that the fees or delayes are so intolerable. And where in ancient time such as sued for tithes, would not sue but for things questionable, and never sought at their parishioners hands their tithes in other kinds then anciently they had been used to have been paid; now many turbulent ministers do infinitely vexe their parishioners for such kinds of tithes as they never had, whereby many parishes have been much impoverished and for example, we shall shew one record, wherein the minister did demand seventeen severall kinds of tithes, whereupon the partie suing a prohibition had eight or nine of them adjudged against the minister upon demurrer in law, and other passed against him by tryall, and this must of necessity grow to a matter of great charge; but where is the fault, but in the minister that gave occasion? and we will shew one other record, wherein the party confessed to some of us, that hee was to sue his parishioner but for a calfe and a goose; and that his proctor neverthelesse put in the libell or demand of tithes, of seven or eight things more then he had cause to sue for: this enlarged the Prohibition, and gave occasion of more expence then needed; and where is the fault of this, but in the ecclesiasticall courts? and as in these, so can wee approve in many others; and therefore wee must retort the cause and ground of this grievance upon themselves, as more particularly may appeare by the severall presidents to be shewed in this behalfe. 9. Prohibitions not to be granted upon frivolous suggestions. Objection. It is a prejudice and derision to both his majesties ecclesiastical and temporal jurisdictions, that many prohibitions are granted upon trifling and frivolous suggestions, altogether unworthy to proceed from the one, or to give any hinderance or interruption to the other: as upon a suit of tithes brought by a minister against his parishioner, a Prohibition flyeth out upon suggestion, that in regard of a special receipt, called a cup of buttered beare, inade by the great skill of the said parishioner to cure a grievous disease called a cold, which sorely troubled the said minister, all his tithes were discharged. And likewise a woman being convented for adultery committed with one that suspiciously resorted to her house in the night time, the suggestion of a Prohibition in this case was, that omnia placita de nocturnis ambulationibus' belong to the king, &c. Also where a legatary sued for his legacy given in a will, the prohibition was, Quia omnia placita de donis et consessionibus spectant ad forum regium, et non ad forum eèclesiasticum, dummodo non sint de testamento et matrimonio;' as if a legacy were not donatio de or in testamento, with many other of like sort. The reformation of all which frivolous proceedings, so chargeable notwithstanding to many poore men, and the great hinderance of justice, we humbly referre to your lordships consideration. Answer. We grant none upon frivolous suggestions, but for the case put, it is ridiculous in the minister to make such a contract (if any such were) but that maketh not the contract void, but discovereth the unworthiness of the party that made the same, and yet no fault in granting the prohibition; but when it shall appeare unto us, that such a matter is suggested by fraud of any clerke or counceller at law, we will not remit such offences, but will exclude such attorney from the court, and such councellers from their practice at the barre. And if they will suggest adultery to one, against whom they prove but night walking, and doe adjudge him for it, we are in such a case to prohibite their proceedings: for that is a matter meerly pertinent to the temporall court; so, if it appeare hee hath entred the house as a thiefe, or a burglarer, and so in many other cases also. And if any surmise a legacy from the dead, where it was but a promise of payment in his life time, in that case such a suit is to be prohibited: but if in these cases the parties were named, then we might see the record, and thereupon be directed to shew upon what consideration these prohibitions were granted, otherwise we shall think that these are cases' newly invented. 10. No Prohibition to be granted at his suit, who is plaintife in the spirituall court, Objection. We suppose it to be no warrantable nor reasonable course, that prohibi tions are granted at the suit of the plaintife in the ecclesiasticall court, who having made choice thereof, and brought his adversary there into tryall, doth by all intendment of law and reason, and by the usage of all other judiciall places conclude himself in that behalfe; and although he cannot be presumed to hope for helpe in any other court by way of prohibition, yet it is very usuall for every such person so proceeding onely of meere malice for vexation of the party, and to the great delay and hinderance of justice, to find favour for the obtaining of prohibitions, sometimes after two or three