Bracton: Thorne Edition: English. Volume 4, Page 266

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Volume 4, Page 266

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[001] has no cognisance¹ for in a case involving the supreme penalty he cannot nor ought
[002] he to judge, lest he commit an irregularity. Cognisance therefore belongs, as is evident,
[003] to the secular judge and execution of the judgment to the ecclesiastical judge,²
[004] because a secular judge can no more degrade than he can promote to higher orders,
[005] as was said briefly above.

When and in what matters a prohibition does not lie.

[007] We must explain when and in what matters a prohibition does not lie. It is clear that
[008] it will not lie in court christian with respect to any spirituality or anything annexed
[009] thereto, whether the action is between clerks or between a clerk and a layman; or
[010] where the action is testamentary or matrimonial, or relates to a matter in which
[011] penance is to be enjoined for sin. Nor will it lie if the action in court christian is concerned
[012] with a tenement which is sacred and dedicated by priests to God, as abbeys,
[013] priories, monasteries and their cemeteries. Nor if they are quasi-sacred, because annexed
[014] to a spirituality, as lands given to churches at the time of their dedication with
[015] the buildings included in them and their appurtenances. Hence if a monastery or
[016] church is despoiled of such land given in dower or of its³ appurtenances, as common of
[017] pasture and the like, a prohibition will not lie if an action for restitution is brought in
[018] the ecclesiastical court, which must not be understood to apply to free alms, though
[019] they are pure.⁴ On this there is matter [in the roll] of Easter term in the fifteenth year
[020] of king Henry in the county of Somerset, [the case] of Richard, parson of Lideford,⁵
[021] and an express holding [in the roll] of Hilary term in the seventh year of king Henry,
[022] in the county of Bedford, [the case] of Gilbert, parson of Deene.⁶ Nor does a prohibition
[023] lie if there is an action in the ecclesiastical forum [this by reason of the persons,]
[024] with respect to the chattels of clerks taken from them by force, as [in the roll]
[025] of Hilary term in the eighth year of king Henry in the county of Cornwall, [the case]
[026] of Everwin de la Launde.⁷ Nor will it lie if it is a matter of tithes, [or if there is an
[027] error in the form of the prohibition, as where it refers to debts when it ought to refer
[028] to chattels, or conversely, as in [the roll] of Hilary term in the sixth year of king
[029] Henry in the county of Warwick, [the case] of a certain percentor of Lincoln.]⁸ But
[030] there is a case to the contrary with respect to tithes, that a prohibition lies if tithes
[031] are claimed or their value in consequence of a sale, as [in the roll] of Michaelmas
[032] term in the ninth and the beginning of the tenth years of king Henry in the county
[033] of York, [the case] of Richard, parson of Mapelton.⁹ But the contradiction is resolved
[034] thus, that in the first case,

Notes

1. Om: ‘licet . . . executionem,’ repeated below

2. Supra 250; cf. 278, 283

3. ‘eius’

4. Supra 265, infra 284

5. B.N.B., no. 547; C.R.R., xiv, no. 1372

6. C.R.R., xi, no. 62; not in B.N.B.

7. Not in B.N.B.; no roll extant

8. B.N.B., no. 152; no roll extant

9. B.N.B., no. 1671; C.R.R., xii, no. 1073, where the last lines differ from B.N.B.