Front Page Titles (by Subject) The Case de Modo Decimandi, 1 and of Prohibitions, debated before the Kings Majesty. - Selected Writings of Sir Edward Coke, vol. I
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The Case de Modo Decimandi, 1 and of Prohibitions, debated before the Kings Majesty. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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The Case de Modo Decimandi,1 and of Prohibitions, debated before the Kings Majesty.
(1609) Trinity Term, 7 James I
In Conference before the King.
First Published in the Reports, volume 13, page 37.
Ed.: These are Coke’s notes on the three-day debate on prohibitions held in 1609, before the King and Council, between the bishops and Lawyers of the civil Law, and the Common Law Judges over whether attempts by priests to collect tithes that are due de modo decimandi, or according to custom, can be brought in the ecclesiastical courts, or whether they must be brought in the Law courts. The debates are illustrative of the dispute between the Law and the church that was then ranging on several fronts.
Richard, Archbishop of Canterbury, accompanyed with the Bishop of London, the Bishop of Bathe and Wells, the Bishop of Rochester, and divers Doctors of the Civil and Canon Law, as Dr. Dunn Judg of the Arches, Dr. Bennet Judg of the Prerogative, Dr. James, Dr. Martin, and divers other Doctors of the Civil and Canon Law came attending upon them to the King to Whitehall the Thursday, Friday, and Saturday after Easter-Term, in the Councel-Chamber; where the Chief Justice, and I my self, Daniel Judg of the Common-Pleas, and Williams Judg of the Kings-Bench, by the command of the King attended also: where the King being assisted with his Privy Councel, all sitting at the Councel-Table, spake as a most gracious, good, and excellent Soveraign, to this effect: As I would not suffer any novelty or Innovations in my Courts of Justice Ecclesiastical and Temporal; so I will not have any of the Laws, which have had judicial allowances in the times of the Kings of England before him, to be forgotten, but to be put in execution. And for as much as upon the contentions between the Ecclesiastical and Temporal Courts great trouble, inconvenience and loss may arise to the subjects of both parts, namely when the controversie ariseth upon the jurisdiction of my Courts of ordinary Justice; and because I am the head of Justice immediately under God, and knowing what hurt may grow to my Subjects of both sides, when no private case, but when the Jurisdictions of my Courts are drawn in question, which in effect concerneth all my Subjects, I thought that it stood with the Office of a King, which God hath committed to me, to hear the controversies between the Bishops and other of his Clergy, and the Judges of the Laws of England, and to take Order, that for the good and quiet of his Subjects, that the one do not encroach upon the other, but that every of them hold themselves within their natural and local jurisdiction, without encroachment or usurpation the one upon the other. And he said, that the onely question then to be disputed was, If a Parson, or a Vicar of a Parish, sueth one of his Parish in the Spiritual Court for Tythes in kinde, or Lay-fee, and the Defendant alledgeth a custom or prescription De modo Decimandi, if that custom or prescription, De modo Decimandi, shall be tryed and determined before the Judg Ecclesiastical where the Suit is begun; or a Prohibition Lyeth, to try the same by the common Law. And the King directed, that we who were Judges should declare the reasons and causes of our proceedings, and that he would hear the authorities in the Law which we had to warrant our proceedings in granting of Prohibition in cases of Modo Decimandi. But the Archbishop of Canterbury kneeled before the King, and desired him, that he would hear him and others who are provided to speak in the case for the good of the Church of England: and the Archbishop himself inveighed much against two things:
1. That a Modus Decimandi should be | tryed by a Jury, because that they themselves claim more or less modum Decimandi; so as in effect they were Tryors in their own cause, or in the like cases. 2. He inveighed much the precipitate and hasty Tryals by Juries: and after him Doctor Bennet, Judg of the Prerogative Court, made a large Invection against Prohibitions in Causis ecclesiasticis:2 and that both Jurisdictions as well ecclesiastical as temporal, were derived from the King; and all that which he spake out of the Book which Dr. Ridley hath lately published, I omit as impertinent: and he made five Reasons, why they should try Modum Decimandi.
And the first and principal Reason was out of the Register, fo. 58. quia non est consonans rationi, quod cognitio accessarii in Curia Christianitatis impediatur ubi cognitio Causae principalis ad forum Ecclesiasticum noscitur pertinere.3 And the principal cause is Right of Tythes, and the Plea of Modo Decimandi sounds in satisfaction of Tythes; and therefore the Conusance of the original cause, (scil.) the Right of Tythes appertaining to them, the Conusance of the bar of Tythes, which he said was but the accessary, and as it were dependant upon it, appertained also to them. And whereas it is said in the Bishop of Winchesters Case, in the second part of my Reports, and 8 Edw. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spiritual Court, he said, that they would allow such Pleas in the Spiritual Court, and commonly had allowed them; and therefore he said, that that was the Mystery of iniquity founded upon a false and feigned foundation, and humbly desired the reformation of that Error, for they would allow Modum Decimandi being duly proved before them.
