, bL. Si quid erit, ff. de Offic. Proconſ.provided it be Tortura ad poenam Delicti; For if it be Tortura only ad inveſtigationem veritatis, then it may be otherwiſe.
The Fifth degree is Merum Imperium Minus, under which is comprized that moderate 5.Coertion by Corporal Caſtigations which are ad vindictam Maleficii, to diſtinguiſh it from Coertio verbalis per officium Merum, and is competible with the Office or Function of Magiſtrates in Authority. cBart. ibid. & l. magiſtratib. ff. de Juriſd.Alſo Cognizance of ſuch crimes as are of the leſſer and inferiour kind. dBart. ibid.Of this and the laſt precedent degree or member of Imperium Merum, Jaſon makes but one, as forme…ly but one of the Second and Third degrees; So that although here be Six ſpecies, degrees, or members of Imperium Merum, according to Bartolls accompt, yet here are but Four according to Jaſons computation, and to him in this matter the DD do generally incline rather then unto Bartoll.
The Sixth and laſt degree is Merum Imperium Minimum, which comprehends whatever is impoſed by way of pecuniary mulct upon ſome crime, eL. fin. C. de modo Mulct. & l. 1. ff. ſi quis jus dicen. ō. obtemp. & l. 2. C. de Sportul.provided ſuch pecuniary mulct be in reference to the Publick utility, and not in ſatisfaction of private injuries.
The Second Species or kind of Jurisdictio taken in this large ſenſe, is Imperium Mixtum; Imperium Mixtum.And it is that Juriſdiction which reſpecting only private utility is exerciſed Officio Judicis Nobili. fBart. ibid. nu. 15.It is ſo called, as being of a mixt nature, becauſe it conſiſts partly of Imperium Merum, and partly of Jurisdictio Simplex; And as it conſiſts in Commodo pecuniario, reſpecting only private utility, ſo it doth participate of Juriſdictio Simplex, and is differenced from Imperium Merum.
Of this Imperium Mixtum, Bartol as in the former makes other ſix degrees, which Jaſon contracts to three, and calls them Gradum Maximū, Medium, & Minimū gIn l. Imperium, nu. 27. ff. de Juriſd. om. Jud.The Firſt and Second of Bartols degrees Jaſon doth join in one, as being both competible only to the Prince or Supreme Magiſtrate. The Third and Fourth of Bartols degrees he likewiſe joyns in one, as both requiring plenam cauſae cognitionem, and both incompetible with interiour Magiſtrates. So likewiſe of the Fifth and Sixth degrees. Now becauſe this laſt Diviſion of Jaſons ſeems to take beſt with the moſt part of the DD, as being the moſt ſuccinct yet comprehenſive of all, Jaſons method ſhall here be followed, as formerly was Bartols.
The firſt degree then of Imperium Mixtum according to Jaſons account is Imperium Mixtum Maximum, which pertains ſolely to the Prince, and concerns only Actus voluntarios; hL. 2. C. de his qui veniam aetatis impet.yet it may be al…o in the ordinary Magiſtrate, but then it muſt be by way of derivation from the Prince. iL. 8. ff. de Juriſd.This Imperium Mixtum Maximum comprehends veniam aetatis impetranti, kBart. ibid. nu. 17.That is, that whereas by the Civil Law a man is held a Minor and under age until he attain unto the age of twenty five years, the Prince might at his Petition grant veniam aetatis impetranti, that is, if ſuch Minor being a Male could prove himſelf to be of the full age of twenty years, or being a Female could prove her ſelf to be of the full age of eighteen years, then might ſuch by way of Petition impetrare veniam aetatis à Principe, that is, they might for the better management of their eſtate