sentences, thereby taking advantage (as he must plead) of his owne wrong, and receiving aide from that court, which by his owne confession, he before did contemne; touching the equity whereof, we will expect the answer of the judges. Answer, None may pursue in the ecclesiasticall court for that which the kings courts ought to hold plea of, but upon information thereof given to the king's courts, either by the plaintife, or by any meere stranger, they are to be prohibited, because they deale in that which appertaineth not to their jurisdiction, where if they would be carefull not to hold plea of that which appertaineth not to them, this needed not and if they will proceed in the kings courts against such as pursue in the ecclesiasticall courts for matter temporall, that is to be inflicted upon them, which the quality of their offence requireth; and how many sentences howsoever are given, yet prohibitions thereupon are not of favour, but of justice to be. granted. 11. No Prohibition to be granted, but upon | pleasure draw any cause whatsoever from the due consideration of the libell. ecclesiasticall court: for example, many probibitions have lately come forth upon this suggesObjection. It is (we are perswaded) a great tion, that the lawes ecclesiasticall do require abuse, and one of the chiefe grounds of the most of the former abuses, and many other, of one; and therefore it is contra legem terræ, two witnesses, where the common law accepteth that prohibitions are granted without sight of for the ecclesiasticall judge to insist upon two the libell in the ecclesiasticall court; yea, sometimes before the libell be there exhibited, witnesses to prove his cause: upon which sugwhereas by the lawes and statutes of this realme gestion, although many consultations have been (as we thinke) the libell (being a briefe declara- granted (the same being no way as yet able to warrant and maintaine a prohibition) yet betion of the matter in debate betweene the cause we are not sure, but that either by reaplaintife and defendant) is appointed as the son of the use of it, or of some future construconly rule and direction for the due granting of a prohibition, the reason whereof is evident, tion, it may have given to it more strength then is convenient, the same tending to the utter viz. upon diligent consideration of the libell it overthrow of all ecclesiasticall jurisdiction, we will easily appeare, whether the cause belong most humbly desire, that by your lordships to the temporall or ecclesiasticall cognizance, as on the other side without sight of the libell, good meanes, the same may be ordered to be the prohibition must needs range and roave with strange and forraigne suggestions at the will and pleasure of the devisor, nothing pertinent to the matter in demand: whereupon it cometh to passe, that when the judge ecclesiasticall is handling a matter of simony, a prohibition is grounded upon a suggestion, that the court tryeth' placita de advocationibus ecclesiarum, et de jure patronatus.' And when the libell containeth nothing but the demand of tithe wooll, and lamb, the prohibition surmiseth a custome of paying of tithe pigeons. So that if it may be made a matter of conscience to grant prohibitions only, where they doe rightly Iye, or to preserve the jurisdiction ecclesiasticall united to his majesties crowne, it cannot (we hope) but seem necessary to your lordships, that due consideration be first had of the libell in the ecclesiasticall court, before any prohibition be granted. Answer. Who hath an advowson granted to him for money, being sued for simony, shall have a Prohibition; and it is manifest, that though in the libell there appeare no matter to grant a prohibition, yet upon a collateral surinise the prohibition is to be granted: as where one is sued in a spirituall court for tithes of silva cadua, the party may suggest, that they were grosse or great trees, and have a prohibition, yet no such matter appeareth in the libell. So if one bee sued there for violent hands laid on a minister by an officer, as a constable, hee being sued there may suggest, that the plaintife made an affray upon another, and he to preserve the peace laid hands on him, and so have a prohibition. And so in very many other like cases, and yet upon the libell no matter appeareth why a prohibition should be granted: and they will never shew, that a custome to pay pigeons was allowed to discharge the payment of wooll, lamb, or such like. 12. No Probibition to be granted under pretence, that one witnesse cannot be received in the ecclesiasticall court, to ground a judgment upon." Objection: There is a new devised suggestion in the temporall courts commonly received and allowed, whereby they may at their will and no more used. Answer. If the question be upon payment, or setting out of tithes, or upon the proofe of a legacy, or marriage, or such like incidence, we are to leave it to the tryall of their law, though the party have but one witnesse; but where the inatter is not determinable in the ecclesiasticall court, there lyeth a prohibition either upon, or without such a surmise. 