View of the Admiral Jurisdiction, Chapter 10
CHAP. X.
Of Judicial Recognizances and Stipulations for Appearance, and performance of the Acts, Orders, Judgments, and Decrees of the Court of Admiralty; As alſo whether the ſaid high Court of Admiralty of England be a Court of Record.
ALthough the Court of Admiralty time out of mind hath ever uſed to take ſuch Recognizances and Stipulations for Judicial Appearances, and due performance of ſuch Acts, Orders, and Judgments, as are made and given in the ſaid Court; yet this Ancient Practice of the Admiralty, though ſo adequate to the genuine rights of Judicatories and Tribunals of Juſtice, quatenus, ſuch, hath not eſcaped a Contradiction founded upon this aſſertion, That the Court of Admiralty is no Court of Record.
Such as hold Prohibitions may be granted to the Court of Admiralty upon the ground or reaſon aforeſaid, ſeem to model the Argument Syllogiſtically, and ſay, That for the taking of Recognizances againſt the Laws of this Realm, Prohibitions have been and ought to be granted: But the Court of Admiralty doth take Recognizances againſt the Laws of this Realm, Ergo, &c. The Minor Propoſition is ſaid to be proved thus, viz. No Court being not a Court of Record, can take ſuch Recognizances: But the Court of Admiralty is no Court of Record; Ergo, &c. That unhappy Minor is ſaid to be a Truth, how fatal ſoever, built upon this double foundation: Firſt, becauſe the Court of Admiralty proceeds by the Civil Law. Secondly, becauſe if an erroneous ſentence be given in that Court, no Writ of Errour, but an Appeal doth lye, according to the Statute of 8 Eliz. cap. 5. Reaſon is, or ſhould be the ſource or fountain of all humane Laws, no Waters riſe higher then their Springs; The firſt enquiry therefore will be, what a Court of Record is, or what Court may properly be ſaid to be a Court of Record; which being known and conſidered, if you be not then ſatisfied, you may, if you pleaſe, farther enquire, whether the being of Record be ſuch an eſſential qualification to a Court, as without which it is incapable of taking ſuch Stipulations (I ſay, ſuch Stipulations) as the Court of Admiralty hath ever uſed to take, and de jure ought to take.
The Lord Coke makes this deſcription of a Court of Record, iCoke on Littl. par. 1. Inſtit. lib. 2. c…p 11. ſect. 195.Every Court of Record is the Kings Court, albeit another may have the profit; wherein if the Judges do erre, a Writ of Errour doth lye. But the County-Court, the Hundred-Court, the Court-Baron, and ſuch like, are no Courts of Record; And therefore upon their Judgments a Writ of Errour lyeth not, but a Writ of falſe Judgment, for that they are no Courts of Record, becauſe they cannot hold plea of Debt or Treſpaſs if the debt or damage do amount to forty ſhillings, or of any Treſpaſs Vi & Armis. It is obſervable that it is here ſaid, that every Court of Record is Mr. Seld. in ſuo Mar. Clauſ. l. 2. cap. 22. ſtyles the Judge of the Admiralty, Summae cutiae Regiae Admiralitatis Judicem.the Kings Court; So is the high Court of Admiralty ſtyled the Kings Court, as appears not only by the Title or preliminary Deſcription, but alſo by the ſecond Article or Propoſition in the Reſolutions upon the Caſes of Admiral Juriſdiction, kHil. 8 Char. 4. Febr. 1632.ſubſcribed in Anno 1632. by the Reverend Judges in Preſence of His Late Majeſty of ever Bleſſed Memory, and the Lords of His Majeſties moſt Honourable Privy Councel. And whereas in the ſaid deſcription of a Court of Record, it is ſaid, They are no Courts of Record, becauſe they cannot hold Plea of Debt or Treſpaſs, if the debt or damage do amount to forty ſhillings, or of any Treſpaſs Vi & Armis, it is well known that the Court of Admiralty can hold Plea of a Debt or Treſpaſs Maritime if the debt or damage do amount to as many thouſands of pounds as there are pence in forty ſhillings, and not only of Treſpaſs Vi & Armis, but alſo of Maihem, yea, of Death it ſelf. lStat. 