Consultation

In English practice. A writ, in the nature of a procedendo, whereby a cause, being removed by prohibition out of the ecclesiastical court to the king's court, [i. e. to one of the superior courts of law,] is returned thither again to be there determined. Termes de la ley.

3 Bl. Com. 114. 1 Wooddes. Lect. 93. 2 Tidd's Pr. 948.

A similar writ has been used on prohibitions in some courts in the United States.

2 Burr. Pr. 184.

See Prohibition, Procedendo. This writ is said by Blackstone to be so called because upon deliberation and consultation had upon the matter removed by the prohibition, the judges find it to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined in the inferior court.

3 Bl. Com. 114.

A more satisfactory explanation, however, of the origin of this writ, may be derived from a reference to the ancient practice as laid down by Bracton. Anciently, where a prohibition was issued to a spiritual court, if the judges to whom it was directed thought it well founded, they would decree a supersedeas of the proceeding. If they were in doubt whether to proceed in the cause or not, they usually consulted the king's justices, (solent judices aliquando justiciarios consulere utrum procedere possent) by what were termed literae consultationis, to which the justices replied by writs of various forms, according to the case.

Bract. 405 b, 406. 1 Reeves' Hist. Eng. Law, 466.

Bracton gives several of these forms, which are rather in the nature of opinions than compulsory processes, and belong probably to a much earlier period than those given in the Register, (fol. 44—58.) It is not difficult to see how these obtained the name of writs of consultation, or upon consultation; the consultation itself being, as is clearly shown, not among the justices of the superior court, but between the judges of the two courts, in the nature of a conference.