¹ Barraclough, G., Papal Provisons (Oxford 1935) 90ff., 165ff. Papal practices were copied in France; Gaudemet, J. La collation par le roi de France des bénéfices vacants en régale des origines à la fin du XIV ^e siècle (Bibliothèque de l'École des Hautes Études, Sciences religieuses 51; Paris 1935) 112ff.; Mollat, G. ‘Les grâces expectatives sous le règne de Philippe VI de Valois,’ Revue d'histoire ecclésiastique 32 (1936) 303–12, and ‘Le roi de France et la collation plénière des bénéfices ecclésiastiques,’ Mémoires présentés par divers savants à l'Académie des inscriptions et belles-lettres 14 ii (1953) 107–286. See also Gaudemet, J., ‘Régale,’ DDC 7 (1960) 494–532.Google Scholar

² Plaintiff's oral plea in M ^e Helie de Chanac v. the bishop of Saintes, Archives Nationales (hereafter A.N.) X^1a 1473 fol. 373^v. Google Scholar

³ McKisack, M., The Fourteenth Century (Oxford 1959) 226 n. 5.Google Scholar

⁴ Barraclough, , op. cit. 54ff., 148.Google Scholar

⁵ See the report of John of Stratford, bishop of Winchester, on his mission to the pope (Michaelmas Term, 1323), in Sayles, G.O. (ed.), Select Cases in the Court of King's Bench IV (Selden Society [hereafter S.S.] 74; London 1957) 126. The progress of the century only made matters more difficult, as witnesses the amusing but not amused complaint of Clement VI noted by Pantin, W.A., The English Church in the Fourteenth Century (Cambridge 1955) 49. An impatient petitioner had wrapped his petition around a stone and thrown it at the pope while he was out riding. Howell, M., Regalian Right in Medieval England (University of London Historical Studies 9; London 1962) 178–81, discusses the grapevine that carried the news of vacancies among the royal clerks, and the way those who got the news sought the king's ear. Kings, Courts, Cures, and SinecuresGoogle Scholar

⁶ McKisack, , op. cit. 211. In general, see Howell, , op. cit. 172–8.Google Scholar

⁷ See my ‘La justice et le pouvoir royal à la fin du Moyen Age français,’ Revue historique de droit français et étranger ⁴ 40 (1962) 373–94.Google Scholar

⁸ See the Glossa ordinaria of Johannes Teutonicus to Gratian's Decretum C. 16 q. 2 pr. ad v. de capellis; to C. 16 q. 2 c. 6, ad v. Sane qua. Google Scholar

⁹ Stubbs, W., Select Charters, ed. H.W.C. Davis (Oxford 1951) 164.Google Scholar

¹⁰ Wilielmus de Pagula, Summa, quoted by Gray, J.W., ‘The Ius praesentandi in England from the Constitutions of Clarendon to Bracton,’ English Historical Review 67 (1952) 484.Google Scholar

¹¹ For the early history of Darrein presentment, see Van, R.C. Caenegem, Royal Writs in England from the Conquest to Glanvill (S.S. 77; London 1959) 330ff.Google Scholar

¹² Gray gives a full discussion of these, Ius praes. 495ff., 504ff. His comments on the rarity of these actions do not hold for the fourteenth century. Most of the important cases discussed below are actions of Quare non admisit. Google Scholar

¹³ Pollock, F. and Maitland, F.W., The History of English Law before the Time of Edward I (reprinted Cambridge 1952) II 139.Google Scholar

¹⁴ Pantin, , Eng. Church (n. 5 supra) 31–32.Google Scholar

¹⁵ Some suggestions are given by Jo, F.üon des Longrais, ‘La portée politique des réformes d'Henry II en matière de saisine,’ Rev. hist. de droit fr.⁴ 15 (1936) 563.Google Scholar

¹⁶ This is the reason for the ‘curious’ rule (Pollock and Maitland II 139) that one who has never presented, though he may have been given an advowson by deed, has no seisin to grant to anyone else. Google Scholar

¹⁷ Gray, , Ius praes. 490.Google Scholar

¹⁸ Year Book 46 Edward III fol. 19. (References to Year Books not in the Rolls Series [hereafter R.S.] or Selden Society publications [S. S.] are to the black letter vulgate edition of London, 1679.) Google Scholar

