Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	bishop_n	court_n	ecclesiastical_a	1,440	5	8.4424	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A67861	The jurisdiction of the admiralty of England asserted against Sr. Edward Coke's Articuli admiralitatis, in XXII chapter of his jurisdiction of courts by Richard Zouch ...	Zouch, Richard, 1590-1661.; Coke, Edward, Sir, 1552-1634.	1663 (1663)	Wing Z22; ESTC R21844	62,368	170

those matters which belong unto him onely upon the Sea the other Cases of double Damages for ought appears to the contrary might be for matters of Trespass committed likewise by Force and Arms. Touching Praemunires brought for suing in the Admiralty Court Sir Edw. Cook saith That they being brought upon the Statute of the 16 of King Rich. 2. for suing in Curia Romana aut alibi are so evident and of so dangerous a consequence as no application shall be made thereof And for the dangerous consequence it is most true for that the penalty intended in that Statute extends to the imprisonment of the person during pleasure and the loss of all his goods and of the profits of his Lands during life and for the application which he forbears it may be conceived that his meaning was that the Admiral or his Judge might be made liable thereunto but for the Evidence that by Curia Romana aut alibi the Court of Admiralty should be understood under his favour it is not so clear nor if the Statute be well considered can it with any reason be maintained the word Alibi or elsewhere in that Statute was in truth intended of Avignion in France or some other place to which the Pope and his Court in those times did usually remove and that Statute being intended to exclude the forein authority of the Pope it might be thought necessary to debar the people of this Kingdome from having intercourse to the Popes Consistory whether at Rome or any where else and when the Popes authority and his Laws were in force in this Kingdome and no way depending upon the Crown the word Alibi or elsewhere was held to extend to Bishops Courts if they medled with temporal causes belonging to the Kings Courts especially if they took upon them to reverse or disparage Judgements given in the Courts of Common Law but how the word Alibi should be applied to the Kings Court of Admiralty never relating to any Forein power and proceeding onely by those Laws which are allowed by the King to be in force in that Court it is a mystery beyond any ordinary imagination It may be further noted that although it be said that the two Praemunires were brought upon such occasions yet it doth not appear that any Judgement was given upon either of them Lastly For confirmation and conclusion of this Point it may be added that before the King and his Councel it was likewise agreed unto by all the Judges That the Admiral may inquire of and redress all Annoyances and obstructions in Navigable Rivers beneath the first Bridges that are any impediment to Navigation and passage to and from the Sea and also try all personal Contracts and injuries done there which concern Navigation upon the Sea and that no Prohibition is to be granted in such Cases That the Admiral of England may hold Plea of Contracts and other things done beyond the Sea relating to Navigation and Trade by Sea TO maintain that the Court of Admiralty may hold Plea of Contracts and other things done beyond the Sea It is alleged First That by an Ordinance made by King Edward the first and his Lords at Hastings which is extant in the antient Book of Admiralty it was ordained that Charum Contract c. That every Contract made between Merchant and Merchant or betwixt Merchant and Mariner beyond the Sea or within the flood-mark shall be tried before the Admiral and no wayes elsewhere Secondly It may be taken into consideration That such businesses amongst Merchants and Seamen are to be determined according the Civil Law and equity thereof as also according to the customes and usages of the Sea Mr. Selden in his Notes upon Fortescue observes out of Bartolus Quod in Curia mercatorum debet judicari ex aequo bono omissis juris solennitatibus which the Admiralty Judges may and do observe but the Courts of Common Law hold they must do otherwise Malines relates an instance of a Merchant-stranger who having sold Commodities to three several Merchants of London took one Bond of them all for the payment of 300 l. and one of them breaking and being imprisoned he was contented to compound with him for the fifth part of his Debt or for 20 l. in lieu of a 100 l. conceiving him as a third party to be liable for no more and having received that summ gave him a release and afterwards the two other parties neglecting to pay him their parts he was advised to sue them at the Common Law where he was given to understand That if a man release one of his debtors who is bound with others by way of acquittance they are all released and acquitted thereby which was contrary to the rule of Equity and that simplicity and just dealing which is expected amongst Merchants which do not admit that a mans action should operate beyond his intention and that a favour yeelded to one in necessity should not extend further to his prejudice in respect of those which were in better condition Thirdly to the like purpose it is observed that in Contracts and Bargains betwixt such persons those solemnities are not required which are necessary in Deeds at the Common Law as of signing sealing and delivering to make their Bills and Obligations of force and the bearers of such Bills according to the course of Merchants shall be admitted to demand and recover without Letters of Attorney Fourthly It is considerable that Instruments made beyond the Sea have usually Clauses relating to the Civil Law and to the Law of the Sea Malines shews That when two or three take up money at interest and all binde themselves as Principals generally according to the Civil Law and custome of Merchants every person is bound but for his own part and therefore where it is intended that for the better security every man should be bound in solidum in the instrument of the Contract ther is a declaration and renunciation made of all privileges and especially of those which are called Exceptio divisionis ordinis excussiones and beneficii Epistolae divi Adriani In Wests Presidents concerning Merchants affairs there are the like forms as where a man obligat se haeredes Executores suos omnia bona mobilia immobilia praesentia futura tam ultra quam citra mare ubicunque existentia renuncians omnibus singulis exceptionibus c. and amongst the rest he declares the form of a gneral procuration to sue for Debts in a Forein Country wherein it is specified that power is given ad Libelles Petitiones c. articulos dandum datisque respondendum ad Lites contestandum de calumnia vitand● juramentum in animam constituentium praestandum all which are as strange to the Law of this Land as the places from whence they proceed Fifthly For that as Fortescue affirms Contracts and Bargains made amongst strangers in another Realm must be proved otherwayes than in the Courts