requeſt the Prince's favour for an exemption from their Minority, and to be held and taken as of full age, that is, as of the age of twenty five years, to all intents and purpoſes of Law whatever; only they could not by vertue of ſuch Priviledge alienate their Praedials or Immoveables without a ſpecial Decree for that purpoſe; And this Priviledge was obtainable only by the Prince's Grant. lL. 2. C. de his qui ven. aetat. impet.Alſo under this head is comprehended that which the Civilians call Arrogatio, which is a kind of Adoption, but ſomething different from it; mCaius in l. 2. tit. de Adop.For the Prince did interponere Authoritatem Arrogationi, nIbid.Likewiſe under this head is comprehended Legitimation, or the power of legitimating ſuch as are unlawfully begotten; oAuth. quibus mod. Nat. effic. legit. Par. illud.And alſo Emancipation, which, properly ſo called, is a Judicial and ſolemn transference, alienation, or vendition of free-born children (For Manumiſſion relates only to Servants and Bond-men) from and out of the Dominium, power, and Juriſdiction of their natural Parents into the power …nd right of another, had and done by the authority of the competent Judge with the concurrency and mutual conſent of both parent and child. By ſuch Emancipation the Patria Poteſtas is diſſolved, ſi filium ſuum forisfamiliaverit; for it is a kind of vendition or ſale by a tradition or delivery of his child out of his own right over to another, who thereby becomes as it were Pater Fiduciarius, or a Father in truſt to the child; although anciently ſuch Emancipation was held no leſs then Civil death to the child, or then an Ingreſſus Religionis. pFlet. lib. 1. cap. 7. Par. idem emancipat. & Cowel. Inſtit. jur. Angl. l. 1. c. 12. Par. 2.Likewiſe under this head is comprehended that which the Law calls Supplicatio, which is a Cognition or Retractation of a Judicial ſentence, from which lies no Appeal, by way of Supplication, pertaining only to the Prince, and in the Roman Government to the Praetorian Praefect. qL. 1. C. de ſen. Praef. & Auth. Quae ſupplicatio. C. de Praecib. imper. Off. & Barr. ubi ſup. nu. 18. & in Arb. Juriſd. lit. m.This is that Remedy of a Judicial Sentence which the Canoniſts call Reviſionem Sententiae, or the Review of a Sentence. rC. ex Literis. De Integ. Reſtitut.This is uſed but very rarely and only in extraordinary Caſes, but chiefly againſt the Sentence of ſuch Judges as from whom by reaſon of their Eminency non licet Appellare. sL. 1. ff. de Offic. Praef. Praetor.In ſuch Caſes the imploring of the grace and favour of the Prince or Supreme Authority is properly called Supplicatio.
The Second degree is Imperium Mixtum Medium, under which is comprized a full and plenary Cognition of a Cauſe, with Coertion as well Real as Perſonal; of ſuch is the putting a man into poſſeſſion by vertue of a Secundum Decretum; Likewiſe Reſtitutio in integrum; Alſo the expulſion or outing another of his Actual Poſſeſſion; tL. ea quae Par. Magiſtratib. ff. ad Municipalem.In like manner under this head are comprehended all matters that require a plenary Cognition, although it hath not Real or Perſonal Coertion; As to give ſuch a poſſeſſion of goods as ſhall convey and carry a right of Property with it; Alſo to pronounce for the putting into Poſſeſſion Ex Secundo Decreto; Alſo to interpoſe ones Authority for the Alienation of things appertaining to Minors; Alſo in Tranſactions of Alimony, and the like.uBart. Fulgos, & alii ubi ſupra.
