Abridgment of Ecclesiastical Laws, Treatise · Chapter 16
CHAP. XVI.
Of Patrons, & de jure Patronatus.
1. What Patron properly ſignifies in the Law; the Original thereof; and how ſubject to corruption.
2. In what caſe the Biſhop may proceed de jure Patronatus, and how the Proceſs thereof is to be executed.
3. How the Admittance ought to be, in caſe the ſame Clerk be preſented by two Patrons to the ſame Benefice.
4. In what caſes of Avoydance, Notice thereof ought to be given to the Patron; and what courſe in that caſe the Biſhop is to take, in caſe he knews not the true Patron.
5. Several Appellations in Law, importing Patron.
6. How many waies a Church may become Litigious.
7. Whether an Advowſon may be extended?
8. In what caſe the Patron may Preſent, where the King took not his turn upon the firſt Lapſe.
9. A Patron may not take any benefit of the Gl…be during a Vacancy.
10. In what caſe the Patron ſhall not by bringing the Writ of Qua. Imp. againſt the Biſhop, prevent the incurring of the Lapſe to the Ordinary.
11. The King is Patron Paramount, and Patron of all the Biſhopricks in England: The Charter of King John, whereby Biſhopricks from being Donative became Elective.
(1.) PATRON, by the Canon Law, as alſo in the Feuds, (wherewith our Common Law doth herein accord) doth ſignifie a perſon who hath of right in him the free Donation or Gift of a Benefice, grounded originally upon the bounty and beneficence of ſuch as Founded, Erected, or Endowed Churches with a conſiderable part of their Revenue. De Jur. Patronat. Decretal. Such were called Patroni à patrocinando, and properly, conſidering the Primitive ſtate of the Church; but now according to the Mode of this degenerating Age, as improperly, as Mons à movendo; for by the Merchandize of their Preſentations they now ſeem, as if they were rather the Huckſters than Patrons of the Church. But from the beginning it was not ſo, when for the encouragement of Lay-perſons to works of ſo much Piety, it was permitted them to preſent their Clerks where themſelves or their Anceſtors had expreſſed their Bounty in that kind; whence they worthily acquir'd this Right of Jus Patronatus, which the very Canon Law for that reaſon will not underſtand as a thing meerly Spiritual, but rather as a Temporal annexed to what is Spiritual: Quod à Supremis Pontificibus proditum eſt, Laicos habere Jus Praeſentandi Clericos Ordinariis: hoc ſingulari favore ſuſtinetur, ut allectentur Laici, invitentur, & inducantur ad conſtructionem Eccleſiarum. Nec omni ex parte Jus Patronatus Spirituale cenſeri debet, ſed Temporale potius Spirituali annexum. Gloſſ. in c. piae mentis, 16. q. 7. Coraſ. ad Sacerdot. mater, par. 1. cap. 2. Yet not Temporal in a Merchandable ſenſe, unleſs the Preſentor and Preſentee will run the hazard of periſhing together; for prevention whereof, proviſion is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Eccleſiaſtical Conſtitutions; whereof there was no need in former Ages leſs corrupt, when inſtead of ſelling Preſentations they purchaſed Foundations; and inſtead of erecting Idol-Temples (for Covetouſneſs is Idolatry) they Founded, Built, and Endowed Churches for the Worſhip of the True God. Patroni in jure Pontificio dicuntur, qui alicujus Eccleſiae extruendae, &c. Authores fuerunt, ideoque Praeſentandi & Offerendi Clericum jus habent, &c. Acquirunt autem hoc jus, qui de Epiſcopi conſenſu vel fundant Eccleſiam, vel aedificant, vel ante Conſecrationem dotant, ut non valde ſit Obſcurum, Jus Patronatus, &c. jus eſſe Praeſentandi Clericum ad Eccleſiam Vacantem ex gratia ei Conceſſum, qui Conſentiente Epiſcopo, vel Conſtruxit, vel dotavit Eccleſiam. Coraſius ibid. par. 4. cap. 6. And it is gratefully provided by the Canon Law, if a Patron, or his Poſterity being Patrons, do fall to decay, the Incumbent of the Fruits of the Church by Compulſary cenſure of the Ordinary, according to that Law, is to be enforced to make Contribution to them: For which reaſon it is, that the Law holds Ʋtilitas to be one of the three fruits or effects of a Patronage, viz. Honos, Onus, Ʋtilitas.
