The increased use of the Writs of Prohibition in England accompanied a push by the royal government, including Royal Justice, to assert itself against the Church, which was consolidating its power locally as well as in continental Europe and Rome.

The writs of prohibition were issued by a higher court, usually the King’s bench, to halt the actions of a lower court that did not have jurisdiction over an issue. [J. High, A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, §764 (3d ed. 1874), Note, 36 Harv. L. Rev. 863 (1922)] The writs originally functioned like administrative orders, though the King’s Bench began treating them like legal commands and used them to declare control over inferior courts. [Plucknett, Concise History of the Common Law, 173] The writ of prohibition was mainly used against ecclesiastical courts, though they were sometimes used against the Admiralty and Chancery courts as well. [Plucknett, 395] While the Chancery continued to act as the main source of adjudication for disputes involving estates and seals, the writ of prohibition was a successful tool of the royal government for limiting the power of the ecclesiastical courts and, more broadly, the power of the church.

The King had political and fiscal reasons for wanting to limit the scope of the ecclesiastical courts. The Church grew more powerful throughout the Medieval Period, especially with the development of a papal monarchy under Pope Innocent III. The Church began to see itself as an institution that was superior to the state. This development in the Church accompanied the growth of the English bureaucratic government, beginning with Henry II and the Angevin kings, who split their time between England and France and needed strong and competent advisors to help run the government in England when they were gone. The writ of prohibition was one way for the King to distinguish royal power from that of the Church. Not obeying the writ resulted in real consequences: if a party violated the writ, they could be subject to imprisonment, fine, and possible damages in favor of the opposing party. [Richard H. Helmholz, Writs of Prohibition and Ecclesiastical Sanctions in the English Courts Christian, 60 Minnesota Law Review 1011 (1975)] The Church reacted by issuing spiritual sanctions against those who used and obeyed the writs, though not against the King or the judges of common law courts. [Helmholz]

The growth of the use of writs of prohibition may also have been a reaction to the increased abuse of the benefit of clergy throughout the Medieval Period. The benefit of clergy, which transferred jurisdiction of all cases that involved clergy from lay courts to ecclesiastical ones, was gradually extended to anyone who could prove his literacy by reading a passage in the Bible. This development, which was formalized in statute under Edward III in 1351, both gave this benefit to lay defendants and came at a time when literacy rates were rising in England. By the time of Elizabeth I, 32% of defendants convicted of capital felonies were able to claim clergy successfully. [David Cressy, Literacy and the Social Order: Reading and Writing in Tudor and Stuart England (1980), 17]. Even for cases not involving felonies, the ecclesiastical courts believed their jurisdiction extended to matters claimed by the common law courts. For example, the English Church Courts claimed they had the right to enforce contracts that were formalized by oath, as they believed this involved a spiritual matter under their control, though common law lawyers disagreed. [Helmholz]

-- KatherineKettle - 15 Oct 2014

The growing power of the Church resulted in jurisdictional overlap between the secular and ecclesiastical courts. Writs of prohibition allowed the King to halt a proceeding in an ecclesiastical court on the grounds that the case matter fell outside of the ecclesiastical courts’ jurisdiction. In other words, the writs of prohibition allowed the secular courts to protect their jurisdictional boundaries. [Charles M. Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law, 1994]

In addition to posing a threat to the King’s authority, the existence of jurisdictional overlap allowed for forum-shopping. For example, both the King and the Church claimed jurisdiction over disputes between executors and debtors and between creditors and executors. In the Church’s eyes, the right of the executor to collect debts from a decedent’s debtors and the right of creditors to enforce theirs claims against a decedent’s estate were “a proper part of probate administration.” [Helmholz]. Thus, while for most obligations, a testator would have to sue under common law, an executor or creditor could chose between initiating a proceeding in a secular or ecclesiastical court. By issuing a writ of prohibition restraining executors or creditors from suing in an ecclesiastical court, this inequitable disparity in forum options could be resolved. [Helmholz]

