to that cafe, fays, "and this feems to be good law;" and in
2 Bulft. 279. it is faid, that the whole Court agreed with him.
The fame is again recognised in Stampe v. Liford, Roll. 100.
and Liford's cafe, 11 Co. 49., where it is called the ordinary re-
medy of the common law. That a prohibition may iffue against
a parfon is clear from Knowle v. Harvey, 1 Roll. 335. 3 Bulft.
158. and though that cafe is open to the obfervation that there
was a plea pending, yet it is exprefsly faid to have been granted
by the common law on fuggeftion. Sacker's cafe was not plea
pending, for the fuit was at an end, and Lord Coke there faid,
"you may have a prohibition, not only for the patron, but alfo
for
any; for the fecond incumbent: for this is the King's writ, and
any one may have a prohibition for the King." Whether Cof-
tard's cafe was under 35 Ed. 1. ne rector, &c. or not, is immate-
rial, fince that ftatute was in affirmance of the common law, and
clearly a prohibition of wafte was there granted against a vicar
on motion in the King's Bench. Thefe cafes are almoft all
abridged in 2 Roll. Abr. 813. and to them is added Acland v. At-
well, to which no anfwer has been given. In the Lord of Rut-
land's cafe, 1 Keb. 557., which, according to the record in the
Liber Placitandi 246. is the moft accurate report, the Court faid
they would grant a prohibition againft a parfon for wafte in cut-
ting trees; and in Liber Placitandi 240. there is a record of a
fuggeftion for fuch a prohibition in the King's Bench, which
ferves to fhew that cutting down trees was then the fubject of
prohibition on fuggeftion in a court of common law. This doc-
trine therefore does not depend on the hafty dicta of Lord Coke
in court, but was deliberately adopted by him in his clofet, and
introduced into his reports; nor does it reft on the authority of
one Judge or one reporter, but is confirmed by the repeated de-
terminations of the whole Court, reported in different books. It
feems alfo to have been fanctioned by the fubfequent opinions of
Lord Hardwicke, 2 Atk. 217. Barnardift. 399. and Amb. 176.
who granted injunctions against churchmen to stay waste on
analogy to the prohibition at common law.

2dly, A diftinction has been attempted between prohibitions to restrain waste, and to reftrain an excefs of jurisdiction, but has been fupported by no authorities; and reafon operates against it. It has been urged, that unless this Court were to iffue prohibitions to inferior Courts, its own jurifdiction would be infringed. But it may be answered, that fuch prohibitions

1797.

JEFFERSON

V.

Bishop of DURHAM.

iffue on matters which could never come before the Common Pleas for judgment. Thus if an inferior Court conftrue an act of Parliament, in a fubject peculiar to its jurifdiction, contrary to the rules of the common law; as in cafes of prize, which are not cognifable by this Court. Brymer and others v. Atkins, -1 H. Bl. 164. But fuppofing it had any where been holden that this Court had not a concurrent authority with the King's Bench in prohibiting the inferior Courts, yet in cafes of waste, which feem to be peculiar to this Court, it ought to have the power of prohibition. This is called a prerogative writ, but it is alfo a civil remedy; and indeed the prohibition to the inferior Courts is as much a prerogative writ as the prefent. So quare impedit is a prerogative writ; and yet that is fo peculiar to this Court, that it is an inftance of the King's power that he may fue it in any other Court. (a)

3dly, It ftands fettled as the unanimous opinion of all the Judges, that this Court may grant prohibitions in certain cafes without plea pending. Langdale's cafe, 12 Co. 58. 4 Inft. 100. If therefore it is eftablifhed that the circumftance of plea pending is not neceffary to give jurifdiction to this Court, then all the cafes which have been cited of prohibitions granted in the King's Bench plea pending, may be confidered as authorities for the Common Pleas to grant them where plea is not pending. In this question the Court will not examine how far the timber ought, with a view to the benefit of the church, to be cut down, or whether the produce is to be employed for the reparation of the palaces or other, tenements of the fee. The intention of deftroying the woods of the diocefe is avowed. But the law protects the thing as it is, and the Court will not allow him who is committing what must be deemed wafte, to fay, that fuch wafte will be for the benefit of his fucceffors.