may soon swallow up the other not onely to the prejudice of the subjects for whose good the diversity of Courts were erected but also the wrong of the Prince from whom those Jurisdictions are derived Sir Thomas Rydlye in his view of the Civil Laws further shews how injurious to the Admiralty and unreasonable this practice is in regard that in Law no Fiction ought to be admitted but such as is both possible and equitable First That it ought to be Possible because otherwise it were to admit that by way of supposition which nature will not alow and therefore although one that is dead to some constructions of Law may be feigned to be alive if at that time any of his equals in age be still living yet one who dyed two hundred years since cannot to any purpose be supposed to be living all of the same age being long before dead Secondly The Fiction ought to be Equitable because if there be no reason for it it is altogether unnecessary and useless and therefore although the Law may admit a Fiction or supposition that a childe in the mothers womb is already born for its benefit in regard that otherwise it might be deprived of its filial portion or some other right in equity belonging to it yet where there is no such reason or equity it ought not to be admitted as vain and ridiculous but for the fiction of a ship to arrive in wardo de cheap where there is no water to bear or carry is of a thing utterly impossible and it is wholy void of equity because a Trial of any business thereupon cannot obtain any just and fait remedy thereby at the Common Law which might not have been had in the Court of Admiralty which is a more competent and proper Court for the trial of such things than any Court of the Common Law Secondly Concerning Actions of Trespass the Admiral in his ordinary capacity claiming no Jurisdiction of offences against the Crown but onely on the Sea and of wrongs and injuries done in other places without force or violence to make such causes triable in the Kings Courts it is suggested that they were done vi armis which is the usual form of Endictments of Trespasses in the Kings Bench as of cutting of a purse although in truth there were no fear nor violence used in committing the same Touching the interrupting and obstructing the proceedings in the Court of Admiralty in causes properly belonging to the same concerning Stipulations and Libels although it may be presumed that what Sir Edward Cook affirms That where the principal matter is acknowledged to be of Ecclesiastical Cognisance the Temporal Iudges ought not to call in question the form of proceedings though they be against the reason of the Common Law because Cuilibet in sua arte merito credendum that the same should be allowed in the Admiral Court Yet in the third Objection of the Complaint 8 Iacob it is shewed That whereas time out of minde the Admiral Court hath used to take Stipulations for appearance and performance of the Acts and Judgements of the same Court It is now affirmed by the Iudges of the Common Law that the Amiralty Court is no Court of Record and therefore not able to take such Stipulations and hereupon Prohibitions are granted to the utter overthrow of that Court The answer whereunto is That the Admiralty proceeding by the Civil Law is no Court of Record and therefore cannot take any such Recognizances as a Court of Record may do and for taking of Recognizances against the Law of the Realm we finde that Prohibitions have been granted as by the Law they ought And if an erronious sentence be given in that Court no Writ of Errour but an appeal to certain Delegates doth lye as it is apparent by the Statute of the 8 Eliz. Reginae Cap. 5. which proveth that it is no Court of Record Whereunto it may be replied That some things done by or before the Admiral are matters of Record may be maintained from an ancient Ordinance of King Richard the first with advice of the Lords at Grimsby viz. That when the King writes by his Letters Patents to the Admiral to arrest Ships more or less for his service and that the Admiral should write to his Lieutenant to see things put in execution accordingly forasmuch as the Admiral and his Lieutenants are of Record After the Admiral shall have written to the King or to the Chancellour of England the names of the Ships arrested together with the names of the Owners and Masters of them in that case neither the Owner of the Ship nor the Master shall be admitted to say that the Ship is not arrested but admitting that the Court of Admiralty is not a Court of Record in ordinary matters no more are the Stipulations taken there such Recognizances as are required to be taken in Courts of Record by the Common Law those Stipulations causing no privileged obligations before other bonds nor extending to any part of mens Lands which is otherwise in Recognizances taken in Courts of Records by the Common Law And it may seem strange th●● 〈◊〉 Edward Cook acknowledging and ●●●●●ing the proceedings of that 〈…〉 according to the Civil Laws 〈…〉 Stipulations or bayls for the 〈◊〉 appearance and the performances of De●crees and Sentences in ●hat Court pr●scribed by the Civil Law Ne judicia sint elusoria and unversally practised where judicial proceedings are according to that Law as likewise in this Kingdome in the Constable and Marshals Court and in the Courts of the Universities proceeding by the Civil Law the same should not be allowed in the Admiralty Court And the complaint in this point may seem the more considerable in regard that to the publique Notaries about the Exchange with out Exception or Controll it hath been allowed That Merchants appearing before them in a manner nearer to the Recognizances of the Common Law do acknowledge bonds and bind Se Executores bona tam immobilia quam mobilia praesentia in futura And sometimes themselves being absent the same things are done in their nam●s by their servants or factors Exhibiting Procurations from them to that purpose And it may be noted that amongst Sir Edw. Cooks Authorities there cannot be discerned any Statute Judgement or Book-case to make good the Answer to that Objection in the Complaint Secondly concerning Libells in the Court of Admiralty The Lord Hobard in Audly and Iennings case affirms that if a Contract in truth were made at Sea and in the Admirals Court it be laid generally without saying super alto mari a Prohibition might lye for the Libel must warrant the sure in it self But Justice Reeves in his Argument Paschae 22. Garoli differs from him in opinion and distinguishes betwixt a particular Jurisdiction created in diminution of the general Courts of Common Law and a particular Jurisdiction over things that never did belong to the Courts of Common Law