The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Trin. 7 Jacobi Regis.

The Case de modo Deci•• andi, and of Prohibitions.

Richard Archbishop of Canterbury, with the Bishops of London, Bath and Wells, and Rochester, divers Doctors of the Civil and Canon-Law; as Dr. Dun, Judge of the Ar∣ches, Dr. Rennet Judge of the Prerogative, Dr. James, Dr. Martin, and others, came and attended the King at White-Hall, the Thursday, Friday, and Saturday, after Easter Term, in the Councel-Chamber; where the Chief Justice, and I my self, Daniel Judge of the Common-Pleas, and Williams Judge of the Kings-Bench, by the King's Command at∣tended also; where the King, assisted with his Privy-Councel, all sitting at the Councel-Table, spake as a most Gracious Soveraign, to this effect: As He would not suffer any Novelties or Innovations in his Courts of Ju∣stice, Ecclesiastical and Temporal; so he would not have any the Laws, which had Judicial Allowances, in the Times of his Predecessors Kings of England to be forgot∣ten. And forasmuch as Contentions between the Tem∣poral and Ecclesiastical Courts, cannot but breed great Inconvenience to the Subjects, especially when the Con∣troversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice; And because he was the Head of Ju∣stice, immediately under God, and knowing what hurt may grow to his Subjects, when the Jurisdiction of his Courts are drawn in question; He thought it concerned him, as a King, to hear the Controversies between the Bishops and Clergy, and the Judges of his Laws of Eng∣land, and to take Order, that the one do not encroach upon the other. And He said, The onely Question then to be disputed was, If a Parson or Vicar of a Parish, sues one of his Parish in the Spiritual Court for Tythes, in Kind, or Layfee; and the Defendant alleadgeth a Cu∣stom or Prescription, de modo Decimandi; if that Custom

or Prescription shall be tryed and determined before the the Judge 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 of our Proceedings, and what Autho∣rities in the Law we had to warrant our Proceedings, in granting Prohibitions in Cases de modo Decimandi. But the Archbishop of Canterbury kneeled before the King, and desired he would hear him, and others, provided to speak in the Case, for the good of the Church of Eng∣land. And the Archbishop inveighed chiefly against two things.

1. That a Modus Decimandi should be tryed by a Jury, because they themselves claim more or less modum Deci∣mandi; so as, in effect, they were Tryers in their own Cause, or in the like Cases.

2. He inveighed much the precipitate and hasty Try∣als by Juries; and after him Dr. Bennet made a large Invection against Prohibitions, in causis Ecclesiasticis; and he made five Reasons, why they should try modum Deci∣mandi.

1. The first and principal was out of the Register, fol. 58. quia non est consonans rationi, quod cognitio accessarii in Curiae Christianitatis imp••diatur ubi cognitio causae principa∣lis ad forem Ecclesiasticum noscitur pe••tinere. And the principal cause is Right of Tythes, and the Plea of Mo∣dus Decimandi sounds in satisfaction of Tythes; and there∣fore the Conuzance of the Original Cause, viz. the Right of Tythes belonging to them, the Conuzance of the Bar of Tythes belonged to them. And whereas it is said in the second Part of my Reports, in the Bishop of Winche∣sters Case; and 8 Ed. 4. 14. that they would not accept of any Plea, in discharge of Tythes, in the Spirituall Court; he said, they would allow such Pleas, and had allowed them, being duly proved before them.

2. There was great inconveniency, that Lay-men should be Tryers of their own Customs, for they shall be Jurors in their own Cause.

3. That the Custom of Modo Decimandi is of Ecclesia∣stical Jurisdiction, for it is a manner of Tything, and all manner of Tything belongs to Ecclesiastical Jurisdiction; and therefore he said, if the Right of Tythes be of Ec∣clesiastical Conuzance, 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 though the Plaintiff in the Prohibition offer to prove Modum Decimandi, the Ecclesiastical Court doth refuse to allow it: but he said they would allow such Plea; and therefore, Cessante causa cessabit et effectus, and no Prohibition shall lye.

