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The Doctor and Student (1518)
Christopher St. Germain
The eighth question of the doctor, whether the statute of Sylva caedua, stand with conscience
Doct. In the 45th year of the reign of Edw. III. it was enacted, That a prohibition should lie where a man is impleaded in the court-christian for dismes of wood of the age of twenty years or above, by the name of Sylva cadua, how may that statute stand with conscience, that is so directly against the liberty of the church, and that is made of such things as the parliament had no authority to make any law of?
Stud. It appeareth in the said statute, that it is enacted, That a prohibition should lie in that case as it had used to do before that time; and if the prohibition lay by a prescription before the statute, why is not then the statute good as a confirmation of that prescription?
Doct. If there were such a prescription before the statute, that prescription was void; for it prohibiteth the payment of tithes of trees of the age of twenty years or above; and paying of tithes is grounded as well upon the law of God, as upon the law of reason; and against those laws lieth no prescription, as it is holden most commonly by all men.
Stud. That there was such a prescription before the said statute, and that if a man before the said statute had been sued in the spiritual court for tithes of wood of the age of twenty years or above, the prohibition lay, appeareth in the said statute, and it can not be thought that a statute that is. made by authority of the whole realm, as well of the king, and of the lords spiritual and temporal, as of all the commons, will recite a thing against the truth. And furthermore, I cannot see how it can be grounded by the law of God, or by the law of reason, that the tenth part should be paid for tithe, and no other portion but that: but I think that it be grounded upon the law of reason, that a man should give a reasonable portion of his goods temporal to them that minister to him things spiritual; for every man is bound to honour God of his proper substance; and the giving of such portion hath not been only used among faithful people, but also among unfaithful; as it appeareth, Genesis 47, where corn was given to the priests in Egypt of common barns. And Saint Paul in his epistles affirmeth the same in many places; as in his first epistle to the Corinthians, cap. 9, where he saith, “He that worketh in the church shall eat of that that belongeth to the church:” and in his epistle to the Galatians, chap.6, he saith, “Let him that is instructed in spiritual things, depart of his goods to him that instructeth him.” And Saint Luke, chap.10, saith, ”That the workman is worthy to have his hire.” All which sayings may right conveniently be taken and applied to this purpose, that spiritual men, which minister to the people spiritual things, ought for their ministration to have a competent living of them that they minister unto. But that the tenth part should be assigned for such a portion, and neither more nor less, I cannot perceive that that should be grounded by the law of reason, nor immediately by the law of God. For before the law written there was no certain portion assigned for the spiritual ministers, neither the tenth part, nor the twelfth part, unto the time of Jacob: for it appeareth, Genesis 28, that Jacob avowed to pay dishes, which was among the Jews for the tenth part, if our Lord prospered him in his journey; and if the tenth part had been his duty before that avow, it had been in vain to have avowed it, and so it had if it had been grounded by the law of reason. And as to that is spoken in the evangelists, and in the new law, of tithes it belongeth rather to the giving of tithes in the time of the old law, than of the new law; as it appeareth, Matth. 23, and Luke II, where our Lord speaketh to the Pharisees, saying, “Wo to you Pharisees, that tithe mints, rue, and herbs, and forget the judgment and the charity of God; these it behoveth you to do, and the other not to omit:” that is to say, it behoveth you to do justice and charity of God, and not to omit paying of tithes, though it be of small things, as of mints, rue, herbs, and such other. And also that the Pharisee saith, Luke 17, “I pay my tythes for all that I have,” it is to be referred to the old law, not to the time of the new law; therefore, as I take it, the paying of tithes, or of a certain portion to spiritual men for their spiritual ministration to the people, have been grounded in divers manners. First, before the law written, a certain portion sufficient for the spiritual ministers was due to them by the law of nature, which, after them that be learned in the law of the realm, is called the law of reason; and that portion is due by all laws And in the law written, the Jews were bound to give the tenth part to, their priests, as well by the said avow of Jacob, as by the law of God in the Old Testament, called the Judicials. And in the new law the paying of the tenth part is by a law that is made by the church. And the reason wherefore the tenth part was ordained by the church to be payed for the tithe was this: There is no cause why the people of the new law ought to, pay less to the ministers of the new law, than the people of the Old Testament gave to the ministers of the Old Testament: for the people of the new law be bound to greater things than the people of the old law were, as it appeareth, Matth. 5, where it is said, “Unless your good works abound above the works of the Scribes and Pharisees, ye may not enter into the kingdom of heaven.” And the sacrifice of the old law was not so honourable as the sacrifice of the new law is: for the sacrifice of the old law was only the figure, and the sacrifice of the new law is the thing that is figured; that was the shadow, this is the truth. And therefore the church upon that reasonable consideration ordained, that the tenth part should be paid for the sustenance of the ministers in the new law, as it was for the sustenance of the ministers in the old law; and so that law with a cause may be increased or diminished to more portion or to less, as shall be necessary for them.
