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 To 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

statute of 13 Eliz. by which kind of interpretation of statutes, if the naming, disposing or ordering of causes ecclesiastical in a statute shall make the same to be of temporal cognizance, and so abolish the jurisdiction of the ecclesiastical court, without any further circumstances 5 or express words to warrant the same, it followeth, that forasmuch as the common book and articles of religion. are established and confirmed by several acts of parliament, the temporal judges may challenge to themselves an authority to end and determine all causes of faith and reli- 10 gion, and to send out their prohibitions, if any ecclesiastical judge shall deal or proceed in any of them: which conceit, how absurd it is, needeth no proof, and teacheth us, that when matters merely ecclesiastical are comprised in any statute, it doth not therefore follow, 15 that the interpretation of the said matters doth belong to the temporal judges, who by their profession, and as they are judges, are not acquainted with that kind of learning. Hereunto when we shall receive the answer of the judges, we shall be ready to justify every part of this article.

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XXI. "That persons imprisoned upon the writ of 'De excommunicato capiendo' are unduly delivered, and prohibitions unduly awarded for their greater security." Forasmuch as imprisonment upon the writ of "De excommunicato capiendo" is the chiefest temporal 25 strength of ecclesiastical jurisdiction, and that by the laws of the realm none so committed for their contempt in matters of ecclesiastical cognizance, ought to be delivered, until the ecclesiastical courts were satisfied, or caution given in that behalf; we would gladly be re- 30 solved by what authority the temporal judges do cause the sheriffs to bring the said parties into their courts, and by their own discretions set them at liberty, without notice thereof first given to the ecclesiastical judges, or any satisfaction made either to the parties, at whose suit he was imprisoned, or the ecclesiastical court, where

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certain lawful fees are due. And after all this, why do they likewise send out their prohibitions to the said court, commanding that all censures against the said parties shall be remitted, and that they be no more pro5 ceeded with, for the same causes in those courts? Of this our desire we hope your lordships do see sufficient cause, and will therefore procure us from the judges some reasonable answer.

XXII. "The king's authority in ecclesiastical causes 10 is greatly impugned by prohibitions." We are not a little perplexed touching the authority of his majesty in causes ecclesiastical, in that we find the same to be so impeached by prohibitions, that it is in effect thereby almost extinguished; for it seemeth that the innovating 15 humour is grown so rank, and that some of the temporal judges are come to be of opinion, that the commissioners appointed by his majesty for his causes ecclesiastical having committed unto them the execution of all ecclesiastical jurisdiction annexed to his majesty's imperial 20 crown, by virtue of an act of parliament made in that behalf, and according to the tenour and effect of his majesty's letters patents, wherein they are authorized to imprison and impose fines, as they shall see cause, cannot otherwise proceed, the said act and letters patents not25 withstanding, than by ecclesiastical censures only. And thereupon of latter days, whereas certain lewd persons, two for example's sake, one for notorious adultery and other intolerable contempts, and another for abusing of a bishop of this kingdom with threatening speeches and 30 sundry railing terms no way to be endured, were thereupon fined and imprisoned by the said commissioners, till they should enter into bonds to perform further orders of the said court; the one was delivered by an "Habeas corpus" out of the king's bench, and the other 35 by a like writ out of the common pleas; and sundry other prohibitions have been likewise awarded to his