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