Doct. It appeareth, Gen. 14, that Abraham gave to Melchisedec dismes, and that is taken to be the tenth part; and that was long before the law written: and therefore it is to suppose, that he did that by the law of God.
Stud. It appeareth not by any scripture that he did that by the commandment of God, ne by any revelation. And therefore it is rather to suppose that he did part of duty, and part of his own free will: for in that he gave the dismes as a reasonable portion for the sustenance of Melchisedec and his ministers, he did it by the commandment of the law of reason, as before appeareth; but that he gave the tenth part, that was of his free-will, and because he thought it sufficient and reasonable: but if he had thought the twelfth part, or the thirteenth part had sufficed, he might have given it, and that with good conscience. And so I suppose that in the new law, the giving of the tenth part is by the law of the church, and not by the law of God; unless it be taken that the law of the church is the law of God, as it is sometime taken to be, but not appropriately or immediately; for that is taken appropriately to be the law of God, that is contained in scripture, that is to say, in the Old Testament and in the New.
Doct. It is somewhat dangerous to say that tithes be grounded only upon the law of the church: for some men, as it is said, say that men’s law bindeth not in conscience, and so they might happen to make a boldness thereby to deny their tithes.
Stud. I trust there be none of that opinion; and if there be, it is great pity: and nevertheless they be compelled in that case by the law of the church to pay their tithes, as well as they should be if paying of tithes were grounded merely upon the law of God.
Doct. I think well it be as thou sayest, and therefore I hold me contented therein. But I pray thee shew me thy mind in this question: if a whole country prescribe to pay no tithes for corn or hay, nor such other, whether thou. think that that prescription is good?
Stud. That question dependeth much upon that that is said before: for if paying of the tenth part be by the law of reason, or by the law of God, then the prescription is void; but if it be by the law of man, then it is a good prescription, so that the ministers have a sufficient portion beside.
Doct. John Gerson, which was a doctor of divinity, in a treatise that he named Regulae morales, saith, that dismes be paid to priests by the law of God.