15 R. 2. cap. 3.Wherefore, as the former character of a Courts being of Record, may be applyed to the high Court of Admiralty as the Kings Court: So the other character of a Courts not being of Record, is no way applicable to the ſaid Court of Admiralty. But in the ſaid deſcription of a Court of Record, it is ſaid, that every Court of Record is the Kings Court, wherein, if the Judges do erre, a Writ of Errour doth lye; the queſtion then is, whether it be a queſtion whether a Writ of Errour doth lye in the Conſiſtory Court of the Univerſity of Cambridge, which Queen Elizabeth by her Charter dated 26 April, Anno 3 Reg. made a Court of Record. mCowels Interpreter, verb. Record.And Writs of Errour did alſo properly lye in any Court where they have power to hold Plea by the Kings Charter, or by Preſcription in any ſumme, either in Debt or Treſpaſs above the ſumme of forty ſhillings. nFit…h. N. B. Writ of Errour.In which ſenſe the Court of Admiralty as aforeſaid, is ſufficiently qualified as a Court of Record; which though eminent enough for its practice and intereſt in the Realm, and ſo not probable to have eſcaped a particularization among the other fore-mentioned Courts, the County-Court, Hundred-Court, and Court-Baron, as no Courts of Record, by reaſon of any oblivion, yet is not there inſtanced among thoſe other Courts not of Record. And the County is called a Court of Record. Weſtm. 2. cap. 3. Anno 13 Ed. 1. But it ſeems by Britton, cap. 27. that it is only in theſe cauſes, whereof the Sheriff holdeth Plea by ſpecial Writ, and not thoſe that are holden of courſe or cuſtome. oCowel, ubi ſupra.And whereas Brook ſeemeth to ſay, That no Court Eccleſiaſtical is of Record; pBrook tit. Record.yet Biſhops certifying Baſtardy, Bigamy, Excommunication, the vacancy or plenarty of a Church, a Marriage, a Divorce, a Spiritual intruſion, and the like, are credited without farther enquiry or controlment. qCowel, ubi ſupra. Ubi Brook tit. Baſtardy. Fleta li. 6. cap. 39, 40, 41, 42. Lamb. Eirenareha, lib. 1. cap. 13. & Glanvile, lib. 7. cap. 14, 15. The Regiſter Orig. fol. 5. b. Bracton lib. 5. Tract. 5. cap. 20. nu. 5. Britton, cap. 92, 94, 106, 107, & 109. Doct. & Stud. lib. 2. cap. 5. & Coſins Apol. par. 1. cap. 2.This only by the way, and in tranſitu. If it be ſaid, the Court of Admiralty is no Court of Record, becauſe it proceeds by the Civil Law, it may be demanded by what Law the Conſiſtory-Court of Cambridge proceeds, which Q. Elizabeth (as aforeſaid) made by her Charter a Court of Record; For the King may make a Court of Record by his Grant; rGlanvil, lib. 8. c. 8. Britton, cap. 121. & Cowel, verb. Record.which ſeems to allay that Antipathy that is ſuppoſed between a Court of Record and a Court proceeding by the Civil Law, a Law allowed, received, and owned as the Law of the Admiralty of England. Yet Serjeant Harris in the Caſe of Record againſt Jobſon, argued, That a Recognizance taken in the Court of Admiralty to ſtand to the Order of the Court, is void, and that it hath been ſo adjudged. sNoys Rep. Caſ. Reord againſt Cornel. Jobſon.So it's argued; it is not ſaid, Reſolved. It is a happineſs as well as a truth, what was once ſaid in Dr. James his Caſe, tHob. Rep. in Dr. James Caſe.That the King is the indifferent Arbitratour in all Juriſdictions, and of all Controverſies touching the ſame, and that it is a Right of his Crown to diſtribute to them, that is, to declare their bounds. It is no novel doctrine to aſſert, that Stipulations taken in the high Court of Admiralty for appearance, or performance of its own Acts, Orders and Decrees, are in modo procedendi quaſi Acceſſorium quoad Principale; And the Modern Reporter in a Caſe depending before the Commiſſioners of Enſurance between Oyles and Marſhal, uModer. Rep. Trin. 1654. in Banc. Reg.ſays, That it being moved in the Kings Bench for a Prohibition, and a Rule there given to ſhew cauſe why a Prohibition ſhould not be granted to the Court of Enſurance; it was then declared, That if they had Jurisdiction of the Principal matter, they had Jurisdiction of matters alſo incident thereto. And what are Recognizances taken in the Court of Admiralty, for Appearance, and performance of its own Acts and Decrees, more then Stipulations Judicio ſiſti & judicatum ſolvi? Inſomuch as to deny the right or power of taking ſuch Stipulations, ſeems in effect as to imply an inhibition of the whole Juriſdiction; for without ſuch Stipulations in praeparatorio Litis, the ſubſequent Judgement, be it for Plaintiff or Defendant, would prove but vain and eluſory; And a Judgement without due and effectual execution is quaſi ſententia inanimata; without ſuch ſtipulations Juſtice may be perverted into Injuſtice, for default of that which is the complement, or ultimate deſign of all Juſtice, viz. Facultas ſuum cuique tribuendi.
