that even so purely ecclesiastical a matter as the right to receive tithes became temporal when in question between two laymen. Nevertheless, on this very point, the statute of Henry VIII, (which was presumably drawn up with legal counsel) stated that laymen 'cannot by the order of the Common Laws of this Realm have any due remedy." The Doctor and Student,1 a book written about the middle of Henry VIII's reign and considered authoritative by lawyers under Elizabeth and James I, said that even if the ecclesiastical judges "would not allow the said prescription (for tithes) yet I thinke no prohibicon should lye, for though the Judges in a spirituall matter 2 deny the parties of iustice yet the kinges lawes cannot reforme that but must remit it to their conscience. But if there were some remedie prouided in that case it were well done, for some saye that in the spirituall Court they wil admit no plee against tithes." In 1553, a prohibition was asked for on the ground that the ecclesiastical judge had refused as conclusive such a statement as that the tithes had been commuted into one payment of twelve pence and the writ was granted, for the general opinion of all the judges on the King's Bench was, that no proof was needed: upon such a statement, they would a priori issue the writ, because the Courts Christian would not admit such pleas."

4

The course of the decisions made during Elizabeth's reign was no more unified and clear than that of the earlier cases. The King's Bench and Common Pleas took opposite views of the selfsame facts and the same court, at different times, made rulings which clearly contradicted each other. In the case of Mallary v. Mariot, in the Court of Common Pleas, a prohibition had been asked for on the ground that the ecclesiastical courts refused to accept the testimony of one witness, as was sufficient at common law, but required him to produce two. The court granted the prohibition, declaring that "it would be a greater inconvenience to bring two witnesses to prove payment to every sort of tithes." The King's Bench, on the other hand, declared, on the same facts, in Futter v. Whiskin,5a decision which Chief Justice Coke later quoted as authoritative— that “such a surmise, that he hath but one witness is not sufficient to have a prohibition where the ecclesiastical Court hath jurisdiction

1 Edition of 1569, p. 177 a.

2 The inference plainly is that the modus decimandi is a spiritual matter.

3 Dyer's Reports, French Edition,

1688, f. 79.

4 Croke, I, 667.

5 Croke, II, 269 and 270. Coke, XII, Reports, 66.

of the principal." The case was a clear-cut issue of the fraudulent detention of tithes, a matter which the ecclesiastical court might otherwise have decided, yet the same court, in a case of legacy, which also was admittedly ecclesiastical in character, said, that "if he had surmised, that he had pleaded this release in that court and produced his witness and that they would not allow it because it had not two witnesses, this had been a good surmise."1 Other examples might be added' but these will perhaps suffice to show that the decisions were contradictory in some cases and that the same confusion prevailed among the cases that were decided on minor points as did among those adjudicated on the real debatable ground of tithes and their incidents.

The cause of this difference of judicial opinion lay, of course, primarily in the difficulty of the subject itself and the frequent shifting of equity from one side to the other. An examination of most of the reports leaves in the mind of the student, a belief that the common law judges were attempting, until 1600 at least, to render a decision which should be as equitable as possible, not only to the suitors in the case but to the ecclesiastical courts. At one moment, the parson was clearly in the right and needed assistance from the common law; at another time, the tables were reversed and he deserved his defeat at ecclesiastical law. Even on that vexed point as to the refusal of a plea of a modus decimandi by the spiritual court, the common law judges gave reasons for their action which clearly evince an attempt at justice to all parties. A parishioner was sued by his vicar for tithes of hay and when his plea that they had been commuted was refused in the Court Christian, he secured a prohibition from the common law. "Here it is only a modus decimandi..." said the judges, "yet it is good, for otherwise there will be a great mischief, for the Spiritual Court will not allow a plea of modus decimandi but only of payment of tithes in kind.

1 Bagnall v. Stokes, Croke, I, 88. It is hard to make out whether there is a distinction here between his plea that he had only one witness which would be refused hearing in the ecelesiastical court, and a plea that he had actually offered his witness and had been refused: that is to say, between the probability and the actuality.

2 Cullier v. Cullier, Croke. I, 201, with Dr. Hunt's Case, id. 262: Blinco v. Barksdale, id. 578 with Crouch v. Fryer, id. 784; Savel v. Wood, id. 71, with Seory v. Baber, id. 276; Riesby r. Wentworth id. 642 with Smith v. Shelbourne, id. 685; Norwood's Case, id. 684, with Fox's Case. id. 709; Dyer. 151 b, 4 & 5 Ph. & Mary, with Dyer 264 b, 9. Eliz.