The Third and laſt degree is Imperium Mixtum Minimum; And this conſiſts in ſuch things as are expedited Officio Judicis Nobili, but do not require a plenary Cognition as the former, but are determined by a Summary proceeding, and have reſpect only to Private utility. Of this kind is the putting into Poſſeſſion by a Primum Decretum; Alſo any poſſeſſion which to the Cognizance of the Cauſe doth not require a Proceeding De Plano, but only Summarily & ſine ſtrepitu judicii. wFulgos, in L. Imperium. ff. de Juriſd. om. jud. nu. 40.Of this kind alſo is the granting of Poſſeſſion to Minors Ex Edicto Carboniano, ſo called from Cneus Carbo the Praetor, and Authour of that Edict. For when upon the death of a Parent Inteſtate any queſtion or Controverſie aroſe to the Pupil or Minor, either Male or Female by the Maſculine line, concerning the inheritance or goods of ſuch Parent; as alſo concerning the ſtate, quality or condition of ſuch Minor, or whether he were the legitimate Child of ſuch Parent; In all ſuch caſes da…ur Carboniana bonorum Poſſeſſio, ſaith the Law; that is, ſuch Minor ſhall by that Edict be put into poſſeſſion of the ſaid goods, he firſt giving good caution or ſecurity not to diminiſh the ſame during his Minority; and in the mean time the diſpute in Law or Controverſie touching the right of Title to the ſaid goods, as alſo touching the ſtate, quality and condition of ſuch Minor, is by the ſame Edict to be deferred and put off untill he come of full age. xCaſus in gloſ. in l. 1. ff. de Carbon. Edict.Likewiſe under this head falls Manumiſſion, yBart. in L. Imperium. ff. de juriſd. om. jud. nu. 22.or the ſetting at liberty ſuch as were under the ſervitude and dominium of others, and refers properly to Servants that were under the domination of Maſters, as Emancipation doth to children free-born, that were under the power of their natural Parents; of theſe kinds are Cauſae Libertinitatis, & Cauſae Ingenuitatis.zSalyc. & Rubr. l. 2. De Pedan. Judic.
The Third and laſt ſpecies or kind of Jurisdictio taken in this large ſenſe is Jurisdictio Jurisdictio Simplex.Simplex; And it is that Juriſdiction which is exerciſed Officio Judicis Mercenanario; Reſpecting only Private utility, Jure Actionis. aBarr. ubi ſup. nu. 23. Jaſ. ubi ſup. nu. 31. Fulg. de Juriſd. om. jud. nu. 42.And being thus exerciſed Officio Judicis Mercenario, it differs from both the former, viz. both from Imperium Merum, and from Imperium Mixtum. Of this Jurisdictio Simplex, which in truth is Jurisdictio propriè ſtricte & ſpecialiter ſumpta, Bartol as in the former makes no leſs then Six Degrees; but Jaſon again as formerly reduces and contracts them to Three, viz. Gradum Magnum, Medium, Minimum. bJaſ. in L. Imperium, ff. de juriſd. om. jud.Which method now follows, as being the acceptableſt with the Modern DD. and diſtinctly comprehenſive of all, that the Six Degrees which Bartol makes, are capable of.
Under the Firſt of theſe, viz. Gradum Jurisdictionis Simplicis Magnum, are comprehended ſuch as the Law looks on as matters of great prejudice; ſuch are Cauſae Liberales, wherein are controverted all diſputes concerning Liberty or Servitude, Freedome or Bondage, Ingenuity (not of wit, but of birth) or Libertinity. cRub. in ff. de Lib. Cauſ. & l. 42. § 1. ff. Sol. Ma rim. & l. 32. § liberali, ſt. De Receptis, qui arb. receper.Theſe Cauſae Liberales, are underſtood in the Law as certain ſpecies oppoſite to ſuch things as are either of Merum or Mixtum Imperium. dL. placet. C. de Pedan. Jud.The Actions that hence do ariſe are as formerly Actiones Liberales, cogni…able only before the Superiour Judges. eRub. & gloſ. de Lib. Cauſ. & Fulg. in l. Imperium, ff. de Juriſd. nu. 44.The truth is, ſuch Actions as theſe that concern the ſtate, quality, condition, or reputation of perions are in the Law termed Cauſae Arduae, & Negotium Arduum. fDefin. Jur. nu. 18. ff. de Juriſd. &C. ex ratione. De Appell. & Jaſon. ſup. nu. 31.And therefore Inferiour Judges (who by interpretation of Law according to the Civil Laws account are Judices Municipales gFulg. ubi ſup.are no way competent to take cognizance of ſuch Caſes. hRub. & gloſ. min. ff. deLiber. Cauſ. & Bart. ubi ſup. nu. 24.Likewiſe under this head fall all Cauſes, wherein upon any Action any Caſtigations, Coertions, Reſtraints, or other Corporal puniſhments in execution of ſome Definitive Sentence do happen, iBart. Jaſ. & Fulg. ubi ſup. nu. 43.according to that ſmart Proverb in Law, Qui non habet in aere, Luat in corpore. kL. quicun que C. de Ser. Fug. & l. Divus, ff. de Injuriis.But to make it yet more clear; The Actions ſpecially aimed at and properly intended hereby in the Law that fall under this head, are ſuch Caſes as in themſelves and according to their nature are Criminal, but yet are civilly proceeded in or proſecuted, Quando ex cauſd deſcendenti ex delicto, quis fuit Condemnatus Civiliter. lDeſin. Juriſd. nu. 19. ff. de Juriſd.Or ſuch Actions Quae Civiliter ex Maleficiis intentantur.mFulg. ubi ſup. nu. 42.