Stud. The words that he speaketh there of the matter be these, Solutio decimarur sacerdotibus est de jure divino; quatenus inde sustententur; sed quod tam hanc vel illam assign are, aut in alios redditus commutare, positivi juris existit: that is thus much to say, The paying of dismes to, priests is of the law of God, that they may thereby be sustained; but to assign this portion or that, or to change it to other rents, that is by the law positive. And if it should be taken that by that word decimarum which in English is called dismes or tithes, that he meant the 10th part, and that that 10th part should be paid for tithe by the law of God, then is the sentence that followeth after against that saying; for as it appeareth above, the next saith afterward thus; but to assign this portion or that, or to change it into other rents, belongeth to the law positive, that is to the law of man; and if the tenth part were assigned by God, then may not a less part be assigned by the law of man, for that should be contrary to the law of God, and so it should be void. And methinketh that it is not so likely that so famous a clerk would speak any sentence contrary to the law of God or contrary to that he had spoken before. And to prove he meant not by the term decimae, that dismes should always be taken for the tenth part, it appeareth in the fourth part of his works, in the 32d title Literae, where he saith thus, Non vocatur portio curates debita propterea decimae, eo, quod semper sit decirra tars, imo est interdum vicesfrra out tricesima: that is to say, the portion due to curates is not therefore called dismes, for that it is alway the tenth part, for sometime it is the 10th or the 30th part. And so it appeareth that by this word decimarum he meant in the text before rehearsed a certain portion, and not precisely the tenth part: and that the portion should be paid to priests by the law of God, to sustain them with, taking as it seemeth the law of reason in that saying for the law of God, as it may one way be Yell and conveniently taken, because the law of reason is given to every reasonable creature by God and then it followeth pursuantly, that it belongeth to the law of man to assign this portion, or that which necessity shall, require for their sustenance. And then his saying agreeth well to that that is said before, that is to say, that a certain portion is due for priests, for their spiritual ministration, by the law of reason. And then it would follow thereupon, that if it were ordained for a law, that all paying of tithes should from henceforth cease, and that every curate should have assigned to him such certain portion of land, rent, or annuity, as should be sufficient for him, and for such ministers as should be necessary to be under him, according to the number of the people there, or that every parishioner or householder should give a certain sum of money to that use; I suppose the law were good. And that was the meaning of John Gerson as it seemeth, in his words before rehearsed, where he saith. But to change tithes into other rents, is by the law positive, that is to say, by the law of man. And some think that if a whole country prescribe to be quit of both tithes of corn and grass, so that the spiritual ministers have a sufficient portion beside to live upon, that is a good prescription, and that they should not offend that in such countries paid no tithes; for it were hard to say that all the men of Italy, or of the East parts be damned, because they pay no tithes, but a certain portion after the custom. Therefore certain it is to pay such a certain portion, as well they as all other be bound, if the church ask it, any custom notwithstanding. But if the church ask it not, it seemeth that by that not asking the church remitteth it; and an example thereof we may take, of the Apostle Paul, that though he might have taken his necessary living of them that he preached to, yet he took it not, and nevertheless they that gave it him not, did not offend, because he did not ask it. But if one man in a town would prescribe to be discharged of tithes of corn and grass, methinketh the prescription is not good, unless he can prove that he recompenseth it in another thing: for it seemeth not reasonable that he should pay less for his tithes than his neighbours do, seeing that the spiritual ministers are bound to take as much diligence for him, as they be for any other of that parish: wherefore it might stand with reason that he should be compelled to pay his tithes as his neighbours do, unless he can prove that lie payeth in recompence thereof more barn the tenth part in another thing. Nevertheless, I leave the matter to the judgment of others. And then for a farther proof, though the said prescription of not paying tithes for trees of twenty years and above were not good, yet that that of corn and grass should be good some make this reason; they say that there is no tithe but it is either a predial tithe, or a personal tithe, or a mixt tithe. And they say that if a tithe should be paid of trees when they be sold, that the tithe were not a predial tithe; for the predial tithe of trees is of such trees as bring forth fruits and increase yearly; as apple-trees, nut-trees, peartrees, and such other, whereof the predial tithe is the apples, nuts, pears, and such other fruits as come of them yearly; and when the fruits be tithed, if the owner after sell the trees, there is no tithe due thereby, for two tithes may not be paid of one thing. And of those tithes, that is to say, of predial tithes, was the commandment given in the old law to the Jews, as appeareth Levit. 27, where it is said, Omnes decimae terra, sive de pomis arborum, sive de frugibus, Domini sunt, et illi sanctizcantur; that is to say, all tithes of the earth, either of apples, of trees, or of grains, be our Lord’s, and to him they be sanctified: and though the said law speaketh only of apples, yet it is understood of all manner of fruits. And because it saith that all the tithes of the earth be our Lord’s, therefore calves, lambs, and such other must also be tithed: and they be called by some men predial tithes, that is to say, tithes that come of the ground; howbeit they call them only Predials mediate; and they be the same tithes that in this writing be called mixt tithes; and the other tithes, that is to say, tithes of apples and corn, and such other, be called predials immediate, for they come immediately of the ground, and so do not mixt tithes, as evidently appeareth.
