Writs of Prohibition

The scope of the conflict between royal and ecclesiastical courts in England was defined by the legal device of the writ of prohibition. This was an order issued by the chancellor in the king's name, forbidding an ecclesiastical court to take further cognizance of a particular case on the ground that the church's competence to judge the matter at issue had been put in question by the defendant in the case.

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The ecclesiastical court was then either to drop the case or else to consult with the king's justices. If after consultation the king's justices determined that the case was properly before the ecclesiastical court, they would authorize it____________ by a "writ of consultation"_____ to proceed notwithstanding the previous prohibition. If the ecclesiastical court persisted in hearing a case despite a prohibition, or despite an unfavorable outcome on consultation, the king's court would issue a writ of attachment instructing the sheriff to bring the ecclesiastical judges before the king or his justices "to show why they hold a plea in court christian... against our prohibition."

A royal prohibition could be a powerful weapon, and it was occasionally used with great effect to restrain the ecclesiastical courts. For the most part, however, it was complex and unwieldy, relatively difficult to obtain, and relatively easy to circumvent.

It was the defendant in the ecclesiastical court who had to take the initiative. If both parties consented to ecclesiastical jurisdiction, the royal court would not intervene. This surely amounted to an enormous royal concession in the struggle between the two systems of courts. 14It meant that almost all disputes between clerics were effectively removed from secular jurisdiction. It also meant that laymen who had contracted to exclude secular jurisdiction were barred from obtaining a writ of prohibition, though the royal courts read such contractual stipulations strictly.

To obtain a writ of prohibition, the defendant in the ecclesiastical action had to allege that he had been cited to appear before such and such ecclesiastical judges as defendant in a plea that a certain party (giving his name) had sued against him concerning a particular type of matter that fell within the jursdiction of the royal courts. Typical matters were disputes over real property other than church sites, churchyards, and cemeteries ("lay fee''); disputes over the right of patronage to ecclesiastical offices (advowson); disputes over chattels and debts except those derived from marriage or testament, those which belonged to the church such as tithes and offerings, and goods seized from a cleric; disputes over trespasses by clerics; and defamatory statements made in connection with cases in the king's courts.

In general, the royal courts would grant a writ of prohibition on the mere allegation of the defendant in the ecclesiastical case, provided the allegation was sufficient on its face. However, if it turned out later that the matter in dispute was of a different nature from that alleged in the writ of prohibition, the prohibition would not be enforced and, indeed, the defendant could be fined by the royal justices for making a false claim.

The defendant had to serve the writ both on the ecclesiastical judges and on the plaintiff. They were then to appear before the king's justices to defend the ecclesiastical jurisdiction. The purpose of the writ, as G.B. Flahiff points out, was "to publicize and make prevail two important

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claims of the king: first that he alone and his court have jurisdiction in the matters named in the various writs of prohibition lay fee, advowson, lay chattels, etc.; secondly, that the royal

authority alone has the right to determine what jurisdiction is competent in doubtful ca ses." 16 The question concerned the competence of a court to determine its own com petence.

However, the ecclesiastical courts also claimed a similar competence.

The ecclesiastical court did not lack practical resources to resist prohibitions. First, canon law -- in contrast to the English royal law of the time -- permitted the court to hear witnesses and proceed to judgment in the defendant's absence, even in personal actions. Second, the defendant who failed to appear after three citations was subject to excommunication. And third: "The spiritual authorities may go yet farther. Not content with excommunication and pronouncing sentence against the defendant, they may sometimes institute a new suit against him and cite him to answer for the canonical offense of having caused an ecclesiastical action to be unjustly prohibited by the secular power." 18Of course, the new suit was also subject to a writ of prohibition, if the defendant wished to go further with the matter. Excommunication for suing out a writ of prohibition raised the question of whether the secular power would cooperate in enforcing the excommunication. In normal cases of excommunication, if the excommunicate did not seek absolution within forty days, the bishop could inform the king thereof and the king would order the sheriff to arrest the sinner and keep him in custody until he was willing to be reconciled. Also, excommunicates could not sue in the king's court. Flahiff gives some amusing examples of subterfuges used by ecclesiastical judges to procure secular aid in enforcing excommunications imposed for seeking a writ of prohibition, 19but in general the royal authorities would not honor an excommunication directed against their own rightful jurisdiction.

In England, conflicts between the church and the crown over writs of prohibition were to some extent resolved in 1286 in the royal statute, or writ, Circumspecte Agatis. The king, who previously had sought unsuccessfully to limit the property jurisdiction of ecclesiastical courts over laymen to matrimonial and testamentary cases, finally admitted the right of these courts to impose monetary penalties for fornication,

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adultery, and other mortal sins; require parishioners to contribute to the upkeep of their church and cemetery; hear suits by the rector of a church against his parishioners for the payment of various customary church taxes (mortuaries, oblations, tithes); hear suits by one rector against another for tithes, provided these did not exceed one_quarter of the value of the church, which would have brought into question the right of patronage (advowson); and award damages in cases of violence against clerics, defamation, and breach of pledge of faith, provided correction of sin was also involved. Moreover, in cases of defamation or violence against a cleric, it was provided that if one who was sentenced to bodily punishment by an ecclesiastical court wished to have the penalty commuted to a money payment, the court could accede to this wish without being subject to a royal prohibition.

