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1797. for cutting down trees, by Lord Keeper Coventry; that indeed

is a very loose note, and though we cannot say on what grounds JEFFERSON

it was allowed in a Court of Equity, yet we contend that there Bishop of

is no authority for an original writ of prohibition out of a Court Durham.

of common law.

Admitting however that a prohibition may be granted against a parfon, there is nothing to shew that it can against a bilhop. With respect 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 foisin of a bishop may be compared to that of a corporation aggregate, and a prohibition might as well go against the one, as against the other ; indeed 2 H1.4. 3. fhews that a bishop is not punishable for waste at common law: and in the Lord of Rutland's case, i Keb. 557. where a doubt was raised, whether a parfon could open mines, the Court said, “ he may well enough do it as evesque.Before the 13 Eliz, a bishop was so far feised in fee that he might alienate, and even after that time, till 1 Jac. I. he might alienate to the crown.

2dly, At the division of the Aula Regis the power of the Court of Common Pleas was chalked out with precision. Its jurisdiction arises in consequence of original writs out of Chancery, returnable here. This appears from the words of Bructon 105. b. fine warranto jurisdictionem non habet alcc coercionem, &c. and again Bract. 108. a.jufticiarii luquelas omnes de quibus habent warrantum terminantes, fc. and from 4 Infi. 99. There are indeed

fome exceptions to this rule. This court may iflue original 1 writs, where their own officers are concernedl; or where their own

jurisdiction is to be protected from the infringements of Inferior or Ecclefiaftical Courts.

4. Inft. 99. Lengdale's cafe, 12 Co. 58. The latter riglit was formerly neceffary to its existence; for the Chancellor and his clerks, who in old times were all clergymen, would not have to framed their writs as to onst the Spiritual Courts of jurisdiction. If the Court should grant the writ now applied for, they must do the same with respect to the writs de telonio and ne injufiè veres, 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 something, the other restrains him from doing something. Nay, there is a difference between the

method

1797.

JEFFERSON

Billop of DURHAM.

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 commission prohibitory itfuing at the suit of the King on a mere surmise. Latch. 114. The words of Lord Coke, when fitting in the King's Bench, “ we will also for the King grant a prohibition,” 2 Bulft. 279. and “ it is the King's writ,” i 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 should not iflue from this Court, which only holds pleas between party and party. But the Court of King's Bench has the power of issuing certain writs, such as mandamus and quo warranto, which are peculiar to that Court where the King himself is fupposed to fit, and with which no other Courts, not even the Court of Chancery, can interfere. Befides there is less objection to this writ lying in the King's Bench, where the crown has its oflicer called the King's coroner, who acts as its attorney.

3dly, This is an application to the discretion of the Court. i Ld. Raym. 587. If the writ were demandable ex debito justitiæ, the party need have done nothing more than file an affidavit of the truth of the fuggestion; but here the Court has granted a rule to shew cause. It is to be observed, that in all the cases where prohibitions have been granted againft churchmen, it has been at the suit 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 stay waste in a church-yard; but there the Lord Chancellor, according to a manuscript (a) note and another report of the fame case in Barnadiston's Reports in Chanc. 399., by the name of Bradley v. Stratchy, doubted at first whether even a patron could have it, or whether it must not be obtained at the suit of

(2) This was a note in the margin of “ name of the Attorney General, imagin1 Eq. Ca. Abr. 399. formerly belonging to “ing the patron was only a truftee for the Mír. Brown of the Chancery bar, and was “ church, and interesed only as to the as follows; “ Marcb 17th, 1740, at the “ presentation, and dunied the injunction, " seal Stracb.y v. -, Motion by Mr. “ but the next day he changed his opinion * Attorney General for injunction by the < and granted it, saying it was a proper * Plaintiff who was patron of the charch, “ bill, in imitation of the prohibition of * (and Qu.if ordinarywas not cu-plaintiff?) “ wafte, which the patron might have at

to Nay waste on lands bought out of the " common law; and he cited Roll's Alr.

money for the augmentation of poor " tit. Wafe, and R. Liford's case, Co. * livings. Lord Hardwicke at first doubted " if such a bill was proper, unless in the I 2

the

« Rep."

1797

JEFTERSON

Bishop of DURHAM.

the crown.

So the injunction in Knight v. Moseley, Ambl. 176. was allowed on a bill by the patron; and it was there faid by the Lord Chancellor, “ that an injunction has been granted against a bishop at the instance of the Attorney General,” though indeed on a search in the Court of Chancery, no injunction to a bishop is to be found on its records. Here the application is on the part of an uninterested ftranger; which if the Court were to allow, a writ might be obtained, to prevent that being done, which those who have the patronage might consider as tending to the melioration of the fee, on the ground of its being waste within the ftrict terms of the common law. The only line for the Court to pursue, is to examine whether the act of the bishop has been for the benefit of the church or not.

