Bracton: Thorne Edition: English. Volume 4, Page 264

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Volume 4, Page 264

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[001] since it is contrary to canon law that if clerk sues clerk, especially men of religion,
[002] before an ecclesiastical judge, that such men of religion (heedless of their religion, so
[003] to speak, and with all due respect, ill-disposed to the church) should maliciouslyhave
[004] recourse to a royal prohibition in order to halt consideration of the matter and escape
[005] ecclesiastical judgment, especially when they are bound by their charter and oath for
[006] the payment of a yearly rent, let it be observed in the case submitted that the royal
[007] prohibition is no obstacle, and that you may safely proceed, lest a pernicious opportunity
[008] of escape be afforded, for if they were sued in a secular court, they would
[009] there be protected by the privilegio fori, because they would say that they were clerks
[010] and therefore should not be bound to answer in the secular forum by reason of their
[011] clerical order and their persons, [Thus it appears that a secular cause and thing is
[012] transferred to the ecclesiastical forum because of the privilege of an ecclesiastical
[013] person, which ought not to be, as is evident,] and because he would have that
[014] privilege for himself, that he not answer in a secular forum, he ought properly to
[015] have it against himself, that he not be answered in that forum.’¹ [Nor ought what
[016] was said above to be valid, that because of a recent spoliation jurisdiction over a
[017] temporal thing ought to be changed,² with respect to a rent no more than to a lay
[018] fee, where a remedy could be had in the secular forum by an assise of novel disseisin
[019] or the like,³ according as the rent is of one kind or the other.]

Another on the same matter: we must see where, when and in respect to what things the prohibition lies.

[021] That a better reply may be made to the consultations of judges, we must see, by an
[022] example, where and when a prohibition lies, and as to what things, and when it does
[023] not. And if it does not lie in toto, if it lies in part. It is clear that a prohibition forbidding
[024] the action to proceed in the ecclesiastical forum sometimes lies because of the
[025] persons concerned and the thing in question, where cognisance pertains completely
[026] to the crown and the royal dignity, as where a layman impleads a layman before an
[027] ecclesiastical judge with respect to a lay fee, or something appurtenant to a lay fee,
[028] [because no privilege, as that of crusaders or any other persons, can alter the royal
[029] jurisdiction as to that, even if⁴ the king so wished, but he sometimes lets it pass
[030] unnoticed

Notes

1. Flahiff in Mediaeval Studies, iii, 101

2. As infra 269; cf. supra 254, 263

3. Infra 282

4. ‘etiam si’