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1797

JETTERSON

Bishop of DURHAM.

admissions therefore do not prove that the Court of Common Pleas can issue such a writ; and before we do issue it that must be proved. I have watched the course of this argument to see whether there was any instance, I will not say usage, or even any adjudged case, but whether there was any inftance to be found, where the Court of Common Pleas had thought itself authorized to issue such a writ. I find no such instance. There being no such instance, we might ftop here; we might say that the Court of Common Pleas not being a court of original jurifdi&tion, but deriving its jurisdiction from the great seal, from the Officina Brevium, it must not take upon itself to issue writs of prohibition, because they are issued by the great seal, or because they may have been issued by the King's Bench, for reasons which have not been disclosed, or which do not apply to the Court of Common Pleas. But as the matter has been gone into fo largely at the Bar, and is of importance, I will go a little farther into it here.

Notwithstanding the text-writers on the common law, and Fitzherbert in his Natura Brevium, and the Register, have no re-ference to any common law remedy against churchmen committing

wafte, yet there is much to be collected now which will give great support to the idea of Sir Edward Coke, that there was such a remedy at common law. The first thing on which I lay great ftrefs is, the record to be found in 2 Roll. Abr. 813. (a), of a proceeding in the case of an abbot in the King's patronage, to whom a writ of prohibition is directed, and not only that, but there is a feire facias to bring him in to appear and answer in the Court of King's Bench for his defaults. So that there is a formal process in prohibition at the common law under the great seal with a scire facias directed to the sheriff immediately following the reference to the place where the writ is to be found. That is a record of an earlier date than 35 Ed. 1. being dated 3 Ed. 1.; and therefore does seem to lay a foundation for the conclusion of Sir Edward Coke, that the proceedings in 35 Ed. 1. had a reference to the course of the common law. The reasoning stated in

(a) Rex vicecomiti talutem : Cum ad Patronatu nostro & taliter te habere in bac nos providere pertineat ut Elee-mofina que parte ne pro defectu tuo vel Ministrorum de Patronatu noftrorum Predecessorum & tuorum ad te nos graviter capere debeanoftro fuit, in ftatu debito absque vafto ven- mus. Tefte Rege 3 €.1. Rot. Claularum ditione vel destructione inde facienda con- memb. 10. Et la apres un Brief direct, al servetur: tibi præcipimus quod non per- Vicount quod Scire faciat Abbati de $.& niittas quod Abbas de 6. &c. sui vastum Priori cellæ fuæ de L. quod fint coram venditionem vel destructionem facint de nobis in octabis ut fuper defećłibus, &c. boscis dominibus hominibus pertinentibus refpondeant. ad Prioratum five cellam de L. quod eft de

the 1797

JEFFERSON

Bishop of DURHAM,

the introductory part of the writ, on which it is founded, seems to contain fair common law grounds of argument. What is in the King's patronage ought to be preserved in its proper ftate without alienation or destruction: and this is perfectly consistent with the whole system of the common law, which, while it preserved the immunities of the church, was extremely attentive to the prerogatives of the Crown; whilft it fecured the churchman in the fulleft enjoyment of the poffeflions of the church, it looked up with anxious care to the preservation of the patronage of the King. When therefore I find a record of greater antiquity than the record in Parliament of the 35 Ed. 1. grounded on the principles of the common law, I cannot but think that it gives great fupport to the opinion of Sir Edward Coke : and though I am unable to explain how it fhould have happened that no mention is made by text-writers of such a course of proceeding, and though probably Sir Edward Coke never faw this record of a proceeding in 3 Ed. 1. yet I do not complain, or think that there was any thing of hafte or passion in the inference which his fagacity drew from the fingle record of 35 Ed. 1. That record however only authorizes a writ from Chancery; Sir Edward Coke went further, and said that it might issue from the Court of King's Bench. When I look for the authority for that part of his proposition, I do not find it. It seems pretty evident that when he first mentioned that record in court, he did not perfectly underttand it, and proceeded on a misapprehension of its contents. He says it was agreed in Parliament, that the Court of King's Bench should issue the writ, and that it was fo ordered, He could not have supposed that the Court of King's Bench was ordered by Parliament to issue the writ, if the King's anfver had been before him “Inhibeatur per lreve de Cancellaria.He undertakes to say that it was actually moved for in the King's Bench, and issued by that Court; but not vouching his authority, one may conclude that it being fo ancient a record he might have but consusedly remembered it, and was only following up his first mistake, and considering that as done, which, as he believed, was commanded to be done. When that part, therefore, of his proposition comes to be examined, it may be exceedingly doubtful, whether it be equally well founded with the other. It may be perfectly confonant to the principles of the common law, that a writ of prohibition to a churchman should issue from the Officina Brevium, from which all writs of prohibition issue, in all cases at common law. Lord Keeper Copentry, it appears in Roll. Abr. 813.

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1797

JEFFERSON

Bishop of DURHAM.

did afterwards iffue fuch a writ, which is a further confirmation of Sir Edward Coke's doctrine to that extent; yet it does not therefore follow that it may also issue from the King's Bench : but when he goes one step further, and says that it may be had by any body, his affertion seems totally unsupported. I do not mean to pronounce that the Court of King's Bench could not lawfully issue that writ, and that it could not issue it on the application of any man; but I do mean to say, that I do not perceive the reasons for its so doing. And not perceiving the reasons, it becomes a very difficult thing for us in this Court by any analogy to follow the Court of King's Bench. If the question should arise there, they will consider it, and inform us on what grounds they proceed; but where the grounds of this proceeding at present are involved in so much obfcurity, so little known, so little understood, can the Court of Common Pleas take upon itself to do by analogy what has been done by the King's Bench ?

