An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....

CHAP. XVII. Of a Prohibition, what it is, where it lieth not, and where it doeth: and how it ceaseth by a Consultation: & of the writ of Indicauit.

WHen any Court goeth beyond his bounds, and dealeth in other matter or sort, then the lawes of the land will warrant; there lieth in some cases writs at the common lawe, which are of Prohibition or Indicauit: and in other cases, a writ brought in by statute, called Prouision and Premunire: and the Prohibition and Praemunire doe lie as well a∣gainst temporall, as against ecclesiasticall Courts.

The Prohibition is a charge by the kings writ, to forbeare to hold Plea, either in some matter or maner, which it is supposed a man dealeth in, beyond his iurisdiction, or otherwise then lawe will warrant. Euery Prohibition is either Prohibitio iuris by the very lawe it selfe; or Prohibitio hominis, where the ministerie of the competent iudges (in that behalfe) is vsed. Any Statute pro∣hibitorie is 1 Prohibitio Iuris; a very prohibition in it selfe, and ther∣fore it is a contempt, to sue against it.

In a prohibition we are to consider; In what matter it lieth not, at what time it lieth not, where and when it lieth, & how it cea∣seth or looseth his force. For the first, it is 2 prouided by statute, and the king there determineth thus: that no prohibition shall goe out of the Chancerie, but in such case, where we haue the Conisance, & of right ought to haue. And therefore Thirning 3 said; when we see the iurisdiction belongeth not to vs; wee will graunt a Consultation. So that if the matter be meere Ecclesiasticall, there lieth no Pro∣hibition.

Touching the second point, it seemeth a Prohibition is not to be granted, till by sight of the Libel, there appeare cause to grant it. For 4 Henkstone held, that by the statute de Regia prohibitione &

de coniunctim fe offatis in fine, a man shall not haue prohibition, ante∣quam lis sit contestata in curia spirituali: which is, till a libell be put in, and the partie put to answere it: & this is to be certified to the Chan∣cellor by the view of the Libell: which Fortescue granted.

But this hath two exceptions: one is, when the copie of the Libell (contrary to the Statute 2. H. 5.) is denied: for vpon this cause, I finde a 1 prohibition granted, that the Ordinarie should sur∣cease, till the copie of the Libell, according to that statute, were deliue∣red. another exceptiō is in some court, where a surmise is made, that the suite (in trueth) is for some other matters, then are ex∣pressed in the Libell: for Brooke reporteth that 2 a man may haue a prohibition in the kings Bench vpon such a surmise (as for example by surmising the suite to be (in deede) for great timber, though it bee demanded in the Libel, vnder the name of Sylua caedua) but he saith it is otherwise in the Common Pleas.

Touching the third point, for what causes a Prohibition is granted: I find it may be granted either in respect of some of the parties to the sute, or in regard of the Iudge before whom it is, or for the very matter handled. For the first of these three: If a 3 Par∣son of a Church do sue another Parsons farmour or seruant for right of tithes, being not such as can trie the right of tithes: Fineux held that a prohibition may be granted. Here of see further in the 6. chap. afore.

Touching the second; it may be granted, either for the Iud∣ges contempt; as in not deliuering copie of the Libell, as is afore touched: or for that he hath not (in deed) any iurisdiction. for so it was iudged by Hankeford and by the whole Court, (as it see∣meth) in the vicar of Saltash his 4 case being cōuented before the Popes Collector. Though a Consultation did otherwise lie, the court wil not grant it to one, that hath no iurisdiction in right.

Concerning the third and last poynt of the three, if the mat∣ter bee Temporall, that is such, as 5 there lieth redresse for, by some Writte in the Chancerie, then there lieth a Prohibition, as seemeth by Statute: to which agreeth the 6 place before alleaged, out of the booke of Doctor & Student. Yet this hath also two excep∣tions: one is, whereas the Spirituall Court holdeth Plea quite to another end. For 7 when one & the selfe same case is debated before Iudges spiritual and temporal (as for beating of a Clerke) there the statute is; that (notwithstanding the spirituall iudgement) the kings

Court also shall debate it. For both these conisances tending the one to the amends, the other to the excommunication; may stand together, as is shewed in the 8. chapter.

The second exception hereof seemeth to be, 1 when one Clerke sueth another in the spirituall Court, for the goods of his house; for there lies no prohibition: as when one Abbot sueth another. Se∣condly, a prohibitiō lieth, where a matter (being at first ecclesiasti∣call,) brings at last in debate, a meere temporall matter with it, to be determined. Therefore it was holden, that so soone 2 as it appea∣reth, that the right of tithes comes in debate, the laie Court shall cease, and be out of iurisdiction: and the same law is of the spirituall Court: for if it may appeare, that the right of aduowson may come in debate, although it appeared not at first, the spirituall Court must surcease: quod fuit concessum. This may happen (as for example) when suite is brought (at first) for right of tithes; and it fals out by de∣positions or otherwise; that the tithes 3 demanded amount to the 4. part of the benefice by yeere: in which case it is determined, that the temporall Court shall haue conusance, euen as if the right of Patro∣nage were in demand principally.