Doct. But what thinkest thou shall be the predial tithe ,of ashes, elms, sallows, alders, and such other trees as bear no fruits whereof any profit cometh? Why shall not the tenth part of the self thing be the tithe thereof, if they be cut down, as well as it is of corn and grass?
Stud. For I think that there is to that intent great diversity between corn, grass, and trees; and that for divers considerations, whereof one is this, The property of corn and grass is not to grow over one year, and if it do, it will perish and come to nought, and so the cutting down of it is the perfection and preservation thereof, and the special cause that any increase followeth of the same; and therefore the tenth part of the increase shall be paid as a predial tithe, and there no deduction shall be made for the charges of it: and so it is of sheep and beasts, that must be taken and killed in time, for else they may perish and come to nought: but when trees be felled, that felling is not the perfection of the trees, ne it causeth not them to increase, but to decay; for most commonly the trees would be better, if they might grow still. And therefore upon that that is the cause of the decay and destruction of them, it seems there can no predial tithe arise. And some men say, that this was the cause why our Lord in the said chapter of Levit. 27, gave no commandment to tithe the trees, but the fruits of the trees only.
Doct. It appeareth in Paralip. 31, that the Jews at the time of the king Ezechias offered in the temple all things that the ground brought forth; and that was trees as well as corn and grass.
Stud. It appeareth not that they did that by the commandment of God, and therefore it is like that they did it for their own devotion, and of a favour that they had above their duty to the repairing of the temple, which the king Ezechias had then commanded to be repaired and so that text proveth nothing that tithe should he paid for trees. And therefore they say farther, that truth it is, that if a man to the intent he would pay no tithe, would wilfully suffer his corn and grass to stand still, and to perish, he should offend conscience thereby: but though lie suffer his trees to stand still continually without felling, because he thinketh the tithe would be asked if he felled them (so that he do it not of an evil will to the curate), he offendeth not in conscience, ne he is not bound to restitution therefore, as he should be if it were of corn and grass, as before appeareth. And another diversity is this: In this case of tithewood, the tithe thereof would serve so little to that purpose that tithes be paid for, that it is not likely that they that made the law for payment of tithes intended that any tithe should be paid for trees or wood: for the spiritual ministers must of necessity spend daily and weekly, and therefore the tithes of trees or wood, that cometh so seldom, would serve so little to the purpose that it should be paid for, that it would not help them in their necessity: so that if they should be driven to trust thereto, though it might help him in whose time it should happen to fall, yet it should deceive them that trusted to it in the meantime, and also should leave the parish without any to minister to them.
Doct. I would well agree, that for trees that bear fruit there should no predial tithe be paid when they be sold, for the predial tithe of trees is the fruits that come of them, and so there cannot be two predials of one thing, as thou hast said. But of other trees that bear no fruit, methinketh that a predial tithe should be paid when they be sold. And so it appeareth that there ought to be by the constitution provincial made by the reverend father in God, Robert Winchelsey, late archbishop of Canterbury, where it is said and declared, that Sylva caedua is of every kind of trees that have being, in that they should be cut, or that be able to be cut: whereof we will, saith he, that the possessor of the said wood be compelled by the censures of the church to pay to the parish-church, or mother-church, the tithe, as a real or predial tithe. And so by virtue of that constitution provincial a predial tithe must be paid of such trees as have no fruit: for I would agree, that the said constitution provincial stretched not to trees that bear fruit, although the words be general to all trees, (as before appeareth.)
Stud. I take not the reason why a predial tithe should not be paid for trees that bear fruit, to be because two predial, tithes cannot be paid for one thing: for when the tithe is paid of lambs, yet shall tithe be paid of wool of the same sheep; for it is paid for another increase: and so it may be said that the fruit of a tree is one increase, and the felling another. But I take the cause to be, for the two, causes before rehearsed; and also forasmuch as the felling is not properly an increase of trees, but a destruction of the trees, as it is said before. And farther, I would hear thy mind upon the said constitution provincial, which will, that tithe should be paid for trees by the possessors of the wood; that if the possessor fell the wood for Cl, and give the buyer a certain time to fell it’ in, what tithe shall the possessor pay as long as the wood standeth?
