The Doctor and Student (1518)

Christopher St. Germain

Whether an abbot may present to an advowson without assent of the covent

It appeareth in the chapter, Et agnoscitur de his quoe hunt a praelatis, the which chapter is recited in the sum called summa angelica, in the title abbess, the twenty-seventh article, that he may not, without any custom, or any special privilege to help therein.

Stud. Truth it is, that there is such a decretal; but they that be learned in the law of England hold the decretal bindeth not in this realm: and this is the cause why they do hold that opinion. By the law of the realm the whole disposition of lands and goods of the abbey is the abbot’s only for the. time that he is abbot, and not in the covent, for they be but as dead persons in the law; and therefore the abbot shall sue and be sued only without the covent, do homage, fealty, atturn, make leases, and present to advowsons only in his own name. And they say, farther, that this authority cannot be taken from him but by the law of the realm; and so they say, that the makers of the decretal exceed their power; wherefore they say it is not to be holden in conscience, no more than if a decree were made that a lease for a term of years, or at will, made by the abbot without the covent, should be immediately void: and so they think that the abbot may in this case present in his own name without offence of conscience, because the said decretal holdeth not in this realm.

Doct. But many be of opinion, that no man hath authority to present in right and conscience to any benefice with cure but the pope, or that he hath his authority therein derived from the pope; for they say, that forasmuch as the pope is the vicar general under God, and hath the charge of the souls of all people that be in the flock of Christ’s church, it is reason that, sith he cannot minister to all, ne do that is necessary to all people for their soul’s health in his own person, that he shall assign deputies for his discharge in that behalf. And because patrons claim to present to churches in this realm by their own right, without title derived from the pope, they say, that they usurp upon the pope’s authority. And therefore they conclude, that though the abbot have title by the law of the realm to present in this case in his own name, that yet, because that title is against the pope’s prerogative, that that title, ne yet the law of the realm that maintaineth that title holdeth not in conscience. And they say also, that it belongeth to the law canon to determine the right of presentment to benefices, for it is a thing spiritual, and belongeth to the spiritual jurisdiction, as the deprivation from a benefice doth; and so they say the said decretal bindeth in conscience, though in the law of the realm it bindeth not.

Stud. As to the first consideration, I would right well agree, that if the patrons of churches in this realm claimed to put incumbents into such, churches as should fall void of their patronage, without presenting them to the bishop, or if they claimed that the bishop should admit such incumbent as they should present, without any examination to be made of his ability in that behalf, that that claim were against reason and conscience, for the cause that thou hast rehearsed: but forasmuch as the patrons in this realm claim, no more but to present their incumbents to the bishop, and then the bishop to examine the ability of the incumbent, and if he find him by examination not able to have cure of souls, he then to refuse him, and the patron to present another that shall be able, and if he be able, then the bishop to admit him, institute him and induct him; I think that this claim, and their presentments thereupon, stand: with good reason and conscience. As to the second consideration, it is holden in the laws of the realm, that the right of presentment to a church is a temporal inheritance, and shall descend by course of inheritance from heir to heir, as lands and tenements shall, and shall be taken as. assets, as lands and tenements be: and for the trial of the right of patronages be ordained in the law divers actions for them that be wronged in that behalf, as writs of right of advowson, assises of Darrein presentment, Quare impedit, and divers others, which alway without time of mind have been pleaded in the king’s courts as things pertaining to his, crown and royal dignity: and therefore they say that in this case his laws ought to be obeyed in law and conscience.

Doct. If it come in variance whether he that is so presented be able or not able, by whom shall the ability be tried?

Stud. If the ordinary be not party to the action, it shall be tried by the ordinary; but if he be party, it shall be tried by the metropolitan.

Doct. Then the law is more reasonable in that point than. I thought it had been: but in the other point I will take advisement in it till another time, and I pray thee shew me thy mind in this point. If an abbot name his covert with him in his presentation, doth that make the presentation void in the law? Or is the presentation good notwithstanding

Stud. I think it is not void therefore, but the naming of them is void, and a thing more than needeth. For if the abbot be disturbed, he must bring his action in his own name, without the covent.

Doct. Then I perceive well that it is not prohibited by the law of England, but that, the abbot may name the Covent in his presentation with him, and also take their .assent whom. he shall present, if he will: and then I hold it the surest way that he so do, for in so doing he shall not, offend neither in law nor conscience.

Stud. To take the assent of the covent whom he shall present, and to name them also in the presentation, knowing that he may do otherwise both in law and conscience, if he will, is no offence: but if lie take their assent, or name them with him in the presentation, thinking that he is so bound to do in law and conscience, setting a conscience where none is, and regardeth not the law of the realm, that will discharge his conscience in this behalf; if he will, so that he present an able man, as he may do without their assent; there is an error and offence of conscience in the abbot. And in like wise, if the abbot present in his own name, and therefore the covent saith that lie offendeth in conscience, in that he observeth not the law of the church, for that he taketh not their assent; then they offend in judging him to offend that offendeth not. And therefore the sure way is in this case to judge both the said laws of such effect as they be, and not to set an offence of conscience by breaking of the said decree, which standeth not in effect in this behalf within this realm.