5. He said, he can shew many Consultations granted in the Cause, de modo Decimandi, and a Consultation is of greater force then a Prohibition. And Bacon Sollici∣tor General, being (as is said) assigned with the Clergy by the King, said less then Dr. Benn••t; but he vouched, 1 R. 3. 4. the Opinion of Hussey, when the Originall ought to begin in the Spiritual Court, and afterwards a thing cometh in Issue, and is Tryable by our Law, yet it shall be tryed by their Law. See the Register 57, 58. 38 Ed. 3▪ 5. and 38 Ed. 3. 6.

And the Judges made humble Suit to the King, That in regard they perceived his Majesty, in his Princely Wis∣dom, derested Novelties and Innovations, that He vouch∣safe to suffer them to inform him of one Innovation, which they did conceive would tend to hinder the Admi∣nistration of Justice within his Realm.

Your Majesty, for the due Administration of Justice, hath made 14 Judges, to whom you have committed not onely the Administration of ordinary Justice, but crimi∣na Laesae Majestatis: Also, in Parliament, we are called by Writ, to give our Advice and Councel to your Majesty

and the Lords, when we are required. We two Chief Ju∣stices sit in the Star-Chamber, 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 receive any diminu∣tion 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. The state of the Questi∣on is not in statu deliberativo, but in statu judiciali; it is not disputed de bono, but de vero, non de lege fienda sed de lege lata: Not to devise or frame new Laws, but to in∣form You what Your Law of England is: And it was ne∣ver seen before, that when the Question is of the Law, that your Judges of the Law have been made Disputants with their Inferiours, that daily plead before them in the several Courts at Westminster. And though we are not afraid to dispute with Mr. Bennet, and Mr. Bacon; yet this Example being primae impressionis, and your M••jesty de∣testing Novelties, We leave it to your Princely Consi∣deration, whether you will permit our answering in hoc statu judiciali. But in obed••ence to your Majesties Com∣mand, We 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 can∣not be reversed or examined for any Errour in Law, if not by a Writ of Errour in a more High and Supream Court. And that this is the antient Law of England, ap∣pears by the Stat. of 4 H. 4. c. 22.

And We being commanded to proceed, all that 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 appears in three Man∣ners:

• 1. By the Common-Law.
• 2. By Acts of Parliament.

3. By infinite Judgments, and Judicial Proceedings, long times past without interruption.

But first, it is to see what is a Modus Decimandi: Now Modus Decimandi is, when Lands, Tenements, or Heredi∣taments, have been given to the Parson and his Succes∣sors, or an Annual certain Sum, or other Profit, alwayes time out of mind, in full Satisfaction and Discharge of all Tythes in kind in such a place: and such manner of Tything is now confessed by the other Party, to be a good Bar of Tythes in Kind.

1. That Modus Decimandi shall be tryed by the Com∣mon-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 40 s. yearly, in full Sa∣tisfaction and Discharge of all Tythes, growing within the said Mannor of Dale, at the Feast of Easter. The Par∣son sues the Lord of the Mannor of Dale for his Tythes, of his Mannor in kind, and he in Bar prescribes ut supra. The Question is, If the Lord of the Mannor of Dale may upon that have a Prohibition; for if the Prohibition lye, then the Ecclesiastical Court ought not to try it.

1. First, The Law of England is divided into Com∣mon-Law, Statute, and Customs; and therefore the Cu∣stoms of England are to be tryed by the Tryal, which the Law of England appoints.

2. 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 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey, and declared, That he and his Successours were seized by the Hands of the Defendant, by Title of Prescription; and the Defendant demanded Judgment, is the Court would hold Jurisdiction between Spiritual Persons, &c. Stone Justice, Be assured, That upon Title of Prescription, we will there 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 Prersciption, comes in Debate between Spiritual Persons, that the same shall be tryed here. 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations, and an Ab∣bot claimed an Annuity or Pension of him by Prescrip∣tion; and it was adjudged, That the same Prescription, though between Spiritual Persons, shall be tryed here. Vide 22 H. 6. 46. 47.

3. See the Record, 25 H. 3. cited in the Case of Modus Decimandi before; and see Register fol. 38.

4. See the Stat. of Circumspecte agatis, Decimae debitae, seu consuctae; which proves that Tythes in kind, and a Mo∣dus by Custom, &c.