2. There was great inconveniency, that Lay-men should be Tryers of their own Customs, if a Modus Decimandi should be Tryed by Jurors; for they shall be upon the matter Jurors in their own cause.
3. That the custom of Modo Decimandi is of Ecclesiastical Jurisdiction and Conusance, for it is a manner of Tything, and all manner of Tything belongs to Ecclesiastical Jurisdiction: and therefore he said, that the Judges, in their Answer to certain Objections made by the Archbishop of Canterbury, have confessed, that suit may be had in Spiritual Courts pro modo Decimandi; and therefore the same is of Ecclesiastical Conusance; and by consequence it shall be tryed before the Ecclesiastical Judges: for if the Right of Tythes be of Ecclesiastical Conusance, and the satisfaction also for them of the same Jurisdiction, the same shall be tryed in the Ecclesiastical Court.
4. In the Prohibitions of Modus Decimandi averment is taken, That although the Plaintiff in the Prohibition offereth to prove Modum Decimandi, the Ecclesiastical Court doth refuse to allow of it, which was confessed to be a good cause of Prohibition: But he said, they would allow the Plea De Modo Decimandi in the Spiritual Court, and therefore cessante causa cessabit & effectus,4 and no Prohibition shall lie in the Case.
5. He said, that he can shew many consultations granted in the cause De Modo Decimandi, and a Consultation is of greater force then a Prohibition; for Consultation, as the word imports, is made with the Court with consultation and deliberation. And Bacon, Solicitor-General, being (as it is said) assigned with the Clergy by the King, argued before the King, and in effect said less then Doctor Bennet said before: but he vouched 1 Ric. 3. 4. the Opinion of Hussey, when the Original ought to begin in the Spiritual Court, and afterwards a | thing cometh in issue which is tryable in our Law, yet it shall be tryed by their Law: As if a man sueth for a Horse devised to him, and the Defendant saith, that the Devisor gave to him the said Horse, the same shall be tryed there. And the Register 57 and 58. If a man be condemned in Expences in the Spiritual Court for laying violent hands upon a Clark, and afterwards the Defendant pays the costs, and gets an Acquittance, and yet the Plaintiff sueth him against his Acquittance for the Costs, and he obtains a Prohibition, for that Acquittances and Deeds are to be determined in our Law, he shall have a Consultation, because that the principal belongeth to them. 38 Edw. 3. 5. Right of Tythes between two spiritual persons shall be determined in the Ecclesiastical Court. And 38 Edw. 3. 6. where the Right of Tythes comes in debate between two spiritual persons, the one claiming the Tythes as of common Right within his Parish, and the other claiming to be discharged by real composition, the Ecclesiastical Court shall have Jurisdiction of it.
And the said Judges made humble suit to the King, That for as much as they perceived that the King in his Princely Wisdom did detest Innovations and Novelties, that he would vouchsafe to suffer them with his gracious favor, to inform him of one Innovation and Novelty which they conceived would tend to the hinderance of the good administration and execution of Justice within his Realm.
Your Majesty, for the great zeal which you have to Justice, and for the due administration thereof, hath constituted and made fourteen Judges, to whom you have committed not onely the administration of Ordinary Justice of the Realm, but crimina laesae Majestatis,5 touching your Royal person, for the legal proceeding: also in Parliament we are called by Writ, to give to your Majesty and to the Lords of the Parliament our advice and counsel, when we are required: We two chief Justices sit in the Star-Chamber, and are oftentimes called into the Chancery, Court of Wards, and other High Courts of Justice: we in our Circuits do visit twice in the year your Realm, and execute Justice according to your Laws: and if we who are your publique Judges receive any diminution of such reverence and respect in our places, which our predecessors had, we shall not be able to do you such acceptable service as they did, without having such reverence and respect as Judges ought to have. The state of this Question is not in statu deliberativo,6 but in statu judiciali;7 it is not disputed de bono,8 but de vero, non de Lege fienda, sed de Lege lata;9 not to frame or devise new Laws, but to inform your Majesty what your Law of England is: and therefore it was never seen before, that when the Question is of the Law, that your Judges of the Law have been made Disputants with him who is inferior to them, who day by day plead before them at their several Courts at Westminster; and although we are not afraid to dispute with Mr. Bennet and Mr. Bacon, yet this example being primae impressionis,10 and your Majesty detesting Novelties and innovations, we leave it to your Grace and Princely consideration, whether your Majesty will permit our answering in hoc statu judiciali,11 upon your publique Judges of the Realm? But in Obedience to your Majesties command, We, with your Majesties gracious favor, in most humble manner will inform your Majesty touching the said Question, which we, and our predecessors before us, have oftentimes adjudged upon judicial proceedings in your Courts of Justice at Westminster:which Judgments cannot be reversed or examined for any Error in Law, if | not by a Writ of Error in a more high and supream Court of Justice, upon legal and judicialproceedings: and that is the ancient Law of England, as appeareth by the Statute of 4 Hen. 4. cap. 22.