13. No good suggestion for a Prohibition, that the cause is neither testamentary, nor matrimoniall. Objection. As the former device last mentioned endevoureth to strike away at one blow is another as usuall, or rather more frequent the whole ecclesiasticall jurisdiction; so there then the former, which is content to spare us two kind of causes to deale in, viz. testamentary, and matrimoniali: and this device insulteth mightily in many prohibitions, commanding the ecclesiasticall judge, that be the cause never so apparently of ecclesiasticall cognisance, yet hee shall surcease; for that is neither a cause testamentary, nor matrimoniall: which suggestion, as it grew at the first upon mistaking, and omitting, the words, de bonis et catallis, &c. as may appeare by divers ancient prohibitions in the Register; so it will not be denied, but that, besides those two, divers and sundry other causes are notoriously knowne to be of ecclesiasticall Cognizance, and that consultations are as usually awarded, if suit in that behalfe be prosecuted, notwithstanding the said suggestion, as their prohibitions are easily granted; which, as an injury, marching with the rest to wound poore men, protract suits, and prejudice the courts ecclesiasticall, we desire that the judges will be pleased to redresse. Answer. If they observe well the answer to the former objections, they may be thereby satisfied, that we prohibit not so generally as they pretend, nor doe in any wise deale further then we ought to doe, to the prejudice of that which appertaineth to that jurisdiction; but when they will deale with matters of temporall contracts, coloured with pretended ecclesiasticall matter, wee ought to prohibit them with that forme of prohibitions, mentioning, that it con cerneth not matter of marriage, nor testamentary: and they shall not find that we have granted any, but by form warranted, both by the Register, and by law: And when suggestions, carrying matter sufficient, appeare to us judicially to be untrue and insufficient, we are as ready to grant consultations as prohibitions. and we may not alter the forme of our prohibitions upon the conceits of ecclesiasticall judges, and prohibitions granted in the forme set downe in the article, are of that forme which by law they ought to be, and cannot be altered but by parliament. 14. No Prohibition upon surmise onely to be granted, either out of the kings bench, or common pleas, but out of the chancery onely. unbeseeming aspersion of that upon the judges, which ought to have been forborn. 15. No Prohibition to be awarded under a false pretence, that the ecclesiasticall judges would hold no plea for customes for tithes. Objection. Amongst many devices, whereby the cognizance of causes of tithes is drawn from ecclesiasticall judges, this is one of the chiefest, viz. concerning the tryall of customes in payment of tithes, that it must be made in a tem porall court; for upon a quirke and false suggestion in Edward the fourth bis time, made by hath lately taken greater strength then before) some sergeants, a conceit hath risen (which that ecclesiasticall judges will allow no plea of custome or prescription, either in non decimando, or in modo decimandi; and thereupon, when Objection. Amongst the causes whereby the contentious persons are sued in the ecclesiastiecclesiasticall jurisdiction is oppressed with call court for tithes, and doe perceive, that upon multitude of prohibitions upon surmises onely, good proofe judgement will be given against this bath a chiefe place, in that through incroach-them, even in their owne pleas, sometimes for ment (as wee suppose) there are so many seve- custoines, doe presently, knowing their own rall courts, and judges in them, that take upon strength with jurors in the country, flie unto them to grant the same, as in the kings bench Westminster hall, and there suggesting that they five, and in the common pleas as many, the one pleaded custome for themselves in the ecclesicourt oftentimes crossing the proceedings of the asticall courts, but could not be heard, doe other, whereas wee are perswaded, that all such procure thence very readily a prohibition; and kinds of probibitions, being originall writs, albeit the said suggestion be notoriously false, ought onely tissue out of the chancery, and yet the party prohibited may not bee permitted neither out of the kings bench, nor common to traverse the same in the temporall court, dipleas. And that this hath been the ancient rectly contrary to a statute made in that behalfe : practice in that behalfe, appeareth by some neither may the judge prohibited proceed withstatutes of the realme, and sundry judgements out danger of an attachment, though himselfe at the common law; the renewing of which