answer thereunto, to justify the premises, your lordships will be a means, that the abuses herein complained of, having so false a ground, may be amended.

XVI. "The customs for tithes are only to be tried in 5 the ecclesiastical courts, and ought not to be drawn thence by prohibitions." Although some indiscreet ecclesiastical judges, either in the time of king Edward the Fourth, or Edward the Sixth, might against law have refused in some one cause to admit a plea of custom of To tithes, to the prejudice of some person, whom he favoured, and might thereby peradventure have given occasion of some one prohibition (but whether they did so or no, the suggestion of a lawyer for his fee is no good proof); yet forasmuch as by three statutes made since that time, 15 wherein it is ordained, viz. both that tithes should be truly paid, according to the custom, and the trial of such payments according to custom, upon any default or opposition, should be tried in the king's ecclesiastical courts, and by the king's ecclesiastical laws, and not otherwise, 20 or before any other judges than ecclesiastical; we most humbly desire your lordships, that if according to the said laws, we be most ready to hear any plea of customs, your lordships would be pleased, that the judges may not be permitted hereafter to grant any prohibitions upon 25 such false surmises; or if they shall answer, that we mistake the said statutes, that then the said three statutes may be thoroughly debated before your lordships; lest under pretence of a right which they challenge to expound these kind of statutes, the truth may be overborne, 30 and poor ministers still left unto country trials, there to justify the right of their tithes before unconscionable jurors in these cases.

XVII. "No prohibition to be granted, because the treble value of tithes is sued for in the ecclesiastical 35 court." Whereas it appeareth plainly by the tenor of the statute of Edw. VI. cap. 13. that judges ecclesiastical

and none other are to hear and determine all suits of tithes and other duties of the same, which are given by the said act; and that nothing else is added to former laws by that statute, but only certain penalties, for example, one of treble value; forasmuch as the said 5 penalty, being only devised as a means to work the better payment of tithes, and for that there are no words used in the said statute to give jurisdiction to any temporal court; we hold it most apparent, that the said penalty of treble value, being a duty given in the said 10 statute for non-payment of tithes, cannot be demanded in the temporal court, but only before the ecclesiastical judges, according to the express words of the said statute; and the rather we are so persuaded, because it is most agreeable to all laws, and reason, that where the principal 15 cause is to be decided, there all things incident and necessary are to be determined. Besides it was the practice of all ecclesiastical courts in this realm, immediately after the making of the said statute, and hath continued so ever since, to award treble damages (when 20 there hath been cause) without any opposition, until about ten years past, when or about which time, notwithstanding the premises, the temporal judges began to hold plea of treble value, and do now accompt it so proper and peculiar to their jurisdictions, as by colour thereof they admit suits originally for the said penalty, and do make thereby (very absurdly) the penalty of treble value to be principal, which is indeed but the accessory, and the cognizance of tithes to be but the accessory, which in all due construction is most evident 30 to be the principal, thereby wholly perverting the true meaning and drift of that statute; whereupon if in the spiritual court the treble value be now demanded by the libel as a duty, according to that statute, or that sentence be awarded directly and sincerely upon the said libel, 35 presently, as contentious persons are disposed, a pro

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hibition is granted, and some sharp words are further used, as if the ecclesiastical 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 5 their answers upon such their straining of the said statute, your lordships will be pleased to hear the same further debated by us with them.

XVIII. “No prohibition to be awarded, where the person is stopped from carrying away of his tithes by him 10 that setteth them forth." As the said statute of Edward the Sixth, last mentioned, assigneth a penalty of treble value, if a man upon pretence of custom, which cannot be justified, shall take away his corn, before he hath set out his tithes; so also in the said statute it is provided, that if 15 any man having set out his tithes, shall not afterwards suffer the parson to carry them away, etc. he shall pay the double value thereof so carried away, the same to be recovered in the ecclesiastical court. Howbeit the clearness of the statute in this point notwithstanding, means are 20 found to draw this cause also from the ecclesiastical court; for such as of hatred towards their ministers are disposed to vex them with suits at the common law, where they find more favour to maintain their wrangling, than they can hope for in the ecclesiastical court, will not fail to set 25 out their tithes before witnesses, but not with any meaning or intent, that the parson shall ever carry them away; for presently thereupon they will cause their own servants to load them away to their own barns, and leave the parson, as he can, to seek his remedy; which if he do 30 attempt in the ecclesiastical 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 parson's possession, and being thereupon become a lay chattel, must be recovered by an 35 action of trespass at the common law; whereas the whole pretence is grounded upon a mere 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, 5 meaning to carry them away himself (for that is the fraudulent setting of them out) and also when accordingly he taketh them away to his own use; for thereby he stoppeth the parson to carry them away; and consequently the penalty of this offence is to be recovered in 10 the said ecclesiastical courts, according to the words of the said statute, and not in any court temporal: wherefore we most humbly desire your lordships, that either the judges may make it apparent to your lordships, that we mislike this statute in this point, or that our eccle- 15 siastical courts may ever hereafter be freed from such kinds of prohibitions.

XIX. "No prohibition to be granted upon any incident plea in an ecclesiastical cause." We conceive it to be great injury to his majesty's ecclesiastical jurisdiction, 20 that prohibitions are awarded to his ecclesiastical courts upon every by, and every incident plea or matter alleged there in bar, or by way of exception, the principal cause being undoubtedly of ecclesiastical cognizance. For example: in suit for tithes in kind, if the limits of the 25 parish, agreements, compositions, and arbitraments, as also whether the minister that sueth as parson, be indeed parson or vicar, do come in debate by way of bar, although the same particulars were of temporal cognizance (as some of them we may boldly say are not) yet 30 they were in this case examinable in the ecclesiastical court, because they are matters incident, which come not in that case finally to be sentenced and determined, but are used as a mean and furtherance for the decision of the main matter in question. And so the case standeth 35 in other such incident pleas by way of bar; for otherwise

either party in every cause might at his pleasure, by pleading some matter temporal by way of exception, make any cause ecclesiastical whatsoever subject to a prohibition; which is contrary to the reason of the com5 mon law, and sundry judgments thereupon given, as we hope the judges themselves will acknowledge, and thereupon yield to have such prohibitions hereafter restrained.

XX. “That no temporal judges, under colour of authority to interpret statutes, ought, in favour of their 10 prohibitions, to make causes ecclesiastical to be of temporal cognizance." Although of late days it hath been strongly held by some, that the interpretation of all statutes whatsoever do belong to the judges temporal, yet we suppose by certain evil effects, that this opinion 15 is to be bounded within certain limits; for the strong conceit of it hath already brought forth this fruit, that even those very statutes, which do concern matters merely ecclesiastical, and were made of purpose with great caution to preserve, enlarge, and strengthen the jurisdiction 20 ecclesiastical, have been by colour thereof turned to the restraining, weakening, and utter overthrow of the same, contrary to the true intent and meaning of the said statutes. As for example: besides the strange interpretation of the statutes before mentioned for the pay25 ment of tithes, when parties have been sued in the ecclesiastical courts in case of an incestuous marriage, a prohibition hath been awarded, suggesting under pretence of a statute in the time of king Henry VIII. that it appertaineth to the temporal courts and not to the eccle30 siastical, to determine what marriages are lawful, and what are incestuous by the word of God. As also a minister being upon point of deprivation for his insufficiency in the ecclesiastical court, a prohibition was granted upon suggestion, that all pleas of the fitness, 35 learning, and sufficiency of ministers belong only to the king's temporal courts, relying, as we suppose, upon the