(2.) If two Patrons, both pretending to the ſame Church, preſent unto the Ordinary their Clerks reſpectively, who inſiſt on their Admiſſion, and the Biſhop by admitting the one rejects the other, he that is rejected, at leaſt his Patron, may have his Action againſt the Biſhop, not in the Eccleſiaſtical, but Temporal Court, by a Quare Impedit, or the like. In ſuch caſes therefore the Biſhop is wont to decree a Proceſs commonly called Negotium de Jure Patronatus (that is) A day fixed and certain is appointed by the Biſhop to ſit in the Church that is void, and a Monition decreed to be ſerved on the Patrons preſenting, and the Clerks preſented, then and there to be preſent, to ſee proceedings in the ſaid buſineſs according to Law; to which end a Citation iſſues to*22 H. 6. 29. b. If they refuſe, being duly Summoned to Appear, the Commiſſioners of the Biſhop may proceed againſt the Clergy-men by S…queſtration, and the Laymen by Eccleſiaſtical Cenſures. Twelve perſons, whereof ſix of the Clergy, and ſix of the Laity, all of the Neighbourhood of the ſaid vacant Church, to be then and there alſo preſent by way of an Enqueſt, and on their Corporal Oaths to†It is an Inqueſt of Office in nature of a Writ De proprietate probanda, and doth not bind the parties Right and Title. enquire on certain Articles, then miniſtred to them, touching the right of Preſentation to the ſaid Benefice. Theſe Articles conſiſt chiefly of theſe Four heads, viz. (1) Who laſt preſented to the ſaid Church when it was laſt void, as alſo for the laſt two or three times when it was void. (2) Whether the perſon or perſons who laſt preſented, or theſe laſt two or three times or turns, at the time and times of Vacancy of the ſaid Church, did preſent in his or their own proper right and title. (3) Whether either of the Clerks now preſented be known or ſuſpected of any Notorious crime, or of Hereſie, Simony, Perjury, Adultery, or Drunkenneſs. (4) Whether either of the Clerks now preſented hath given or promiſed, either by himſelf, or any other for him and in his name, or by or with his conſent or knowledge, any mony or other gratuity directly or indirectly, for obtaining of his Preſentation to the ſaid Benefice, to the Patron thereof, or to any other who preſented the ſaid Clerk, or cauſed him to be preſented. On which Articles if it be found by the Verdict of the ſaid Jury, that ſuch or ſuch of the ſaid Patrons was in the poſſeſſion of the Preſentation at that time when the Church was laſt void, then is his Clerk to be Admitted, if there be no other legal impediment to hinder it, that is, nothing to affect him with, contained in the third or fourth laſt precedent Articles.
(3.) If two Patrons, each pretending a right or title to the Preſentation, ſhall preſent one and the ſame perſon ſeverally to the Biſhop to be Admitted and Inſtituted to the Church; the Biſhop cannot Admit him generally, but muſt in his Admittance of the Incumbent, admit him Incumbent of the Preſentation only of one of them: And if they make ſuch ſeveral Preſentations, claiming by ſeveral Titles, the Biſhop is to direct his Writ de Jure Patronatus; for that in ſuch caſe the Church is become Litigious; yet the Biſhop is not to award the ſaid Writ, but at the inſtance and requeſt of the ſaid parties. And here Q. at whoſe charge the ſaid Writ of Jure Patronatus ſhall in this caſe be ſu…d forth, whether at the charge of the Biſhop, or of the parties: for that the old Books (as the Reporter gives us to underſtand) do differ in this point. Mich. 8 Jac. C. B. in Danby and Linley's Caſe. Vid. 7 Ed. 4. Quare Imp. 100. 34 H. 6. 41. 21 H 6. 43. and 22 H. 6. 28. It is ſuppoſed (and commonly practiſed) it is ſued at the inſtance and coſt of one of the parties, or of both if they joyn. 35 H. 6. 18. b. 1. 9. a. 34 H. 6. 12. a. Hob. 317. 34 H. 6. 38. 5 H. 7. 22. a.