5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes, 28 E. 3. 97. a. There was a Suit for Tythes, and a Prohibition lyes.

6. 7 E. 6. 79. If Tythes are sold for Money; by the Sale, the Things Spiritual are made Temporal: And so in the Case de modo Decimandi, 42 E. 3. 12. a∣grees.

7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty; otherwise, of that which is meer Temporal. So it is of reall Composi••ion, where the Pa∣tron ought to joyn. Vid. 11 H. 4. 85.

2. Secondly, By Acts of Parliament.

1. The said Act of Circumspecte agatis, that gives power to the Ecclesiastical Judge, to sue for Tythes first due in Kind▪ or by Custom, viz. Modus Decimandi. So as by that Act, though the Yearly Sum soundeth in the Temporalty, which was paid by Custom, in discharge of Tythes; yet because the same comes in the place of Tythes, and by Constitution, the Tythes are changed into Money, 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 Stat. of Articuli Cleri, cap. 1. If that corporal punishment be changed into poenam pecu∣niariam; for that Pain, Suit lyes in the Spiritual Court: For which, see Mich. 8 H. 3. Rot. 6. in Thesaur. And by the 27 H. 8. cap. 20. It is Enacted, That all Sub∣jects of the Realm, according to the Ecclesiastical Law, and after the laudable Usages and Custom of the Parish, &c. shall yield and pay his Tythes, &c. and for substra∣ction thereof, may, by due process, &c. compell him to yield the Duties: and with that, in effect, agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted, That all the Kings Subjects shall henceforth truly and justly, with∣out Fraud, &c. divide &c. and pay all their Predial Tythes in their proper kind as they rise, &c. And always, when an Act of Parl. commands or prohibits any Court, be it Spiritual or Temporal, to do any thing Spiritual or Tem∣poral, if the Stat. be not obtained, a Prohibition lyes; as upon the Stat. de artic. super chart. cap. 4. Quod communio Placita non tenentur in Scaccario. A Prohibition lyes to the Court of Exchequer, if the Barons hold a common Plea there; as appears in the Register 187. b. So upon the Stat. West. 2. Quod inquisitio••••es quae magnae sunt examina∣tionis non capiantur in Patria. A Prohibition lyes to the Justices of Nisi Prius. So upon Articuli super chartas, cap. 7. to the Constable af Dover, Regist. 185. So upon the same Stat. cap. 3. to the Steward and Marshal of the Houshold, 185. and yet no Prohibition is given by ex∣press words, in any of these Statutes. So upon the Statutes 13 R. 2. c. 3. 15 R. 2. c. 2. 2 H. 4. c. 11. a Prohibition lyes to the Admiralty Court. So upon West. 2. c. 43. against Hospitals and Templers, Regist. 39. a. So upon the Stat. de Prohibitione regia, a Prohibition lyes. So upon the Stat. 2. H. 5. c. 3. and upon that Stat. 4 E. 4. 37. the Case was; Peirce Peckham took Letters of Administration, of the Goods of Rose Brown, of the Bishop of London: afterwards T. T. sued to Thomas Archbishop of Canterbury, to have Ad∣ministration

committed to him, because Rose Brown had Goods in his Diocess, and they were granted to him. After∣ward T. T. Libelled in the Court of the Arches against Peirce Peckham, to repeal his Administration; and Peirce Peckham, according to the Stat. prayed a Copy to the Li∣bel, and could not have it; and thereupon he sued a Pro∣hibition, and upon that an Attachment. And there Catesby Sergeant moved, that a Prohibition did not lye for two Causes.

1. The Statute says, that the Libel shall be deliver'd, but not that the Plea shall surcease.

2. The Statute is not intended of Matter meerly Spi∣ritual: And there Danby Chief Justice; If you will not deliver the L••bel, according to the Statute, you do wrong, which wrong is a Temporal matter, and punishable at the Common-Law, and therefore the party shall have a special Pro∣hibition. And always after the said Act, in every Term, throughout the Reigns of Ed. 6. Q. Mary, and Q. Eliz. to this day, Prohibitions have been granted in Modo Deci∣mando, and Judgments given upon many of them, without any contradiction; and accordingly all the Judges Re∣solved, 7 Ed. 6. Dyer 79. Et contemporanea expositio est optima et fortissima in lege, et minime mutanda sunt quae certam habuerunt interpretationem.