In France, the place of the writ of prohibition was taken by the appel comme d’abus. It permitted direct recourse not only by aggrieved parties but by any person, lay or ecclesiastic, to the secular courts, and in later times to the king, to prevent "abuse" of ecclesiastical jurisdiction. It seems to have been considerably more effective in limiting that jurisdiction than its English counterpart.

The jurisdiction of ecclesiastical courts was one of the principal objects of attack during each of the great European national revolutions -- the Protestant Reformation in Germany in the sixteenth century, the English Revolution of the seventeenth century, the French Revolution of the eighteenth century, and the Russian Revolution of the twentieth century.

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laity became entirely a matter of conscience, and their decisions had no temporal legal consequences. In practice, these courts generally confined their jurisdiction over laymen to questions of marriage, betrothal, and legitimacy of children.

Historians will no doubt continue to differ in their interpretation of the conflict between Becket and Henry. Perhaps a new insight may be gained, however, by viewing it as part of the Papal Revolution and the formation of the Western legal tradition.

From this point of view the most significant fact about the conflict was the extraordinary tension between ecclesiastical and royal authority, and the eventual resolution of that tension by legal compromise.

In asserting ecclesiastical jurisdiction over spiritual causes, the papal party in the twelfth century defined "spiritual" to include contracts between laymen in which there was a pledge of faith, crimes committed by clerics, and many other matters that secular authorities inevitaby considered to be essentially secular. Similarly, in asserting royal jurisdiction over secular causes, the royal parties of various countries defined "secular" to include disputes between bishops concerning the right to present clerics to lucrative ecclesiastical offices, appeals from decisions of archbishops' courts, and other matters that ecclesiastical authorities inevitably considered to be essentially spiritual. Both sides came to agree that there should be two distinct jurisdictions, one ecclesiastical, the other royal. They could not agree, however, on the boundaries between them. At best they could only agree that those boundaries should be fixed not by force but by law.

Both Henry and Becket attached great importance to the legal definition of the boundaries between their respective jurisdictions. Both started with the expectation -- by then almost universally shared -­that a legal solution could be found to the question of ecclesiastical versus secular control over matters in which both had strong conflicting interests. The resort to force by Henry's men was an affront to that expectation; it resulted in an almost universal revulsion, which in turn compelled the English crown to renounce its most extreme claims.

To be sure, time was on the side of the expansion of the secular jurisdiction at the expense of the ecclesiastical, in England as elsewhere in Europe. However, such shifts in the balance of power had to be carried out in the context of legal competition and compromise.

The competition between the ecclesiastical and the secular courts had a lasting effect upon the Western legal tradition. Plural jurisdictions and plural legal systems became a hallmark of Western legality. When Blackstone wrote that eighteenth-century English law consisted of natural law, divine law, international law, ecclesiastical law, Roman law, law merchant, local customs, common law, statute law, and equity,

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there still remained several different kinds of courts administering those various kinds of law_____________________________________________________________

ecclesiastical courts, university courts, admiralty courts, common law courts, and courts of equity___________________________________________________________

although Parliament and the common law courts had by then achieved supremacy. Even in the United States today there remains a certain competition between federal courts and state courts, and, within each, a competition between federal law and state law. Important distinctions are also recogniz ed between international law and national law, as well as between common law and equity. Even when these bodies of law are applied by the same courts, the opportunity to appeal to one law against another enhances freedom.

Underlying the competition of ecclesiastical and royal courts from the twelfth to the sixteenth centuries was the limitation on the jurisdiction of each: neither pope nor king could command the total allegiance of any subject. Becket died for the principle that royal jurisdiction was not unlimited (which the king did not deny) and that it was not for the secular authority alone to decide where its boundaries should be fixed (his assassins did deny that). For three and one-half centuries tens of thousands of pilgrims from all over Europe traveled annually to Canterbury to celebrate the integrity of this man in standing up for his convictions against the king.

When the church eventually became, in the secular mind, an association within the state, as contrasted with an association beyond and against the state, then the plural jurisdictions in each country of the West were swallowed up by the one national jurisdiction, and the plural legal systems were absorbed more and more by the one national legal system. Yet something is left of Becket's heritage today. There is in most countries of the West not only a residual conflict of jurisdictions and of laws but also a constitutional limitation upon the power of the state to control spiritual values. Becket's stand against the assertion of royal authority over the clergy is reproduced in contemporary resistance to legal control over belief and morality. There are still restrictions upon the power of legislatures and courts to interfere in purely religious affairs and to punish purely moral activities. There are still difficulties in defining the legal boundaries of these affairs and activities. There is still the belief -- or was, until recently -- that if the legal boundaries set by the state conflict with a higher law, then there is a right -­and a duty -- to violate them.

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