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reason within the cognizance of the common law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury it's proper redress. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But, before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration : and which are, either when justice is delayed by an inferior court that has proper cognizance of the cause; or, when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.
1. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo or of mandamus. . A writ of procedendo ad judicium, issues out of the court of chancery, where judges of any subordinate court do delay the parties; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king's name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may be set aside in the course of appeal, or by writ of error or [ 110 ] false judgment : and, upon farther neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment returnable in the king's bench or common pleas',
A writ of mandamus is, in general, a conimand ifsuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench
has previously determined, or at least supposes to be couro..
the due exercise of those judicial or minifterial powers, with · which the crown or legislature have inveited them : and this,
not only by restraining their excesses, but also by quickening y their negligence, and obviating their denial of justice.) A
mandamus may therefore be had to the courts of the city of London, to enter up judgment 8 ; to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below: whereupon, in order more fully to satisfy the court that there is a probable ground for such interpofition, a rule is made (except in some general cases, where the probable ground is manifeft) directing the party complained of to shew cause why a writ of mandamæs should not ifsue : and, if he
Thews no fufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or fignify some reason to the contrary ; to which a return, or answer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punithable for his contempt by attachment. But, if he, at the first, returns a sufficient cause, although it should be false in fact, the court of king's bench will not try the truth of the fact upon aslidavits; but will for the present believe him, and proceed no farther on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained ; together with a peremptory mandamus to the defendant to do his duty(5). Thus much for the injury of neglect or refusal of justice,
2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance, for which the common law has provided a remedy by the writ of prohibition.
A PROHIBITION is a writ issuing properly only out of [ 1123 the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had . in some cases out of the court of chancery", common pleas', or exchequerk; directed to the judge and parties, of a fuit in h P. Wms. 476.
i Hob. 15.
k Palmer. 523.
(5) See further upon the writ of mandamus, p. 264, poft.
any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other mat. ters not lying within their respective franchises'; to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings: or it may be directed to the courts christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or, if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes", or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their juris. diction; it ought, therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law; else the same question might be determined different ways, according to the court in which the suit is depending: an im
propriety, which no wise government can or ought to endure, [ 13 7 and which is therefore a ground of prohibition. And if ein
ther the judge or the party shall proceed aftersuch prohibition,
a Cro. Eliz. 666. Hob. 188.
OF. N. B. 40,
So long as the idea continued among the clergy, that the ecclefiaftical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the conftitutions of Clarendon, made in opposition to the claims of archbiihop Becket in 10 Hen. II, to the exhibition of certain articles of complaint to the king by archbishop Bancroft in Jac. I. on behalf of the ecclesiastical courts : from which, and from the answers to them signed by all the judges of Westminster-hall P, much may be collected concerning the reasons of granting and inethods of proceeding upon prohibi. tions. A short fummary of the latter is as follows. The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea(6). But sometimes the point may be too nice and doubtful to be decided merely upon a motion: and
P 2 Inft. 601-618.
(6) The general grounds for a prohibition to the ecclesiastical courts are, either a defect of jurisdiction or a defect in the mode of trial. If any fact be pleaded in the court below, and the par. ties are ac issue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition lies. Or where the spiritual court has no original jurisdiction, a prohibition may be granted even after sentence. But where it has jurisdiction, and gives a wrong judgment, it is the subject matter of appeal and not of prohibition. Lord Kenyon, 3 T. R. 4. ,
But when a prohibition is granted after sentence, the want of jurisdiction must appear upon the face of the proceedings of the Spiritual court. Ibid. Cowp. 422. See allo 4 T. R. 382.