And we being commanded to proceed, all that which was said by us, the Judges, was to this effect, That the Tryal De Modo Decimandi ought to be by the Common Law by a Jury of twelve men, it appeareth in three manners: First, by the Common Law: Secondly, by Acts of Parliament: And lastly, by infinite judgments and judicial proceedings long times past without any impeachment or interruption.
But first it is to see, What is a Modus Decimandi? Modus Decimandi is, when Lands, Tenements, or Hereditaments have been given to the Parson and his successors, or an annual certain sum, or other profit, always, time out of minde, to the Parson and his successors, in full satisfaction and discharge of all the Tythes in kinde in such a place: and such manner of Tything is now confessed by the other party to be a good bar of the Tythes in kinde.
1. That Modus Decimandi shall be tryed by the Common Law, that is, that all satisfactions given in discharge of Tythes shall be tryed by the Common Law: and therefore put that which is the most common case, That the Lord of the Mannor of Dale prescribes to give to the Parson 40s. yearly, in full satisfaction and discharge of all Tythes growing and renewing within the Mannor of Dale, at the Feast of Easter: The Parson sueth the Lord of the Mannor of Dale for his Tythes of his Mannor in kinde, and he in Bar prescribes in manner ut supra:12 The Question is, if the Lord of the Mannor of Dale may upon that have a Prohibition, for if the Prohibition lyeth, then the Spiritual Court ought not to try it; for the end of the Prohibition is, That they do not try that which belongs to the Tryal of the Common Law; the words of the Prohibition being, that they would draw the same ad aliud examen.13
First, the Law of England is divided into Common-Law, Statute-Law, and Customs of England: and therefore the Customs of England are to be tryed by the Tryal which the Law of England doth appoint.
Secondly, Prescriptions by the Law of the Holy Church, and by the Common Law, differ in the times of limitation; and therefore Prescriptions and Customs of England shall be tryed by the Common Law. See 20 Hen. 6. fo. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Archdeacon of Surry, and declared, how that he and his successors were seised by the hands of the Defendant by title of Prescription, and the Defendant demanded Judgment, if the Court would hold Jurisdiction being between spiritual persons, &c. Stone Justice, Be assured, that upon title of prescription we will here hold Jurisdiction; and upon that, Wilby chief Justice gave the Rule, Answer: Upon which it follows, that if a Modus Decimandi, which is an annual sum for Tythes by prescription, comes in debate between spiritual persons, that the same shall be tryed here: For the Rule of the Book is general, (scil.) upon title of prescription, we will hold Jurisdiction, and that is fortified with an Asseveration, Know assuredly; as if he should say, that it is so certain, that it is without question. 32 Edw. 3. Jurisd. 26. There was a Vicar who had onely Tythes and Oblations, and an Abbot claimed an Annuity or Pension of him by prescription: and it was adjudged, that the same | prescription, although it was betwixt spiritual persons, should be tryed by the Common Law: Vide 22 Hen. 6. 46 and 47. A prescription, that an Abby time out of minde had found a Chaplain in his Chappel to say Divine Service, and to minister Sacraments, tryed at the Common Law.
3. See the Record of 25 Hen. 3. cited in the case of Modus Decimandi before: and see Register fo. 38. when Lands are given in satisfaction and discharge of Tythes.
4. See the Statute of Circumspecte agatis, Decimae debitae seu consuetae,14 which proves that Tythes in kinde, and a Modus by custom, &c.
5. 8 Edw. 4. 14. and Fitz. N. B. 41 g. A Prohibition lieth for Lands given in discharge of Tythes. 28 Edw. 3. 97. a. There Suit was for Tythes, and a Prohibition lieth, and so abridged by the Book, which of necessity ought to be upon matter De Modo Decimandi, or discharge.