The Second Degree of Jurisdictio Simplex is Gradus Medius, under which are comprized all ſuch Peouniary Cauſes as in value exceed Treoent' Aureos. nDD. ib.This Aureus among the Ancients was in value about our Engliſh Noble, or Six Shillings and eight pence; but in Juſtinians time it was ſomething more, viz. about the value of an Angel in our Gold Coin. oCalvin. ver. Aureus.Which is ſomething leſs then Centum Ceſtertii, according to the Roman Account, which ſome would have the Aureum Antiquum to amount unto, pTacit. l. 17. de Othone.if every Ceſtertius muſt be in value three half pence farthing according to our Account.qGodw. Rom. Hiſt. li. 3. Sect. 4. cap. 3.
The Third and laſt Degree of Jurisdiotio Simplex comprehends only ſuch ſmall and petty ſummes, as will not defray the charges of a Plenary and Judicial Order of Proceeding, and therefore they are heard and determined Summarily & velo Levato. rBart. ubi ſup. nu. 26. & Jaſ. ibid. nu. 32.Bartol would ſtate, liquidate and aſcertain theſe petty ſummes to the value of Centum Aureos: sBart. ibid.Others to Twenty, others to Ten Duckets. tFulg. ubi ſup. nu. 44.But Jaſon tells us plainly, that the truth and the more received opinion is, that in ſuch caſes the juſt and exact values are not determined or aſcertained in the Law, but left ad Arbitrium Judicis, uJaſ. ib. nu. 32.according to that Rule in Law in ff. de jur. delib.wL. 1. § fin. ff. de jur, elib. d
And thus although here hath been diſtinctly touch'd each of the Three Species or kinds of Jurisdiction, taking the word Jurisdictio as the Genus generaliſſimum; And although here have been given ſome inſtances for the more clear deſcription of each Member or Degree of each Species thereof; yet all this would be but imperfect if ſuch things as are or may be both of Merum Imperium and of Jurisdictio Simplex alſo, but in divers reſpects, ſhould be omitted. Of this kind therefore is that Tortura, formerly hinted at; which, when it is impoſed or executed Ad poenam, or in Criminal Cauſes Ad veritatem eruendam, is of Merum Imperium; xBart. in l. interdum. § qui furem, ff. de Furt.But when in Civil Cauſes it was wont to be uſed or impoſed, becauſe the witneſſes did vacillare, and were inconſtant, ſtaggering or wavering in their teſtimony, it was then of Jurisdictio Simplex. yAnth. de Teſt. § Si vero ignoti, col. 7.In like manner all moderate and light correction or puniſhment being inflicted Ad poenam Levis Delicti, is of Merum Imperium; but being impoſed for contempt or contumacy in Civil Actions, it is of Jurisdictio Simplex. zAng. & Jaſon. in L. Imperium, ff. de Juriſd.Alſo, Excommunication, when pronounced Ex Publica Cauſa againſt rebellious and contumacious perſons, is of Merum Imperium; but being pronounced ad inſtantiam partis, it is of Jurisdictio Simplex. aPanor. in cap. Cum contingat. col. 5. De Foro Competent.So likewiſe Reſtraint or. Impriſonment, when impoſed by the Canon Law ad delictum puniendum, is of Merum Imperium; when otherwiſe impoſed, it is of Jurisdictio Simplex. bAlb. Bald. Sal. Alex. Jaſ. in dict. Imperium.Laſtly, Appeals in all Criminal Cauſes are of Merum Imperium; but in Civil Cauſes they are both of Jurisdictio Simplex, and of Merum Imperium alſo.cDefinit. Juriſd. nu. ult. ff. de Juriſd.