¹⁹ For details and exceptions, see Gray, , Ius praes. 488, 496ff.Google Scholar

²⁰ Ibid. 499–501. The Year Book of 21 Edward III reports a case in which the king brought his Quare impedit against the bishop of Durham for the presentation to a hospital during the voidance of the see. Moubray for the defendant claimed that the issue was one of de jure voidance, since the king claimed it was void by an illegal exchange. Justice Willoughby agreed. ‘But the court may have cognizance whether void or not. This the court can try.’ And this issue went to the jury; fol. 6b-7. This seems to have been the result of a conscious policy in the mid-fourteenth century: see below, n. 44.Google Scholar

²¹ Y.B. 40 Ed. III fol. 20. Google Scholar

²² Gray, , Ius praes. 492ff., 508–9.Google Scholar

²³ Ibid. Google Scholar

²⁴ In a case of 1373 on a writ of Quare impedit brought by the king against a parson alone, Justice Finchden, discussing 25 Edward III st. 6 c. 3, remarked, ‘The trouble was at Common Law before the statute, when a writ was brought against a patron and the incumbent, that if the patron gave a weak plea, the incumbent had no reply but lost his church by that plea. And this remedy was therefore ordered by the statute, that when the patron gives a weak answer the incumbent would have [a right to answer] (text has ‘riens,’ obviously a mistake); and the statute specifically concerns the king's Quare impedit. But now in this case you may have benefit of the statute, for you may give any response that pleases you to maintain your possession of the church. And even if the king recovers against you, when the king has execution, your patron can sue before the bishop and the bishop will delay execution because of this. And in Quare non admisit the bishop will be excused because of the patron's litigation. And if the patron maintained against the king, the incumbent would retain his church…. Therefore answer': Y.B. 47 Ed. III fol. 11. The bishop's inquest continued to be made following the suit on the advowson in the king's court. (For an inconclusive debate on whether it had to be made, see Y.B. 9 Ed. II [S.S. 45] 56–59. In 1339 a bishop argued that the other person named as ‘disturber’ on a writ of Quare impedit had raised a dispute about the patronage and thus prevented the bishop from collating the plaintiff's presentee. The first report states that the plaintiff had his ‘writ to the bishop’ non obstante reclamatione Episcopi: Y.B. 13 Ed. III (R.S.) 270–1. A report of a later stage in the same case has Justices Shareshull and Willoughby say that the plaintiff should not be given a ‘writ to the bishop’ against the bishop until the inquest was taken against the other defendant. When the inquest was taken, Justice Stonor declared that the bishop had ‘disturbed’ for sufficient reason and was thus excused. Shareshull added that if the Ordinary cannot excuse himself on a Quare non admisit, the plaintiff shall have both his presentation and damages: ibid. 290ff. For the 1350's see Y.B. 24 Ed. III fol. 22. Unfortunately, the report of this case (at least in its present printed form), in which the bishop of Exeter attempts unsuccessfully to counterplead the king's title on a Quare non admisit, does not state how the bishop knew the king's title was not good. Google Scholar

²⁵ Gray, , Ius praes. 503–4.Google Scholar

²⁶ As the clergy stated in its petition of 1352, Rotuli Parliamentorum II 244. Google Scholar

²⁷ Before the changes in law that this article describes, the king's court could not simply order a church disencumbered; Y.B. 5 Ed. II (S.S. 33) 170ff. Google Scholar

²⁸ Gray, , Ius praes. 506.Google Scholar

²⁹ Ibid. Google Scholar

³⁰ Y.B. 38 Ed. III fol. 3b. Google Scholar

³¹ Pantin, , Eng. Church 31–2; R.A.R. Hartridge, ‘Edward I's Exercise of the Right of Presentation to Benefices as Shown by the Patent Rolls,’ Cambridge Historical Journal 2 (1926) 171.Google Scholar

³² Ehrlich, L., Proceedings against the Crown (Oxford Studies in Social and Legal History 6; Oxford 1921).Google Scholar

³³ See the curious discussion in Y.B. 43 Ed. III fol. 22. In opposition to a claim that Praerogativa regis is not a statute, but a description of the king's prerogative as it existed, Fencot noted that the text of the ‘statute’ reads: ‘nisi faciat expressam mencionem … tunc hiis diebus Rex reservat sibi … advocaciones ecclesiarum.’ Since his client's charter dated from Henry III, he thought the advowson passed with the manor granted by the charter, even though it was not mentioned. The court agreed. For the text Fencot cited, see Statutes of the Realm I 227. Google Scholar