My Brother Adair felt a difficulty as to the King's Bench having granted the writ of prohibition in 35 Edw. I. arising from the words " inhibeatur per breve de Cancellariâ.” He tried to explain it by a reference to a case in the Year Book, 38 H.6. 14. That cafe begins, “A prohibition was fued out of Chancery, directed to the Justices of the Common Bench to make attachment," &c. but the first line of that case, after all the pains we have taken, remains altogether unintelligible. He supposed the prohibition might be in some manner returnable in the King's Bench, and that when it was there, that Court would act upon it. But that proceeding must then have been in consequence of a writ from Chancery coming to the King's Bench. Taking that to be fo, though I never saw such a writ, or heard of it, except in the Year Book I have alluded to, it will not serve the purpose of the present application, which is an original application for a prohibition in the first instance to this Court. Here there is no commencement of a suit, no writ to us from Chancery to give us jurisdiction in the matter. If therefore (though I have no idea that such a writ could issue) the difficulty could be reconciled in that

way,

it would not avail in this case.

It is said that there is such a cogent analogy between the proceedings of this Court and the Court of King's Bench in prohibition, that if they could lawfully issue such a writ, we ought to do so likewise. Granting that they did issue such a writ in the 12&13 Jac. I. as it appears from 1 Bulst. and i Rolle, they did, and that they meant to act on the idea which has been ftated, I

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1797.

JEFFERSON

Bifhop of
DURHAM.

can only consider those cafes as authorities fo far as they go. But
if the foundation on which they proceeded fails, those cases will
fail also: and seeing how little has been done upon them in
later times, they do not now furnish that great weight of autho-
rity which will justify us in acting upon them. I have mentioned
that there was another case subsequent to these, in the reign of
Charles the First, where Lord Coventry thought proper to iflue a
prohibition of waste to a churchman under the great seal, on the
application of the patron. This I have said affords a further sup-
port to the principle of an original remedy at common law,
which Sir Edward Coke, unaslisted by, and indeed contrary to all
practice, most sagaciously inferred from the 35 Edw. I.; but this
does not aid the jurisdiction of the King's Bench. As to what the
Court of King's Bench afterwards considered itself at liberty to do,
in the Lord of Rutland's case, i Keb.557. that went no further
than a rule to thew cause, and therefore much stress cannot be laid
upon it. The question is, Whether if the King's Bench has done
right, the Common Pleas will also do right in following itsexample?
I, who am not prepared to say that the King's Bench has done
right, who ought not to say that it has done wrong, because the
matter is not before me in a judicial way, cannot, on the ground
of analogy, pronounce that the Common Pleas would be justified in
doing what is now required of it. I must keep in mind what is
faid by Bracton of this Court, "fine warranto jurisdictionem non
habet,and that the exposition of warranto, &c. by Lord Coke (a)
is, " that this Court cannot regularly hold any common plea in
any action, real, personal, or mixt, but by writ out of the Chan-
cery, returnable in this Court.” And though he afterwards says,
by way of exception to the general rule, that this Court, without
any writ, “ may, upon suggestion, grant prohibition to keep as
well temporal as ecclesiastical courts within their bounds and
jurisdiction;" yet it should be remembered that the jurisdiction
which we do exercise in those cases, is a jurisdiction which was
established after a great deal of struggleandhesitation, even fo late
as the 7 Jac. I. on a reference by the Chancellor to the Judges
of the King's Bench and Exchequer. It is true that their answer
is reported in general terms; but it is equally true that Lord Coke
introduces the subject when treating of the power of the Common
Pleas to restrain ecclefiaftical and inferior temporal courts, and
therefore the answer must be understood to be confined to that

(a) A Inf. 99,

particular

Duruan.

1797 particular species of prohibition. The circumstance which has

been infifted upon, of this writ being for the King, rather militates JETTERSON against the power of this Court.

The Crown has its peculiar Bishop of courts for prerogative process: as the Courts of King's Bench and

E.xchequer, or the Court of Chancery. But the Court of Common Pleas is emphatically a court of pleas between party and party ; and though the Crown may elect to proceed here for the maintenance of its civil rights, yet the Court of Common Pleas would be going out of its way, if, on the principle of this writ being “ for the King,” it should upon the ground of any analogy take upon itself to do what other Courts have done. In a cafe therefore where there is not practice to support us, where we have not strong lights to guide us, and analogies so complete and fatisfactory as not to admit of being miftaken, I cannot but think it the safeft course for us to decline doing now, what it does not appear that this Court has ever done before. The consequence is that I think the Court of Common Pleas ought not to issue this writ of prohibition. Admitting this to be the law, it is unnecessary for me to enter into the grounds contained in the affidavits. I need not say whether this application has been made on mere fplenetic, or on more worthy motives; nor whether the Lord Bishop of Durham, in this inftance unintentionally doubtless, may not have done that which the law does not fanction, even though it should turn out clearly that the annual revenues of the fee have been improved. Most certainly it is not to be concluded that, provided an increase of the annual revenues of the fee is obtained, a permanent fund of real property in woods may be utterly destroyed. Few who know the Honorable and Right Reverend Prelate, who have been witnesses to the munificence which he has displayed in repairing and beautifying the fabrics of his church, of his castles, and his palaces, will fufpect hijn of having intentionally wasted the possessions of the fee of Durham. At the same time it is by no means impossible that he, as well as many other churchmen, may unwarily have Nid into this heavy ecclefiaftical offence, which all agree to be a cause of deprivation, and which may probably be found to be also an injury cognizable by fone of the King's temporal courts. I do not at all regret the expence of time and trouble in this proceeding, fince I cannot but think it may be productive of very good effects. It may awaken men's minds to the confideration of this fort of question, to which, at this time, it is of importance that they should be directed. We have already feen one cathedral church almost in ruins, and we have seen with what expence and

exertion

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