There are alſo in the Law (for theſe things are only hinted to the memories of ſuch as know the Law) ſeveral other Diſtinctions of Jurisdiction. Such as Jurisdictio Voluntaria & Contentioſa. dL. 2. ff. De Offic. Proconſ.But this is a Diſtinction in reſpect of the parties Litigant; the former Diſtinctions being in reſpect of the Judges themſelves. There is alſo Jurisdictio Ordinaria & Delegata; which though a very common received Diſtinction from the Speculator, eSpec. de Juriſd. in prin.yet in truth 'tis leſs true then common, and is reproved by Bartol, becauſe the one differs not from the other according to the Law of Diſtinctions, both being in their nature one and the ſame, though diverſified in the exerciſe thereof; For the Judge Delegate doth but exerciſe Jurisdictionem Delegantis. fBart. in L. Imperium. ff. De Juriſd. om. Jud. nu. 26.There is alſo Jurisdictio Prorogata; as when the parties litigant do of themſelves conſent unto a Juriſdiction in one, who without ſuch conſent were no Judge in the Caſe; gL. Si Convenerit. ff. eod. & l. ſed & ſi. ff. de Precario.but this ſeems more like a compromiſe or arbitrary deciſion, then like a Juriſdiction properly ſo called.
There are ſeveral other Diſtinctions of Juriſdiction in the Law, here purpoſely omitted as being not ſo pertinent to the deſign in hand; This therefore that hath been ſaid may ſuffice for a hint to all ſuch Appendexes on the Law, as ſollicite rather for the Lawyer then the Clyent, to learn what a Juriſdiction in the eye of the Law is, before they attempt the invaſion thereof.
To apply the premiſes, and ſo to conclude this point with Omphalius, that famous and Modern German Lawyer, hOmphal. l. 1. Civil. Polit. cap. 105. nu. 14. & L. Lucio. ff. de Aqu. quot. & aeſtiv. & Ang. in l. 2. § ex his. ff. de verb. Sig.Jurisdictio eſt res indiviſibilis: ſi tamen ejus Domini in eodem Territorio diſſentiant in Exercitio Jurisdictionis, pertinebit ad Superiorem Poteſtatem, Conoordia partes interponere, vel uſum Jurisdictionis Exercendae dividere. This ſeems to be the Admiralties Caſe in terminis. All Juriſdictions are eſſentially radicated only in the Prince or Supreme Magiſtrate. iCar. Tap. in ff. de Conſt. Prin. cap. 4. nu. 10. & Marant. Diſtinct. nu. 3.The Law ranks them inter Regalia Principum. kAuth. Quae ſunt Regalia. Coll. 10.The right and power of the conſervation of Juriſdictions doth lodge and reſide properly there, from whence they had their being and origination. Jurisdictiones omnes ab ipſo Principe velut Rivuli à fonte ſuo manarunt. lL. 1. ff. ubi ſup. & l. 1. § cum urbem. ff. de Off…c. Praeſ. Urb. & l. 1. Cod. eod. tit.When the Prince or Supreme Authority Ex plenitudine Poteſtatis doth create or conſtitute a Juriſdiction, he doth not deveſt himſelf of the right of expounding his own Grant, according to that in the Law, mTap. ubi ſupra nu. 14.Jurisdictio licet concedatur à Principe, ſemper tamen inhaeret ejus oſſibus. So that when differences do ariſe concerning the rights or demands, the Ampliations or Reſtrictions, the Latitude or Boundaries of Juriſdictions, the Prince is the competent Judge to decide and reconcile; In this caſe therefore to Caeſar is the Appeal.