6.15 7 Edw. 6. 79. If Tythes are sold for mony, by the sale the things spiritual are made temporal, and so in the case De Modo Decimandi, 42 Edw. 3. 12. agrees.
7. 22 Edw. 3. 2. Because an Appropriation is mixt with the Temporalty, (scil.) the King’s Letters Patents, the same ought to be shewed how, &c. otherwise of that which is meer Temporal: and so it is of real composition, in which the Patron ought to joyn: Vide 11 Hen. 4. 85. Composition by writing, that the one shall have the Tythes, and the other shall have mony, the Suit shall be at the Common Law.
Secondly, By Acts of Parliament.
1. The said Act of Circumspecte agatis, which giveth power to the Ecclesiastical Judg to sue for Tythes due first in kinde, or by custom, i.e. Modus Decimandi: so as by authority of that Act, although that the yearly sum soundeth in the Temporalty, which was payd by Custom in discharge of Tythes, yet because the same cometh in the place of Tythes, and by constitution, the Tythes are changed into mony, and the Parson hath not any remedy for the same, which is the Modus Decimandi at the Common Law; for that cause the Act is clear, that the same was a doubt at the Common Law: And the Statute of Articuli Cleri, cap. 1. If corporal pennance be changed in poenam pecuniariam,16 for that pain Suit lieth in the Spiritual Court: For see Mich. 8 Hen. 3. Rot. 6. in Thesaur’. A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarum;17 so as it appeareth, it was a doubt before the said Statute, if Suit lay in the Spiritual Court de Modo Decimandi. And by the Statute of 27 Hen. 8. cap. 20. it is provided and enacted, That every of the subjects of this Realm, according to the Ecclesiastical Laws of the Church, and after the laudable usages and customs of the Parish, &c. shall yield and pay his Tythes, Offerings, and other duties: and that for subtraction of any of the said Tythes, offerings, or other duties, the Parson, &c. may by due Proces of the Kings Ecclesiastical Laws, convent the person offending before a competent Judg, having authority to hear and determine the Right of Tythes, and also to compel him to yeild the duties, i.e. as well Modus Decimandi, by laudable usage or Custom of the Parish, as Tythes in kinde: and with that in effect agrees the Statute of 32 Hen. 8. cap. 7. By the Statute of 2 Edw. 3. cap. 13. it is enacted, That every of the Kings Subjects shall from henceforth, truly and justly, without fraud or guile, divide, &c. and pay all manner of their predial Tythes in their proper kinde, as they rise | and happen in such manner and form as they have been of Right yielded and payd within forty years next before the making of this Act, or of Right and Custom ought to have been payd.
And after in the same Act there is this clause and Proviso, Provided always, and be it enacted, That no person shall be sued, or otherwise compelled to yield, give, or pay any manner of Tythes for any Mannors, Lands, Tenements, or Hereditaments, which by the Laws and Statutes of this Realm, or by any priviledg or prescription, are not chargeable with the payment of any such Tythes, or that be discharged by any compositions real. And afterwards, there is another Branch in the said Act; And be it further enacted, That if any person do subtract or withdraw any manner of Tythes, Obventions, Profits, Commodities, or other Duties before mentioned (which extends to Custom of Tything, i.e. Modus Decimandi, mentioned before in the Act, &c.) that then the party so substracting, &c. may be convented and sued in the Kings Ecclesiastical Court, &c. And upon the said Branch, which is the Negative, That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law, Statute, Priviledg, Prescription, or Real Composition. And always when an Act of Parliament commands or prohibits any Court, be it Temporal or Spiritual, to do any thing temporal or spiritual, if the Statute be not obeyed, a Prohibition lieth: as upon the Statute de articulis super Cartas, ca. 4. Quod Communia Placita non tenentur in Scaccario:18 a Prohibition lieth to the Court of Exchequer, if the Barons hold a Common-Plea there, as appeareth in the Register 187. b. So upon the Statute of West. 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria;19 a Prohibition lieth to the Justices of Nisi Prius. So upon the Statute of Articuli super Cartas, cap. 7. Quod Constabularius Castr. Dover, non teneat Placitum forinsecum quod non tangit Custodiam Castri,20 Register 185.21 So upon the same Statute, cap. 3. Quod Senescallus et Mariscallus non teneant Placita de libero tenemento, de debito, conventione,22&c. a Prohibition lieth, 185. And yet by none of these Statutes, no Prohibition or Supersedeas23 is given by express words of the Statute. So upon the Statutes 13 Ric. 2. cap. 3. 15 Ric. 2. cap. 2. 2 Hen. 4. cap. 11. by which it is provided, That Admirals do not meddle with any thing done within the Realm, but onely with things done upon the Seas, &c. a Prohibition lieth to the Court of Admiralty.
