|DOCTORS COMMONS. Prohibitions. ||156
that came into that Court. And so there must be Delays and prolix Suits; and
that it was
a great Discouragement to young Men in studying the Law; and contrary to the
and Civil Law, that permits any Man to be Proctor for another, a few excepted.
much for those Practitioners, the Proctors.
V. The Terms for the pleading and ending of Causes in these Civil Courts, are
different from the Term-times of the Common Law. The Order as to the Time of
sitting of these Courts is thus. The Sitting of the Court of Arches hath the
of sitting first, according to the Quality of that Court, and regulates the
Sittings of the
others. The Sitting of the Court of Audience was the Morning next after the
the Court of Arches. The Prerogative Court sits in the Afternoon, as the
in the Morning. The Court of the Admiralty is held on the same Day with the
but in the Afternoon.
Times of Sitting.
This College was consumed by the general Devastation that happened by Fire to
City, Anno 1666. And then Exeter House in the Strand was employed for the same
Use. Where the Civilians had their Chambers and Offices; and the Courts were
the Hall. But after some Years the Commons being rebuilt far more conveniently,
more sumptuously than before, the Civilians removed thither again.
These Courts once held at Exeter House.
For the Relief of the Subjects in case of any hard Dealings feared from Civil or
Ecclesiastick Laws, the Lords Chief Justices may stop Proceedings in these
call the Matters in Controversy to be heard before them, by a Writ of
Which lies of one that is impleaded in the Court Christian for a Cause that
the Temporal Jurisdication. Whereby as well the Party and his Council, as the
himself and the Register, are forbidden to proceed any further in that Cause.
Books shew the Causes for which this Prohibition lies. Bracton saith, it lies
not after a
Sentence given in any Cause.
Prohibitions, to call Causes into the Temporal Courts,
But these Prohibitions were so frequently granted, and in Causes that seemed
Ecclesiastical, that the Civilians and Ecclesiasticks have sometimes made great
Complaints of them, as exceeding injurious to their Practice, and vexatious to
Subject; and also seeming to derogate from the supreme Authority, in taking away
Causes from the High Commission and Delegates, which acted by a special
Commission from the Prince.
Thus in the Year 1573, under Archbishop Parker, the Judge of the Admiralty being
David Lewis, the Lord Chief Justice had very often granted Prohibitions out of
Court of Kings Bench to this Court, almost to the Ruin of it: Whereupon in the
beforesaid the Lord Admiral used sharp Speeches to him for it; and warned Dr.
that when such Prohibitions should be granted again, to spare to move the Lord
Justice, but to make the Lord Treasurer acquainted with it. Accordingly, when
Prohibition was granted the same Year, Dr. Lewis wrote of it to the Lord
signifying what just Cause of Grief he had by reason of a Prohibition granted
before in a Cause which he had described in a Paper enclosed. And that this,
more before, were two such Precedents, that if they took place, in short Time
utterly overthrow the Jurisdiction of the Admiralty. That he was therefore
crave his Lordship's Favour to be a Means to the Lord Chief Justice that Day,
especially to his Colleagues, (since as far as he could perceive, his Lordship
liking of the Prohibition) to
stay the same. He added, that if these Prohibitions were not prevented, he
be able to shew his Face in that Court any more; these Prohibitions tending so
his Discredit, and the utter Ruin and Subversion of the Jurisdiction of the
Under Archbishop Parker.
In the Year 1580, under Grindal the next Archbishop, Dr. Lewis complained again
the Lord Treasurer of the Decay of his Office, and drew up the present mean
the Judge and Court of Admiralty. He shewed how the Causes which were treated
in this Court, proceeded only of Things done upon and beyond the Seas; and yet
Judge could not enjoy the same, by reason of Prohibitions out of Her Majesty's
denied to none that would sue for them. By reason whereof, and that the Suitors
Court were many times vexed with Actions upon the Case for suing there,
and Mariners were so terrified, as they forsook the Court of Admiralty, and sued
Things done beyond and upon the Sea, at the Common Law, in her Majesty's Bench,
and in the Guild Hall of London. And the same were maintained there by
Matters to be contracted in some Place upon the Land. Where in truth the same
done beyond and upon the Sea; and there might no Traverse be admitted touching
Under Archbishop Grindal.
And these Prohibitions were grievous to the other Courts as well as this, and
Again, about the Year 1598, under Archbishop Whitgift, these Prohibitions lay
upon the Civil Courts. And then a notable Paper was drawn up for the
of the Queen or the Parliament, entitled, Certain Collections and Inferences
Matter of Prohibitions and Consultations: Not unfit to be thought upon for the
Preservation of her Majesty's Jurisdiction Ecclesiastical; which were these,
Under Archbishop Whitgift. Cott. Librar. Cleopatra. F. 1.
I. Since by the Laws and Institutes of this Realm, the Libel is appointed as a
the granting of Prohibitions and Consultations, How can a Prohibition duly be
either before the Libel is exhibited in the Ecclesiastical Court, or without
diligent Perusal thereof, or upon any other Matter or Suggestion that may be
gathered out of the same?
Statute de Consul. Anno 24. Ed. I. Anno 2. Hen. V. Cap. 3. 4. Edw. IV. Fol. 37. 31 Hen. VI. Fol. 14.
II. Where the Cause originally is undoubtedly of Ecclesiastical Cognizance, Why
should any Prohibition be granted (as almost all be) upon any Matter pleaded at
by way of Exception, tho' merely Temporal; the Law it self, and common Reason
plain and evident to the contrary? For such Matter incident comes not there to
sentenced and determined. But it is used as a Means and Furtherance for the
of his Principal. And supposing the Law were otherwise, then might either Party
their Pleasure, by pleading some Matter Temporal, make any Cause Ecclesiastical
whatsoever, subject to a Prohibition?
Anno 1. R. III. Fol. 4.
38. Hen. VI. Fol. 22.
III. Since the Prohibition once granted, (though never so unduly) must needs
with it Delay of Justice, intolerable Expences, and many great Inconveniencies
Party prohibited, Why are Prohibitions so usually granted, without calling or
both Parties, and the Judge Ecclesiastical also (si sua putaverit interesse)
contrary to the
common Rules of Justice in all Causes, specially in Matters of so great
IV. Can it be thought expedient, or reasonable, that the Plaintiff making
choice of the
Court Christian for his Relief, should afterwards in the