in existence, the King, as the fountain of justice, ought to settle the dispute by declaring some working compromise. Nevertheless, whatever the equity of the situation was, the judges of the common law were certainly right in replying that for several generations, at the least, the Sovereign had not ordinarily decided what was or was not the proper technical method of issuing writs, and they were right in declaring that the processes of the law were not to be altered by informal agreement. In fact, all the traditions of the common law were against any such view as Bancroft put forward, and indeed, it was not his proposal to refer the question to the King which most antagonised the judges, but his attitude toward the law as something which could and ought to be reformed.

To the common lawyer of that day, the law was law, and was to be defined by the judges of the law; what they delivered as law, was law because they delivered it, and, however inexpedient or unjust it might be, if such was their decision, the dispute was at an end. Nor was it in the least the function of the judge to make law: he had only the right to declare authoritatively what the law was. His function was declaratory The whole issue was a question of fact, not of expediency; of ...at was, not of what ought to be law; a question to be decided by the precedents of the common law courts as understood by their judges, and not by opinions of ecclesiastics based very likely on the hardship the law caused the clergy or the desirability of changing it. Whatever the law was, King, bishops, and judges combined, had no right to alter it, and certainly least of all had the Archbishop the privilege of insinuating that the judges were either acting illegally or did not themselves know what the law was.

While the judges felt sure that they had the law on their side, they were quite ready to claim that equity and expediency were

1The clergy well hoped, that they had taken a good course in seeking some redress at his majesty's hands concerning sundry abuses offered to his ecclesiastical jurisdiction, by the over frequent and undue granting of prohibitions; for both they and we supposed (all jurisdiction both ecclesiastical and temporal being annexed to the imperial crown of this realm) that his highness had been

held to have had sufficient authority in himself, with the assistance of his council, to judge what is amiss in either of his said jurisdictions, and to have reformed the same accordingly; otherwise a wrong course is taken by us, if nothing may be reformed, that is now complained of. but what the temporal judges shall of themselves willingly yield unto." (Articuli Cleri, art. i.)

also in their favour. In fact, both parties put forward with some keenness their desire to succour the oppressed. The clergy com

plained of those "contentious persons, as do wittingly and willingly upon false and frivolous suggestions to the delay of justice, vexation of the subjects, and great scandal of ecclesiastical jurisdictions, daily procure, without fear either of God or men, such undue prohibitions, as we have heretofore mentioned." (art xxv.) The judges retorted that "now many turbulant ministers do infinitely vex their parishioners for such kinds of tithes as they never had, whereby many parishes have been much impoverished. . . . Where is the fault but in the minister that gave occasion?" "Now they grow so troublesome to their neighbours as were it not for the prohibition (as may appear by the Presidents before remembered) they would soone overthrow all prescriptions and compositions that are for tithes, which doth and would breed such a generall garboile amongst the people, as were to be pitied and not to be permitted." (art. xv.)

Turning to the more specific complaints, the clergy found fault with the old form of prohibition because it declared that the ecclesiastical courts were not the King's courts and that the ecclesiastical law was not the law of the land (art. ii);1 and with the new form of consultation because in it no definite cause for granting the prohibition was expressed," "by means whereof the temporal judges leave themselves at liberty without prejudice," to grant another prohibition on that selfsame matter on which they have just issued a consultation.3 The judges replied, that the old form, having always existed, could only be changed by Act of Parliament, and, as for the new form, it had been adopted "for brevity's sake" and

mitted to him any good reason for
granting the writ, but once he had
the whole case before him, when the
prohibition was argued, he would soon
be able to turn the many-sidedness of
the issue to account and retain the
case to the increase of his own juris-
diction, to the detriment of his ene-
mies, and to the benefit of his own
pocket from the fees that accrued.
"I feare mee as emulation betweene
the two Lawes in the beginning
brought in these multitudes of Pro-
hibitions, either against or beside law,
so the gaine they bring unto the
Temporall Courts maintaineth them.
(Ridley, View, 127.)

could not be altered to suit the whim of the Court of Arches. Yet, in all strictness of law and justice, if the old form could be altered or supplanted only by Parliament, how had the judges been able on their own authority to employ another "for brevity's sake?" Was the consultation of less importance than the prohibition and less bound by precedent? And if they could formulate a new writ for any purpose, could they not, if they wished, make it conform to the reasonable desires of the ecclesiastical judges, for few will deny that the latter ought to be informed in the writ in what cases they were to be allowed to proceed?

The clergy next complained (art. iv) of the excessive number of prohibitions which the common law judges had issued during the last years of Elizabeth's reign and more particularly since the accession of James. "The humour of the time is grown to be too eager against all ecclesiastical jurisdiction," they declared, for prohibitions had been issued "in all causes almost of ecclesiastical cognisance." During the reign of the late Queen, 488 prohibitions had been granted against the Court of Arches alone, and since her death, 82 to the same court, of which number, they begged the judges to show them one-twentieth which had been properly granted and upheld in a cause which was not by strict law of purely ecclesiastical cognisance. Without attempting to reply, the judges declared that "upon these generalities nothing but clamour can be concluded," and desired particulars to which some fitting answer could be given. They said, however, that the ecclesiastical estimate of the number of prohibitions was wrong, for since the accession of James, only 251 prohibitions issued from the King's Bench to all the ecclesiastical courts, of which 149 concerned the modus decimandi, and that the Common Pleas had granted in all, 62, of which 31 were upon the modus decimandi. Given the facts as the judges admitted them to be, and the situation was bad enough from Bancroft's point of view. The number of prohibitions was, in itself, however, only a minor grievance, for the real clerical objection was, that, of this considerable total, the majority were prohibitions on one and the same suit from several courts, or several