The Practice of taking ſuch Stipulations for the Legality thereof according to that Law whereby that Court proceeds, is nothing inferiour in point of Antiquity to the Juriſdiction it ſelf, the ſtyle of that Court in that point of Practice being as Ancient as the Court it ſelf; And whereas the right of taking ſuch ſtipulations for Appearance, and performance of the Acts, Orders, Judgements and Decrees of the Court of Admiralty hath not been without contradiction upon the foreſaid ground; That the ſaid Court is no Court of Record, it doth plainly appear by a Record of good Antiquity, and with the Learned Mr. Selden of good Authority, That the ſaid Court is a Court of Record. wCod. Ms. de Adm. viz. Lib. Nig. Adm. fol. 19. & ibid. in Art. 39. Artic. Inquiſit. Adm. Citat. per D. Seld. in Suo Mare Clauſo, lib. 2. &c. 24.And if the Court of Admiralty be diſcharactered as no Court of Record, by reaſon of its proceeding by the Civil Law, it would thence ſeem to be implyed as if no part of the Civil Law were any part of the Law of England; It is not concealed from the world by a perſon of no leſs honour then knowledge in the Laws of this Realm, that the Imperial or Roman Law is in ſome caſes the Law of the Land. xSir Jo. Davies. Jus imponendi Vectigalia, c. 6.This worthy Authour ſpeaking of the Right of Prerogative in abſolute Kings and Princes, as to Impoſitions upon Merchandizes, doth upon that occaſion in the fore-cited place declare himſelf in haec verba. Foraſmuch as the general Law of Nations, which is and ought to be Law in all Kingdomes, and the Law-Merchant is alſo a branch oſ that Law, and likewiſe the Imperial and Roman Law have been ever admitted, had, received by the Kings and people of England, in Cauſes concerning Merchants and Merchandizes, and ſo are become the Laws of the Land in theſe Caſes; why ſhould not this queſtion of Impoſitions be examined and decided by the Rules of thoſe Laws ſo far forth as the ſame doth concern Merchants and Merchandizes, as well as by the Rules of our Cuſtomary or Common Law of England, eſpecially becauſe the Rules of thoſe other Laws are well known to the other Nations, with whom we have commerce, whereas the Rules of our own Municipal Laws are only known within our Iſlands. What this worthy Authour here ſpeaks of the Civil Law in England, as to this point of Impoſitions by the King on Merchandizes, is applicable in any caſe of Navigation, Naval Negotiation, or other affairs properly relating to Merchants or Mariners within the ſphere of the Admiralty of England. And the ſame Learned Authour in another place, yIdem. Jus imp. Vect. c. 4.When the City of Rome was Gentium Domina & Civitas illa magna quae regnabat ſuper Reges terrae, The Roman Civil Law being communicated unto all the Subjects of that Empire, became the Common Law, as it were, of the greateſt part of the inhabited world, &c. And again in the ſame place, All Marine and Sea-Cauſes which do ariſe for the moſt part concerning Merchants and Merchandizes croſſing the Seas, our Kings have ever uſed the Roman Civil Law for the deciding and determining thereof. Thus far goes the ſaid worthy Authour in this point. It is moſt true, the Civil Law in England is not the Law of the Land, but the Law of the Sea; Great Brittain, and the Dominions thereof comprizing the adjacent Seas, as well as the Land; The Law by which the high Admiralty of England proceeds, being in all Cauſes cognizable in that Juriſdiction allowed, owned and received by Prince and People, Soveraign and Subject, ſeems to be a Law of England, though not the Law of England, not the Land-Law, but the Sea-Law of England; For as in matters Terrene and in Land-affairs it is proper to ſay infra Corpus Comitatus, ſo in matters Maritime and Sea-affairs it is no leſs proper to ſay Sur le hout mere. The Juriſdiction of the Admiralty of England is one of the Juriſdictions of England, which ever implyes a Law to proceed by that cannot be but of that Place whereof the Juriſdiction it ſelf is. It neither may, nor ought to be denyed, but that for the taking Recognizances againſt the Laws of the Realm, Prohibitions have been granted; yet poſſibly it may not thence by a neceſſary concludency follow that the high Court of Admiralty (in taking Stipulations for Judicial appearance, or performance of the Acts and Orders of the Court, vel judicio ſiſti vel judicatum ſolvi, and this according to that Law whereby it is to proceed) is involved under ſuch a guilt of tranſgreſſion againſt the Laws of the Realm, as eo nomine to incur a Prohibition; which if grantable upon every ſuch Recognizance or Stipulation for Appearance, and performance of the Acts and Judgements of the Court (without which it cannot proceed according to Law) there could then be no Suit or Action depending in the high Admiralty of England, be it for Place, Nature, or Quality in it ſelf, never ſo Maritime and of undoubted Admiral Cognizance, but muſt be ſubject and lyable to a Prohibition, and conſequently to a removal from its proper Juriſdiction ad aliud examen, to the great grievance of Merchants and Mariners, and others the good people of theſe His Majeſties Dominions, by reaſon of the multiplicity of Suits, protelation of Juſtice, exceſs of Judicial expences, together with the uncertainty of Juriſdictions, and all as the unavoydable conſequences of ſuch Prohibitions.