³⁴ This is presumably what the clergy are referring to in their petition of 1352. Google Scholar

³⁵ Since prelates’ persons were privileged and their spiritual rights could not be touched, this was the version for the clergy of the Great Distress, and took the place of imprisonment to force the victim to ‘make a fine.’ (See Rot. Parl. II 8) Deeley, A. discusses the use of this penalty in patronage cases, ‘Papal Provisions and Royal Rights of Patronage in the Early Fourteenth Century,’ English Historical Review 43 (1928) 509–11. Y.B. 21 Ed. III fol. 20, Y.B. 24 Ed. III fol. 22, are examples. In France by the fourteenth century it was the usual way for the court to force an ecclesiastic to obey; Guillaume du Breuil, Stilus curie Parlamenti 29.4, 6, 10, 11 (ed. Aubert, F. [Paris 1909] 207–8, 210).Google Scholar

³⁶ 25 Ed. III st. 6 c. 6; Y.B. 26 Ed. III fol. 21. Google Scholar

³⁷ Wood, K.L. -Legh accepts this extension as a matter of course, Church Life under Edward III (Cambridge 1934) 127, but it obviously was not. The statute itself makes no mention of the appropriation of churches. It is doubtful whether those who drafted it would have included advowsons which clergy held by right of their church within the term feodum, which they consistently use (text in Stubbs, Charters 451–52); for what services ‘ad defensionem regni’ and what escheats were due from them? This intriguing derivation was only made in 1304 in a case involving the Prior of Worcester before the King's Bench, and then in Council. The Council finally refused to subsume the appropriation of churches under the activities prohibited by the statute; but, they went on, since the statute was made, the king had taken fines under color of the statute for his license to appropriate churches, and was now in seisin of taking such fines. The king had the presentation he claimed by way of distraint until the prior made satisfaction for his trespass. Sayles, Select Cases III (S.S. 58) 125ff. Both the extension of the statute of Mortmain and presentation by reason of the seizure of episcopal temporals are implicitly based on the special ‘temporal’ conception of spiritual patronage developed in England. See Howell, , Regalian Rights (n.5 supra) ch.6.Google Scholar

³⁸ Church Life 129.Google Scholar

³⁹ Roman Canon Law in the Church of England (London 1898) chapter 5.Google Scholar

⁴⁰ Y.B. 7 Ed. II (S.S. 39) 66–7. Google Scholar

⁴¹ Bracton, , De legibus et consuetudinibus Angliae fol. 248b (ed. Woodbine, G. [New Haven 1940] III 233); Y.B. 5 Ed. II (S.S. 33) 173.Google Scholar

⁴² ‘CAUNT, J., to Shareshull another day: Is the prebend void by the reason you showed in your count according to the law of the land or according to the law of Holy Church? — Shareshull: We do not wish to charge the court with the cognizance of the cause of voidance. … — SCOT, J.: In Quare impedit it is not acceptable to say that a church is void by plurality of benefice, if for that reason the parson was not deprived of the church. And what you show to demonstrate voidance is more a proof of plenarty than of voidance. — … Parving, ad idem: He takes for cause of voidance that a man cannot hold a ‘benefice d'office’ and dignity in a cathedral church; and sir, whether he can or not does not belong to the cognizance of this court. And sir, even if it were the case that he could not hold both, the pope or the bishop could give him a dispensation, and we could not have cognizance of this, nor whether the ordinances of Holy Church are thus or otherwise. — Shareshull: The prebend voided in the manner we said, ready, etc. — CAUNT, J.: If we take the averment as you have given it, and the bishop says as you say in your count, for whom will the judgment be given? — Shareshull: Sir, if you find that held, W.B. the prebend all his life, the judgment will be given against the king; but, sir, if you find that the prebend is void for a reason that we have not yet given (sic), the king will recover. — STONOR, J.: But one must always present the specific cause of voidance in his count, so that this court, when this cause has been found, may have full knowledge of the voidance; but you have not shown such cause, etc. — CAUNT, J.: Did the prebend void de facto or de jure? — Shareshull: It voided as above, ready, etc.; and sir, whether it voided de facto or de jure it suffices for us to aver the voidance for the king. STONOR, J.: If what you have said be cause of voidance or not, we do not yet know, for which reason you have a day at the quinzaine of Easter’: Y.B. 5 Ed. III fol.9.Google Scholar