As writs of prohibition were rather easy to obtain, in the late thirteenth century, writs of consultation came into use. [John Robert Wright, The Church and the English Crown, 1305-1334, 1980] Writs of consultation allowed for the reversal of a writ of prohibition. If an ecclesiastical court judge felt that a case rightly fell within the Church’s jurisdiction, they could question its appropriateness before the chancellor. If the chancellor agreed, he could issue a writ of consultation, allowing the case to continue in the ecclesiastical court. [Robert C. Palmer, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550, 2002]

However, the existence of the writs of consultation did not diminish the power of the writs of prohibition. As the chancellor issued the writs of consultation, the question of proper jurisdiction remained the secular courts’ to answer. That said, it can be asserted that “the contemporary boundary between the system of secular and ecclesiastical courts within England was determined primarily by [the interplay between the] writs of prohibition and of consultation”. [Wright]

-- EstherLukman - 17 Oct 2014

WORKING UNITED DRAFT:

The writs of Prohibition were the main means by which the managing common law courts- the King's Bench and Common Pleas- restricted other courts from overstepping their jurisdictional boundaries. [Charles M. Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law (1994), vii] The writs originally functioned like administrative orders, though over time they acquired the power of legal commands. [Plucknett, Concise History of the Common Law, 173] writs could be issued against another court or an individual defendant, somewhat similar to the way an injunction works in courts today. [David W. Raack, A History of Injunctions in England Before 1700, 61 Indiana Law Journal 539, 546 (1986)] The writs of Prohibition were primarily used against the ecclesiastical courts. However, they were also used against the equity courts, admiralty courts, and local courts. [Gray, The Writ of Prohibition, viii; Plucknett, A Concise History of the Common Law (1956), 395] The highest of the equity courts was the Chancery, but although as a fact of law the Chancery could be prohibited, it never was. [Charles M. Gray, Boundaries of the Equitable Function, 20 The American Journal of Legal History 192 (1976), 197]

Not obeying a writ could result in imprisonment, fine, or possible damages in favor of the opposing party. [Richard H. Helmholz, Writs of Prohibition and Ecclesiastical Sanctions in the English Courts Christian, 60 Minnesota Law Review 1011 (1975)] If a party violated the writ, they could be subject to imprisonment, fine, and possible damages in favor of the opposing party. [Richard H. Helmholz, Writs of Prohibition and Ecclesiastical Sanctions in the English Courts Christian, 60 Minnesota Law Review 1011 (1975), 1012]

The rise in the use of writs of prohibition accompanied the consolidation of power in the English monarchy and the growth of the court system in the twelfth and thirteenth centuries. The Angevin Kings, who split their time between England and France, needed strong and competent advisors to help run the government in England when they were gone. The growth of the royal bureaucracy accompanied the codification of much of the existing common law with the First Statute of Westminster (1275), which was passed during Edward I’s rein. The common law courts and legal interpretation by common law judges began to become more formalized as judges moved from the role of primary lawmakers to the interpreters of statutes. [T.F.T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century, 55 (1922)] While the earlier courts had had more flexibility to provide both legal and equitable relief, over the period from the late thirteenth century to the end of the fourteenth century, the consideration of equity gradually disappeared in common law courts, which was one of the reasons the Chancery, which existed before to keep the King’s Great Seal and stamp it on public documents, emerged as a separate judicial court. [Raack, 550-52] As the common law courts became more formalized and rigid in their procedure and jurisprudence, they also ceased using the writ of prohibition as a remedy against individual defendants. [Raack, 554]

