OF ECCLESIASTICAL ADVOWSONS.
CHAP. I.
Pleas concerning Ecclesiastical Advowsons[128] are accustomed to be
agitated, as well when the church is vacant, as when it is not vacant.
If, upon a vacancy of a church, he who is seised of the Advowson
should present a Parson[129] to it, and any one should question the
Presentation and claim it, then, it must be distinguished, whether the
dispute be concerning the Advowson itself, in other words, the right
itself of presenting a Parson, or whether it merely relates to the
last Presentation, that is, the Seisin of the right of presenting a
Parson. If the dispute merely concern the last Presentation, and the
Claimant allege, that he or one of his Ancestors had the last Donation
and Presentation, then, the Plea shall be discussed by the Assise
appointed concerning Ecclesiastical Advowsons; and an Assise shall be
summoned to make Recognition, what Patron in time of peace presented
the Parson who last died to that Church; and concerning this Assise
we shall speak more fully hereafter,[130] when we come to treat of
other Recognitions. The party who by this Assise proves in Court the
last Presentation, shall thereby recover Seisin of the Presentation of
the vacant Church, concerning which the dispute is; so that he shall
lawfully present a Parson to the Church, saving the right and claim of
the Demandant with respect to the Right of Advowson.
[Footnote 128: _Advocationibus._ “_Advocatio_,” says Sir Wm.
Blackstone, “signifies in _Clientelam recipere_, the taking into
protection, and therefore is synonymous with Patronage, _Patronatus_.”
(2 Comm. 21.) With this concurs Lord Coke—“_Advocatio_ signifying an
advowing, or taking into protection, is as much as _jus patronatûs_.”
Again “In Britton Cap. 92. The Patron is called _avow_, and the Patrons
_advocati_, for that they be either founders or maintainers, or
Benefactors of the church, either by building, donation, or increasing
of it, in which respect they were also called _patroni_, and the
advowson _jus patronatûs_.” His Lordship cites Bracton L. 4. fol. 240.
Fleta L. 5. c. 14. (see Co. Litt. 17. b. and 119. b. Cowell ad voc. and
Spelm. Gloss. ad voc.)]
[Footnote 129: _Personam_, a Parson. (Vide Co. Litt. 300. a. b. Bl.
Comm. 1. 383.) Cowell derives the word from the French _personne_.]
[Footnote 130: L. 13. C. 18. et seq.]
But, if the right of Advowson be the sole subject of dispute, then
the Demandant should subjoin to his claim, that he, or one of his
Ancestors, had the last Presentation of that Church; or, he should
concede, that his Adversary, or one of his Ancestors, had the last
Presentation; or, he should allege, that some third person had the last
Presentation; or, in fine, that he knows not who had it.
Whichever of these courses he pursues, if his Adversary claim the
last Presentation, as made in his own person, or in that of one of
his Ancestors, the Recognition shall in every instance proceed upon
the Right of Presentation, unless in one only of the foregoing cases,
namely, when the Demandant concedes to his Adversary, that he or one
of his Ancestors, enjoyed the last Presentation, for then, without
having recourse to a Recognition, he shall present one Person at least.
The last Presentation being decided by the Assise or by some other
legal mode, and a Parson being instituted into the Church upon the
Presentation of the successful party, then shall the person, who is
inclined to contend for the Right of Advowson, have the following Writ.
CHAP. II.
“The King to the Sheriff, Health. Command _N._ that, justly and without
delay, he relinquishes to _R._ the Advowson of the Church, in such a
Vill, which he claims to belong to him, and of which he complains that
he unjustly deforced him; and, unless he do so, summon him by good
Summoners, that he be on such a day before us, or our Justices, to shew
why he has failed; and have there the Summoners and this Writ &c.”
CHAP. III.
The Party[131] being summoned may avail himself of the same number of
Essoins, and that by the same means, as we have already detailed,
in treating concerning Pleas affecting Land. Supposing, then, that
after having cast three Essoins, he should neither appear nor send an
Attorney on the fourth day, it may be asked what the Law is?
