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The Doctor and Student (1518)
Christopher St. Germain
Who shall have the tithes of the waste grounds that be within no parish, and what power the parliament has therein
Doct. It was asked of me but late, if certain waste ground, whereof was never any profit taken, and that lay within no parish, but in some forest, or that is newly won from these a, were brought into arable land, whether the parliament might appoint, who should have the tithe thereof; and he that asked me the question thought it might. I pray thee shew me thy conceit, what thou thinkest therein?
Stud. I think that if the freehold be in the king, that he may assign the tithes thereof to whom he will: and if the freehold be in a common person, that he may do likewise. But then I think, that if that common person do not assign the tithes so, as it may stand conveniently to the maintenance of the seryice of God, that the parliament may do it, and order the tithes to the increase of God’s service, as they shall think convenient.
Doct. I cannot see how the parliament, nor yet the party should have authority to meddle with tithes, that be spiritual, and pertain alway to the spiritual jurisdiction. And therefore I suppose, that in this case the archbishop, as sovereign head over the spirituality, should in this case have the ordering of the tithes, as things spiritual to whom none other hath right: and neither the king nor no common person.
Stud. Though tithes be spiritual, yet the assignment of the tithes to other is a temporal act, which the parliament with a cause may order, as it may do all temporal things within the realm: and that the king, or any other, that hath the freehold of such waste grounds as be in no parish, may assign the tithes thereof to whom they will, it may appear thus: Before parishes were divided, and before that it was ordained by the law of the church, that every man should pay his tithes to his own church; every man might have paid his tithes to what church he would, and might one year have given it to one church, and another year to another; or have granted them to one church for ever if he would. And like as every man, before the said severing of parishes, might have given his tithes to what church he would, because he was bound to no church in certain: so may they do now, that have lands that lie in no parish; for they be at liberty to assign them to what church they will, as all men were before the said law made, that tithes should be paid to the proper church. And if the archbishop should have right to them, because no man can of right claim them, then before the said law made, archbishops had right to all the tithes, within their provinces for no man had right to any tithes, but by the assignment of the owners. And therefore if the freehold, in this case that thou hast put, be in the king, then he shall assign the tithes where he will: and in like wise of other of his subjects, as I have said before.
Doct. Thou speakest in this case as thou were learned in the Spiritual law, for these matters pertain thereto, and not to the laws of the realm.
Stud. I speak therein according to the old law and custom of the realm, which yet continiueth in such places, as be out of any parish, as it did before parishes were limited, and before the said law was made, that tithes should be paid to their proper churches: and that there is such a custom, partly it appeareth in a case, that is in the laws of England, which happened long time since the said law was made, that tithes should be paid to their proper churches.
Doct. I pray thee shew me what case that is.
Stud. In the twenty-second year of king Edward the third, in the book of Assise it appeareth, that the king granted the tithes of certain asserts, that were newly taken out of the forest of Rock, to a provost, and he thereupon brought a Scire facias against divers, that took the said tithes, returnable into the Chancery; and there exception was taken, that the suit pertained to the spiritual court, and not to the Chancery, and it was answered again, that that was to be understood, where the suit was taken against them that ought to pay the tithes, and not where it was brought against them, that were wrongful takers of the tithes. And thereupon the defendants were put to answer, and pleaded to an issue, which was sent down into the King’s Bench to be tried according to the law, and there the defendants made default: whereupon the plaintiffs prayed execution. And in this case Thorpe said, “That the old law hath been alway, that the king in such case should assign the tithes where he would.” And, that saying I take to be understood, where the freehold is in the king, as I have said before. And though the said case be not judged, yet it appeareth thereby, that the king made assignment of tithes, which was admitted to be good, so that the parliament shall not need to meddle therein, unless it be his pleasure to assign them by authority of his parliament: a he may do, if he will, to make his letters patents to be of the more higher record than they should be without the parliament.
Doct. Truth it is, that the king and other owners and possessioners of land sometime paid their tithes to what church they would; but when it was ordained by the church, that tithe should be paid to their own church, then the people were bounden by that ordinance to pay them according, and so they did; and therefore if there were a law made now by the church of such particular tithes, as yet remain still out of any parish, that they should be paid to the parish next adjoining, or to the ordinary, or to the metropolitan, or in such other manner as the church should think reasonable; methinketh it were a good law, and ought to be obeyed as well of the particular tithes, as it was first of all tithes generally. And if the church may make a law therein, then methinketh the parliament should have no power to make any law therein.
Stud. When the church had ordained, that the tithes of every man should be paid to their own church, and the people received that law, and paid their tithes according then by that assent the law was confirmed: and if the church would not have made that law, I think the parliament might: for it was for the rest and quietness of all the people: and then none might have refused that law so made by parliament: but to the law made by the church some did not obey, but paid their tithes to other churches as they did before. And those churches unto this day have good right to those tithes, as portions belonging to their churches, though the ground lie not within their parish; and so hath the king and the owners and possessors of such waste grounds, that be out of all parishes at this day, good right to assign the tithes thereof, where they will. For as to those grounds they never received any law to the contrary: and so I think it bindeth them not in that behalf. And no more should any new law do, that were made by the church of such tithes, nor pull the liberty from them to assign them where they will, without their assent. And where thou sayest, that if the church may make a law of a thing, that then the parliament hath no power to make any law therein, I think that ground holdeth not; for if the church would grant a dismes to be paid to the king, it were well granted: but if they would not, the parliament may. And in like wise though the church hath made a law, that curates should be resident upon their benefices; yet the parliament also hath made a law, that they shall be so, and both laws stand in good strength and effect, as I suppose. And in like wise it is of the statute of usury, which was made in the tenth year of king Henry the Seventh.