1911 Encyclopædia Britannica/Prohibition

PROHIBITION (Lat. prohibere, to prevent), a term meaning the action of forbidding or preventing by an order, decree, &c. The word is particularly applied to the forbidding by law of the sale and manufacture of intoxicating liquors (see LIQUOR LAWS and TEMPERANCE). In law, as defined by Blackstone, prohibition is “ a writ directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a surmise either that the cause originally or some collateral matter arising therein does, not belong to that jurisdiction, but to the cognizance of some other court.” A writ of prohibition is a prerogative writ—that is to say, it does not issue as of course, but is granted only on proper grounds being shown. Before the Judicature Acts prohibition was granted by one of the superior courts at Westminster; it also issued in certain cases from the court of chancery. It is now granted by the High Court of justice. Up to 187 5 the high court of admiralty was for the purposes of prohibition an inferior court. But now by the Judicature Act 1873, s. 24, it is provided that no proceeding in the High Court of justice or the court of appeal is to be restrained by prohibition, a stay of proceedings taking its place where necessary. The admiralty division being now one of the divisions of the High Court can therefore no longer be restrained by prohibition. The courts to which it has most frequently issued are the ecclesiastical courts, and county and other local courts, such as the lord mayor's court of London, the court of passage of the city of Liverpool and the court of record of the hundred of Salford. In the case of courts of quarter sessions, the same result is generally obtained by certiorari (see WRIT). The extent to which the ecclesiastical courts were res trainable by prohibition led to continual disputes for centuries between the civil and the ecclesiastical authorities. Attempts were made at different times to define the scope of the writ, the most conspicuous instances being the statute Circumspecte A gatis, 13 Edw. I. st. 4; the Articuli cleri, 9 Edw. II. st. 1; and the later Articuli cleri of 3 ]ac. I., consisting of the claims asserted by Archbishop Bancroft and the reply of the judges. The law seems to be undoubted that the spiritual court acting in spiritual matters pro salute animae cannot be restrained. The difficulties arise in the application of the principle to individual cases.

Prohibition lies either before or after judgment. In order that proceedings should be restrained after judgment it is necessary that want of jurisdiction in the inferior court should appear upon the face of the proceedings, that the party seeking the prohibition should have taken his objection in the inferior court, or that he was in ignorance of a material fact. A prohibition goes either for excess of jurisdiction, as if an ecclesiastical court were to try a claim by prescription to a pew, or for transgression of clear laws of procedure, as if such a court were to require two witnesses to prove a payment of tithes. It will not as a rule be awarded on a matter of practice. The remedy in such a case is appeal. Nor will it go, unless in exceptional cases, at the instance of a stranger to the suit. The procedure in prohibition is partly common law, partly statutory. Application for a prohibition is usually made ex parte to a judge in chambers on affidavit. The application may be granted or refused. If granted, a rule to show cause why a writ of prohibition should not issue goes to the inferior judge and the other party. In prohibition to courts other than county courts pleadings in prohibition may be ordered. These pleadings are as far as possible assimilated to pleadings in actions. They are rare in practice, and are only ordered in cases of great difficulty and importance

Much learning on the subject of prohibition will be found in the opinion of Mr justice Wills delivered to the House of Lords in The Mayor and Aldermerz of London V. Cox (1867, L.R. 2 Eng. and Ir. Appeals, ,239).

In Scots law prohibition is not used in the English sense. The same result is obtained by suspension or reduction. In the United States the Supreme Court has power to issue a prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction. Most of the states have also their own law upon the subject, generally giving power to the supreme judicial authority in the state to prohibit courts of inferior jurisdiction.