1. As to the first, Objectio, That the Plea of Modus Decimandi, is but accessary to the Right of Tythes; It was Resolved, That the same was of no force, for three Causes:

1. In this Case, admitting there is a Modus Decima••∣di, then by the Custom; and by the Act 2. E. 6. and the other Acts, the Tythes in Kind are extinct and discharg∣ed; 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: and it shall be intended, that the Modus Decimandi began at first by reall Composition: So as in this Case, there is neither

Principal. nor Accessary, but an Identity of the same things.

2. The Stat. 2 Ed. 6. being a Prohibition in it self, and that in the Negative; If the Ecclesiastical Judge doth against it, a Prohibition lyes; as appeareth clearly be∣fore.

3. Though the Rule be general, yet it appears 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.

2. As to the second Objection, It was Answered and Resolved, That that was from, or out of the Question; for status Quaestionis non est deliberativussed judicialis: for convenient, or inconvenient, is not the Question, but what the Law is.

3. As to the third Objection, it was answered and re∣solved; First, That satisfactio pecuniaria of it self, is Tem∣poral: But because the Parson hath not remedy, pro modo Decimandi, at Common; by force of the Acts cited before he might sue, pro modo Decimandi, in the Ecclesia∣stical Court: But that proves not, That if he sue for Tythes in Kind, which are utterly extinct, &c. that upon the Plea de modo Decimandi, that a Prohibition should not lye: for the contrary appears, without all question, by what hath been said before: See also 12 H. 7. 24. b. 39 Ed. 3. 22 E. 4. Consultation.

As to the Objection, That Averment is taken of the Refusal of the Plea, of Modus Decimandi; It was answer∣ed and Resolved, That the same is of no force, for divers Causes.

1. It is onely to inforce the Contempt.

2. If the Spiritual Court ought to have the Tryal, de modo Decimandi, then the refusing to accept such a Plea, should give cause of Appeal not of Prohibition.

3. From the beginning of the Law, no Issue was ever taken upon the Refusal of the Plea, in causa modi Deci∣mandi,

nor any Consultation granted to them; because they did not refuse, but allow the Plea.

4. The Refusal is no part of the matter issuable or ma∣terial in the Plea; and therefore the Modus Decimandi is proved by two Witnesses, according to the Stat. 2 E. 6. cap. 13. and not the Refusal; which proves, the Modus Decimandi is onely the Matter of Suggestion, not the Re∣fusal.

5. All the said five Matters of discharge of Tythes, mentioned in the said Act of 2 Ed. 6. ought to be proved by two Witnesses, and so have been always, since the ma∣king of the said Act. And therefore it clearly inten∣ded, that Prohibitions should be granted in such Ca∣ses.

6. Though they would allow, bona fide de modo Deci∣mandi, without Refusal; yet if the Parson sue there for Tythes in Kind, when the Modus is proved, (the same be∣ing expresly forbidden by that Act 2 Ed. 6. 13.) a Prohi∣bition lyes, though the Modus be Spiritual; as appears by the Book, 4 E. 4. 37.

Afterwards, the third day of the Debate of this Case before the King, Dr. Bennet, and Dr. Martin, had reserved divers Consultations granted in causa modi Decimandi, thinking they might work upon the King's Opinion: and thereupon they said, That Consultations were the Judgments of Courts had upon Deliberations; whereas Prohibitions were onely granted upon Surmises. And they shewed 4 Presidents.

1. One, where three joyntly sued a Prohibition, in the Case of modo Decimandi; and the Consultation saith, Pro co quod suggestio materiaque in eodem content a minus suffici∣ens in lege existit, &c.