Doct. I think none, for the predial tithe cometh not till the wood be felled: and a personal tithe he cannot pay, no, more than if a man pluck down his house and selleth it, or if he sell all his land: in which cases I agree well he shall pay no tithe, neither personal nor predial.
Stud. And then I put case that the buyer selleth the wood again as it is standing upon the ground to another for CC1., what tithe shall be paid then?
Doct. Then the first buyer shall pay tithe of the surplus age that he taketh over the Cl. that he paid as a personal tithe.
Stud. And then if the second buyer after that cut it down, and sell it when it is cut down for less than he paid, what tithe shall then be paid?
Doct. Then shall he that selleth them pay the tithe for the trees as a predial tithe.
Stud. I cannot see how that can be: for he neither hath the trees that the predial tithe should be paid for, if any ought to be paid; nor he is not possessor of the ground where the trees grow. And therefore if any predial tithe should be paid, it should be paid either by the first possessor by reason of the words of the said constitution provincial, which be, that the tithe shall be paid by the possessor of the wood: or by the last buyer, because he hath the trees that should be tithed; and by the first possessor the tithes cannot be paid as a predial; for he cut them not down, ne they were not cut down upon his bargain; and by the last buyer it cannot be paid, neither as a predial tithe, for the said constitution. saith, that the possessor of the woods should be compelled to pay it. And therefore I suppose that the truth is, that in that case no tithe shall be paid: for as to the last seller, he shall pay no personal tithe, for he gained nothing, as it appeareth before; and no predial tithe shall be paid, for it should be against the said prescription; and also the cutting down is the destruction of trees, and not their preservation, as is said before.
Doct. Then takest thou the said constitution to be of small effect, as it seemeth.
Stud. I take it to be of this effect: That of wood above twenty years it bindeth not, because it is contrary to the Common law, and to the said prescription, that standeth good in the Common law, but of wood under twenty years, whereof tithe hath been accustomed to be paid, the constitution is not against the said prescription, because paying of tithe under twenty years is not prohibited, but suffered by the said statute. Howbeit some say, that by the very rigour of the Common law tithes should not be paid for wood under thirty years, no more than for above twenty years, and that prohibition in that case lieth by the Common law: nevertheless, because it hath been suffered to the contrary, and that in many places tithes hath been paid thereof, I pass it over: but where tithe hath not been paid of wood under twenty years, I think none ought to be paid at this day in law or conscience. But admit that the said constitution taketh effect for payment of the wood under twenty years as of a predial tithe, yet I cannot see how the tithe thereof should be paid by the possessor of the wood, if he sell them, but that it should be paid rather by him that hath the trees: for the constitution is, that the tithe shall be paid as a real or predial tithe, and that is their part of the same trees, as it is of corn. And if a man buy corn upon the ground, the buyer shall pay the tithe, and not the seller and so it would seem to be here. And what the constitution meant, to decree the contrary in tithe wood, I cannot tell, unless the meaning were to induce the owners to pay tithes of great trees when they fell them to their own use; which methinketh should be very hard to stand with reason, though the said statute had never been made, as I have said before. And furthermore, I would here (under correction) move one thing, and that is this, That, as it seemeth, that they that were at the making of the said constitution, and knew the said prescription, did not follow the direct order of charity therein so perfectly as they might have done: for when they made the said constitution provincial directly against the said prescription, they set law, against custom, and power against power, and in a manner the spiritualty against the temporalty, whereby they might well know that great variance and suit would follow. And therefore if they had clearly seen that the said prescription had been against conscience, they should first have moved the king and his council, and the nobles of the realm, to have assented to the reformation of that prescription, and not to make a law as it were by authority and power against the prescription, and then to threat the people, and make them believe -that they were all accursed that kept the said prescription, or that maintained it. And it seemeth to stand hardly with conscience to report so many to stand accursed for following of the said statute, and of the said prescription as there do, and yet to do no more than hath been done to bring them out of it.
