English Legal History and its Materials

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 originally functioned like administrative orders, though over time they acquired the power of legal commands. [Plucknett, Concise History of the Common Law, 173] Writs could be issued against another court or an individual defendant, somewhat similar to the way an injunction works in courts today. [David W. Raack, A History of Injunctions in England Before 1700, 61 Indiana Law Journal 539, 546 (1986)] 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 rarely, if ever, was. [Charles M. Gray, Boundaries of the Equitable Function, 20 The American Journal of Legal History 192 (1976), 197]

Might you be better hedging a little bit on the firmness of Mr Gray's "never"?

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)]

Either sentence would do. Both won't.

The rise in the use of writs of prohibition accompanied the consolidation of power in the English monarchy and the growth of the court system in the twelfth and thirteenth centuries. The Angevin Kings, who split their time between England and France, needed strong and competent advisors to help run the government in England when they were gone. The growth of the royal bureaucracy accompanied the codification of much of the existing common law with the First Statute of Westminster (1275), which was passed during Edward I’s rein. The common law courts and legal interpretation by common law judges began to become more formalized as judges moved from the role of primary lawmakers to the interpreters of statutes. [T.F.T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century, 55 (1922)] While the earlier courts had had more flexibility to provide both legal and equitable relief, over the period from the late thirteenth century to the end of the fourteenth century, the consideration of equity gradually disappeared in common law courts, which was one of the reasons the Chancery, which existed before to keep the King’s Great Seal and stamp it on public documents, emerged as a separate judicial court. [Raack, 550-52] As the common law courts became more formalized and rigid in their procedure and jurisprudence, they also ceased using the writ of prohibition as a remedy against individual defendants. [Raack, 554]

There were occasional disputes among the courts when there were disagreements about what court was the proper place to hear a certain issue. For example, the ecclesiastical courts claimed they had the right to enforce contracts that were formalized by oath, as they involved a spiritual matter of whether the oath had properly been made, though common lawyers disagreed. [Helmholz] In some instances, however, the non-common law courts were able to provide relief where the common law courts could not. The Chancery, unlike the common law court, could provide remedies in cases involving trusts and uses and could give relief based on fraud, accident, or mistake to plaintiffs. [Raack, 555] As courts of equity provided new relief that before had been encompassed by but limited in the common law courts, writs of prohibition helped prevent plaintiffs from being able to “forum shop” for the court that would be most favorable to their position. Any plaintiff who could gain adequate relief in a common law court was prohibited from bringing his case in a different court, even if he preferred the procedure, allowable defenses, or possible remedies of a different court.

Verb tenses and their sequence seem wrong here.


[Charles M. Gray, Jurisdiction in Early Modern English Law, Appendix to Volume III: The Boundaries of the Equitable Function, The American Journal of Legal History, Vol. XX, 192-226 (1976)] While the Chancery could provide relief where the common law could not, writs of prohibition helped ensure that cases that already had a remedy in common law stayed in those courts.

RESPONDED: removed because could not find support in text

Surely you should help Mr Gray avoid this paradoxical cornering: does he really believe that prohibition performed these functions though it was "never" used against the Chancellor?

The use of the writ of prohibition also varied with the relationship between the Chancery and the common law judges. While at the beginning of the transformation of the Chancery into a judicial body, the common law judges often cooperated in helping the new court decide cases or even referred plaintiffs who had equitable claims. [Raack, 558] Over time, however, the relationship declined as plaintiffs chose to seek relief in the Chancery, which was the fourth most popular major court by 1450. [Raack, 554] In the first half of the fifteenth century, Litigants chose to bring their cases there because, despite its growing popularity, the Chancery still saw many fewer cases than the common law court, which allowed cases to be resolved more quickly than in the common law courts, which were known for being slow. [Raack,554] Additionally, the Chancery allowed testimony of interested parties and witnesses and could compel discovery and specific relief, which the common law courts could not. [Raack 554]

When was Chancery faster than the common law courts and why?


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

The combined draft, which is superior to its predecessors, needs some fixing, and should be the only draft here in the next version: we can always read the earlier drafts in the page history. From the next draft here, incorporation into Wikipedia should be the goal.


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r8 - 09 Jan 2015 - 14:00:43 - KatherineKettle
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