The Doctor and Student (1518)
Christopher St. Germain
How long time the patron shall have to present to a benefice
Doct. This question is asked in summa angelica, in the title jus Patronatus, the 16th article; and there it is answered, That if the patron be a layman, that he shall have four months, and if he be a clerk he shall have six months.
Stud. And by the Common law he shall have six months whether he be a layman or a clerk. And I see no reason why a clerk should have more respite than a layman, but rather the contrary.
Doct. From what time shall, the six months be accompted?
Stud. That is in divers manners after the manner of the avoidance; for if the church void by death, creation or cession, the six months shall be counted from the death of the incumbent, or from the creation or cession, whereof the patron shall be compelled to take notice at his peril: and if the voidance be by resignation or deprivation, then the six months shall begin when the patron hath knowledge given him by the bishop of the resignation or deprivation.
Doct. What if he have knowledge of the resignation or deprivation, and not by the bishop, but by some other? Shall not the six months begin then from the time of that knowledge?
Stud. I suppose that it shall not begin till he have knowledge given him by the bishop.
Doct. An union is also a cause of voidance: how shall the six months be reckoned there?
Stud. There can be no union made but the patrons must have knowledge, and it must be appointed who shall present after that union, that is to say, one of them or both, either jointly or by turn one after another, as the agreement is upon the union; and sith the patron is privy to the avoidance, and is not ignorant of it, the six months shall be accounted from the agreement.
Doct. I see well, by the reason that thou hast made in this chapter, that ignorance sometime excuseth in the law of England; for in some of the said avoidances it shall excuse the patrons, as it appeareth by the reasons above, and in some it will not: wherefore I pray thee shew me somewhat where ignorance excuseth in the law of England, and where not, after thine opinion.
Stud. I will with good-will hereafter do as thou sayest, if thou put me in remembrance thereof. But I would yet move thee somewhat farther in such questions as I have moved thee before, concerning the diversities between the laws of England and other laws: for there be many more cases thereof that, as me seemeth, have right great need, for the good order of conscience of many persons, to be reformed, and to be brought into one opinion, both among spiritual and temporal. As it is in the case where doctors hold opinion, that the statute of layman, that restrains liberty to give lands to the church, should be void; and they say farther, that if it were prohibit by a statute that no gift should be made to foreigners, that yet a gift made to the church should be good; for they say that the inferior may not take away the authority of the superior: and this saying is directly against the statutes, whereby it is prohibit that lands should not be given in Mortmain. And they say also that bequests and gifts to the church must be determined after the law canon, and not after the laws and statutes of laymen: and so they regard much to whom the gift is made, whether to the church, or to make causways, or to common persons, and bear more favour in gifts to the church than to the other. And the law of the realm beholdeth the thing that is given and intended, that if the thing that is given be of lands or goods, that the determination thereof of right belongeth in this realm td the king’s laws, whether it be to spiritual men or temporal, to the church or to other; and so is great division in this behalf, when one preferreth his opinion, and another his, and one this jurisdiction, and another that; and that, as it is to fear, more of singularity than of charity. Wherefore it seemeth that they that have the greatest charge over the people, specially to the health of their souls, are most bound in conscience before other to look to this matter, and to do that in them is, in all charity to have it reformed, not beholding the temporal jurisdiction or spiritual jurisdiction, but the common wealth and quietness of the people: and that undoubtedly would shortly follow, if this division were put away, which I suppose verily will not be, but that all men within the realm, both spiritual and temporal, be ordered and ruled by one law in all things temporal. Notwithstanding, forasmuch as the purpose of this writing is not to treat of this matter, therefore I will no farther speak thereof at this time.
Doct. Then I pray thee proceed to another question, that thou sayest thy mind is to do.
Stud. I will with good-will.