[Footnote 131: That is, according to the Cottonian and Dr. Milles’s
MSS. the person who has deforced the advowson of the church.]
In such a case, the seisin of the Presentation of the Church shall be
taken into the King’s hands, and that by the following Writ.
CHAP. IV.
“The King to the Sheriff, Health. I command you that, without delay,
you take into my hands the Presentation of the Church, in such a Vill,
which _N._ claims against _R._ and concerning which, there is a Plea
in my Court between them, and make known the day of the Caption to my
Justices, &c.”
CHAP. V.
The Sheriff is bound to execute this Writ, in the following manner:
he should go to the Church in question, and there in a public manner,
and in the presence of respectable men, declare, that he had seised
the Presentation[132] of such Church into the King’s hands, in which
the Seisin shall continue for fifteen days. The Tenant, if he feel so
disposed, may[133] replevy,[134] and thus recover it, in the same
manner as stated in the first Book.
[Footnote 132: _The Advowson_, Bodl. and Cotton. MSS.]
[Footnote 133: _During the 15 days_, Cotton, and Dr. Milles’s MSS.]
[Footnote 134: “_Replegiare_ is compounded of _re_ and _plegiare_, as
much as to say, to redeliver upon pledges or Sureties.” (Co. Litt. 145.
b.).]
CHAP. VI.
All the Essoins to which the Defendant can have recourse being
terminated, at the day appointed for the parties in Court, either both,
or neither, or one only, of the parties will appear. If one only, or
both of them, be absent, the matter must be ordered in a manner similar
to that we have formerly explained, in treating of Pleas concerning
Land. But if both parties appear in Court, the Demandant should then
propound his right as against his Adversary, in the following words: “I
demand the Advowson of this Church, as my right, and appertaining to my
Inheritance, and of which Advowson I was seised, or one of my Ancestors
was seised, in the time of King Henry the 1st, the Grandfather of our
Lord King Henry, or after the Coronation of our Lord the King; and
being so seised, I presented a Parson to the same Church when vacant,
at one of the before-mentioned periods; and I so presented him, that
upon my presentation he was instituted Parson into that Church; and
if any one would deny this, I have some credible Men who both saw and
heard the fact, and are ready to prove it as the Court shall award, and
particularly such, and such persons.” The claim of the Demandant being
heard, the Tenant may defend himself by the Duel; and the proceedings
will accordingly, from that period, be conducted in the manner we have
formerly explained. Should, however, the Tenant chuse to put himself
upon the Grand Assise, he is perfectly at liberty so to do; and the
Assise must then proceed in the form we have previously detailed.
CHAP. VII.
But, although a Church be not vacant, a dispute may arise concerning
the Advowson of it, if the Parson of the Church, or he who is invested
with that Character, derive his Title from one Patron, at the same time
as another Person, conceiving himself to be the more rightful Patron
of such Church, lay claim to the Advowson. In such case, the following
Writ shall be issued upon his application.
CHAP. VIII.
“The King to the Sheriff, Health. Summon, by good Summoners, the Clerk
_N._, Parson of such a Church, that he be before me, or my Justices,
at Westminster, on such a day, to shew of what Patron he holds himself
in that Church, the Advowson of which the Knight _M._ claims to belong
to him. Summon also, by good Summoners, _N._ who deforced him of
the Advowson, that he be there to shew why he deforced him of that
Advowson, and have there the Summoners and this Writ. Witness, &c.”
CHAP. IX.
If, after the Clerk has been summoned, he neither appear on the
appointed day, nor send any one to excuse his absence, neither on the
first, second, nor third summons, it may be doubted, by what mode he
should be distrained to appear in Court, especially if he possess no
lay Fee, to which recourse can be had for such purpose.[135] A similar
doubt may be proposed upon the course to be pursued, should he, after
having thrice essoined himself in Court, neither appear on the fourth
day, nor send an Attorney to answer for him.
