beyond the Seas, yet this Court doth and may still take Conusance of such Causes. 4. Inst. 124. Its Sentences are only reversable by and upon Appeal to the King, no Writ of Error or false Judgment lies upon any of them, which shews the Greatness of the Court, and the Difference of its Jurisdiction from other Courts; which may be some of the reasons, why no Prohibition was ever granted to it, and why the Parliament of R. 2. gave the Remedy of a Privy Seal: Wherefore it was prayed that the Judgment should be reversed.
Argument for the Defendant in Error. Three Points.—On the other Side it was argued by the Counsel in Behalf of the Plaintiff in the Original Action, that this Judgment ought to be affirmed; and it was after this Manner, there seem three Quæries in the Case; 1. If any Prohibition lies to that Court; 2. If any Cause here for a Prohibition; and, 3. If there be any such Court as that before the Earl Marshal; but another Doubt was raised, whether any of these Questions could be such upon this Plea, which is concluded to the Jurisdiction; for that seems to make only one Doubt; whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted; but this was waved, and then it was argued,
1. That a Prohibition may lie to this Court. The Objects of its Jurisdiction.—That a Prohibition doth lie to this Court of Chivalry, in case it exceeds the Jurisdiction proper to it; and it was agreed, that the Office of Constable is Ancient, and by Camden is held to have been in Ure in this Kingdom, in the Saxons Time, though the Office of Marshal is but of a puisne date: But however Great and Noble the Office is, however Large and Extensive the Jurisdiction is, yet 'tis but limited, and Coke in 4. Inst. 123. says that 'tis declared so, by the Statute of R. 2. where 'tis said, that they incroached in great Prejudice of the King's Courts, and to the great Grievance and Oppression of his People, and that their proper Business is to have Conusance of Contracts and Deeds of Arms, and of War out of the Realm, which cannot be determined or discussed by the Common Law, which other Constables have heretofore duly and reasonably used in their Time; now by this Act 'tis plain, what the Jurisdiction is: Contracts and Deeds of Arms, and War out of the Realm, are the subject Matter of it; and by Coke 'tis called curia militaris, or the Fountain of Marshal Law; which shews it a Court, that hath its Boundaries, a Court that may incroach, nay, which hath incroach'd in divers Instances belonging to the Common Law: And that 'tis a Court that ought to meddle with Nothing that may be determined in Westminster-hall: Then there must be some way of restraining this Excess and these Incroachments; and if the Statute of R. 2. had not been made, it must be agreed that a Prohibition would have lain; for else there had been no Remedy, which is absurd to affirm.
[63] Argument drawn from its Greatness answered.—'Tis no Objection that Prohibitions are only grantable to inferiour Courts, and that this is one of the greatest Courts in the Realm, for if a Court Marshal intermeddle with a Common Law Matter, ea ratione it becomes inferior, and may be controuled: There needs no Contest about the Superiority of Courts in this Matter, 'tis the same here, as among private Persons, he that offends becomes inferior, and subject to the Censure of his equal by offending; though that Court should be reckoned SO Noble and Great as hath been represented, yet 'tis only so, while it keeps within its Jurisdiction; Prohibitions are grantable to almost all sorts of Courts, which differ from the Common Law in their proceeding, to Courts Christian, to the Admiralty, nay, to the Delegates, and even to the Steward and Marshal, upon the Statute of Articuli super Chartas, cap. 3. That they shall not hold Plea of Freehold or of Trespass, Fitz. N.B. 241, 242, is an express Writ of Prohibition, though the Statute gave no such Writ, but only did restrain the Jurisdiction of the Court; which in Truth, is the Case in Question, antecedent to the Statute pleaded.
Other Objections answered.—No Argument can be raised from the subject Matter of the Jurisdiction of this Court, that 'tis different from the Common Law, for so is the Admiralty and the Prerogative Courts, nor is it any Objection that upon any Grievance in this Court, the Appeal must be to the King, for that holds in the other Courts with equal Reason: Nay, Prohibitions lie from Westminster-hall, to hinder proceeding in Causes, which the Courts that grant such Prohibitions, cannot hold Plea of; as to the Ecclesiastical Court which grants Probate of a Will
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