Now it appears by the affidavits on the part of the bishop, that in this very instance the most effectual means are taken by him for the improvement of the revenues of the fee. If the trees belonging to the church could never be cut down, the consequence would be, that after a certain period they must decay, and the fee would be rather impoverished than improved. That bishops may cus them, may be collected from the right which they formerly poffeffed of granting leases without impeachment of waste; which right was recognised in the Bishop of London v. Web, i P. Wms. 527. and the Bishop of Winchester's cafe, cited Freem. 55.: in the first of those cafes an injunction was obtained against the tenant for carrying away the foil for bricks, and in the second for cutting down all the trees at the end of his term; but both at the desire of the bishops for an abuse of a privilege which their predeceffors had a right to grant.

The Counsel in support of the rule. The questions of law are three: ist, Whether in the case of a bishop felling and grubbing up the woods of his fee, a prohibition will lie at all? 2dlv, Whether it will lie in the Court of Common Pleas? 3011, Whether it will lie in the Court of Common Pleas without plez depending? The stat. Weft. 2. c. 14. Was only intended to correct an error which had obtained, that damages could not be recovered for waste done before prohibition issued, and for that purpose a writ of summons 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 stat. Gloucester, 2 Inft. 299. where he says, “ this remedy may be used at this day.” It is also to be considered whether bishops.

and

[117]

DURNAM.

and other ecclefiaftical persons who hold estates for life do not 1797 come within the spirit of stat. Marlebridge, c. 23. and stat. Glouc.

JEFFERSON C. 5o; for although bishops are held to be something more than mere tenants for life, yet that is only to enable them to sue, not Bishop of to aliene their eftates. Besides, 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 assimilated to tenants in dower, and also being looked upon as the guardians of the church, which according to the maxim of the law is always infra ætatem, they must be equally liable to a writ of prohibition with tenants in dower and guardians in chivalry. It has been contended that a bishop is so far feised in fee of his temporalities, that before the reftraining ftatutes he had the complete disposal of them, except as to absolute alienation: and two cases were cited in support of this doctrine, iP. Wms. 557. and Freem. 55. but both those cafes seem to refute the proposition, for in both of them the Court enjoined the lefsees from doing what they certainly might have done under a lease from any other tenant in fee. The act of the Court in thofe cases can be supported on no other ground than this, that if the lessee, under colour of an authority from the bishop, was attempting the disherifon of the fucceffors of the fee, he was exceeding that power which the bishop was entitled to confer, and doing what the bishop himself could not have done.

It has been argued that the cases of prohibitions to stay waste 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 restrained from committing waste there, as on any other part of the glebe: besides, Lord Coke expressly says, in Liford's cafe, that the treatise, intituled “ Ne rectores profternant,&c. is in affirmance of the common law.

The application of the Bishop of Durham's case to this has been denied. It has been contended, that having received the allent of the three branches of the Legislature, it ought to be confidered as a statute; but its never having been treated as such in the courts of law affords a sufficient answer to that observation. We must also recollect that the two Houses of Parliament at that time entertained a fpecies of original (a) jurifdi&ion, [118] (4) Vid. Hale on Parliaments, c. 17. by Hargrav:.

which

1 3

1797.

JETTERSON

Bishop of DURHAN.

which has been many years disused. The Rolls of Parliament
shew that the House of Commons, as the great inquest of the
nation, not only presented offences, but preferred the com-
plaints of individuals, which were decided upon by the Crown,
affifted sometimes by the councils, and sometimes by the courts
of law. Perhaps the Bishop of Durham's case was decided in
the latter way. It seems to have been a presentment 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
issuing fomewhere, and applicable to the case of a bithop cut-
ting down the timber on his diocese. Lord Coke's words in
Stockman v. Ihither do not contradict the Roll in Parliament.
The parties were referred to the ordinary process of the Courts
of Westminster Hall, and possibly, instead of applying to Chan-
cery, they applied to the King's Bench, and so the prohibition
went from thence: or the contradiction may be explained in the
manner suggested by the counsel 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 such a writ to have issued, and
charges the party with having disobeyed it, and he is proceeded
againit as if he had. It is well known, that in common cafes in
this Court, no original is sued out till the record is made up:
in this manner the original writ in prohibition may have been
intirely disused: but if the ancient practice had not been de-
parted from fo early as the 35 Ed. 1. the writ would first have
issued from Chancery, and the process 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 iflue the ultimate process, which would be
the effectual writ of prohibition. An attempt has been inade
to shew that the Bishop of Durham was not in pofleffion of his
temporalties at the time when the above case was decided; but
that he was considered as a stranger trespassing on the lands of
the Crown: this however could not be the case, for he appears to
have been levying talliages at that very time on the bondsmen
of the church.
But the

power

of the courts of common law to grant this writ does not rest on the Bishop of Durham's case alone. For in Stockman v. Whither, i Roll. 86. Lord Coke, after adverting

to

[119]

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