(4.) Suppoſe that a Parſon be deprived by the Ordinary, or reads not his Articles: In which caſes the Church is void, yet notice muſt be given to the true Patron for that time, or elſe the Lapſe incurs not (which is inconvenient for the Church, and a prejudice to the Ordinary) for how ſhall he in this caſe aſſure himſelf of a ſufficient Notice? For if he give notice to him that is not Patron, for this very turn, his Notice is vain, and the true Patron perhaps knows not of the Deprivation, or if he knows it, needs not Preſent without notice given him. In this Caſe Sir H. Hobard Chief Juſtice holds, That his way is to award a Jure Patr…natus, with ſolemn Premonitions Quorum Intereſt; And then enquiry being made who is Patron, to give him Notice, and if he Preſents not within ſix months, then the Ordinary may Collate, though that ſhall not bind the very Patron, yet it ſhall excuſe the Biſhop from Diſturbance upon Special matter ſhewed: But if the other ſuppoſed Patron preſent, and the ſix months incur, Quaere if the true Patron be bound, ſince there was no Notice given him. And the Opinion of Hob. is, that though without Notice the Patron is not bound by the Lapſe; yet that is nothing to ſave the Uſurpation of another pretended Patron, who is not ſubject to give NoticeaPaſch. 17 Jac. C. B. Rot. 877. Caſe Sir W. Elvis verſ. Archbiſhop of York, and others. Hob. Rep.. Alſo if a Suit be depending between Two parties touching the right of Preſentation, and it be not determined within Six months, the Biſhop may preſent by Lapſe, and he that hath right to Preſent, ſhall recover his Dammages, as by the Statute appearsbSt. Weſtm. 2. cap. 5. Terms of Law, verb. Quare Impedit..
(5.) The Patron or he that hath right to Preſent to a Benefice, is ſometimes termed Adowe alias Avowe (Advocatus)c25 Ed. 3. 5.. There is alſo Advowe Paramount, or the higheſt Patron, which is meant only of the King. Advocatus eſt ad quem pertinet jus Advocationis alicujus Eccleſiae, ut ad Eccleſiam, Nomine proprio non alieno, poſſit Praeſentare dFle…a, l. 5. cap. 14. F. N. B. fo. 39.. Britton ſaith, That Avowe is he to whom the right of Advowſon of any Church appertains; ſo that he may preſent thereunto in his own Name: And is called Avowe, for a difference from thoſe that ſometime preſent in another mans Name, as a Guardian that preſents in the name of his Ward; and for a difference alſo from thoſe who have the Lands to which an Advowſon appertains, but only for term of their lives or of years, by Intruſion or Diſſeiſm eBritton, cap. 29..
(6.) A Church may become Litigious both before, and by, and after a Jure Patronatus: Before, as by a plurality of Preſentations: By, as when in caſe of plurality of Preſentations upon a plural Jure Patronatus the one Jury gives a Verdict for the Title of one Patron, the other for the Title of the other Patron:41 H. 6. 45. a. After, as when after a Jure Patronatus awarded, and Verdict thereupon given for one of the parties, a third perſon preſents before Admittance of his Clerk for whom the Verdict was given. Upon a plural Jure Patronatus if one Jury give a Verdict for the Title of the one, the other for the Title of the other Patron, it is conceived in that caſe the Ordinary may refuſe the Clerks of both Patrons, and ſuffer the Church to LapſefCallis Re…d. 3. 21 H. 6 44. …. Sed Quaere. 21 H. 6. per Newton and Paſton.. And where a Third perſon preſents after a Verdict, as aforeſaid, but before the Clerk be Admitted, whereby the Church becomes Litigious de Novo, in that caſe the Biſhop may award a new Jure Patronatus. Alſo if the Biſhop doubt the Patrons Title that preſents, he may (as ſome conceive) award a Jure Patronatus albeit the Church be not Litigiousg21 H. 6. 44. Callis's Reading 29. Hob. 319.; which is a ſafe way for prevention of any ſurprize to the rightful Patron or other Pretenders; in which caſe if the Right of Patronage be found for another that had not before preſented, his Clerk may be admitted by the Ordinary h34 H. 6. 40. ….; who is no Diſturber if he admit a Clerk that is preſented before the Church becomes Litigious by a Second preſentationiHob. 317.; for by the Verdict of the Jury aforeſaid, he is ſufficiently warranted to admit and inſtitute the Clerk for whoſe Patrons Title the Verdict is given, in doing whereof he is no Diſturber, albeit the other Patron, againſt whom the Verdict is given, ſhould after recover in a Quare Impedit. And after a Verdict in a Jure Patronatus found for a Patron, he ought to renew his Requeſt to the Ordinary for the admiſſion of his Clerk; otherwiſe the Biſhop may Collate, in caſe the Church Lapſe after Six months.
(7.) Sir John Arundell and his Wife brought a Quare Impedit againſt the Biſhop of Glouceſter and others, who pleaded in Bar, that William Sturton was ſeized of a Mannor to which the Advowſon was appendent, and bound himſelf in a Statute-Merchant of 200 l. to one Long, and the Statute was extended, and conveyed the intereſt of the Statute to one of the Defendants, and then the Church became void: And by the Court the Advowſon may be extended, and if it become void during the Conuſees Eſtate, the Conuſee may preſentkMich. 32 & 33 Eliz. Sir J…. Arundell's Caſe. poſt Caſ. Kent verſ. Wichall, in Owen's Rep..
