made within a Manor, to the Lord whereof such Probate belongs, 5 Rep. 73. to the Marches of Wales if they hold Plea of what belongs to Court Christian, 2 Roll's Abridg. 313. are several Cases to this Purpose: There were also cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl. 143, 144. and Herne 543. 'twas further urged, that there neither was nor could be any Reason assigned, why a Prohibition should not be grantable to the Court of Chancery, when by English Bill it meddles with the Common Law, in other Manner than its Ancient and proper Jurisdiction doth allow, and several Authorities were cited to countenance that Assertion.
The Reason of Prohibitions in General.—Then was considered the Reason of Prohibitions in General, that they were to preserve the Right of the King's Crown and Courts, and the Ease and Quiet of the Subject, that 'twas the Wisdom and Policy of the Law, to suppose both best preserved, when every Thing runs in its right Channel, according to the Original Jurisdiction of every Court, that by the same Reason one Court might be allowed to incroach, another might, which could produce nothing but Confusion and Disorder in the Administration of Justice. That in all other Writs of Prohibition, the Suggestion is, and with Truth, in præjudicium coronæ Regis & Gravamen partis, and both these are declared to be the Consequent of this Court's Excess or Incroachment of Jurisdiction, even by their own Statutes: And, when the Reason is the same, the Remedy ought to be so.
[64] Objection (as to a Privy Seal) answered.—But it hath been pretended, That the Statute appoints a Privy Seal to supersede, &c. and therefore no Prohibition: To this it was answered, That this Act doth not take away the Force of the 8 R. 2. mentioned in 4 Inst. 125. which restrains the Constable and Marshal from meddling with any Plea, which concerns the Common Law: And if it had a limited Jurisdiction by the Common Law, or by that Statute, the subsequent Statute which gave a further Remedy to restrain them did not take away that which they had before. And every Body must agree, that where an Act of Parliament Restrains a Jurisdiction, such Act warrants a Prohibition, in case that Restraint be broken or exceeded. 'Tis so in case of a limited Power at the Common Law, but much more so upon a Statute.
Besides, the latter Statute which gives a Privy Seal, doth not Repeal or alter the Law then in Being. 'Tis an Affirmative Law, and that seldom or never works any Change or Alteration in what was before, any otherwise than by Addition or Confirmation. And in Truth this is only a further Remedy; and is far from declaring a Prohibition not to lie. The Meaning might be to give a Privy Seal immediately, even in Vacation Time. The Preamble complains so much of the Grievances, that it cannot be supposed to design any Thing in Favour of them, or to prevent the Restraint.
Suppose between the 8 and the 15 R. 2. an Excess of Jurisdiction had been usurped, as in this Case, will any Man say, that a Prohibition would not then have lain? And if it would, can any Man say, that the Statute pleaded doth take it away, or Prohibit such Writ of Prohibition? And the 11 H. 4. 24. ordains that all the Statutes concerning the Court of Constable and Marshal, shall be duly observed; and if so, the 8 R. 2. as well as the 15 R. 2. are within that Ordinance; and if so, a Prohibition lies as well as a Privy Seal; and both are little enough to keep that Court within its due Bounds and Limits.
2. The Matter of the present Articles a proper Subject of the Common Law.—It was argued, That the Proceeding upon these Articles, was an Intermedling with a subject Matter properly determinable at Common Law; here's no Contract or Deed of Arms, no Mis-behaviour in War, nothing of that Nature, which their own Statute says belongs to them. Rush. Vol. 2. Part 2. 1054. he frequented the Court for four Years together, he observed no Cases there but for Words: And one or two, as Delaware's Case, about abusing an Honourable Family, by assuming to be a Branch thereof. Here's no such Thing: But express Articles for exercising of a Lawful Trade. 'Tis not causa armorum; it doth neither concern Warlike Matters, nor Honour. A Funeral Ceremony can never be within their Power. This is a plain Accusation for a wrong to one of their Officers. The Articles charge, that Sir Henry S. George, by his Office, within his Province, hath the ordering of these Matters, and the Party hath meddled therein without his License. He says, 'tis
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