New-York tribune., 1891-01-29
PRELIMINARY.


Tho writ of nrohibition is as old as the COM
mon law of England, and ii may be coeval WIN
the Norman Conquest. Ii grew out OF the TACT
that tie early English Kings established or al
lowed a variety of courts superior and Others
inferior with no strict precise lines OF jurisdiction
There was often a scramble on the part ol Judges
TO obtain control over controversies whlch ulo ho'
really belong to them. II was even maxim tla'
it was "the duty Of good Judge TO enlarge Ms
jurisdiction" powerful motive was an increase
by this means OF judicial fees. In some c'"e'
mon in those turbulent times who had no Judlclm
authority al all would usurp Judicial power ana
set up a court. y iagrant example was 'ha1 oi
the Collector OF the Pope of rome 1t was
vital to the soidty and growth Of the centrallznS
mower of the Kings TO keep these centrifugal
forces in order TO confine them strictly to tnelr
appropIiate duties, if any, and to rule out boId
usurpa,ions of authority. Hence as matter Of
necessity arose the writ of prohibitlon, whereby
any man or body OF men exercising Judicial power
could be compelled to show the true basis OF thelr
alleged authority, and on failing TO do so, II thcy
persisted in exercising II, could be made suoJcc'
TO personal arrest by proceeding called attach
ment in prohibition"
In all judicial usurpation there is a double
abuse-on the one hand, there As an encroach-
ment on the prerogative OF the King, or as we
would now say the sovereign power oi the
State on the other hand, a party to an action
is deprived of the inherent right which he has III
every well-ordered nation To nave his cause of
action tired by a court established by law III
has been well said that all lawful jurisdiction
must be traced TO royal authority Any eAer-
else however fitting il may appc r. Of Jurisdic-
ton not so authorized is usurpation OF the
prerogative AM resort TO force, unwarranted
by law Upon both grounds, VIZ, the infringe
ment Of the prerOgativc and the Unauthorized pro-
ceeding against the individual, prohibitions By
law are to be granted mayor of London vs..
Cox l.. Il. . House vi Lords, cases. p. 2j4, A. D..
1867. Accordingly, the wit in question Is 50
devised as to answer both purposes, that ii
may be issued in England either as between
marty and party to an action or Oh the suggcs-
ton of any third Ierson, called in law.
stranger" II will be hereafter seen that in the
latter case the issue of tie writ is discretionary.
H.
THE WRIT OF PROHIBITION ITSELF.
The early writs are collected in a book termed
the Register OF Writs," work Of high repute.
A very common form of prohibition is
sued against bishops, who, by their surrOgates
or deputies, attempted TO try ordinary contracts
or wrongs in their courts instead of matters ars-
ing out of wills of personal property, or matri-
mopla or other sO-callcd ecclesiastical causes TO
which alone they competent. When such
a suit was pending writ addressed 10 the
bishop or his officers in the name of the Kng,
strictly commanding him or them TO abstain. IL
reads, in one case You (the bishop are full
minating a sentence Of accommodation against
A. to the injury of our crown and dignity, and
the manifest lowering of the status or condition
OF the said A., so that we, who are bound by IA
solemn oath to preserve our crown and dignity
unimpaired, cannot tolerate such conduct. We
strictly prohibit you from doing anything IN the
premises which can in any way derOgatc from the
rights of our crown and our dignity. If you
have already done anything of that kind revoke
il without DELAY Beware lest lay heavy
hand upon you, we do in general upon those
who violate the rights of our crown and dignity"
In modern times the writ, though equally man
datory in its spirit is tempered by more courteous
forms of expression. Supposing that the bishop
did not pay attention to these stern demands next
came the attachment. This was not addressed
to the offender, in the case of the prohibition.
The attachment was addressed to the sheriff of the
county, and directed that officer TO put the bishop
under bonds to appear before the Kings justices
and TO show cause why be visited laymen and
1aywOmen with ecclesiastical censures, as he had
done, without authority, TO the grave prejudice
Of our crown and dignity, as well as in opposition
TO the common law of our realm" The sheriff
was futher directed TO bring before the court
the names Of the sureties
II was some such writ as this that in the year
1910, more than five centuries ago, brought be-
Toy fhA px.c ,,cf.n fLA ataCf cnhtA nf