doe certainly know, either that no such custome practice carrieth with it an apparent shew of was ever alledged before him, or being alledggreat benefit and conveniency, both to the ed, that he did receive the same, and all manchurch, and to the subject: for if prohibitions ner of proofes offered thereupon: which course were to issue onely out of one court, and from seemeth the more strange unto us, because the one man of such integrity, judgement, sincerity, ground thereof laid in Edward the fourth his and wisedom, as we are to imagine the lord time, as aforesaid, was altogether untrue, and chancellour of England to be endued with, it is cannot with any sound reason be maintained: not likely, that he would ever be induced to pre- divers statutes and judgements at the common judice and pester the ecclesiasticall courts with law doe allow the ecclesiasticall courts to hold so many needlesse prohibitions; or, after a con- plea of such customes; all our bookes and gesultation, to send out in one cause, and upon nerall learning doe therewith concurre, and the one and the same libell not altered, prohibition ecclesiasticall courts, both then and ever since, upon prohibition, his owne act remaining upon even untill this day, have, and still doe admit record before him to the contrary. The fur- the same, as both by our ancient and recent ther consideration whereof, when, upon the records it doth and may to any most manifestly judges answer thereunto, it shall be more tho- appeare. And besides, there are some consulroughly debated, wee must referre to your lord- tations to bee shewed in this very point, wherein ships honourable direction and wisdome. the said surmise and suggestion, that the eccleec-siasticall judges will heare no plea of customes, is affirmed to be insufficient in law to maintaine any such prohibition: and therefore we hope, that if we shall be able, notwithstanding any thing the judges shall answer thereunto, to jus tifie the premisses, your lordships will be a meanes, that the abuses herein complained of, having so false a ground, may be amended. Answer. A strange presumption in the clesiasticall judges, to require that the kings courts should not doe that which by law they ought to doe, and alwayes have done, and which by oath they are bound to doe! and if this shall be holden inconvenient, and they can in discharge of us obtaine some act of parliament to take it from all other courts then the chancery, they shall doe unto us a great ease: but the law of the realme cannot be changed, but by parliament: and what reliefe or ease such an act may worke to the subject, wise men will soone finde out and discerne: but by these article thus dispersed abroad, there is a generall VOL. II. Answer. The temporall courts have alwayes granted prohibitions as well in cases de modo decimandi, as in cases upon reall compositions. either in discharge of tithes, or the manner of tithing: for that modus decimandi had his originall ground upon some composition in tha; 14 over-borne, and poore ministers still left unto country tryalls, there to justifie the rights of their tithes before unconscionable jurors in these cases. Answer. The answer to the former article may serve for this; and where the objection seemneth to impeach the tryall at the common law by jurors, we hold, and shall be able to ap prove it to be a farre better course for matter of fact upon the testimonie of witnesses, sworne viva voce, then upon the conscience of any one particular man, being guided by paper proofes; and we never heard it excepted unto heretofore, that any statute should be expound kinde made, and all prescriptions and compo- | sitions in these cases are to be tryed at the common law, and the ecclesiasticall courts ought to be prohibited, if in these cases they had plea of tithes in kind: but if they will sue in the ecclesiasticall court de modo decimandi, or according to composition, then we prohibit them not: and the cause why the ecclesiasticall judges find fault herewith, is, because many ministers have growne of late more troublesome to their parishioners, then in times past; and thereby worke unto these courts inore commodity, whereas in former ages they were well contented to accept that which was used to be paid, and not to contend against any prescrip-ed by any other then the judges of the land ; tion or composition; but now they grow so troublesome to their neighbours, as were it not for the prohibition (as may appeare by the presidents before remembred) they would soone overthrow all prescriptions and compositions that are for tithes, which doth and would breed such a generali garboile amongst the people, as were to be pitied, and not to be permitted. And where they say, there bee many statutes that take away these proceedings from the temporall courts, they are much deceived; and if they looke well unto it, they shall find even the same statutes, they pretend, to give way unto it. And it is strange they will affirme so great an untruth, as to say, they are not permitted to traverse the suggestion in the temporall court; for both the law and daily practice doth allow it. 16. The Customes for Tithes are onely to be tried in the ecclesiasticall courts, and ought not to be drawne thence by Probi bitions. neither was there ever any so much over-seen, as to oppose himselfe against the practice of all ages to make that question, or to lay any such unjust imputation upon the judges of the realme. 