2. Another, in causa modi Decimandi, to be paid to the Parson or Vicar.

3. Where the Parson sued for Tythes in Kind, and the Defendant alleadged, modus Decimandi, to be paid to the Vicar.

4. Where the Parson Libelled for Tythe-Wooll, and the Defendant alleadged a Custom to reap Corn, and make it into Sheaves, and set forth the Tenth Sheave at his Charges: and so of Hay, to sever it from the Nine Cocks at his Charge, in full satisfaction of the Tythes of the Corn, Hay, and Wooll.

To which I answer'd, and humbly defir'd the King to observe, these were reserved for the last and center-point of their Proof. And herein these things may be obser∣ved,

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.

1. For as to the first President, the Case upon their own shewing, is, Three Persons joyned in one Prohibition, for three several parcels of Land, each having a several sort of Tything; and their Interests being several, they could not joyn; and therefore a Consultation was grant∣ed.

2. To the second, the manner of Tything was al∣leadged to be paid to the Parson or Vicar, which is un∣certain.

3. To the third, The Modus never came in Debate, but whether the Tythes did belong to the Parson or Vi∣car: which being between two Spiritual Persons, the Ec∣clesiastical Court shall have Jurisdiction; and therewith agrees 38 E. 3. 6.

4. To the last, The same was upon the matter of a Custom of a Modus Decimandi for Wooll: for to pay the Tythe of Corn or Hay in Kind, in satisfaction of Corn, Hay, and Wooll, cannot be a satisfaction for the Wooll: for the other two were due of common right.

The Bishop of London answer'd, That the words of the Consultation were, Quod suggestio praedicta mattriaque in

eadem cohtenta minus sufficiens in lege existit, &c. So as ma∣teria cannot be refer••ed to Form, and therefore it ought to extend to the Mo••us Decimandi.

To which I answer'd, That when the Matter is insuffi∣ciently or uncertainly alleadged, the Matter it self faileth; and though the Matter be in truth sufficient, yet if it were insufficiently alleadged, the Plea wanteth matter. Then the Lord Treasurer sa••d, he wondered they would produce things that made more against them, then any thing had been said.

And when the King relyed, upon the Prohibition in the Register, when Land is given in discharge of Tythes, the Lord Chancellor said, That was not like this Case; For there by the Gift of the Land, the Tythes were dis∣charged; but in the Case de modo Decimandi, an Annual Sum is paid; yet the Land remains charged, and is to be discharged by Plea, de modo Decim••ndi. All which I utter∣ly denied: For the Land was as absolutely discharged of the Tythes, in casu de modo Decimandi, as where Lands are given. All which the King heard with patience, and the Chancellor answer'd no more.

After the King, with all his Councel, had for 3 dayes together, heard the Allegations on both sides, he said, He would maintain the Laws of England, and that his Judg∣es should have as great respect from all his Subjects, as their Predecessors. And for the Matter, he said, for any thing had been said on the Clergies part, he was not sa∣tisfied; and advised Us the Judges to confer among our selves, and that nothing be encroached in the Ecclesia∣stical Jurisd••ction, and they to keep within their Juris∣diction. And this was the end of these three dayes Con∣sultation.

Note, Dr. Bennet, in his Discourse, inveighed much against the Opinion, 8 E. 4. 14. and, in my Reports, in Wrights Case, That the Ecclesiastical Judge would not al∣low a Modus Decimandi; and said, that was the Mistery

of Iniqui••y, and they would allow it. The King asked for what cause it was so said in the said Books. To which I answer'd, That it appears in Linwood, who was Dean of the Arches, and a Profound Canonist, who wrote in Henry the Sixth's time, in his Title, De decimis cap: Quoniam propter &c. fol. 139. b. Quod decimae soluantur abs{que} ulla diminutione. And in the Gloss it is said, Quod consuetudo de non Decimando aut de non bene decimando non valet. And that being written by so great a Canonist, was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi. And it seemed to the King, that that Book was a good cause for them in Ed∣ward the Fourth's time, to say as they had said. But I said, I did not rely thereon, but on the Grounds afore∣said.

Lastly, The King said, that the High Commission ought not to meddle with any thing, but that which is enormous, and which the Law cannot punish; as Heresie, Schism, Incest, and the like great Offences: And the King thought that two High-Commissions, for either Pro∣vince one, should be sufficient for all England, and no more.