1The Prohibitions of fact or of men, are both infinite and odious for that there is, well nigh, no matter either Civile or ecclesiasticall, be it ever so cleer or absolute, but they

clog and incumber it with some Prohibition and the matter they containe is (for the most part) absurd and frivolous.' Ridley, View, 127.

from one court, or the multiplication of prohibitions of the same general character as those on which consultations had already been granted in other suits. (arts. v and vi.) The clergy contended that the judges ought not to issue writs which they themselves knew could not be sustained. Nor should they countenance requests from defeated suitors in the ecclesiastical courts who had allowed the case to proceed to sentence: "yea after sentence, yea after two or three sentences given, and after the execution of the said sentence or sentences, and when the party for his long continued disobedience is laid in prison." (art. iii) Furthermore, declared the aggrieved clerics, the plaintiff in Court Christian, the man who had voluntarily begun his suit there after consideration of the legal possibilities, ought not to be allowed to prohibit his own case, when the tide began to turn in favour of his opponent. (art. x) To all these gravamina the judges had one reply: "Prohibitions are not of favor but of justice to be granted," and if a man has any colour of right to such a writ, it must receive recognition whether he is the plaintiff or defendant, whether he appears before or after sentence at ecclesiastical law, and even when the common law judge himself knows that he cannot sustain the writ on its return.

"A great abuse and one of the chief grounds of the most of the former abuses," continued Bancroft, lay in the practice of the common law courts in granting prohibitions without sight of the libel of the ecclesiastical court, "yea sometimes before the libel be there exhibited." (art. xi.) In other words, the judges had accepted the bald statement of a lawyer, that in this case the ecclesiastical courts had exceeded their jurisdiction, and did not ask for even such elementary proof as could be supplied by the sight of the libel or declaration upon which the ecclesiastical court was proceeding, a method of action characterised in legal phrase as the issuing of prohibitions upon "surmise." The clergy wished no such writs

1 Properly, prohibitions were issued only on "suggestion," that is to say, by demonstration that the ecclesiastieal judge was actually trying a temporal matter, an end usually accomplished by submitting copies of the libel. While these prohibitions issued on surmise" without proof of any sort were not numerous, they were growing in number because the ease of obtaining them made them popular

with the attorneys, and because their vagueness made them a peculiarly useful offensive weapon in the attack on the ecclesiastical jurisdiction. Dr. Gardiner (History of England, II, 36) seems to have lost sight of the technical meaning of the prohibition on surmise and founds on this article an opinion that Bancroft wished to have all prohibitions issued by the Chancery, because the chancellor as a

granted at all, but Bancroft proposed, as a compromise, that in future all prohibitions upon surmise should issue solely out of the Chancery, a scheme which would at any rate prevent the multiplication of such writs in one and the same suit.

This was by far the most difficult point for decision which was presented in the Articuli Cleri of 1605, because the right and wrong was clear, but the law of the matter was in considerable confusion. The Act of 2 and 3 Edward VI, c. xiii, section 14 explicitly ordered the presentation of the libel to every judge of whom a prohibition was asked, but the common law judges declared this clause was annulled by the succeeding clause which stated that neither the Act, nor anything contained in it, should extend to give the ecclesiastical courts jurisdiction over any matter, cause, or thing, repugnant to previous statutes, nor "yet hold Plea in any matter whereof the King's Court of Right ought to have Jurisdiction." Prohibitions were not mentioned, for the clause concerned jurisdiction and not the manner in which it was to be made effective, and the statute furthermore applied only to tithe cases; but the judges assumed that they had a right to hold plea of the subject matter, then applied the general proviso saving their jurisdiction, and thus concluded that they were not compelled to demand a sight of the libel.1 They also found some cases in the Year Books and Abridgements which they asserted were directly in point, but which the clerics openly flouted, retorting that they were not decisions at all but the comments of some serjeant. And that, even if they were valid, they had been annulled by this statute, which was many years later in date. Whether that was true or not, there was neither reason nor justice in issuing a prohibition to the ecclesiastical judge for trying the right of tithe pigeons when the case before him really concerned the tithes of wool and lambs. As for the prohibitions, which declared that the ecclesiastical courts would not countenance the plea of a modus decimandi, these simply added state official was more amenable to political influence than were the judges. Bacon, in later years, did advocate such an expedient from just such reasons, but there is no evidence to show that Bancroft ever entertained the idea, and certainly the Articuli Cleri, art. xiv, will not bear this construction without unwarrantable straining.

1 Yet there was clear precedent in Brook's Abridgement for 31 Henry VI against this contention of the judges and in favor of Bancroft's point; Edition 1573, II, f. 165 b. No. 20; another case, No. 26, 13 Henry VII.

2 For instance, Brook's Abridgement, II, f. 165 b, No. 17, for 31 Henry VIII.