1797. JEFFERSON ย. Bishop of DURHAM. for cutting down trees, by Lord Keeper Coventry; that indeed is a very loofe note, and though we cannot fay on what grounds it was allowed in a Court of Equity, yet we contend that there is no authority for an original writ of prohibition out of a Court of common law. Admitting however that a prohibition may be granted against a parfon, there is nothing to fhew that it can againft a bithop. With refpect to a parfon the fee of the glebe is in abeyance; but the fee of the bishoprick is in the bishop; the latter may join the mife in a writ of right. Co. Litt. 300. b. but the former cannot for the weakness of his title. F. N. B. 5. The feifin of a bishop may be compared to that of a corporation aggregate, and a prohibition might as well go againft the one, as against the other; indeed 2 H.4. 3. fhews that a bifhop is not punifhable for wafte at common law and in the Lord of Rutland's cafe, 1 Keb. 557. where a doubt was raifed, whether a parfon could open mines, the Court faid," he may well enough do it as evefque.” fore the 13 Eliz. a bishop was fo far feifed in fee that he might alienate, and even after that time, till 1 Jac. 1. he might alienate to the crown. Be 2dly, At the divifion of the Aula Regis the power of the Court of Common Pleas was chalked out with precifion. Its jurifdiction arifes in confequence of original writs out of Chancery, returnable here. This appears from the words of Bracton 105. b. fine warranto jurifdictionem non habet nec coercionem, &c. and again Bract. 108. a. jufticiarii loquelas omnes de quibus habent warrantum terminantes, &c. and from 4 Inft. 99. There are indeed fome exceptions to this rule. This court may iffue original writs, where their own officers are concerned; or where their own jurisdiction is to be protected from the infringements of Inferior or Ecclefiaftical Courts. 4 Inft. 99. Langdale's cafe, 12 Co. 58. The latter right was formerly neceffary to its exiftence; for the Chancellor and his clerks, who in old times were all clergymen, would not have fo framed their writs as to ouft the Spiritual Courts of jurifdiction. If the Court fhould grant the writ now applied for, they must do the fame with refpect to the writs de telonio and ne injuftè vexes, of which they never take cognizance, unless authorised by writs out of Chancery. This is a prerogative writ: there is no diftinction in principle between a mandamus and a prohibition, the one commands the party to do fomething, the other reftrains him from doing something. Nay, there is a difference between the method method of granting prohibition in the King's Bench and the Common Pleas here a fuggeftion must be entered on record, for it is the fuit of the party; there it is a commiffion prohibitory iffuing at the fuit of the King on a mere furmife. Latch. 114. The words of Lord Coke, when fitting in the King's Bench, "we will alfo for the King grant a prohibition," 2 Bulft. 279. and it is the King's writ," 1 Roll. 335. can have no application to the Court of Common Pleas for its being the King's writ is the very reafon why it fhould not iffue from this Court, which only holds pleas between party and party. But the Court of King's Bench has the power of iffuing certain writs, fuch as mandamus and quo warranto, which are peculiar to that Court where the King himself is fuppofed to fit, and with which no other Courts, not even the Court of Chancery, can interfere. Befides there is lefs objection to this writ lying in the King's Bench, where the crown has its officer called the King's coroner, who acts as its attorney. 3dly, This is an application to the difcretion of the Court. 1 Ld. Raym. 587. If the writ were demandable ex debito juftitiæ, the party need have done nothing more than file an affidavit of the truth of the fuggeftion; but here the Court has granted a rule to fhew caufe. It is to be obferved, that in all the cafes where prohibitions have been granted against churchmen,, it has been at the fuit of their patrons. From the record, Liber Placitandi 246. the application in the Lord of Rutland's cafe appears to have been made by the patron, though the reports do not ftate it fo. In Strachy v. Francis, 2 Atk. 217. an injunction was granted against a rector on behalf of the patron, to ftay wafte in a church-yard; but there the Lord Chancellor, according to a manuscript (a) note and another report of the fame cafe in Barnadifton's Reports in Chanc. 399., by the name of Bradley v. Stratchy, doubted at firft whether even a patron could have it, or whether it must not be obtained at the fuit of (e) This was a note in the margin of 1 Eq. Ca. Abr. 399. formerly belonging to Mr. Brown of the Chancery bar, and was as follows; "March 17th, 1740, at the "feal. Strachey v. Motion by Mr. Attorney General for injunction by the Plaintiff who was patron of the charch, *(and Qu. if ordinarywas not co-plaintiff?) "to flay waste on lands bought out of the money for the augmentation of poor livings. Lord Hardwicke at first doubted "if fuch a bill was proper, unless in the I 2 and granted it, faying it was a proper "bill, in imitation of the prohibition of "wafte, which the patron might have at "common law; and he cited Roll's Abr. "tit. Wafie, and R. Liford's cafe, Co. Rep." the 1797. JEFFERSON V. Bishop of DURHAM, 1797. JEFFERSON 2. Bishop of DURHAM. [117] the crown. So the injunction in Knight v. Mofeley, Ambl. 176. The Counfel in fupport of the rule. The queftions of law are three: ift, Whether in the cafe of a bifhop felling and grubbing up the woods of his fee, a prohibition will lie at all? 2dly, Whether it will lie in the Court of Common Pleas ? 