[Footnote 135: Mr. Madox informs us, when speaking of the King’s
Debtor, “If he was a Clergyman, and had no lay Fee, whereby he
might be distrained, writs were wont to issue to the Bishop of the
Diocese, commanding him to distrain such Debtor, by his Ecclesiastical
Benefices. Many of these writs had in them a clause importing, that if
the Bishop failed to make due Execution, the King would cause the Debt
to be levied on the Bishop’s Barony.” (Madox’s Excheq. c. 23.)]
Should either of these cases occur, let the Bishop of the place, or
his Official, if there happen to be no Bishop, be enjoined to distrain
the Clerk to appear in Court, or to punish his default, by taking the
Church into his hands, or to distrain the Clerk by some other lawful
means.
When, at last, the Clerk appear in Court, he will either acknowledge
the Demandant as Patron, and admit that he was instituted upon his
Presentation, or upon that of one of his Ancestors, or he will allege
some other person to be the Patron.
In the former case, the Plea shall cease in the King’s Court. If the
Patron deny the assertion of the Clerk, alleging himself to have been
instituted upon his Presentation, or that of one of his Ancestors, and
be disposed to contest this point against the Clerk, the Plea shall
be discussed before his Ecclesiastical Judge. But, if the Clerk name
another Patron, such Patron should be summoned to appear in Court,
which Summons he will either obey, or not. In the latter case, if he
neither appear at the first, second, nor third Summons; or if, having
essoined himself in Court the first, second, and third times, he should
neither appear nor send an Attorney on the fourth day, it may be asked,
by what means he shall be distrained, and how his default shall be
punished? The Advowson of the Church in question shall indeed be taken
into the King’s hands, and thus remain for fifteen days; and if, within
that period, the Clerk should not appear, then, the Demandant shall
have the Seisin delivered to him. But what shall be done to the Clerk
himself? Whether shall he from that circumstance, lose his Church?[136]
[Footnote 136: He should not lose his church, according to the Regiam
Majestatem, (L. 3. c. 33.)]
But, if the Party summoned appear in Court, he will either acknowledge
himself Patron of the Church in question, or disclaim all right to the
Advowson.
Should he pursue the latter course, the Suit shall cease in the King’s
Court, and the cause must be discussed between the Patron and the
Clerk, in the Ecclesiastical Court. But if, whilst the Suit be pending,
the Church itself happen to become vacant, it may be asked, to whom
the intervening Presentation belongs? If, indeed, there be no doubt
moved concerning the last Presentation, but the person against whom
the Right of Advowson be sought, or one of his Ancestors had the last
Presentation, then, he shall present the Parson in the mean time, and
until he lose his Seisin. It is a consequence of the same principle,
that if the Advowson of any Church should be seised into the King’s
hands on account of the default of the Patron, and, during the fifteen
days, it should happen to become vacant, the Patron shall not within
that period lose his Presentation. But, if the party summoned, should
claim the Right of Advowson, and elect to defend it as his own, then,
indeed, the Suit must proceed in the order we have already explained.
If he should prevail, he and his Clerk shall be freed from the Claim of
their Adversary; but, if he fail in the Suit, then, he and his Heirs
shall for ever lose the Advowson.
CHAP. X.
But what course shall be pursued with the Clerk, the Parson of the
Church, who has declared in Court, that he held the living upon
his[137] Presentation? In the King’s Court, indeed, nothing farther is
to be done in the matter, unless as it concerns the Advowson between
the two Patrons.
[Footnote 137: The unsuccessful party.]
But the Patron, who has recently recovered the Right of Advowson,
shall proceed against the Clerk in the Ecclesiastical Court before the
Bishop or his Official, under these restrictions—if, at the time of
Presentation, the Person presenting such Clerk was considered to be
the Patron, then, the Church shall continue to be held by the Clerk,
during the remainder of his life. For, upon this subject, a Statute has
been passed in the Reign of the present King, concerning those Clerks
who have obtained Livings upon the Presentation of such Patrons as
have, in time of war, violently intruded themselves into Ecclesiastical
Advowsons; and by such Statute it is provided, that Clerks thus
presented shall not lose their Churches during their lives. Thus is the
question above proposed, resolved. But, after the decease of Clerks
so presented, the Presentations of the Churches shall return to the
rightful Patrons.