Doct. Methinketh that it is not convenient that laymen should argue the laws and the decrees or constitutions of the church: and therefore it were better for them to give credence to spiritual rulers that have cure of their souls, than to trust to their own opinions: and if they would do so, then such matters would much the more rather cease than they will do by such reasonings.
Stud. In that that belongeth to the. articles of the faith, I think the people be bound to believe the church, for the church gathereth together in the Holy Ghost cannot err in such things as belongeth to the catholick faith; but where the church maketh any laws whereby the goods or possessions of the people may be bound, or by this occasion or that may be taken from them, there the people may lawfully reason whether the laws bind them or not; for in such laws the church may err and be deceived, and deceive other, either for singularity, or for covertise, or some other cause. And for that consideration it pertaineth most to them that be learned in the law of the realm to know such laws of the church as treat of the ordering of lands or goods, and to see whether they may stand with the laws of the realm or not. And therefore it is necessary for them to know the laws of the church that treat of dismes, of executors, of testaments, of legacies, bastardy, matrimony, and divers other, wherein they be bound to know when the law of the church must be followed, and when the law of the realm: whereof because it is not our purpose to treat, I leave to speak any more at this time, and will resort again to speak of tithes; wherein some men say that of tin, coal, and lead, no tithe should be paid when they be sold by the owner of the ground, because it is part of the inheritance, and it is more rather a destruction of the inheritance than any increase. And therefore they say, that if a man take a tinwork, and give the lord the tenth dish, according to the custom, that the lord shall pay no tithe of that tenth dish, neither predial nor personal: but if the other that taketh the work, have gains and advantage by the work, it seemeth that it were not against reason that he should pay a personal tithe of his gains, the charge deducted.
Doct. I pray thee shew me first what thou takest for a personal tithe, and upon what ground personal tithes be paid, as thou thinkest, so that one of us mistake not another therein.
Stud. I will with good-will. And therefore thou shalt understand that, as I take it, personal tithes be not paid for any increase of the ground, but for such profit as cometh by the labour or industry of the person, as by buying and selling, and such other; and such personal tithes, as I take it, must be ordered after the custom, and the church hath not used to levy those tithes of compulsion, but by conscience of the parties. Nevertheless Raymond saith, that it is good to pay personal tithes, or with the assent of the parson to distribute them to poor men, or else to pay a certain portion for the whole. But as Innocent saith, where the custom is that they should be paid, the people be bound to pay them as well as predials, the expences deduct. Howbeit in the church of England they use to sue for such personal tithes as well as for predials; and that is by reason of the constitution provincial that was made by Robert Winchelsey, by the which it was ordained, that personal tithes should be paid of crafts and merchandise, and of the lucre of buying and selling, and in like wise of carpenters, smiths, weavers, masons, and all other that work for hire, that they shall pay tithes of their hire, except they will give any certain thing to the use or the light of the church, if it so please the parson. And in another place the said archbishop saith, that of the pawnage of woods and such other things, etc., and of fishings, trees, bees, doves, and of divers other things there remembered, and of crafts, and of buying and selling, and of the profits of divers other things there recited, every man should help satisfy competently in the church, to the which they be bound to give it of right; no expences by the giving of the said tithes deducted or withholden, but only for the payment of tithes of crafts, and of buying and selling. And by reason of the said constitutions provincial, sometimes suits be taken in the spiritual court for personal tithes; and therefore many men do marvel because deductions many times must be referred to the conscience of the parties. And they marvel also why a law should be made in this realm, for paying of personal tithes, more than there is in other countries. And here I would gladly move thee farther in one thing concerning such personal tithes, to know thy mind therein, and that is, If a man give to another a horse, and he selleth that horse for a certain sum, shall he pay any tithe of that sum?
Doct. What thinkest thou therein?
