Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/329

 9. HOLDSWORTH: THE LAW MERCHANT 315 jurisdiction within the bodies of counties. The common law had not in the past claimed jurisdiction over contracts made or offences committed abroad, and probably not over contracts made and offences committed in ports intra fluxum et refluxum maris. ^ Such jurisdiction was now coveted. By supposing these contracts or offences to have been made or committed in England the Common Law Courts assumed ju- risdiction ; ^ and thus by a " new strange poetical fiction,'* and by the help of " imaginary sign-posts in Cheapside " ^ they endeavoured to capture jurisdiction over the growing commercial business of the country. The other common law judges followed Coke's lead. It was not of course to be ex- pected that all the cases, decided at a time when the Common Law Courts were engaged upon a systematic series of en- croachments, should be consistent.* But it is clear that they were all tending in one direction, regardless of the fact that the procedure of the Common Law Courts, and the law which they applied, were far less fitted than that of the Admiralty, » De Lovio v. Boit, at pp. 400-405; Y. B. 13 Hy. IV. Mich. pi. 10. Cp. F. N. B. 114, an Engljsh merchant's goods were spoiled by a merchant stransrer beyond the sea. A writ was sent to the mayor of the town, in which other merchant strangers of the same nation were resident, directed against them ; " but it seemeth that the English merchant shall not have such writ, for any debt due to him by contract from a Mer- chant Stranger, upon a contract made beyond the seas, if the merchant do come to England, or his goods — Quare tamen thereof." Prynne, Animadversions, 84, referring to those cases says, " neither Statham, Fitzherbert, or Brook in their Abridgments, Titles Prohibition, nor any of our Year Books Abridged by them, nor yet Mr. Crompton in his Jurisdiction of Courts, nor yet judge Crook's nor serjeant Moore's re- ports, or Hughes or serjeant Rolle, their late Abridgments cite any such precedents before 7 Jac. or King Charles his reign." Life of Sir Leoline Jenkins, Wynne, i Ixxix. ' Prynne, Animadversions, 95, 97. for assistance at sea in taking a prize; Admiralty jurisdiction seems to be recognised. Tucker v. Cappes and Jones (1625) 2 Rolle 497, suit on a contract made in Virginia; Prohibition refused; it was said that the Admiralty had jurisdiction over things done in foreign parts, that foreign contracts were governed by the civil law, and that it was not reasonable that the common law should judge of them. Ambassador of King of Spain v. JolifF and others. Hob. 78, 79, " the Admiralty of England can hold no plea of any contract but such as ariseth upon the sea: no, though it arise upon any continent, port, or haven in the world out of the king's dominions. . . . The Courts of Common Law have un- limited power in causes transitory." Coke said, 2 Brownlow 17 (1611), that if a question of civil law arose the judges could consult with the civilians. De Lovio v. Boit 2 Gall 422.
 * Bl. Comm. iii 107.
 * Sir R. Buckley's case (1590) 2 Leo. 182, agreement made in England