in order to return to an earlier modus more advantageous for them than the present one. Where the parishioners could not change the modus, they tried to interpret it in their favour and a general agreement seems to have been tacitly and unconsciously formulated all over England, that the small tithes of honey, wax, a few eggs, the loppings of trees, the gleanings from the hay-field after the workers had finished, were no longer to be paid.1 These, however, were now valuable to the clergyman out of all proportion to their real worth because they were paid in kind and, estimated at the new prices, amounted to a considerable share of his nominal income. The large number of suits for such small tithes makes it clear that the clergy was meeting a good deal of opposition and that the laity did not intend to pay a penny more than was necessary. These fraudulent and unsupported claims were to be swept aside by legal decisions. Nor was real injustice committed by such a restoration of tithes, however the matter was regarded, for it merely put into effect the intention of the parties to the original pact: they had agreed on a price which roughly represented a tenth of the value and the layman had intended that the clergyman should have that proportion. Now, however, by the change in circumstances, the original agreement was actually nullified and the injustice lay not in changing the commutation but in maintaining it.

This plan, however, was neither new nor original and meant no more than the annulling of such modi decimandi as would not bear legal scrutiny. The action of the courts was the same which long had been customary in the adjudication of disputes between individuals, for every modus was to be questioned by the rector of the parish. The difference between the situation in 1605 and that of the previous decades lay in the thorough-going attempt to secure a legal adjudication upon every commutation which was in any way

1 There were numbers of suits for these small tithes. They must have been quite valuable or no one would have gone to the expense of litigation to secure them or to defend them. In fact, some of these cases, which nominally concerned only tithe pigeons or the loppings of trees, went through several courts.

For cases involving barren land see in the Law Reports, Dyer, 170: Moore, 909: Croke. I, 475. For cases on loppings of trees see Moore, 762,

908: Plowden, (1816 Edition) 468 a: Croke, I, 477. Involving broom, fennel, after-math, etc. see Moore, 910, 683. And as to tame turkeys, pheasants, partridges and their eggs, see Moore, 599. Trees under 20 years growth, see Moore, 541, 908: Croke, I, 477. Dry cattle giving no milk, see Croke. I, 476, 786. Tithes are not due for fuel burned in the house, Croke, I, 609; nor for the overplus of wood cut for making hedges, Croke, 1, 499.

doubtful. And, while the initiative nominally proceeded from the individual rector, and, while we have no knowledge of any general directions or orders issued by the Archbishop to the clergy to try the validity of their modus decimandi at law,' something must have been said to the clergy at Visitations and a tacit understanding certainly prevailed among the ecclesiastical judges, that only the most unimpeachable proof of the existence of a modus decimandi was to be recognised and that, wherever it was not forthcoming, tithing in kind was to be restored.

The crisis was, no doubt, hastened by the new corporate feeling, which Bancroft had infused into the clergy, and that thorough loyalty, one to another and to the Church, had no small influence in determining the attitude of the Church in these conflicts with the law courts. Bancroft had made men realise, as never before since the Reformation, the importance of the Church as an institution and had roused them to a consciousness that this very institutional life was in such grave danger that the support of every member of the ecclesiastical hierarchy was of vital importance. This feeling was new.

During the reign of Elizabeth the pillaging of ecclesiastical incomes had gone on apace among the lesser gentry; nonconformity had been rife; the law courts had been busy robbing the Courts Christian of their jurisdiction; and no one had seemed to care. Every bishop and clergyman seemed to be concerned, not with the future of the Church or with its fate as an institution, but solely with his own affairs, content if he could maintain his position, despite the Canonical regulations, and if he could win his own little case at law. The consciousness of a united Church behind him and of the militant spirit roused among the ecclesiastical lawyers, no doubt had much to do with Bancroft's decision to deliver so firm an attack upon the stronghold of the common law.

For this resumption of tithing in kind, Bancroft found express authority in the old Canon Law, for he read in Lindwood, 199, that no custom could be held good which was less than the just tenth which it commuted. It was also well established at ecclesiastical law, that "if the Minister or Curate may not be maintained by the residue of the Tythes, he may sue for the whole Tythe. And if there

1 There are some cases in his Register at Lambeth of settlements of

tithe disputes secured by episcopal or archiepiscopal arbitration.

be a composition betwixt the Curate and his parishioner, that hee shall pay no Tithe, this composition is mearly void."1 Verbal agreements might be made at any time by any vicar with his parishioners but, by canon law, such an agreement would not bind his successor. Here was law enough to have condemned nearly every modus decimandi in England in 1604, though the Archbishop was far too politic to appeal to such enactments at so late a date. But he was convinced that, in some legal fashion, the amelioration of ecclesiastical incomes must be carried out. The attempt to do this and to strengthen the administrative fabric of the Church brought the ecclesiastical courts into collision with the common law courts and so caused the flood of prohibitions over which the two jurisdictions quarreled so fiercely from 1604 to 1611.

