PROHIBITION - IS THE WRIT OF PROHIBITION A PREROGATIVE WRIT?

Authors

Russel T. Walker, University of Michigan Law SchoolFollow

Abstract

The writ of prohibition originally issued from the king's temporal courts to the ecclesiastical courts to prevent any usurpation of jurisdiction of the king's courts by the spiritual courts. Prohibition has been classed as one of the prerogative writs, that is, a writ issued by the extraordinary power of the sovereign to interfere with private rights in order to preserve the prerogatives and franchises of the state. The writ of prohibition differed historically from the other prerogative writs in that its issuance was not discretionary with the court, but rather it was held to issue as a matter of right where lack of jurisdiction in the inferior court was apparent on the face of the proceedings. The purposes of prohibition as presented by the early cases,--viz., to maintain the king's rights and to secure an orderly administration of justice according to the rules established by the king, --emphasize the prerogative nature of the writ. It was considered to be to the king's interest to prevent jurisdictional usurpations from becoming precedents for a constant exercise of superior jurisdiction by inferior courts, with resultant strengthening of power and income of the spiritual courts at the expense of the temporal courts.

Recommended Citation

Russel T. Walker, PROHIBITION - IS THE WRIT OF PROHIBITION A PREROGATIVE WRIT?, 37 Mich. L. Rev. 789 (1939).
Available at: https://repository.law.umich.edu/mlr/vol37/iss5/10