Therefore the Common Law shall aid him. On the other hand, the same judges showed themselves equally ready to protect the parson from fraud. A layman, who set out his tithes and then carried off a part, had been defeated by his vicar in the ecclesiastical court and then asked for a prohibition to stop the proceedings against him, but his request was refused: "otherwise mischief would ensue to the parson in that he would secretly set his tithes forth so as the parson should not know thereof and would afterwards carry them away." Then appeared a case between two clergymen, the rector and the vicar, the former of whom had always been paid the great tithes while the latter had received the small. A certain field, usually sowed with corn, had ranked with the great tithes and had therefore rendered tribute to the rector, but one year it was sowed with saffron, which was accounted a small tithe. The rector declared that, inasmuch as he had always had the tenth from that field, he ought still to receive it and the vicar insisted, in his turn, that according to the agreement all small tithes were his. Thereupon the rector sought a prohibition at common law, to rob the vicar of the decision which it became clear he would get in the ecclesiastical court, but the judges refused him a prohibition on the ground that the tithes ought to be paid to the vicar.3 Yet another case was remanded to the ecclesiastical court on the ground that if a prohibition were granted, "then he should never have any remedy for them (the tithes) for, if he may not sue for them in the Spiritual Court, he can not sue for them here." (i. e. common law.*)

There were not wanting, however, signs to show that, if ever the common law judges became hostile to the ecclesiastical pretensions, there would be ample precedents from which they might argue. Naturally, the two contradictory lines of decisions, which have been already described, might serve as precedent for any course the judges might choose to adopt and give them an assured backing of old law. There sounded also in many decisions the note of change. One of the fundamental points of ecclesiastical procedure was the

1 Croke, I, 317. See also, Folcott v. Ridge, Croke. I, 333. Ingolsby v. Johnson, id. 786; Crimes v. Smith and Bedle v. Beard, both in XII Reports, 4, 5.

2 Croke, I, 607, Leigh v. Wood, also Lyss v. Watts, id. 277. A number of cases in which consultations were

issued are in Lansdowne MSS. 161, f. 229.

3 Bedingfield v. Feak, Croke, I, 467; also Moore, 909.

4 Vaughan v. Beale, Croke, I, 394. This was urged by one of the barristers and was sustained by the court.

use of the oath ex officio and, although we do not find the judges declaring it illegal, one of them said that the ecclesiastical courts might use the oath only in causes testamentary and matrimonial, "where noe Discredit can be to the party by his oath." Another dispute arose over a matter of tithes which it was claimed had been commuted for the use of twenty acres of pasture and of twenty acres of woodland. The defendant proved his commutation in regard to the pasture but could not demonstrate the point about the woodland and had therefore been defeated in the spiritual court. He secured a prohibition, however, for "all the Court held it to be well enough; for it is sufficient that he had it, and the other cannot shew how ... The Proof also in a prohibition ought not to be so precise: but, if it appears that the Court Christian ought not to hold plea thereof, it sufficeth... So here the substance is proved, that he held the land in satisfaction." In other words they accepted proof that some agreement had been made and did not insist that he prove that agreement which he had averred in his declaration. This was quite contrary to the practice of the time, when the slightest technical imperfection in any pleading was usually sufficient to defeat the whole suit. They did not apply to the prohibitions the strict rules which they insisted upon in all other common law proceedings.

Until 1605, however, the dispute had, with a single exception, been confined to individual cases and to the decisions of individual judges. There had been no concerted action on either side. It remained for Bancroft, in the fall of 1605, to make the question a conflict between the Church as an institution, and the judges of the common law as a bench.

1 Cullier v. Cullier, Croke, I, 201. See also id. 675.

2 Austen v. Piggott, Croke, I, 736. Also Green v. Penilden, id. 228; Margaret Palmes v. the Bishop of

Peterborough, id. 241; Pett v. Baseden, id. 274; Kelley v. Walker, id. 665 and in Moore, 915: Wright's Case, Moore, 425; Anonymous, Moore, 573.

CHAPTER II

THE ARTICULI CLERI, 1605

Fifteen years of quarrelling, arguing, and writing had produced, in 1605, an issue as to the manner in which the writs of prohibitions should be granted-but an issue complicated and confused by all the refinements and technicalities of which the lawyers on either side were capable. The real differences were, for the time being, submerged and probably not clearly seen even by the principal combatants. To both sides, the significant issue, in 1605, was the technicalities of legal procedure in the granting of prohibitions. The ecclesiastical lawyers had, indeed, found the vulnerable spot in the common lawyers' armour, for, if they could restrict the practice of prohibitions, the weapon of the common law judges would be broken, and their claims, thus deprived of the means of enforcement, would be of little consequence.

The Articuli Cleri of 1605 mark the outbreak of a flame which had long been smoldering beneath the apparent conscientiousness of the judges on both sides. During Elizabeth's reign, the disputes had been entirely tentative, not to say confused and aimless. So far as men had attempted to substitute tithes in kind for a commutation, or vice versa, their essays had been disconnected, and the product rather of the energy of some individual rector or layman, than of any concerted movement among either the clergy or laity. So far as the ecclesiastical judges had supported these attempts by requiring more stringent proof of the existence of the modus decimandi, so far as the common law judges had opposed them, they had acted, on the whole, according to their individual ideas of law and expediency. Some amelioration of ecclesiastical incomes had been effected, but not much; some suffering had resulted for some laymen, but not for many; and, in almost every case, the defeated party had acquiesced in the result. While the discussions of the lawyers had, at times, wandered from the technicalities of procedure to the more general aspects of the problem, they had reached