View of the Admiral Jurisdiction, Chapter 6
CHAP. VI.
Of Prohibitions; Their ſeveral kinds, Cauſes and Effects in the Law.
HAving ſpoken of Jurisdictions in general, it may not now be of leſs conſequence to enquire, of what ſuperſeding faculty a Prohibition in its original and due intendment of Law may be in point of right and power for the removal of the Cognizance of Cauſes from one Juriſdiction to another. And although in the precedent Chapter there hath been a clear and diſtinct Proſpect of the matter of Jurisdictions out of the Civil Law, being the beſt and indeed the only Law that could with ſuch tranſparency preſent us with an object of that depth and difficulty, yet now being to look through other Mediums, ſo clear a ſight of Prohibitions may not be expected to be preſented in the ſame Glaſs; For Prohibitio in the ſenſe now intended, may not be taken for Interdictum, quo Praetor vetat aliquid fieri; aL. 1. § interdictum, & l. 2. ff. de interdict▪ & § Prohibitoria. Inſtit. cod. tit.nor be thence diſſected into its ſeveral kinds and diſtinctions according to the Analogy of Civil Law; This would be as little pertinent to the preſent purpoſe in hand, as rationally it could expect of credit or belief out of its proper Sphere. Suffice it therefore that it be deſcribed under ſuch Rules and Characters as the Law of this Realm doth not diſown. It ſhall therefore only be premiſed what Boerius, that famous Civilian ſays of it; bBoer. Deciſ. 114. nu. 2. & ibi Faber. in L. ante fin. Cod. de Off. Praef. Urb. per Tex. in C. Tranſmiſſa. De Foro Compet. & Paris de Put. in Syndicat. Tit. de Exceſs. Baron. cap. ult. & Ang. in l. haeredi. De Uſu fruct. Legat. ut voluit Saldus in Prooem. 2. lib. Decret. Colum. 2.That a Judge in matters cognizable before him, may prohibit ſuch as are within his Juriſdiction, from impleading any in another Court to his prejudice; And that an Eccleſiaſtical Judge may iſſue his Mandate to a Judge Secular, prohibiting him from medling with matters of Eccleſiaſtical Cognizance. And the ſame Boerius in another place cBoer. Deciſ. 9. nu. 15. & Bar. & Alex. in L. omnibus. § is videtur. ff. Si quis jus dic. non obtemp. Sir Tho. Ridleys View of the Civil and Eccleſiaſtical Law, in part. 3. cap. 1. ſect. 2.ſays, That in ſuch caſes of Exceſs by the power of one Juriſdiction exerciſed over another, the King is to decide the Controverſie.
A Prohibition in the ſenſe moſt adequate to the purpoſe in hand, is a Writ forbidding to hold Plea in a Matter or Cauſe ſuppoſed to be without the Juriſdiction and Cognizance of that Court where the Suit depends; Sir Thomas Ridley calls it a Commandement ſent out of ſome of the Kings higher Courts of Record, where Prohibitions have been uſed to be granted in the Kings Name, ſealed with the Seal of that Court, and ſubſcribed with the Teſte of the chief Judge or Juſtice of the Court, from whence the Prohibition doth come, at the ſuggeſtion of the Plaintiff, pretending himſelf to be grieved by ſome Eccleſiaſtical or Marine Judge, in non-admittance of ſome matter, or doing ſome other thing againſt his right, in his or their Judicial Proceedings, commanding the ſaid Eccleſiaſtical or Marine Judge to proceed no farther in that cauſe, upon pretence that the ſame doth not belong to the ſaid Eccleſiaſtical or Marine Judge. But this deſcription of the Writ of Prohibition, though large enough, yet not comprehenſive enough; For Prohibitions may iſſue to Courts that have neither Eccleſiaſtical nor Marine Cognizance, as appears by the Learned Fitzh. who among Sixty ſeveral Caſes Fitzh. N. B. verb. Prohibit.by him mentioned, wherein a Prohibition doth lye, doth not inſtance in any againſt the Admiralty; Nor do the Statutes (though expreſs as to Prohibirions againſt Courts