Stud. I think that he shall pay no tithe: for there, as I take it, the profit cometh not to him by his own industry, but by the gift of another; and, as I take it, personal tithes be not paid for every profit or advantage that cometh newly to a man, except it come by his own industry or labour, and so it doth not here. And also if he should pay tithe of that he sold the horse for, he should pay tithe for the very whole value of the thing: and, as I take it, the personal tithes for buying and selling shall never be paid for the value of the thing, but for the clear gains of the thing. And therefore I take the cases before rehearsed, where a man selleth his land, or pulleth down a house and selleth the stuff, that he should there pay no tithe, that it is there to be understood, that he that hath land or house by gift, or by descent: for if a man buy land, or buy timber and stuff of a house, and sell it for gain, I suppose that he should pay a personal tithe for that gain. And this case is not like to a fee or annuity granted for counsel, where the whole fee shall be tithed for the charges deducted, or some certain sum for it by agreement: for there the whole fee cometh for his counsel, which is by his own industry; but in the other case it is not so. And the same reason as for the personal tithe might be made of trees, when they descend or be given to any man, and he selleth them to another, that he shall pay no personal tithe.
Doct. Methinketh that if the horse amend in his keeping, and then he sell the horse, that then the tithe shall be paid of that that the horse hath increased in value after the gift and so it may be of trees, that he shall pay tithe of that that the trees may be amended after the gift or descent.
Stud. Then the tithe must be the tenth part of the increase, the expences deducted: and then of trees the charges must also be deducted, for it is then a personal tithe; and there is no tree that is so much worth as it hath hurt the ground by the growing: therefore there can no personal tithe be paid by the owner of the ground when he selleth them, though they have increased in his time. Nevertheless I will speak no farther of that matter at this time, but will shew thee, that if tin, lead, coal, or trees be sold, that a mixt tithe cannot grow thereby. For a mixt tithe is properly of calves, lambs, pigs, and such other that come part of the ground that they be fed of, and part of the: keeping, industry and oversight of the owners, as it is said before. But tin, lead, and coal are part of the ground, and of the freehold, and trees grow of themselves, and be also annexed to the freehold, and will grow of themselves. And also the mixt tithe must be paid yearly at certain times appointed by the law, or by custom of the country: but it may happen that tin, lead, coal, and trees shall not be felled or taken in many years, and so it seemeth it cannot be any mixt tithe. And these be some of the reasons, which they that would maintain that statute and prescription to be good, make to prove their intent, as they think.
Doct. What think they, if a man sell the lops of his wood, whether any tithe ought there to be paid?
Stud. They think all one law of the trees and of the lops.
Doct. And if he use to sell the lops once in fifteen or sixteen years, what hold they then?
Stud. That all is one.
Doct. And what is the reason why tithe ought not to be paid there as well as for wood under twenty years?
Stud. For they say that the lops are to be taken of the same condition as the trees be, what time soever they be felled; and that no custom will serve in that case against the statute, no more than it should do of great trees.
Doct. And what hold they of the bark of the tree?
Stud. Therein I have not heard of their opinion, but it seemeth to be one law with the lops.
Doct. I perceive well by that thou hast said before, that thy mind is, that if a whole country prescribe to be quit of tithes of trees, corn, and grass, or of any other tithes, that that prescription is good, so that the spiritual ministers have sufficient beside to live upon.Dost thou mean so?
Stud. Yea verily.
Doct. And then I would know thy mind, if any man contrary to that prescription were sued in the spiritual court .for corn and grass, or any other tithes, whether a prohibition should lie in that case, as it did after thy mind before the said statute, where a man was sued in the spiritual court for tithe wood.
Stud. I think nay.
Doct. And why not there, as well as it did where a man was sued for the tithe wood?
