The Doctor and Student (1518)
Christopher St. Germain
If the patron present not within six months, who shall present?
Stud. In the same sum called summa rosella, in the title beneficium, in principio, it is asked, if the patron present not within six months, who shall present, and within what time the presentment must be made? And it is answered there, that if the patron present not Within six months, that the chapter shall have six months to present; and if the chapter present not within six months, that then the bishop shall have other six months; and if he be negligent, then the metropolitan shall have other six months; and if he present not, then the presentment is devolute to the patriarch; and if the metropolitan have no superior under the pope, then the presentment is devolute to the pope. And so, as it is said there, the archbishop shall supply the negligence of the bishop, if he be not exempt; and if he be exempt, the presentment immediately shall fall from the bishop to the pope. And, as I suppose, these diversities hold not in the laws of the realm.
Doct. Then, I pray thee, shew me who shall present by the laws of the realm, if the patron do not present within six months.
Stud. Then for default of the patron the bishop shall present, unless the king be patron; and if the bishop present not within six months, then the metropolitan shall present, whether the bishop be exempt or not: and if the metropolitan present not within the time limited by the law, then there be divers opinions who shall present, for some say the pope shall present, as it is said before, and some say the king shall present.
Doct. What reason make they that say the king should present in that case?
Stud. This is their reason; they say that the king is patron paramount of all the benefices within the realm. And they say farther, that the king and his progenitors, kings of England, without time of mind, have had authority to determine the right of patronages in this realm in their own courts, and are bound to see their subjects have right in that behalf within the realm, and that in that case from him lieth no appeal. And then they say, that if the pope in this case should present, that then the king should not only leese his patronage paramount, but also that he should not sometime be able to do right to his subjects.
Doct. In what case were that?
Stud. It is in this case: The law of the realm is, that if a benefice fall void, then the patron shall present within six months; and if he do not, that then the ordinary shall present: but yet the law is farther in this case, that if the patron present before the ordinary put in his clerk, that then the patron of right shall enjoy his presentment; and so it is though the time should fall after to the metropolitan, or to the pope. And if the presentment should fall to the pope, then though the advowson abode still void, so that the patron might of right present, yet the patron should not know to whom he should present, unless he should go to the pope, and so he should fail of right within the realm. And if percase he went to the pope, and presented an able clerk unto him, and yet his clerk were refused, and another put in at the collation of the pope, or at the presentment of a stranger; yet the patron could have no remedy for the wrong within the realm, for the incumbent might abide still out of the realm. And therefore the law will suffer no title in this case to fall to the pope. And they say, that for a like reason it is, that the law of the realm will not allow an excommengement that is certified into the king’s court under the pope’s bulls: for if the party offered sufficient amends, and yet could not obtain his letters of absolution, the king should not know to whom to write for the letters .of absolution, and the party could not have right; and that the law will in no wise suffer.
Doct. The patron in that case may present to the ordinary, as long as the church is void; and if the ordinary accept him not, the patron may have his remedy against him within this realm. But if the pope will put in an incumbent before the patron present, it is reason that he have the presentment, as me seemeth, before the king.
Stud. When the ordinary hath surcessed his time, he hath lost his power as to the presentment, specially if the collation be devolute to the pope. And also when the presentment is in the metropolitan, he shall put in the clerk himself, and not the ordinary. And so there is no default in the ordinary, though he present not the clerk of the patron, if his time be past; and so there lieth no remedy against him for the patron.
Doct. Though the incumbent abide still out of the realm, yet may a Quare Impedit lie against him within the realm and if the incumbent make default upon the distress, and appear not to shew his title, then the patron shall have a writ to the bishop according to the statute, and so is not without remedy.
Stud. But in this case it cannot be summoned, attached, nor distrained, within the realm.
Doct. He may be summoned by the church, as the tenant may in a writ of right of advowson.
Stud. There the advowson is in demand, and here the presentment is only in debate; and so he cannot be summoned by the church here, no more than if it were in a writ of annuity, and there the common return is, quod Clericusest beneficiatus, non habens Laicum food, ubi potest sum moneri. And though he might be summoned in the church, yet he might neither be attached nor distrained there; and so the patron should be without remedy.
Doct. And if he were without remedy, he should yet be in as good case as he should be if the king should present: for if the title should be given to the king, the patron had lost his presentment clearly for the time, though the church abide still void. For I have heard say, that in such presentments no time after the law of the realm runneth to the king.
Stud. That is true, but there the presentment should be taken from him by right, and by the law, and here it should be taken from him against the law, and there as the law could not help him; and that the law will not suffer.
Doct. Yet methinketh alway that the title of the lapse in such case is given by the law of the church, and not by the temporal law: and therefore it forceth but little what the temporal law will in it, as me seemeth.
Stud. In such countries where the pope hath power to determine the right of temporal things, I think it is as thou sayest; but in this realm it is not so. And the right of presentment is a temporal thing, and a temporal inheritance; and therefore I think it belongeth to the king’s law to determine, and also to make laws who shall present after six months, as well as before, so that the title of examination of ability or non-ability be not thereby taken from the ordinary. And in like wise it is of avoidance of benefices, that is to say, then it shall be judged by the king’s laws when a benefice shall be said void, and when not, and not by the law of the church: as when a parson is made a bishop, or accepteth another benefice without a licence, or resigneth, or is deprived; in these cases the common law saith, that the benefices is void, and so they should be, though a law were made by the church to the contrary. And so if the pope should have any title in this case to present, it should be by the law of the realm. And I have not seen ne heard that the law of the realm hath given any title to the pope to determine any temporal thing that may be lawfully determined by the king’s court.
Doct. It seemeth by that reason that thou hast made now, that thou preferrest the king’s authority in presentments before the pope’s; and that methinketh should not stand with the law of God, sith the pope is the vicar-general under God.
Stud. That I have said proveth not that for the highest preferment in presentments, he is to have authority to examine the ability of the parson that is presented, for if the presentee be able, it sufficeth to the discharge of the ordinary by whomsoever he be presented, and that authority is not denied by the law of the realm to belong alway to the spiritual jurisdiction. But my meaning is, that as to the right of presentments, and to determine who ought to present, and who not, and at what time, and when the church shall be judged to be void, and when not, belong to the king and to his laws: or else it were a thing in vain for him to hold plea of advowsons; or to determine the right of patronage in his own courts, and not to have authority to determine the right thereof, and those claims seem not to be against the law of God. And so me seemeth in this case the presentment is given the king.
Doct. And if the king should have right to present, the night the church happen to continue void for ever; for as we have said before, no time runneth to the king in such presentment.
Stud. If any such case happen, if the king present not, then may the ordinary set in a deputy to serve the cure, as he may do when negligence is in other patrons. that may -present, and do not; and also it cannot be thought that the king, which hath the rule and governance over the people, not only of their bodies, but also of their souls, will hurt his conscience, and suffer a benefice continually to stand without a curate, no more than he doth in advowsons that be of his own presentment.