The Doctor and Student (1518)

Christopher St. Germain

What power the parliament has in the trees and grass in church-yards

Stud. I suppose also, that the parliament may assign of the trees and grass in church-yards either to the parson, to the vicar, or to the parish if they see cause: for though it be hallowed ground, yet the freehold thereof, the trees and herbs are things temporal, as they were before the hallowing; and that the parliament hath power to order them (as is said before) it appeareth by a statute that is called Ne rector Prosternat arbores in caemeterio, 35 Edw., stat. 2, that is to say, the statute against persons, that they shall not cut down trees in the church-yards. In which statute it is recited, that the soil of the church-yard (which in the laws of England is called the freehold) belongeth to the church: and then the statute goeth farther, and prohibiteth all persons, that they shall not fell them, but it be for necessary reparations of the chancel, but that they shall let them stand still to defend the church from the great tempestuous winds and weather. And then it seemeth, that like as the parliament hath authority to prohibit persons, that they shall not fell the trees in the church-yard when they would, that it hath authority as well to take the whole property of the trees from them if they see cause, and that they may give them to the- parish, if there be reasonable ,consideration to move them to it. And yet nevertheless the judges for a church-yard will most commonly put the court out of jurisdiction, and remit it to the spiritual law, to determine to whom it belongeth of right; but I take that to be by a custom, and a favor of the law, and not of a mere right, as of the law of God. And therefore if the parliament would ordain, that the right of church-yards, and of all things in them, should be tried in the king’s courts, I think the statute might well do it. But, as I have said before, the parliament will not extend their power to many things, that they might do if they would (I think), and especially in these matters they will not. And surely as well the parliament as the king’s courts, of the king’s bench and common pleas, and all the common law (as I suppose) have been and be as favourable to the spiritual jurisdiction, as well in such church-yards, tithes, offerings, and such other, as any law hath been; insomuch that in the king’s bench and common pleas they will suffer no issue to be joined, especially betwixt person and person, whereby the right of tithes might be tried; howbeit that in the exchequer some time. they have done otherwise. And for a farther proof, that the parliament may order a church-yard, and trees and grass, as is aforesaid, some make this reason; they say it is enacted by the statute 15 of Rich. II., ch. 5, that lands that be made church-yards, and be hallowed and made burials without licence of the king and chief lords, shall be in case of mortmain: and they say, that of that it followeth, that if the king or lord enter, for that the church-yard was made against the statute, that the hallowing thereby is annulled, for else (they say) the statute should he void. And if the statute have power to annul the hallowing, made against the statute, they say more stronger it may order the trees and grass that be growing upon it, because they be temporal, as is said before. And in that case if the lord enter by reason of the statute, and the person putteth him out, and the lord bring assise, and the person pleadeth, that it is a church-yard, and demand judgment, if the court will hold plea thereof, and then the lord sheweth how he entered by force of the said statute, and pleadeth in certain; that is a good plea to give the court jurisdiction. And thus I suppose verily that the parliament may order the trees and grass in a church-yard, as I have said, and yet the ground to remain still hallowed, as it did before.