Stud. For, as I take it, there is great diversity between the cases, and that for this cause: There is a maxim in the law of England, that if any suit betaken in the spiritual court whereby any goods or land might be recovered, which after the grounds of the law of the realm ought not to be sued there, though percase the king’s court shall hold no plea thereof, that yet a prohibition should lie: and after when it had continued long that no tithes were paid of wood, because of the said prohibition, and that after by process of time some curates began to ask tithe of wood, contrary to the law, and contrary to the said prescription, so that variance began to arise between curates and their parishioners in that behalf; then for appeasing the said variance the said statute was made, and that, as it seemeth more at the calling on of the spiritualty than of the temporalty: for the statute doth not expressly grant that the prohibition in that case of tithe wood should lie so largely as some say it lay by the law; howbeit it doth not restrain the Common law therein, as it appeareth evidently by the words of the statute. And so after some men, it appeareth before the statute, and also after the statute, (as I have touched before) that the spiritual court ought not in that case to have made any process. for tithe wood: and therefore if they did, a prohibition lay by the Common law. And like law as if the spiritual court make process upon such legacy as by the law of the realm is void. As if a man bequeath to one another man’s horse, and the spiritual court thereupon maketh process to execute that legacy, there a prohibition lieth: for it appeareth evidently in the libel, if all the truth appeareth in the, libel, that in the law of the realm the legacy is void to all intents; and that he to whom the legacy is made shall neither have the horse nor the value of the horse. And in like wise if a man sell his land for one hundred pounds, and he is sued after in the spiritual court for tithe of the said hundred pounds, there a prohibition shall lie; for it appeareth in that case openly in the libel, that no tithe ought to be paid, and that the spiritual law ought not in that case to make any process whereby the goods of him that sold the land might be taken from him against the law of the realm. And upon this ground it is, that if a man were sued in the spiritual court now sith the statute for a Mortuatry, that a prohibition should lie, for it appeareth in the libel, that sith the statute there ought no snit to be taken for. mortuaries; and the same law is, if any suit were taken in the spiritual court for a new duty, that is of late taken in some places upon leases of parsonages and vicarages, which is called a Dimission noble, for it appeareth evidently in the libel, if any be made thereupon, that no such process ought by the law of the realm to be made in that behalf. But in the case of tithe corn or grass, or such other things, wherein thou hast desired to know my mind, there appeareth nothing in the libel, but that the suit thereof of right appertaineth to the spiritual law; and so for any thing that appeareth the party may be holpen in the spiritual court by the prescription. And if the case were so put, that in the spiritual court they would not allow the said prescription, yet I think no prohibition shall lie. For though the spiritual judges in a spiritual matter deny the parties of justice, yet the king’s laws cannot reform that, but must remit it to their conscience. But if there were some remedy provided in that case, it were well done; for some men say, that in the spiritual court they will admit no plea against tithes. And also if a composition were made by assent of the patron, and also of the ordinary, between a parson and one of his parishioners, that the parson and his successors should have for a certain ground so many quarters of corn for his tithe yearly, and after, contrary to the composition, the parson in the spiritual court asketh the tithes as they fall; that in this case no prohibition should lie; ne yet though the case were farther put, that the composition were pleaded in the court, and were disallowed; but all resteth in the conscience of the judge spiritual, (as is said before.) Howbeit, because some be of opinion that a prohibition should lie in this last case, therefore I will refer it to the judgment of other; but in the case of prescription, before rehearsed, I take it for the clearer case, that no prohibition should lie, as I have said before. And I beseech our Lord, that this matter and such other like thereto, may be so charitably looked upon, that there be not hereafter such divisions, ne such diversities of opinions therein, as has been in time past, whereby hath followed great costs and charges to many persons in this realm; and that hath moved me to speak so far in this chapter, and in divers other chapters in this present book, as I hive done: not intending thereby to give occasion to any person to withhold his tithes that of right ought to be paid, ne to alter the portion therein before accustomed; but that (as methinketh) they ought to be claimed by the same title as they ought to be paid, and by none other; and that it may also somewhat appear that the said statute of 45 Edw. III. was well and lawfully made, and upon a good reasonable consideration, and that the said prescription is good also; so that no man was in any danger of excommunication for the making of the said statute, nor yet is not for the observing thereof, ne yet of the said prescription, as it is noted by some persons that there should be. And thus I commit thee unto our Lord, who ever have both thee and me in his blessed keeping everlastingly. Amen.