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Prohibition

court, courts, jurisdiction, law, writ and chancery

PROHIBITION, a writ to probibit a court and parties to a cause then de pending before it from further proceed ing in the cause.

A writ of prohibition may issue from any of the three superior courts of com mon law at Westminster, and also from each of the common-law courts of Chester and Lancaster. It is generally stated that a writ of prohibition may issue from the Court of Chancery ; but the Court of Chancery acts by injunction addressed only to the parties, and does not interfere with the court.

It may be addressed by any of the three superior courts to any other tem poral court ; such as the Admiralty Courts, to courts-martial, a court baron, any other inferior court in a city or borough, to the Cinque-Ports courts, the duchy or county palatine courts, the chancery of Chester, the Stannary courts, the Court of Honour of the Earl-Mar shal, to the Commissioners of Appeals of Excise, to any court by usurpation with out lawful authority, or to a court whose authority has expired. When any one has a citation to a court out of the realm, a prohibition lies to prevent his answer ing. It seems also that it might issue to the Court of Exchequer and to the Court of Common Pleas ; but not to the Court of Chancery, nor is there any in lance of a prohibition to the King's Bench. It may be granted by any of the three superior common-law courts to any spiritual court, and by the common law courts of Chester and Lancaster to the spiritual courts within the county palatine and duchy.

The writ is grantable in all cases where a court entertains matter not within its jurisdiction, or where, though the matter is within its juris diction, it attempts to try by rules other than those recognised by the law of England. Matter may be said to be not within the jurisdiction of a court in two senses: 1, when the sub ject-matter entertained is in its nature not cognizable by the court; 2, where the subject-matter is in its nature cog nizable by the court, but lies out of the local district where only that court has jurisdiction ; or, in the case of a court whose jurisdiction is general, when the subject-matter lies in a local district ex empt from the general jurisdiction of the court or where the subject-matter of the cause relates to persons over whom the court has no jurisdiction. The sub

ject of prohibition comprehends the cir cumstances under which it is grantable ; the person who may obtain it, and the form and incidents of the proceeding ; which heads belong to legal treatises.

If parties proceed after a writ of pro hibition has been obtained and served, they are liable to an attachment for con tempt.

(Comyns's Digest ; Bacon's Abridg ment ; Viper's Abridgment ; tit. " Pro hibition," 2 Inst., 599 ; 3 Blackstone, Corn., c. 7.) The power of the common-law courts to issue writs of prohibition, and the mode in which they exercised that power, have often been the subject of great dis pute between the Common-law judges and the ecclesiastics. The ecclesiastics have several times exhibited many ar ticles of grievance before the parliament and privy council against the common law judges. The most famous of these are the " Articuli Cleri," exhibited by Arch bishop Bancroft, in the name of the whole clergy, in the third year of the reign of James I. They are given at length by Lord Coke (2 Inst. 599), with a fall view of the natare of the contro versy between the parties, and the unani mous answers of the judges.

A system of law which contains so many rules on Prohibition is an imperfect sys tem. It does not seem inconsistent with the best system of law that a supreme court should have the power in certain cases of prohibiting inferior courts from ex ercising jurisdiction. The power how ever is most necessary in a country in which the law has been developed out of many incongruous and conflicting ele ments, and there is a variety of courts, each of which has a separate jurisdic tion, the result of which is that the supe rior courts by a kind of necessity must sometimes interfere to prevent wrong being done.