There were occasional disputes among the courts when there were disagreements about what court was the proper place to hear a certain issue. For example, the ecclesiastical courts claimed they had the right to enforce contracts that were formalized by oath, as they involved a spiritual matter of whether the oath had properly been made, though common lawyers disagreed. [Helmholz] In some instances, however, the non-common law courts were able to provide relief where the common law courts could not. The Chancery, unlike the common law court, could provide remedies in cases involving trusts and uses and could give relief based on fraud, accident, or mistake to plaintiffs. [Raack, 555] As courts of equity provided new relief that before had been encompassed by but limited in the common law courts, writs of prohibition helped prevent plaintiffs from being able to “forum shop” for the court that would be most favorable to their position. If a plaintiff would be able to gain adequate relief in a common law court were he to win, it did not matter that he may prefer procedure, allowable defenses, or remedy of a different court; he would be prohibited from bringing a case in any court other than the common law one. [Charles M. Gray, Jurisdiction in Early Modern English Law, Appendix to Volume III: The Boundaries of the Equitable Function, The American Journal of Legal History, Vol. XX, 192-226 (1976)] While the Chancery could provide relief where the common law could not, writs of prohibition helped ensure that cases that already had a remedy in common law stayed in those courts.

The use of the writ of prohibition also varied with the relationship between the Chancery and the common law judges. While at the beginning of the transformation of the Chancery into a judicial body, the common law judges often cooperated in helping the new court decide cases or even referred plaintiffs who had equitable claims. [Raack, 558] Over time, however, the relationship declined as plaintiffs chose to seek relief in the Chancery, which, in addition to resolving cases more quickly than the common law courts, allowed testimony of interested parties and witnesses and could compel discovery. [Raack 554]

Procedure for Securing a Writ of Prohibition

In the 13th century, the writs of Prohibition were issued by the Chancery.[Helmholz, 395] However, by the later half of the 16th century, the writs of Prohibition had become a judicial writ. That meant that if a party wanted to halt proceedings in another court on the grounds that the presiding court did not have proper jurisdictional authority, the party would petition the managing courts to do one of the following things: (1) eliminate liability altogether by applying common law, (2) have the case be sued de novo at common law, or (3) secure trial by the common law method of a jury or judicial ruling. [Gray, The Writ of Prohibition, xix] Prior to deciding whether or not to grant the writ, the managing court would usually allow for open-court debate between the plaintiff seeking Prohibition, the defendant opposing Prohibition, and/or the judges themselves. However, writs of Prohibition could be granted without such debate. [Gray, The Writ of Prohibition, xxi]

Contesting a Writ of Prohibition

If a party wanted to contest the granting of a writ of Prohibition, they could do so in two ways. The first was a contempt proceeding called the "Attachment on Prohibition", wherein the plaintiff and defendant would plead before the managing court on the validity of the writ. [Gray, The Writ of Prohibition, xxii] Alternatively, the parties could seek to reverse the writ of Prohibition by seeking a writ of Consultation.

As writs of Prohibition were rather easy to obtain, in the late thirteenth century, writs of Consultation came into use. [John Robert Wright, The Church and the English Crown, 1305-1334 (1980), 184] If a Prohibited party or judge felt that a case rightly fell within the Prohibited court's jurisdiction, they could question its appropriateness before the Chancellor. If the Chancellor agreed, he could issue a writ of Consultation, reversing the writ of Prohibition and allowing the case to continue in the ecclesiastical court. [Robert C. Palmer, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550, 2002]

Justifications for Writs of Prohibition

In addition to threatening the King's authority, the existence of jurisdictional overlap jeopardized the uniformity of legal remedies by allowing for forum-shopping. For example, both the King and the Church claimed jurisdiction over disputes between executors and debtors and between creditors and executors. In the Church’s eyes, the right of the executor to collect debts from a decedent’s debtors and the right of creditors to enforce theirs claims against a decedent’s estate were “a proper part of probate administration.” [Helmholz, 1016]. Thus, while for most obligations, a testator would have to sue under common law, an executor or creditor could chose between initiating a proceeding in a secular or ecclesiastical court. By issuing a writ of Prohibition restraining executors or creditors from suing in an ecclesiastical court, this inequitable disparity in forum options could be resolved. [Helmholz, 1017]

-- EstherLukman - 21 Nov 2014