EYRE Ch. J. One good effect which has arifen from the length of this difcuffion is, that the way has been much cleared for the confideration of the precife queftion before the Court; namely, Whether a writ of prohibition lies in the Court of Common Pleas to restrain a bishop from committing wafte in the poffeffions of his fee?

The ftate of the common law with refpect to wafte has been fo fully laid open by the bar, that I need do little more than allude to it. At common law, the proceeding in wafte was by writ of

(a) Reg. 29, 30. F. N. B. 32.

prohibition

prohibition from the Court of Chancery, which was confidered as the foundation of a fuit between the party fuffering by the wafte, and the party committing it. If that writ was obeyed, the ends of justice were answered; but if that was not obeyed, and an alias and pluries produced no effect, then came the original writ of attachment out of Chancery, returnable in a court of common law, which was confidered as the original writ of the court. The form of that writ fhews the nature of it. It was the fame original writ of attachment which was and is the foundation of all proceedings in prohibition, and of many other proceedings in this Court at this day. Si (a) A. B. fecerit te fecurum, &c. tunc pone, &c.quod fit coram jufticiariis noftris, &c. oftenfura quare fecit vastam, &c. contrà prohibitionem noftram, &c. That writ being returnable in a court of common law, and most usually in the Court of Common Pleas, on the Defendant appearing the Plaintiff counted againft him; he pleaded, the question was tried, and if the Defendant was found guilty, the Plaintiff recovered fingle damages for the waste committed. Thus the matter ftood at common law. It has been faid, (and truly fo I think, fo far as can be collected from the text-writers,) that at the common law this proceeding lay only against tenant in dower, tenant by the courtesy and guardian in chivalry. It was extended by different ftatutes (b) to farmers, tenants for life, and tenants for years, and I believe to guardians in focage. That which these ftatutes gave by way of remedy, was not fo properly the introduction of a new law, as the extenfion of an old one to a new description of perfons; the course of proceeding remained the fame as before thefe ftatutes were made. The first act which introduced any thing fubftantially new, was that (c) which gave a writ of waste or eftrepement pending the fuit. It follows of course that this was a judicial writ, and was to iffue out of the courts of common law: but except for the purpofe of ftaying proceedings pending a fuit, there is no intimation in any of our text writers that any prohibition could iffue from thofe Courts. By the ftat. of Weft. 2. the writ of prohibition from the Chancery which exifted at common law is taken away, and the writ of fummons fubftituted in its place: and although it is faid by Lord Coke, when treating of prohibition at the common law, that it " may be used at this day," those words, if true at all, can only apply to that very ineffectual writ directed to the

(a) Bracon, lib. 4. Tr.6. c. 18 & 19. 2 Inf. 299. Reg. 35. & al.

(b) Marlbridge, 6.24. Glouc. c. 5.

Glouc. 6.13.

fheriff,

1797.

JEFFERSON

ข.

Bishop of DURHAM

1797.

JEFFERSON

ย.

Bishop of DURIAM.

fheriff, empowering him to take the poffe comitatus to prevent the commiffion of wafte intended to be done. The writ directed to the party was certainly taken away by the ftatute. At least as far as my researches go, no fuch writ has iffued even from Chancery, in the common cafes of wafte by tenants in dower, tenants by the curtefy, and guardians in chivalry, tenants for life, &c. &c. fince it was taken away by the ftatute of Weftm. 2. Thus the common law remedy ftood with the alteration abovementioned, and with the judicial writ of eftrepement introduced pendente lite.