CHAP. XI.
As connected with the preceding subject, a question arises. Let us
suppose that a Patron has, in the King’s Court, recovered the Advowson
as against another; and that afterwards, in process of time, the Clerk
of the Church should die. In such a case, can the party against whom
the Advowson had been recovered again demand an Assise, concerning
the last Presentation; and, if he should obtain a Writ to summon the
Assise, what step must his Adversary resort to? Let us suppose, that
he himself had never presented an Incumbent to the church in question,
but that his Father, or at least one of his Ancestors, had so done,
and it be objected to him by his Adversary, that he ought not to have
a Recognition, because he had already lost the Advowson by the former
Judgment of the Court, whether, it may be asked, shall the Assise
cease on that account, or not? It appears that it ought[138] to cease,
because, not having the last Presentation, he never had the Seisin of
the Advowson; but, it seems, that he might well found his claim upon
the Seisin of his Father, notwithstanding any thing that may have been
done, concerning the Right itself of Presentation. But if the point of
the last Presentation can be again agitated, then, it should seem, that
the Judgments of the King’s Court are not of perpetual obligation. For
if the Advowson of a Church were once adjudged to any person, it does
not appear consistent with Justice that the Adverse party should by
any means, which can be subsequently resorted to, recover any Seisin
in that Court, especially against him in whose favor the Advowson has
been already decided, unless any new circumstance should intervene,
on account of which he ought again to be heard. If therefore, an
Assise should be summoned for that purpose, it should cease from this
circumstance, that although it were conceded that the Claimant, or one
of his Ancestors, had the last Presentation, yet it might be alleged,
that, if he or his Ancestors had any Right, they lost it by the
Judgment of the King’s Court; and, this being proved by the Record of
the Court, the Complainant shall lose his cause, and shall in addition
be amerced to the King.
[Footnote 138: The Harl., Bodl. and Cotton. MSS. concur in introducing
_not_ into this passage.]
CHAP. XII.
It should be observed, that it sometimes happens, that one Clerk sues
another in the Ecclesiastical Court, concerning a Church. Should they
derive their Titles through different Patrons, the Ecclesiastical Court
may, upon the petition of either of the Patrons, be prohibited from
proceeding in the Suit, until it be ascertained, in the King’s Court,
to which Patron the Advowson of the Church belongs. For this purpose
the following Writ shall Issue.
CHAP. XIII.
“The King to such Ecclesiastical Judges, Health. _R._ hath made known
to us, that when _I._ his Clerk held the Church, in such a Vill, on
his Presentation, the Advowson being his, as he says, _N._ a Clerk,
demanding the same, as of the Advowson of _M._ a Knight, draws the
said _I._ into a suit before you in the Court Christian. But if the
aforesaid _N._ should recover the Church under the Advowson of the
aforesaid _M._ it is clear that the said _R._ would incur the loss of
his Advowson. And since suits concerning the Advowsons of Churches
belong to my Crown and Dignity, I prohibit you from proceeding in that
cause, until it be proved in my Court, to which of them the Advowson of
such Church belongs. Witness, &c.”
But if, after this Prohibition, they proceed in the cause, then, they
shall be summoned to appear in the King’s Court, and answer for their
conduct, by the following Writ.
CHAP. XIV.
“The King to the Sheriff, Health.[139] Prohibit such Judges, least they
hold plea in the Court Christian, concerning the Advowson of such a
Church, of which _R._ the Patron of that Church complains, that _N._
draws him into a Suit in the Court Christian; because Pleas concerning
the Advowson of Churches appertain to my Crown, and Dignity. And
summon, by good Summoners, such Judges, that they appear before me, or
my Justices, on such a day, to shew wherefore, they held that Plea,
contrary to my Dignity, in the Court Christian. Summon also, by good
Summoners, the aforesaid _N._, that he be then there to shew wherefore,
he drew the aforesaid _R._ into a Suit, in the Court Christian. And
have, &c. Witness, &c.”
[Footnote 139: Vide F.N.B. 89.]