So upon the Statute of West. 2. cap. 43. against Hospitalers and Templers, if they do against the same Statute, Regist. 39 a. So upon the Statute de Prohibitione regia, Ne laici ad citationem Episcopi conveniant ad recognitionem faciend. vel Sacrament. praestanda nisi in casubus matrimonialibus & Testamentariis,24 a Prohibition lieth. Regist. 36. b. And so upon the Statute of 2 Hen. 5. cap. 3. at what time the Libel is grantable by the Law, that it be granted and delivered to the party without difficulty, if the Ecclesiastical Judg, when the cause which depends before him is meer Ecclesiastical, denyeth the Libel, a Prohibition lieth, because that he doth is against the Statute; and yet no Prohibition by any express words is given by the Statute. And upon the same Statute the Case was in 4 Edw. 4. 37. Pierce Peckam took Letters of Administration of the Goods of Rose Brown of the Bishop of London, and afterwards T. T. sued to Thomas Archbishop of Canterbury, That because the said Rose Brown had Goods within his Diocess, he prayed Letters of Administration to be committed to him, upon which the Bishop granted him Letters of Administration, and afterwards | T. T. libelled in the Spiritual Court of the Archbishop in the Arches against Pierce Peckam, to whom the Bishop of London had committed Letters of Administration to repeal the same: and Pierce Peckam, according to the said Statute, prayed a Copy of the Libel exhibited against him, and could not have it, and thereupon he sued a Prohibition, and upon that an Attachment: And there Catesby Serjeant moved the Court, that a Prohibition did not lie, for two causes: 1. That the Statute gives that the Libel shall be delivered, but doth not say that the Plea in the Spiritual Court shall surcease by Prohibition. 2. The Statute is not intended of matter meer spiritual, as that case is, to try the Prerogative and the Liberty of the Archbishop of Canterbury and the Bishop of London, in committing of Administrations. And there Danby Chief Justice, If you will not deliver the Libel according to the Statute, you do wrong, which wrong is a temporal matter, and punishable at the Common Law; and therefore in this case the party shall have a special Prohibition out of this Court, reciting the matter, and the Statute aforesaid, commanding them to surcease, until he had the Copy of the Libel delivered unto him: which case is a stronger case then the case at the Bar, for that Statute is in the Affirmative, and the said Act of 2 Edw. 6. cap. 13. is in the Negative, scil. That no Suit shall be for any Tythes of any Land in kinde where there is Modus Decimandi, for that is the effect of the said Act, as to that point. And always after the said Act, in every Term in the whole Reigns of King
Edward the sixth, Queen Mary, and Queen Elizabeth, until this day, Prohibitions have been granted in Causa Modi Decimandi, and Judgments given upon many of them, and all the same without question made to the contrary. And accordingly all the Judges resolved in 7 Edw. 6. Dyer 79. Et contemporanea expositio est optima & fortissima in lege, & a communi observantia non est recedendum, & minime mutanda sunt quae certam habuerunt interpretationem.25
And as to the first Objection, That the Plea of Modus Decimandi is but accessary unto the Right of Tythes; it was resolved, that the same was of no force, for three causes:
1. In this case, admitting that there is a Modus Decimandi, then by the Custom, and by the Act of 2 Edw. 6. and the other Acts, the Tythes in kinde are extinct and discharged; for one and the same Land cannot be subject to two manner of Tythes, but the Modus Decimandi is all the Tythe with which the Land is chargeable: As if a Horse or other thing valuable be given in satisfaction of the Duty, the Duty is extinct and gone: and it shall be intended, that the Modus Decimandi began at the first by real composition, by which the Lands were discharged of the Tythes, and a yearly sum in satisfaction of them assigned to the Parson, &c. So as in this case there is neither Principal nor Accessary, but an Identity of the same thing.
2. The Statute of 2 Edw. 6. being a Prohibition in it self, and that in the Negative, If the Ecclesiastical Judg doth against it, a Prohibition lieth, as it appeareth clearly before.
3. Although that the Rule be general, yet it appeareth by the Register it self, that a Modus Decimandi is out of it; for there is a Prohibition in Causa Modi Decimandi, when Lands are given in satisfaction of the Tythes.