Eccleſiaſtical) ſpeak of any in expreſs terms or in the letter of it as againſt the Admiralty. Hence probably it is that the Authour of the Terms of the Law dTerms of Law, verb. Prohibit.makes no other deſcription of a Prohibition then this, viz. That it is a Writ that lyeth where a man is impleaded in the Spiritual Court of a thing, that toucheth not Matrimony, nor Teſtament, nor meerly Tithes; And this Writ ſhall be directed as well to the Party as to the Judge or his Official, to prohibit them that they proceed no farther; But if it appears afterwards to the Judges Temporal, that the matter is to be determined by the Spiritual Court, and not in the Court Temporal, then the Party ſhall have a Writ of Conſultation, commanding the Judges of the Court Spiritual to proceed in the firſt Plea. Which deſcription of the Writ of Prohibition is conſonant to the Statute of 2 Ed. 6. cap. 13. whereby it is provided, That he that ſueth for a Prohibition, ſhall make a ſuggeſtion and prove it by two witneſſes; And in caſe it be not proved true by two witneſſes at the leaſt in the Court where the Prohibition is granted, within ſix moneths next after the ſaid Prohibition; then the Party ſo hindred by ſuch Prohibition, ſhall have a Conſultation, and recover double coſts and damages againſt the party that ſued for the Prohibition. And in the ſaid deſcription of a Prohibition by the Authour of the Terms of Law, there is not any thing expreſs'd as to a Prohibition againſt the Admiralty, but only againſt Judges in matters Spiritual, wherein the Court of Admiralty is not concern'd; By the Proceedings whereof there is not (as in the other once was) the leaſt pretence for any fear of diſ-inheritage of the Crown-Rights, which will be agreed to be originally the Cauſa finalis of Prohibitions. Whence it was long ſince obſerved and publiſhed by a Learned Civilian of this Nation, eD. Cowel Interp. ver. Prohibitio.That this Writ of Prohibition in thoſe days may well be ſpared; For although It may not be hence inferred, That what ſeems to ceaſe of uſe in one reſpect, may not remain of uſe in another; As indeed this is, in Conſervation not Derogation of Jurisdictions; and for prevention of Trials Coram non Judice Competente, by an expedient of Law, whereby the Gognizance of a Cauſe may not be drawn from its proper Jurisdiction ad aliud Examen.it were ſome help to the Kings inheritance and Crown, when the two Swords were in two divers hands; yet now that both Juriſdictions are ſettled in the King as the only Supreme Magiſtrate, there is little reaſon thereof. And indeed the Juriſdiction of the Admiralty of England was ever inherent in the Crown of England; ſo that there was never in that ſenſe that parity of reaſon for Prohibitions againſt the one as againſt the other. That which at firſt hath its origination from a principle of well-grounded policy, and is of good uſe in one age, may afterwards be otherwiſe in another, ſpecially if the Rule Ceſſante Ratione ceſſat Lex ſhould hold in this caſe as in others. The Fiery Brazen Serpent when firſt erected, was of happy uſe; yet when abuſed by the people, Hezekiah brake it in pieces; fNum. 21. 8. & 2 Kin. 18. 4.yea, though of Divine Inſtitution, yet when it became a ſnare to the people, that good King did not ſcruple to call it Nehuſhtan. Nehuſhtan, h. e. Braſs, or Brazen, or a piece oſ Braſs.The Court of Admiralty is one of the Courts Temporal, one of the Courts of our Soveraign Lord the King, and long ſince owned as ſuch, as appears by the Reſolutions upon the Caſes concerning the Juriſdiction This implyes not, but that Prohibitions are ſtill of neceſſary uſe, where Inferiour Jurisdictions meddle with matters which do not concern them, and wherein they are incompetent.of the Admiralty in Anno 1632.