⁴³ McKisack, , Fourteenth Century (n. 3 supra) 168–169.Google Scholar

⁴⁴ Y.B. 21 Ed. III fol. 6b-7. Google Scholar

⁴⁵ On a royal action of Quare impedit against the bishop of Lincoln the court came to the same result. A prebendary had been promoted to bishop of Utrecht and the king claimed the presentation to his prebend: ‘… an exception was taken to this on the ground that such a case of voidance cannot be tried in this court. — Non allocatur, because voidance shall be tried generally, and not a special voidance for a certain cause. — Therefore they were at issue on the voidance in general terms’: Y.B. 19 Ed. III (R.S.) 76–9. Google Scholar

⁴⁶ Y.B. 13 Richard II (Ames Foundation) 101–3. Google Scholar

⁴⁷ Y.B. 15 Ed. III (R.S.) 151–3. Google Scholar

⁴⁸ Bereford, C.J., in Y.B. 5 Ed. II (S.S. 33) 170. Three years earlier there was apparently some doubt whether the writ was valid against the incumbent; Y. Bb. 2–3 Ed. II (S.S.19) 75. Presumably it was finally decided that it was (the printed record does not say), and thus the court in 1312 could act firmly. Google Scholar

⁴⁹ ‘SHARESHULL, J. [In reply to an argument by his fellow Justice Stonor that, if the inquest on Quare impedit were not to be taken against a bishop ‘there is no lay patron in England who can present’; the defendant bishop in this case had been excused by the admitted disturbance of another person who claimed to be patron.] That is no mischief; for then he would recover his damages; and I say that in a Quare impedit against the Ordinary, when he disclaims interest in the advowson, the course of law has always been that the plaintiff should have a writ to the bishop without affirming any other disturbance in him; for no one ever saw a general or special disturbance averred against the Ordinary in a Quare impedit, and particularly when he disclaims interest in the advowson; for he can avow the disturbance in many ways which cannot be tried in a Quare impedit — as that the presentee is under age, or excommunicated, or under some other disability, etc. But in this event, after the plaintiff has the “writ to the bishop,” and the bishop does not wish to receive his presentee, the plaintiff will bring Quare non admisit; in which case, if the Ordinary cannot excuse himself, the plaintiff shall recover damages against him, together with the presentation….’: Y.B. 13 Ed. III (R.S.) 292–5. Later on in the same case, Shareshull described what he meant by a bishop's ‘excuse’: ‘Several writs lie against the Ordinary which do not lie against any other person, such as Quare incumbravit and Quare non admisit, in which writ the Ordinary ought to and may excuse himself and avow the disturbance by reason of the disability of the patron — such as that he is excommunicated and the Ordinary is not bound to receive his presentee — and also by reason of the disability of the presentee. In the latter case the matter shall be sent to the Metropolitan for him to certify the Court, for we cannot have cognisance of the fact. And if the inquest were to be taken now he would be convicted of the disturbance when by law he was entitled to make it.’ Herle and ‘the most learned of the Council’ agreed that the inquest should not be taken against the bishop (ibid. 296–9). Shareshull was a bit more moderate here as Justice than he had been as King's Sergeant. The Rolls Series attribution is presumably correct: Putnam, B.H., The Place in Legal History of Sir William Shareshull (Cambridge 1950) 222.Google Scholar

⁵⁰ Y.B. 15 Ed. III (R.S.) 151–3. Bb, The Y. 18–19 Ed. III (R.S.) 373, report a successful Quare impedit against a parson imparsonee and Ordinary by an ordinary layman. In the case of 15 Ed. III and again long afterwards the court stated that only the king may bring Quare impedit against a parson imparsonee alone: Y.B. 42 Ed. III fol. 7a and 47 Ed. III fol. 10. But in the latter cases the seeming injustice was excused by 25 Ed. III st. 6 c. 7. Nothing excused the seeming injustice in 1342.Google Scholar

⁵¹ Calendar of Patent Rolls, 1292–1301 p. 512. Bush was presented to eight benefices between 1292 and 1321: CPR 1292–1301 pp. 223, 247, 258, 512; CPR. 1301–1307 p. 227; CPR. 1313–1317 p. 546; CPR 1317–1321 p. 165.Google Scholar

