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 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]

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