If the Court of Admiralty be one of His Majeſties Temporal Courts, then the old Argument of the Conſervation of the Crown-Rights, ſeems not to hold in this caſe, and only for that Reaſon, as to Prohibitions againſt the Admiralty; as well for that the ſaid Court is a Court Temporal, as that it is one of His Majeſties Courts; ſpecially in Caſes that are either Locally or Materially Maritime. It may not therefore be much material to inquire whether Prohibitions do lye as well againſt Temporal as Spiritual and Eccſeſiaſtical Courts; For Fitzh. N. B. fo. 39. Cowel Interp. verb. Prohibit.admitting a Prohibition according to the Learned Fitzh. [g] to be A Writ for the forbidding any Court; either Spiritual or Secular, to proceed in any Cauſe there depending, upon ſuggeſtion that the Cognition thereof belongeth not to the ſaid Court; yet it is preſumed that this doth not concern ſuch Caſes as primo intuitu appear to be Locally Maritime, or according to the nature thereof have been time out of mind properly of the Admiral Cognizance; For without doubt the ſuggeſtion mentioned in the ſaid definition doth not in conſtruction of Law pretend to any thing beyond the very truth of what is ſuggeſted; or ſo, as to tranſplea a Cauſe from one Juriſdiction to another, abſque minimo fumo probationis, of the truth and reallity of the ſuggeſtion, or that the Cognition of the Cauſe belongeth not to the Court Prohibited. Thus having ſeen what a Prohibition is, which in truth is no more but this, viz. A Charge by Writ to forbear to hold Plea either in ſome matter or manner, which (as is ſuppoſed or ſuggeſted) a man dealeth in beyond his Jurisdiction, or otherwiſe then Law will warrant; It follows, That
Every Prohibition is either Prohibitio Juris by the Law it ſelf; Or Prohibitio hominis, where the Miniſtery of a competent Judge is uſed; or Prohibitio Facti, of meer Fact, where it hath no fufficient ground or foundation in the Law: The Second of theſe, viz. the Miniſtery of a competent Judge is ſo eſſential, as without which neither of the other can proceed. Prohibitio Juris is a very Prohibition in it ſelf, and therefore it is a contempt to ſue againſt it. Prohibitions of Law are ſuch as are ſet down by any Law or Statute of this Land, whereby Eccleſiaſtical Courts are interdicted from dealing in the matters in ſuch Statutes contained. Such are the Statutes of 2 Ed. 6. cap. 13. whereby Judges Eccleſiaſtical are forbidden to hold Plea of any matter, cauſe, or thing, being contrary or repugnant to or againſt the effect, intent, or meaning of the Statute of Weſtminſter 2. Ridley View of the Civil and Eccleſiaſtical Law, part. 3. cap. 1. ſect. 2.cap. 3. the Statutes of Articuli Cleri, Circumſpecte agatis, Silva Caedua, viz. 43 Ed. 3. cap. 3. The Treatiſe De Regia Prohibitione, Stat. 1 Ed. 3. cap. 10. Such alſo is the Statute of 9 Ed. 2. cap. 2. There are alſo other Statutes declaring in what Caſes Prohibitions will not lye; Such are the Statutes of 9 Ed. 2. cap. 1, 4, 5. Alſo 18 Ed. 3. cap. 5. & 50 Ed. 3. cap. 4. Prohibitions of Fact, are ſuch as having no ſollid foundation (as the other) on the Laws and Statutes of this Kingdome, may yet pro tempore have ſome kind of operation like Prohibitio Juris, becauſe therein alſo is Prohibitio hominis, or the Miniſtery of the Judge or Superiour Magiſtrate. Such Prohibitions of Fact (where they happen) may adminiſter more matter for Lawyers to work on, then poſſibly the merits of the Cauſe require, and have in former times occaſioned ſeveral Complaints by reaſon of the perplexity of Law-Suits, uncertainties in matters of Juriſdiction, multiplicity of litigious Controverſies, exceſs of Charges, delayes of Proceedings, retardations of Juſtice, and the like. Hence it was, that Sir Tho. Ridley in his View of the Civil and Eccleſiaſtical Law ſo long ſince on this Subject ſaid, hIbid.That the Right of the Supreme Magiſtrate is not to be ſuppoſed by Imagination, but to be made plain by Demonſtration. And ſo both the Statute of 18 Ed. 3. cap. 5. is, whereby it is Provided, That no Prohibition ſhall iſſue, but where the King hath the Cognizance, and of right ought to have; which is very obſervable; And alſo by the fore-mentioned of 2 Ed. 6. which prohibits▪ Prohibitions to be granted otherwiſe then upon ſight of the Libel, and other Circumſtances in the ſaid Statute expreſſed. By which it is intended, the meaning of the Law-givers was not that every idle ſuggestion of every Atturney ſhould breed a Prohibition; but ſuch only ſhould be granted, as the Judge according to Law ſhould think worthy thereof, if there were Right to deſerve it. Where the ſaid Sir Thomas Ridley goes on and ſays, That as emulation between the two Laws in the beginning brought in theſe multitude of Prohibitions, either againſt Though by Warrant from the Proverb, Loſers have leave to ſpeak; yet in caſe of Intereſt, ſuch as cannot hold their own, may hold their peace.or beſide Law: ſo the gain they brought to the Temporal Courts maintaineth them; which alſo (they are his words) makes the Judges that they ſeſſe not Coſts and Damages in Caſes of Conſultation, (although the Statute preciſely requires their aſſent and aſſignment therein) becauſe they would not deterre other men from ſuing out of Prohibitions, and purſuing the ſame. Though this was the Obſervation, and theſe the very words of Sir Thomas Ridley upon this Subject in his time, yet we may not thence inferre that ſo it is alſo now in our time, ſpecially now that Juſtice runs again in its proper channel, and her ballance equally poized; It was too true that in late years of unhappy memory the ſaid words and obſervation of that Civilian were too ſadly verified; which now no doubt will in ſome ſhort time (as is already in a good degree) be completely rectified.