As to the second Objection, it was answered and resolved, That that was from, or out of the Question; for status Quaestionis non est | deliberativus sed judicialis,26 what was fit and convenient, but what the Law is: and yet it was said, It shall be more inconvenient to have an Ecclesiastical Judg, who is not sworn to do Justice, to give sentence in a case between a man of the Clergy and a Lay-man, then for twelve men sworn to give their Verdict upon hearing of Witnesses viva voce,27 before an indifferent Judg, who is sworn to do Right and Justice to both parties: But convenient or inconvenient is not the Question: Also they have in the Spiritual Court such infinite exceptions to Witnesses, that it is at the Will of the Judg with which party he shall give his sentence.
As to the third Objection, it was answeredandresolved:First, That satisfactio pecuniaria28 of it self is Temporal: But for as much as the Parson hath not remedy pro Modo Decimandi at the Common Law, the Parson by force of the Acts cited before might sue pro Modo Decimandi in the Ecclesiastical Court: but that doth not prove, That if he sueth for Tythes in kinde, which are utterly extinct, and the Land discharged of them, that upon the Plea de Modo Decimandi, that a Prohibition should not lie, for that without all question appeareth by all that which before hath been said, that a Prohibition doth lie. See also 12 Hen. 7. 24 b. Where the original cause is Spiritual, and they proceed upon a Temporal, a Prohibition lieth. See 39 Edw. 3. 22 Edw. 4. Consultation, That right of Tythes which is meerly ecclesiastical, yet if the question ariseth of the limits of a Parish, a Prohibition lieth: and this case of the limits of a Parish was granted by the Lord Chancellor, and not denyed by the other side.
As to the Objection, That an Averment is taken of the refusal of the Plea de Modo Decimandi; it was answered and resolved, That the same is of no force for divers causes:
1. It is onely to Enforce the contempt.
2. If the Spiritual Court ought to have the Tryal de Modo Decimandi, then the refusal of acceptance of such a Plea should give cause of Appeal, and not of Prohibition: as if an Excommunication, Divorce, Heresie, Simony, &c. be pleaded there, and the Plea refused, the same gives no cause of Prohibition: as, if they deny any Plea, meer spiritual Appeal, and no Prohibition lieth.
3. From the beginning of the Law, no Issue was ever taken upon the refusal of the plea in Causa Modi Decimandi, nor any Consultation ever granted to them, because they did not refuse, but allowed the plea.
4. The refusal is no part of the matter issuable or material in the plea; for the same is no part of the suggestion which onely is the substance of the plea: and therefore the Modus Decimandi is proved by two Witnesses, according to the Statute of 2 Edw. 6. cap. 13. and not the refusal, which proveth, that the Modus Decimandi is onely the matter of the suggestion, and not the refusal.
5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 Edw. 6. being contained within a suggestion, ought to be proved by two Witnesses, and so have been always from the time of the making of the said Act; and therefore the Statute of 2 Edw. 6. clearly intended, that Prohibitions should be granted in such causes.
6. Although that they would allow bona fide de Modo Decimandi,29 without refusal, yet if the Parson sueth there for Tythes in kinde, when the Modus30 is proved, the same being expressly prohibited by the | Act of 2 Edw. 6. a Prohibition lieth, although the Modus be spiritual, as appeareth by the said Book of 4 Edw. 4. 37. and other the cases aforesaid.
And afterwards, in the third day of debate of this case before his gracious Majesty, Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi, thinking that those would make a great impression in the Opinion of the King: and thereupon they said, That Consultations were the Judgments of Courts had upon deliberation, whereas Prohibitions were onely granted upon surmises: And they shewed four Presidents:
One, where three joyntly sued a Prohibition in the case of Modo Decimandi, and the Consultation saith, Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit, &c.31
2. Another in Causa Modi Decimandi, to be payd to the Parson or Vicar.
3. Where the Parson sued for Tythes in kinde, and the Defendant alleged Modus Decimandi to be payd to the Vicar.
The fourth, where the Parson libelled for Tythe Wool, and the defendant alleged a custom, to reap corn, and to make it into sheaves, and to set forth the tenth sheaf at his charges, and likewise of Hay, to sever it from the nine cocks at his charge, in full satisfaction of the Tythes of the Corn, Hay, and Wool.
To which I answered, and humbly desired the Kings Majesty to observe that these have been reserved for the last, and center point of their proof: And by them your Majesty shall observe these things:
1. That the Kings Courts do them Justice, when with their consciences and oaths they can.
2. That all the said Cases are clear in the Judgment of those who are learned in the Laws, that Consultation ought by the Law to be granted.