Thirdlie, a prohibition lieth for such a cause, 4 as albeit there lie none action for it in a temporall Court, yet the matter is such, as of custome neuer belonged to an ecclesiastical court. As if an ec∣clesiasticall court would hold Plea against an executor, vpon a bare contract made by his testator: for neither the court may heare it, nor yet there lieth action for it in a Temporall court.

Fourthlie, there lieth Prohibition, when the suite tendeth to determine and giue execution in a temporall matter; as money, &c. being due otherwise, then by the iudgement giuen in the Court ecclesiasticall. Therefore if a composition by indenture 5 be made by an Ordinarie betwixt two ecclesiasticall persons; that the one shall haue tithes, the other an annuitie, with penaltie for default of paiment: the suite for this shall bee at the Common lawe: but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court, shalbe there, per Hill. For 6 though amends bee to bee made by a certaine summe of money, this is no necessarie cause to grant a prohibition, no more then when the suite is for tithes, yet the condemnation in money being the valew of them: nor when a penance is redeemed by the par∣tie for money, which may be sued for in a spirituall court, per Butler.

Because when an offence is done to a man, it is 1 reason that he haue a∣mends for it: but there can be no more proper amends then money, be∣cause euery thing may be valued by money, per Keble. Which they speake to prooue; that amends in money may be awarded in an ecclesiasticall Court for Diffamation: and so the iudgement then passed, vpon this ground (among others) as 2 Brooke testifieth.

And 3 there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Com∣mon lawe; and such a summe as before sentence giuen in the Spiritu∣all lawe, is not due at all. For the first, there lieth a Prohibition, but not for the second: for otherwise, it would followe, that the spirituall lawe might giue a iudgement, which it could not put in execution. but this were absurd, per Reed & Tremaile.

Fiftlie, it is sayd that there lies a Prohibition, when the partie sued hath an action giuen him at the Common lawe, for the ori∣ginall and principall matter, whereupon the suite at the ecclesiasti∣call lawe did grow. The case was thus: Aman 4 reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will; to the intent to make her his harlot. the Abbot here∣upon brought his action of Diffamation in the Court ecclesiasticall; and the husband his prohibition. nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot, Brian held, that a Consultation was not to be graunted. de hoc quaere.

A prohibition ceaseth and looseth his force, after a 5 Consulta∣tion be once granted. This may bee prooued by the Statute De Consultat. for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell, &c. if they can see no redresse by Writ, &c. shall write to the spiritual iudges, &c. to proceed, notwithstanding the kings prohibi∣tion directed to them before. But more plainlie after: Where 6 a con∣sultation is once duely granted, the Iudge may proceed in the cause, notwithstanding any other prohibition thereupon to him to be deliue∣red: so the matter in the Libell be not changed.

The writ of Indicauit is 7 likewise a kind of Prohibition; and lieth especially & naturally for a suite of tithes, which do amount to a fourth part or aboue, of the whole benefice. It lieth also for the Patrone, where his Clerke is impleaded for the aduowson (id est) the right of Patro∣nage, in a spirituall Court. the Patrone and Clerke that is sued in the

court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge, and the partie that sueth there. But it 1 lieth not till the Libell be brought to be viewed into the Chancerie, & lis 2 etiam contesta∣ta. and 3 it lieth onely before sentence be giuen in the Court ecclesiasti∣call: for it is afterward voyd.

Notes

• 1

  21. E. 3. fol. 29.
• 2

  18. Edw. 3. pro clero. ca. 5.
• 3

  M. 2. H. 4. fol. 15.
• 4

  31. H. 6. fol. 14.
• 1

  M. 4. E. 4. fol. 37
• 2

  Brooke tit. prohib. nu. 17.
• 3

  T. 12. H. 7. fol. 22.
• 4

  M. 2. H. 4. fol. 15.
• 5

  Stat. de con∣sultat. 24. Ed. 1.
• 6

  Lib. 2. ca. 24.
• 7

  Artic. Cleri. 9. Ed. 2. cap. 6.
• 1

  T. 9. H. 3. per Fitzh. Prohib.
• 2

  38. H. 6. fol. 21
• 3

  Circumspectè agatis. 13. Ed. 1.
• 4

  Doctor & Stu∣dent. Loco. d.
• 5

  11. H. 4. fol. 85.
• 6

  T. 12. H. 7. fol. 22.
• 1

  Ibidem.
• 2

  Brooke Con∣sultation. nu. 5.
• 3

  T. 12. H. 7. fol. 22.
• 4

  T. 22. Ed. 4. fol. 20.
• 5

  Stat. de Con∣sultat. 24. Ed. 1.
• 6

  50. Ed. 3. ca. 4.
• 7

  Fitzh Natur. b•…•…. tit. Prohibi∣tion. fol. 45.
• 1

  34. Ed. 1. de coniunctim •…•…∣fat.
• 2

  Fitzh. ibid.
• 3

  Regist. fol. 47.