DOCTORS COMMONS. Prohibitions. 157

DOCTORS COMMONS. Prohibitions.

same Cause be suffered to procure a Prohibition? Were it not sound Discretion and Policy, to cut off such wilful malicious Vexation of a Subject, and publick Scandal to Justice, howsoever the Law be defective and silent in that behalf?

V. To sue for a Prohibition not till after Conclusion in the Cause, is very preposterous and inconvenient. But after Sentence given, in Bracton's Opinion, is altogether unlawful; much more after two or three Instances, and as many Sentences past. And yet in all these Cases Prohibitions are common and ordinary.

VI. What Law or Reason can be pretended, why the Judge Ecclesiastical, after Consultation delivered unto him, may not condemn the Party who brings the Prohibition, in Expensis retardati processus; in case the Judges shall refuse, as oftentimes they do, to assess double Cost and Damage, according to the Statute, or in any other Case whatsoever, wherein the Judges can or will allow no Charges at all.

VII. If in the Prohibition directed to the Ecclesiastical Judge, the Suggestions appeared notably false, vain, or frivolous, as in some of late hath been seen; Why may not the Temporal Judge in that Case justly be presumed wittingly and willingly to infringe the Liberties of the Church? And thereupon, after due Circumstances observed, be declared and denounced excommunicate, according to the Statute in that behalf established?

Anno 25. Ed. I.

VIII. Is there either Warrant or Colour of Law, that any Prohibition should be grounded upon any of these Surmises, viz. That Matters Testamentary and Matrimonial only be Ecclesiastical; or that the Law Civil requireth two Witnesses, where the Common Law accepteth of one? Seeing by the first Suggestion divers and sundry Causes undoubtedly known, and confessed to be of Ecclesiastical Cognizance, are falsely supposed to be of Temporal Jurisdiction; and by the second, unlearnedly misconceived, no Cause so purely Spiritual, but must be determined at the Common Law.

IX. Were it not very convenient and necessary, considering the very long and tedious and chargeable Suits in obtaining Consultations, together with the manifold Difficulties which accompany such unwelcome Motions, that the Temporal Judges would be pleased, for Relief of poor Subjects, within some reasonable and competent Time to determine the Questions depending before them, as touching Consultations. And that hereafter the Spiritual Courts be not kept in Suspence for two, three, or four Years; as often it hath been, before the Consultations can be procured, notwithstanding the best and uttermost Endeavours of the Defendant, and the manifold Justice of this Demand.

X. It seemeth by the Scope and Purport of all the most ancient Statutes in that behalf provided, that the Prohibition and Consultations, as other original Writs, ought not to be granted but in the Court of Chancery by the Lord Chancellor of England. And howsoever of late Years the Course hath been drawn another way, yet no doubt the Power of the Chancellor is no whit thereby restrained, but that he may lawfully (and it were to be wished he would) resume and put in Execution his ancient Right and Authority. So should not her Majesty's Ecclesiastical Jurisdiction be driven as now it is, to admit the Censure and Judgment of those, who indeed be principal Parties as touching the Question of Prohibitions.

Anno 24. Ed. I.

An. 1. Ed. III. Cap. 11.

An. 18. Ed. III. Cap. 5.

XI. What Cause or Grievance soever cannot be redressed by any Writ but of the Chancery, there the Statute expresly forbiddeth the King's Prohibition to take Place; but it is manifest and notorious, that most of the Prohibitions now-a-days, or rather all, be granted in Stay of such Complaints, as wherein neither by any Writ out of the Chancery, nor any other Course of Proceeding at the Common Law, the Subject can receive sound Justice, or final Censure.

Anno 24. Ed. II.

XII. Can it be warranted either by Law or Statute, that after Consultation once granted in the King's Bench, a second Prohibition should be gotten out of the Common Pleas in the same Cause, the Matter not being augmented, enlarged, nor otherwise altered. And yet howsoever the Statute be plain and evident to the contrary, divers such Prohibitions have been of late obtained.

An. 50. Ed. III. cap 4.

XIII. If such Care and Consideration had been taken in the granting of Prohibitions, as were fit and necessary in Causes of so great Moment, the Judges Temporal would never have granted so many Consultations as have been granted within the Compass of three or four Years.

XIV. Forasmuch as both the Jurisdiction Ecclesiastical and Temporal be now united in the Crown of the Realm; which were heretofore de facto severed, and derived from several Heads and Authorities; and for that the Ground and true original Cause of Prohibitions was none other than the foresaid Severance and Partition of Jurisdictions; may it not be very probably drawn into Question, Whether as the Case now standeth, any Prohibition at all may in sound Construction of Law be warranted; at least, how the Form and Manner of Prohibitions heretofore used, may now, without Offence and Derogation to the Queen's Prerogative Ecclesiastical, be retained and practised? As though the two Jurisdictions remained now distinct, and as several as before; and as though her Majesty's Jurisdiction Ecclesiastical may not, with as little Prejudice to the Crown, encroach upon the Temporal, as the Temporal may upon the Ecclesiastical.

XV. But in case the Prohibition, by force of so many Years Use and Custom, may not now conveniently be discontinued, either in Matter or Manner; yet, in true Sense and Meaning of Law, What Reason can be devised why the Prohibition should be extended to the Restraint of her Majesty's High Commission, or Court of Delegates, both of them being authorized under the Great Seal of England, and established by Act of Parliament; and neither of them so much as thought upon for divers hundred Years after the Prohibition was current in England; neither by colour of any Argument or Similitude can be drawn to the Case of ordinary Jurisdiction, either as then it was, nor now it is used?

XVI. And for that her Majesty's Delegates have no general Commission ad universitatem Causarum; but for every several Cause of Appeal receive a special and particular Commission, it may seem somewhat strange and extraordinary, that any Subjects should presume to countermand her Majesties express Command, and to forbid the Judges Delegates to proceed any further in any one Cause, which her Majesty hath especially and particuarly commanded them to hear and determine.