AND THE LORD SAID UNTO— 53
it was exercised when Calais was in the possession of this country. Of that there is no doubt. Calais sent members to Parliament, and at one period the law of England prevailed there. It is not necessary, however, to enter into this question.
We understand that a learned dissertation was made in the court below, founded on the doctrines of Lord Hale, in which a distinction is made betwen the jura summi imperii and the jura mixti imperii or potestas jurisdictionis (Hale’s Analysis of the Civil Part of the Law of England, section
6th); and it was contended that though the Supreme Court has no jurisdiction in the ordinary sense of that word, that is no civil jurisdiction over natives; that is it has not criminal jurisdiction; that it has not equitable jurisdiction, that it has not that ecclesiastical jurisdiction; that it has not Admiralty jurisdiction, yet that it has a potestas to be exercised over all the subjects of the King.* Now it is remarkable, that in almost every part of this charter but that now under consideration, the words “power, jurisdiction, and authority” are to be found; but in this particular clause the word “power” is not found. It is very singular, that where so much is built upon the term power, as distinct from jurisdiction, the word expressing power should not be found. But what is jurisdiction as distinguished from power ? and what jurisdiction is this which is meant to be exercised ? In the Pandects, lib, ii, tit, 1, the nature of jurisdiction is fully discussed, and one of the commentators gives a definition of it in a single line, “jurisdictionest notio quae jure magistratus competit. ”**
*Sir Peter Grant, in his judgement in the court below, after mentioning the distinction drawn by Lord Hale between the jura summi imperii and mixti imperii, proceeded to state Lord Coke’s description of the Court of King’s Bench, 4th Instit. cap. 7; and observed. “The third description of power possessed by this court has reference to the supreme ministerial authority which is lodged in it, altogether separate and distinct from its judicial jurisdiction or the power it exercises in the trying of cases, whether in the first instance or by way of appeal: being a sovereign potestas imperii, expressly described by Lord Coke as a power to correct errors and misdemeanors judicial; not by the way of trying, hearing, and determining, as in pleas of the Crown, but by issuing the prerogative and mandatory writs of the Crown; as of habeas corpus, prohibition, mandamus, and by bailing any person for any offence whatsoever.”
**Cujacil paratitla in Pandecta, lib, ii, tit. 1: jurisdiction’s proprie notio est quae jure magistratus competit, quae enim maridata a magistrateu, aut a lege specialiter magistratui delegata est, non jure suo competit; officio quidem magistratrus continetur sed jurisdictione non continetur.