As far as can be collected from the text-writers of a very early period, and from the forms of proceeding contained in books of very high authority, fuch as the Regifter and Fitzherbert's Natura Brevium, it feems that there did not occur in practice, and that there was not in fact any remedy at common law against churchmen committing wafte, fufficiently known for them to treat of. Bracton has two whole chapters in the fourth book, on the subject of wafte. His obfervations are confined to perfons liable to the action in the time of Hen. 3., and he (a) gives the writ of prohibition as the foundation of the fuit. The Regifler and Fitzherbert take no notice of that writ, because they proceed upon the law as altered by the ftatute of Westminster 2., and accordingly confider the writ of fummons as the foundation of the fuit. But no one of them has a writ directed against a churchman. It is not merely that thefe books are filent on the fubject, but the cafe which was alluded to, 2 H. 4. 3., proves to demonftration that fuch a course of proceeding at the common law against churchmen was not in ufe at that time. In that cafe Thirning Ch. Juft. takes upon himself to pronounce, very authoritatively, that churchmen cannot be punished at common law if they cut down all the woods of their ecclefiaftical poffeffions. I will not fay that the law was fo, but I may fafely make this inference from his words, that fuch a proceeding was not ufual or in practice at that time.

Our books are full of declarations that deftruction and dilapidation are caufes of deprivation in churchmen, and that affords fome argument to prove that wafte by them was not that of which it was fuppofed the common law could take notice, fince it was referred to another jurifdiction. It is not very confonant with the fimplicity of the old law to give two remedies for the fame evil;

(a) Bracton, lib. 4. Tr.6.6.18. f. 2. 2 Inft. 299.

if a remedy was already provided at the common law, the eccle-
fiaftical jurifdictions would not be allowed to interfere to the ex-
tent of deprivation. So if there was an effectual remedy by the
ecclefiaftical cenfures to that extent, it affords a ftrong ground
to infer, that there was no proceeding at common law in the fame
cafe. I cannot find, from the earliest writers, down to the 12th of
Jac. 1. that it was ever underftood or treated of in the books of
common law, that any proceeding in wafte lay againft a church-
man. It was referved for the learning and induftry of that great
man Sir Edward Coke, whofe name ought never to be mentioned
in a court of law without the higheft refpect, to bring to light the
record of the Parliament Roll of 35 Ed. 1., which I need not
now re-ftate, as it has been fo often mentioned at the bar. After
that record was brought to light and confidered, Sir Edward Coke
and the Judges of his time, thought themselves warranted in mak-
ing feveral very important conclufions from it: First, they said that
the King's anfwer had a reference to the course of the common
law; they went further, and from thence inferred, that a writ of
prohibition lay at common law against a churchman who com-
mitted wafte; they proceeded further ftill, in concluding that fuch
a prohibition lay in the Court of King's Bench, and going one step
beyond that, they declared that such a writ of prohibition being
the King's writ, and founded on his right of patronage, any man
might have it. In this manner may be explained the ftrong
language of Sir Edward Coke as reported in 1 Roll. 86. "If any
"man will move it, I will grant a prohibition." I do not per-
ceive that it was obferved at the time when this language was
held, that fuch had been the known courfe of the common law
previous to the discovery of that record. An expreffion which,
according to the report of the fame cafe in 2 Bulst. fell from Sir
Edward Coke, and which confirms me in the opinion that it
had not been fo understood by thofe Judges, is very remarkable.
Sir Edward Coke there fays, "We will revive this proceeding:"
an expreffion which leads me to infer, that if fuch a remedy ever
exifted, it had been buried for three centuries in obfcurity. Let
me now fuppofe for a moment that Sir Edward Coke and the
Judges of his time were right in their conclufions on that record;
that there was a remedy at common law; that fuch remedy was
the writ of prohibition; that the Court of King's Bench might
iffue it, and laftly, that any man who applied to that Court might
have it; ftill we muft recollect that we are fitting in the Court of
Common Pleas and not in the Court of King's Bench. All these

admiffions

1797.

JEFFERSON

V.

Bishop of DURMAM.

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