For as unto the first president, the case upon their own shewing appeareth to be, Three persons joyned in one Prohibition for three several parcels of Land, each of which had a several manner of Tything; and for that cause they could not joyn, when their interests were several; and therefore a Consultation was granted.
As to the second president, The manner of Tything was alledged to be payd to the Parson or Vicar, which was altogether uncertain.
As to the third president, The Modus never came in debate, but whether the Tythes did belong to the Parson or Vicar? which being betwixt two spiritual persons, the Ecclesiastical Court shall have Jurisdiction: and therewith agreeth 38 Edw. 3. 6. cited before by Bacon: and also there the Prior was of the Order of the Cistertians; for if the Tythes originally belonged to the Parson, any recompence for them shall not bar the Parson.
As to the last president, the same was upon the matter of a Custom of a Modus Decimandi for Wool: for to pay the Tythe of Corn or Hay in kinde, in satisfaction of Corn, Hay and Wool, cannot be a satisfaction for the Wool; for the other two were due of common right: And all this Appeareth in the Consultations themselves, which they shew, but understand not. To which the Bishop of London said, that the words of the Consultation were, Quod suggestio praedicta materiaq; in eadem contenta minus sufficiens in Lege existet, &c.32 so as materia cannot be referred to form, and therefore it ought to extend to the Modus Decimandi.
| To which I answered, That when the matter is insufficiently or uncertainly alleged, the matter it self faileth; for matter ought to be alleged in a good sentence: and although the matter be in truth sufficient, yet if it were insufficiently alleged, the plea wanteth matter. And the Lord Treasurer said openly to them, that he admired that they would alledg such things which made more against them than any thing which had been said. And when the King relied upon the said Prohibition in the Register, when Land is given in discharge of Tythes, the Lord Chancellor said, that that was not like to this case; for there, by the gift of the Land in discharge of Tythes, the Tythes were actually discharged: but in the case De Modo Decimandi, an annual sum is payd for the Tythes, and the Land remains charged with the Tythes, but ought to be discharged by plea de Modo Decimandi: All which was utterly denyed by me; for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi, when an annual sum ought to be payd, as where Land is given: for all the Records and presidents of Prohibition in such cases are, That such a sum had been always, &c. payd in plenam contentationem, satisfactionem & exonerationem omnium & singularium Decimarum, &c.33 And although that the sum be not payd, yet the Parson cannot sue for Tythes in kind, but for the mony: for, as it hath been said before, the Custom and the said Acts of Parliament (where there is a lawful manner of Tything) hath discharged the Lands from Tythes in kinde, and prohibited, that no suit shall be for them. And although that now (as it hath been said) the Parsons, &c. may sue in the Spiritual Court pro Modo Decimandi, yet without question, at the first, the annual payment of mony was as Temporal, as annual profits of Lands were: All which the King heard with much patience. And the Lord Chancellor answered not to that which I had answered him in, &c.
And after that his most excellent Majesty, with all his Councel, had for three days together heard the allegations on both sides, He said, That he would maintain the Law of England, and that his Judges should have as great respect from all his Subjects as their predecessors had had: And for the matter, he said, That for any thing that had been said on the part of the Clergy, that he was not satisfied: and advised us his Judges to confer amongst our selves, and that nothing be encroached upon the Ecclesiastical Jurisdiction, and that they keep themselves within their lawful Jurisdiction, without unjust vexation and molestation done to his Subjects, and without delay or hindering of Justice. And this was the end of these three days consultations.
And note, That Dr. Bennet in his discourse inveighed much against the opinion in 8 Edw. 4. 14. and in my Reports in Wrights Case, That the Ecclesiastical Judg would not allow a Modus Decimandi; and said, That that was the mystery of iniquity, and that they would allow it. And the King asked, for what cause it was so said in the said Books? To which I answered, that it appeareth in Linwood, who was Dean of the Arches, and of profound knowledg in the Canon and Civil Law, and who wrote in the Reign of King Henry the sixth, a little before the said Case in 8 Edw. 4. in his title de Decimis, cap.