3dly, Whether it will lie in the Court of Common Pleas without plea depending? The ftat. West. 2. c. 14. was only intended to correct an error which had obtained, that damages could not be recovered for wafte done before prohibition iffued, and for that purpose a writ of fummons was given: but that it was not intended to take away the original writ of prohibition is clear from the preamble, and from Lord Coke's comment on the ftat. Gloucefter, 2 Inft. 299. where he fays, "this remedy may be ufed at this day." It is alfo to be confidered whether bishops. and and other ecclefiaftical perfons who hold eftates for life do not come within the fpirit of ftat. Marlebridge, c. 23. and ftat. Glouc. c. 5.; for although bishops are held to be fomething more than mere tenants for life, yet that is only to enable them to fue, not to aliene their eftates. Befides, they fall within two of the defcriptions of perfons who were liable at common law: the church lands being conftantly denominated the dowry of the church, and church-men being affimilated to tenants in dower, and alfo being looked upon as the guardians of the church, which according to the maxim of the law is always infra ætatem, they muft be equally liable to a writ of prohibition with tenants in dower and guardians in chivalry. It has been contended that a bifhop is fo far feifed in fee of his temporalities, that before the reftraining ftatutes he had the complete difpofal of them, except as to abfolute alienation: and two cafes were cited in fupport of this doctrine, 1 P. Wms. 557. and Freem. 55. but both those cafes feem to refute the propofition, for in both of them the Court enjoined the leffees from doing what they certainly might have done under a leafe from any other tenant in fee. The act of the Court in thofe cafes can be fupported on no other ground than this, that if the leffee, under colour of an authority from the bifhop, was attempting the difherifon of the fucceffors of the fee, he was exceeding that power which the bishop was entitled to confer, and doing what the bishop himfelf could not have done. It has been argued that the cafes of prohibitions to stay wafte committed by rectors in their church-yards, were grounded on the 35 Ed. 1. and that that statute was not in affirmance of the common law: but the church-yard is a part of the glebe, and the rector was as much reftrained from committing wafte there, as on any other part of the glebe: befides, Lord Coke expressly fays, in Liford's cafe, that the treatife, intituled "Ne rectores profternant," &c. is in affirmance of the common law. 1797. JEFFERSON V. Bishop of DURHAM. The application of the Bishop of Durham's cafe to this has been denied. It has been contended, that having received the affent of the three branches of the Legislature, it ought to be confidered as a ftatute; but its never having been treated as fuch in the courts of law affords a fufficient answer to that obfervation. We muft alfo recollect that the two Houfes of Parliament at that time entertained a fpecies of original (a) jurisdiction, [118] (a) Vid. Hale on Parliaments, c. 17. by Hargrave. I 3 which 1797. JEFFERSON ย. Bishop of DURHAM. which has been many years difufed. The Rolls of Parliament fhew that the Houfe of Commons, as the great inqueft of the nation, not only prefented offences, but preferred the complaints of individuals, which were decided upon by the Crown, affifted fometimes by the councils, and fometimes by the courts of law. Perhaps the Bishop of Durham's cafe was decided in the latter way. It feems to have been a prefentment by the Commons to the Crown, and by the Crown referred to the Courts of law. The matter of complaint was cognizable by them: and the remedy pointed out and given, was a prohibition iffuing fomewhere, and applicable to the cafe of a bishop cutting down the timber on his diocefe. Lord Coke's words in Stockman v. Whither do not contradict the Roll in Parliament. The parties were referred to the ordinary procefs of the Courts of Westminster Hall, and poffibly, instead of applying to Chancery, they applied to the King's Bench, and fo the prohibition went from thence: or the contradiction may be explained in the manner fuggefted by the counfel on the other fide. Anciently all prohibitions may have originated in writs out of Chancery; and this is much confirmed by the forms of pleading at this day: for the declaration fuppofes fuch a writ to have iffued, and charges the party with having difobeyed it, and he is proceeded against as if he had. It is well known, that in common cafes in this Court, no original is fued out till the record is made up: in this manner the original writ in prohibition may have been intirely difufed: but if the ancient practice had not been departed from fo early as the 35 Ed. 1. the writ would firft have iffued from Chancery, and the procefs upon that writ might have been made returnable in a court of common law, 38 H. 6. 14., and then, if that Court gave judgment upon appearance of the party, it would iffue the ultimate procefs, which would be the effectual writ of prohibition. An attempt has been made to fhew that the Bishop of Durham was not in poffeffion of his temporalties at the time when the above cafe was decided; but that he was confidered as a stranger trefpaffing on the lands of the Crown: this however could not be the cafe, for he appears to have been levying talliages at that very time on the bondfimen of the church. this But the power of the courts of common law to grant writ does not reft on the Bishop of Durham's cafe alone. For [119] in Stockman v. Whither, 1 Roll. 86. Lord Coke, after adverting to |