Naturally the whole question of tithes had long been a matter of legal decision in the ecclesiastical courts and all those decisions had now to be considered and reconsidered, for laymen and clergymen, as each were impelled by their interest, were determined to claim advantage of every point rightly theirs by law. Must the parishioner reap the vicar's tenth or can he leave it standing; if the parishioner must reap it, must he bind it into sheaves and also make it into piles? Can the vicar take the tithe of wheat or hay as it lies spread out on the ground or must he wait until it has been gathered into windrows? Can he choose which tenth he will have or must he take what the farmer gives him? Where saffron ripens only once in three years, is the vicar entitled to three-tenths or only onetenth? Thus, the whole subject of tithes went to the ecclesiastical courts for decision and there it became the bone of contention in the renewal of the old struggle of those courts with the courts of common law which bulked so large in the legal history of the Middle Ages. As in the past, the quarrel took place over the extent of the two jurisdictions and the common law courts again wielded their old weapon, the writ of prohibition, which they issued to any ecclesiastical court which was holding plea of a temporal or, indeed, of any question properly actionable at common law. The basis of their interference was their belief that the ecclesiastical court was

2

1 Fulbecke, A Conference of Laws, part II, 3 a.

2 In addition to the Law Reports, the tracts of Fulbecke, Ridley, Carleton, and Selden's History of Tithes,

give us a great mass of ill digested and, in many cases, contradictory evidence. Even Selden at times treats his material in a singularly uncritical manner.

exceeding its jurisdiction. The prohibition, having been served on the ecclesiastical suitor, was then returned by him and his counsel, to the common law court on the day appointed when the question of jurisdiction was argued by counsel, and if the common law judge was convinced, as he not infrequently was, that the information upon which he had acted, was false and that the suit belonged in the spiritual court, he then issued a writ of consultation, bidding the ecclesiastical judge proceed as if no prohibition had ever been sued out. The importance of the prohibition, in the upbuilding of the common law of the sixteenth and seventeenth centuries, is simply incalculable: its very name began to possess manifold connotations and a certain mystic value as a talisman protecting the liberty of the subject.

The general situation was, however, very different in 1604 from what it had been. The history of prohibitions properly begins in the reign of Henry III, if not earlier, but while the large number of them issued shows that they were systematically used by the common law courts, little is definitely ascertainable about their use in regard to the matters most in controversy in 1604.1 It is, however, reasonably clear that the ecclesiastical courts were striving to decide questions of land tenure and of lay property in general and that in this attempt they were defeated by the royal courts. After the Reformation, when the struggle was renewed with vigour, two clear precedents stood out from the confusion and mistiness of the past: the one, that the ecclesiastical courts might not take cognisance of land tenure or its incidents: the other, that they might not hold plea of suits concerning debts or lay chattels except in matrimonial and testamentary cases. On every topic which might possibly be in doubt, the boundary line between the two jurisdictions was so nebulous and vague that it was truly difficult for any one to see where lay the right decision. If there was a right and a wrong about it, the two courts could not agree as to which was which. Both claimed, in the debate which we are about to describe, that in the past their contentions had been accepted by both courts as the truth. Yet, if any agreement had been made, it was impera1 Pollock and Maitland, History of English Law, II, 199.

2 Exactly what these phrases meant, what was a debt, what was a lay chattel or what was a matrimonial or testamentary case, was constant cause

of mutual disagreement and recrimination even in the sixteenth century. The principle was admitted, but it was always possible to argue that any particular case did not fall within its provisions.

tive that it should be recognised and made clear, an end which could not be achieved without argument and recrimination. Furthermore, if both sides could have agreed as to what the terms of the former settlement were, the situation had so altered that many reasons would have urged a modification of its terms.

Chiefest of all, the ecclesiastical courts, which had been during the Middle Ages distinctly inferior to the legatine courts and those of the papal curia at Rome, were made, by the abolition of papal authority, the supreme ecclesiastical judicature in England.1 The Court of Arches became the supreme court of appeal (except of course for the statutory Court of Delegates) the Prerogative Court could now give final decisions in matters testamentary and probate without fear of having its decrees overridden by appeals to Rome; the Court of Audience, the Court of Faculties (which issued dispensations) all became, in their departments, the supreme ecclesiastical authority in England. The bishops' consistory courts, even the archidiaconal courts and bishops' commissaries, gained greatly in power and dignity by the change, not because any of them received new grants of authority but because, the possibility of appeal to Rome having been removed, the same powers became relatively greater than ever before. As the statute provided, all of the old canon law, which was not repugnant to the statutes of the realm and to the common law, remained in force, but no declaration was made at any time of what was and what was not thus annulled. Yet, if there was a definite right and wrong to the quarrel between the two jurisdictions, if the question had been decided in the Middle Ages or by the Reformation statutes, neither could induce the other to admit the fact. While therefore the problem of the right and of the wrong, of the legal and illegal, might interest lawyers