Quoniam propter, &c. fo. 139 b. Quod Decimae solvantur, &c. absque ulla diminutione: and in the gloss it is said, Quod Consuetudo de non Decimando, aut de non bene Decimando non valet.34 And that being written by a great Canonist of England, was the cause of the said saying in 8 Edw. 4. that they would not allow the said plea de Modo Decimandi; for always the Modus | Decimandi is lesse in value then the Tithes in specie, and then the same is against their Canon; Quod decimae solvantur absque diminutione, & quod consuetudo de non plene Decimando non valet.35 And it seemed to the King, that that Book was a good Cause for them in the time of King Edward the fourth to say, as they had said; but I said, That I did not relie upon that, but upon the grounds aforesaid, (scil.) The Common Law, Statute-Laws, and the continuall and infinite judgements and judiciall proceedings, and that if any Canon or Constitution be against the same, such Canon and Constitution, &c. is void by the Statute of 25 Hen. 8. Cap. 19. which see and note: For all Canons, Constitutions, &c. against the Prerogative of the King, the common Laws, Statutes, or Customs of the Realm are void.
Lastly, the King said; That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant, and cannot permit the ordinary Proces of the Ecclesiasticall Law; and which the same Law cannot punish. And that was the cause of the institution of the same Commission, and therefore, although every offence, ex vi termini,36 is enormious, yet in the Statute it is to be intended of such an offence, is extra omnem normam,37 as Heresie, Schisme, Incest, and the like great offences: For the King said, That it was not reason that the high Commission shouldhave conusanceofcommon offences, but to leave them to Ordinaries, scil. because, that the party cannot have any appeal in case the high Commission shall determine of it. And the King thought that two high Commissions, for either Province one, should be sufficient for all England, and no more.
[1. ][Ed.: Of the custom of tithing,]
[2. ][Ed.: in ecclesiastical causes.]
[3. ][Ed.: because it is not consonant with reason that the cognizance of an incidental matter in court Christian should be hindered where it is known that the cognizance of the principal cause belongs to the ecclesiastical jurisdiction.]
[4. ][Ed.: when the cause ceases, the effect ceases also,]
[5. ][Ed.: (jurisdiction over) the crime of lèse-majesté (treason).]
[6. ][Ed.: in a deliberative state,]
[7. ][Ed.: in a judicial state;]
[8. ][Ed.: for the good of it;]
[9. ][Ed.: for truth, not to make Law but to lay down what it is;]
[10. ][Ed.: [a Case] of first impression,]
[11. ][Ed.: in this judicial state,]
[12. ][Ed.: as above:]
[13. ][Ed.: into another forum.]
[14. ][Ed.: Tithes due or accustomed,]
[15. ][Ed.: The 1659 edition misnumbers this and the next paragraph “7” and “8.”]
[16. ][Ed.: into pecuniary penalty.]
[17. ][Ed.: forasmuch as the rector of Chesterton demanded a certain portion from Hugh de Logis for tithes of mills.]
[18. ][Ed.: That common pleas should not be held in the Exchequer.]
[19. ][Ed.: That inquisitions which require great examination should not be taken in the country.]
[20. ][Ed.: That the constable of Dover Castle should not hold a foreign plea which does not touch the keeping of the castle.]
[21. ]See Lib. Entr. 450, a Prohibition was upon the Statute that one shall not maintain; and so upon every penal Law. See F. N. B. 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta that they do not proceed in a Writ of Praecipe in Capite, where the Land is not holden of the King. 1 & 2 Eliz. Dyer 170, 171. Prohibition upon the Statute of barrenes, and pettit is onely prohibited by implication.
[22. ][Ed.: That the steward and marshal should not hold pleas of freehold, debt, covenant, etc.]
[23. ][Ed.: Writ from a superior court to an inferior court to stay proceedings.]
[24. ][Ed.: concerning the royal prohibition, that laymen be not convented at the citation of a bishop to make recognitions or take oaths except in matrimonial and testamentary causes,]
[25. ][Ed.: And contemporary exposition is the best and strongest in Law. and one should not go back on common observation; and things which have had a certain interpretation are not to be changed.]
[26. ][Ed.: the state of the question is not deliberative but judicial.]
[27. ][Ed.: orally (Literally, with living voice).]
[28. ][Ed.: pecuniary satisfaction.]
[29. ][Ed.: an agreed scheme for tithing, in good faith.]
[30. ][Ed.: scheme.]
[31. ][Ed.: Forasmuch as the suggestion and the matter therein contained is insufficient in Law, etc.]
[32. ][Ed.: That the aforesaid suggestion and the matter therein contained is insufficient in Law, etc.]
[33. ][Ed.: in full contentment, satisfaction, and discharge of and singular the tithes, etc.]
[34. ][Ed.: and in the Gloss it is said that a custom of not tithing, or of not tithing in full, does not avail.]
[35. ][Ed.: That tithes be paid, etc. without any dimunition, and that a custom of not tithing, or of not tithing in full, does not avail.]
[36. ][Ed.: by force of the term,]
[37. ][Ed.: outside every rule,]