17. No Prohibition to be granted, because the treble value of tithes is sued for in the ecclesiasticall court. Objection. Whereas it appeareth plainly by the tenour of the statute of Edw. 6, cap. 13, that judges ecclesiasticall, and none other, are to heare and determine all suits of tithes, and other duties for the same, which are given by the said act; and that nothing else is added to former lawes by that statute, but onely certaine penalties, for example, one of treble value: forasmuch as the said penalty, being onely devised as a meanes to worke the better payment of tithes, and for that there are no words used in the said statute to give jurisdiction to any temporall court, we hold it most apparant, that the said penalty of treble value, Objection. Although some indiscreet eccle- being a duty given in the said statute for nonsiasticall judges, either in the time of king Ed-payment of tithes, cannot bee demanded in the ward the 4th, or Edward the 6th, might, temporall court, but onely before the ecclesiasagainst law, have refused in some one cause to ticall judges, according to the expresse words admit a plea of custome of tithes, to the preju- of the said statute: and the rather, wee are so dice of some person whom he favoured, and perswaded, because it is most agreeable to all might thereby peradventure have given occa- lawes and reason, that where the principall sion of some one prohibition, but whether they cause is to bee decided, there all things incidid so or no, the suggestion of a lawyer for his dent and accessary are to bee determined. fee is no good proofe, yet forasinuch as by Besides, it was the practice of all ecclesiastithree statutes made since that time, wherein it call courts in this realme, immediately after the is ordained, viz. both that tithes should be truly making of the said statute, and hath continued paid, according to the custome, and the tryall so ever since, to award treble damages, when of such payments, according to custome upon there hath been cause, without any opposition, any default or opposition, should be tryed in until about ten yeares past, when, or about the kings ecclesiasticall courts, and by the which time, notwithstanding the premisses, the kings ecclesiasticall lawes, and not otherwise, temporall judges began to hold plea of treble or before any other judges then ecclesiasticall, value, and doe now accompt it so proper and we most humbly desire your lordships, that if peculiar to their jurisdictions, as by colour according to the said lawes we be most ready thereof they admit suits originally for the said to heare any plea of customes your lordships penalty, and doe make thereby, very absurdly, would be pleased, that the judges may not be the penalty of treble value to bee principall, permitted herealter to grant any prohibitions which is indeed but the accessary; and the upon such false surmises; or if they shall an- cognizance of tithes to bee but the accessary, swer, that wee mistake the said statutes, that which in all due construction is most evident to then the said three statutes may bee throughly be the principall, thereby wholly perverting the debated before your lordships, lest under pre-, true meaning and drift of that statute, wheretence of a right, which they challenge, to ex-upon if in the spirituall court the treble value pound these kind of statutes, the truth may be be now demanded by the libell as a duty, ac cording to that statute, or that sentence being or intent that the parson shall ever carry awarded directly and sincerely upon the said libell, presently, as contentious persons are disposed, a prohibition is granted, and some sharp words are further used, as if the ecclesiasticall judges were in some further danger for holding of these kind of pleas: and therefore we most humbly desire, that if the judges shall insist in their answers upon such their straining of the said statute, your lordships will be pleased to heare the same further debated by us with them. Answer. If they observe well the statute, they shall find, that the ecclesiasticall court is by that statute to hold plea of no more, then that which is specially thereby limited for them to hold plea of; and the temporall court not restrained thereby, to hold plea of that which is not limited unto the ecclesiasticall court by that act, and of that they had jurisdiction of before and the forfeiture of double value