(8.) In Beverley's Caſe againſt the Archbiſhop of Canterbury, where the queſtion was, Whether the Queen might take her turn to Preſent, in regard ſhe took not her turn when the firſt Lapſe happened immediately at the firſt Avoidance, by reaſon of the Incumbents having Two Benefices, within the Stat. of 21 H. 8. And all the Juſtices of the Common Pleas after long and ſerious debate, did Reſolve, That the Queen ſhall not now have her Preſentation, but the Patron, becauſe the Queen hath ſuch Preſentment by Lapſe as the Biſhop had, and no other, and could Preſent but to the preſent Avoydance then void: And although Nullum tempus occurrit Regi, yet we muſt diſtinguiſh it thus, for where the King is limited to a time certain, or to that which in it ſelf is Tranſitory, there the King is to do it within the time limited, or in that time wherein the thing to be done hath Eſſence or Conſiſtence, or while it remaineth, for otherwiſe he may not do it afterwards: So where a Second preſentment is granted to the King, and he does not Preſent, he may not afterlBeverley againſt the Archbiſhop of Canterbury. Owen's Rep..
(9.) During a Vacancy the Freehold of the Glebe is in Abeiance mLittl. 144., and not in the Patronn8 H. 6. 24. b.; who can take no benefit thereby in that timeoIbid., nor can he have any Action for Treſpaſs done thereon in the time of ſuch Vacancyp11 H. 6. 4. b.: Yet if a man hath an Annuity out of a Parſonage, and he in the Vacancy thereof Releaſe to the Patron, it ſhall extinguiſh the Annuity. 21 H. 7. 41 Co. 5. Forde, 81. b.
(10.) If a Church becomes void by the death of the Incumbent, or otherwiſe, and the Patron within Six months bring a Quare Impedit againſt the Biſhop, and then Six months paſs without any Clerk preſented by the Patron to the Biſhop; in that caſe the Lapſe ſhall incur notwithſtanding the pendency of the Writ, for it is not reaſonable that the Ordinary ſhould loſe his Title of Lapſe without any wrong done by him, by a fraudulent Action brought without cauſe by the Patron, and whereby the Ordinary is put to Expences without cauſe, and by ſuch fraudulent means the Patron might keep the Church perpetually void. Hob. Rep. 270. & Roll. Abr. verb. Preſentment, lit. X. pag. 366.
(11.) The Jus Appellandi in defect of Juſtice, and the Jus Praeſentandi in caſe of Lapſe, ſeem to have a parallel reſemblance with one another in their gradations; for as they both primarily meet in the Ordinary: ſo they both paſs from him to the Metropolitan, and from him to the King, not only as Supream Ordinary, but alſo as Patron Paramount of all the Biſhopricks in England; which, as they were originally Donative per Annulum & Baculum: ſo now ſince King Johns time, they are by Canonical Election; for King John by his Charter dated the 15th of January in the 16th year of his Reign, granted this priviledge to the Church in theſe words, viz. Quod qualiſcunque Conſuetudo temporibus Praedeceſſorum noſtrorum hactenus in Eccleſia Anglicana fuerit obſervata, & quicquid juris nobis hactenus Vindicaverimus, de caetero in univerſis & ſingulis Eccleſiis & Monaſteriis, Cathedralibus & Conventualibus, totius Regni Angliae, Liberae ſint in perpetuum Electiones quorumcunque Praelatorum, majorum & minorum; Salva Nobis & haeredibus noſtris Cuſtodia Eccleſiarum & Monaſteriorum vacantium, quae ad nos pertinent. Promittimus etiam quod Nec impediemus nec impediri permittemus per Miniſtros noſtros, nec procurabimus, quin in univerſis & ſingulis Monaſteriis & Eccleſiis, poſtquam vacuerint Praelatur…, quemcunque voluerint Libere ſibi praeficiant Electores Paſtorum, petita tamen à Nobis prius & haeredibus noſtris Licentia Eligendi, quam non denegabimus nec differemus. Et ſimiliter, poſt celebratam Electionem, noſter requiratur Aſſenſus, quem non denegabimus, niſi adverſus eandem Rationale propoſuerimus, & legitime probaverimus propter quod non debemus conſentire, &c. Vid. Davis Rep. in the caſe of Praemunire, …o. 92, 93.