In order to a Prohibition there is to precede ſuch a ſuggeſtion as may be proved, not ſuch a ſuggeſtion as is not capable of proof; Improbable ſuggeſtions lay no foundations; Non-Entities are no Baſis for Exiſtencies; It hath been a Rule without Exception ever ſince the Creation, That Ex nihilo nihil fit. By ſuggeſting the Place, where a Contract is ſuppoſed to be made, to be at Burdeaux in France in Iſlington in the County of Middleſex, ſeems to imply as if the alledging the Place, (viz. to be within the body of ſome County within the Realm) were eſſential for the entituling of that Juriſdiction, where ſuch ſuggeſtion is made, to a Cognizance of the Cauſe grounded upon that ſuggeſtion, ſo that the Place ſeems to be of This hinders not, but that a thing really done ſuper altum mare, (though not yet ſo in proof) may be ſurmized or ſuggeſted to be done at Land, in order only to bring it to iſſue, whether a Prohibition lyes in the Caſe. This is but the Law of one Juriſdiction without any derogation of another.ſuch Juriſdictional weight, as not capable of being tranſlocated by the higheſt ſtrength of Imagination, which may preſent ſtrange things in Apparitions, but cannot poſſibly enervate the energy of Truths and Reallities; And thence poſſibly it is, that for prevention of improbable ſurmizes, as a ſuggeſtion may be quaſi Cauſa ſine qua non of a Prohibition, ſo the ſaid Statute of 2 Ed. 6. cap. 13. provides that probability by witneſſes (which cannot be without verity) be a due requiſite of ſuggeſtions. The Lord Coke upo… this Subject of ſuggeſting and ſurmizing, viz. of places beyond Sea to be as within the Body of ſome County within this Realm, doth acknowledge, iCok. Inſt. l. 3. c. 7. ſect. 440. in ſin.That there is variety of Opinions in the very Books of the Common Law upon this point. This kind of ſuggeſting and ſurmizing did in late years of fatal memory much impede the Judicial Proceedings of the Admiralty, when it was no rare thing to meet with a ſuggeſtion of a Contract to have been made or other thing done upon the Land in ſome certain place within the Body of ſome County, that really and in truth was made or done upon or beyond the Seas, and farther poſſibly then the ſuggeſtor ever ſaw in a Map. The Civilians ſay, there are certain Caſes wherein Prohibitio vim ſuam non exercet, whereof one is, Quando aliquid prohibetur ſinel Cauſa; and the Law of this Realm allows another, and that is, Quando Conſultatio conceditur.
Prohibitions in the Law there are of other kinds, though not ſo pertinent to the purpoſe in hand; Such is the Writ Indicavit, as in matter of Tithes; kFitzh. N. B. tit. Prohibitio.This lyeth alſo for the Patron, where the Incumbent is impleaded for the Advowſon or right of Patronage in a Spiritual Court; though it lyeth not till the Libel be brought to be viewed in Chancery, Et Lis Conteſtata; lFitzh. Ibid.And it lyeth only before Sentence is given in the Eccleſiaſtical Court, being afterwards void. Laſtly, a Prohibition ceaſeth and loſeth his vertue after a Conſultation is granted, as appears by the Statute of 24 Ed. 1. which declares in what Caſes a Conſultation is grantable; which again is afterwards more full in the Statute of 2 Ed. 6. cap. 13. whereby it is enacted, That a Conſultation ſhall be granted for default of proving the ſuggeſtion, and double Coſts and Damages (as aforeſaid) awarded to the party hindred by ſuch Prohibition, againſt him that ſo purſued the ſame. And where a Conſultation is once truly granted, the Judge formerly prohibited, ſhall according to the Statute of 50 Ed. 3. cap. 4. proceed in the Cauſe, notwithſtanding any other Prohibition thereupon, provided the matter in the Libel be not altered.