is expresly limited to be recovered before the ecclesiasticali judges; but where a forfeiture is given by an act generally not limiting where to be recovered, it is to be recovered in the kings temporall courts, and the cause why it is so divided, seemeth to be for that, where by that act, temporall men were to sue for their tithes in the ecclesiasticall court, where it was then presumed they were to have no great favour: therefore the party grieved might, if he would, pursue for the forfeiture of the treble value in the temporall court, where hee was to recover no tithes; but if he would sue where he might also recover the tithes, then hec would pursue for the double value: for that is specially appointed to be recovered in the ecclesiasticall court, but not the treble value. And although they alledge, that they sometimes used to maintaine suit for the treble value, yet as soon as that was complained of to the kings courts, they gave reinedy unto it as appertained. 18. No Prohibition to be awarded, where the person is stopped from carrying away of his tithes by him that setteth them forth. Objection. As the said statute of Edward the 6th last mentioned assigneth a penalty of treble value, if a man upon pretence of custome, which cannot be justified, shall take away his corne before he hath set out his tithes ; so also in the said statute it is provided, that if any man having set out his tithes, shall not afterwards suffer the parson to carry them away, &c. he shall pay the double value thereof so carried away, the same to be recovered in the ecclesiasticall court. Howbeit the clearnesse of the statute in this point, notwithstanding meanes are found to draw this cause also from the ecclesiasticall court; for such as of hatred towards their ministers are disposed to vexe them with suits at the common law (where they finde more favour to maintaine their wrangling, then they can hope for in the ecclesiasticall court) will not faile to set out their tithes before witnesses, but not with any mean them away; for presently thereupon they will cause their owne servants to load them away to their owne barnes, and leave the parson as be can to seek his remedy; which if he do attempt in the ecclesiasticall court, out cometh a Prohibition, suggesting, that upon severance and setting forth of the tenth part from the nine, the same tenths were presently by law in the parsons possession, and being thereupon become a lay chattell, must be recovered by an action of trespasse at the common law, whereas the whole pretence is grounded upon a meere perverting of the statute, which doth both ordain, that all tithes shall be set forth truly and justly without fraud and guile; and that also the parson shall not be stopped or hindered from carrying them away, neither of which conditions are observed when the farmer doth set them forth, meaning to carry them away himselfe, for that is the fraudulent setting of them out; and also, when accordingly bee taketh them away to his own use;' for thereby hee stoppeth the parson to carry them away: and consequently the penalty of this offence is to bee recovered in the said ecclesiasticall courts, according to the words of the said statute, and not in any court temporall : wherefore we most humbly desire your lordships, that either the judges may make it apparant to your lordships, that we mislike this statute in this point, or that our ecclesiasticall courts may ever hereafter be freed from such kinds of prohibitions. Answer. For the matter of this article it is answered before, and where the truth of the case is, that he that ought to pay prediall tithes, doth not divide out his tithes, or doth in any wise interrupt the parson or his deputy, to see the dividing or setting of them out that appearing unto us judicially, we maintain no prohibition upon any suit there for the double value, but if after the tithes severed, the parson will sell the tithes to the party that divided then, upon the surmise thereof, we doe, and ought to grant a prohibition; but if that surmise doe prove untrue, we do as readily grant a consultation, and the party seeking the same, is, according to the statute, to have his double costs and damages. 19. No prohibition to he granted upon any incident plea in an ecclesiasticall cause. Objection. We conceive it to be great injury to his majesties ecclesiasticall jurisdiction, that prohibitions are awarded to his ecclesiasticall courts upon every by, and every incident plea or mat er alledged there in barre, or by way of exception, the principall cause being undoubtedly of ecclesiasticall cognizance: for example, in suit for tithes in kind, if the limits of the parish, agreements, compositions, and arbitrariments, as also whether the minister that sueth as parson, be indeed parson or vicar, doe come in debate by way of barre, although the same particulars were of temporall cognizance (as some of them wee may boldly say are |