⁵² Sayles, Select Cases III (S.S. 58) 136ff.Google Scholar

⁵³ For a discussion of this development on both the papal and royal sides see Deeley, ‘Papal provisions’ (n. 35 supra) 499–504, 512–8. Google Scholar

⁵⁴ The same technique was used in France; Gaudemet, Collation en régale (n. 1 supra) 105–6. Google Scholar

⁵⁵ Y.B. 8 Ed. II (S.S. 37) xlvi ff., 166–75: Y.B. 9 Ed. II (S.S. 45) 56–9. Neither case as reported is conclusive; but in neither did the king apparently feel like pressing the issue. Google Scholar

⁵⁶ Y. Bb. 11–12 Ed. III (R.S.) 550ff., 654ff. Y. Bb. 13–14 Ed. III (R.S.) 188ff., 286ff. In all these cases the king had brought his Quare impedit when the benefice had already been filled, but this did not stand in his way. These cases leave in doubt what the bishop was to do, for the king confirmed the present occupants, reserving his own right. The doubt was resolved by 1345. Google Scholar

⁵⁷ In the case of 1341 against the Prior of Pembroke and the incumbent, after some dispute about the writ, ‘Pole [for the Prior]: The church did not become vacant while the temporalities were in the king's hand; ready, etc. Thorpe: You shall not be admitted to that averment; for by matter of record in the chancery we will aver that the temporalities are still in the king's hands, for the prior is the king's farmer … saving to the king the fees and advowsons, and the prior does not deny that the church is now vacant; judgment, etc. and we pray a writ to the bishop. — Pole: An issue cannot be taken on plenarty where the king is a party; therefore the vacancy of the church cannot be held as not denied; but the issue is on the seizure of the temporalities … as comprised in the king's title; and this we have traversed. — Thorpe: And it is of record that the temporalities are in the king's hand … and the vacancy is now admitted. — Pole: The king's title ought not to be understood otherwise than on a vacancy before the writ was purchased, and as to that time we traverse it … — Thorpe: Then will you have the averment entirely on the vacancy? If so ready, etc., that the church was vacant. But I say that the issue is on the time of vacancy when the temporalities were in the king's hand; and you do not deny the vacancy now, and the possession of the king is of record, wherefore we pray writ to the bishop …’ Finally the issue was, vacant or not while the temporalities were in the king's hands: Y.B. 15 Ed III (R.S.) 148–51. Google Scholar

⁵⁸ Y.B. 19 Ed. III (R.S.) 164ff. Willoughby was not very consistent this year; see ibid. 220. But a later decision confirmed the harsher interpretation of the law: Y.B. 24 Ed. III fol. 22. Google Scholar

⁵⁹ If the king's presentee did not think enough to have a writ of prohibition issued to prevent an opponent from suing in court Christian the king's court gave him little help. See Y.B. 46 Ed. III fol. 13b-14: the king ‘recovered’ on a Quare impedit and the judgment was executed; but apparently the incumbent whom the king's presentee had ousted sued in court Christian and got back in again. On a Scire facias the court would not order another execution of the original decision on Quare impedit. Google Scholar

⁶⁰ Graves, E.B., ‘The Legal Significance of the Statute of Praemunire of 1353,’ Anniversary Essays in Medieval History by Students of Charles Homer Haskins (Cambridge, Mass. 1929) 72–3.Google Scholar

⁶¹ Ibid. 68ff.Google Scholar

⁶² Rot. Parl. II 145.Google Scholar

⁶³ Y.B. 18–19 Ed. III (R.S.) 372. Google Scholar

⁶⁴ Although the basis of this doctrine goes back into the 13th century, it does not yet appear to be a doctrine of the court by the beginning of the reign of Edward III though there is a suspicious tendency. In the first year of the reign, the abbot of Feversham was sued in the king's name on a Quare impedit for an advowson that the abbot's predecessor had granted by charter to the king. Basset pleaded plenarty for the abbot. Whereupon Justice Scrope retorted: ‘Will you allege plenarty against the king when he has demonstrated his estate by record? If I were the King's Sergeant I'd demand judgment against you as having no defense.’ The insistence on the proof by record is curious. Obviously it was not yet doctrine simply that ‘plenarty is no plea against the king’: Y.B. 1 Ed. III fols. 21b-22a. Google Scholar

⁶⁵ Y.B. 18 Ed. III 156. Robert Peruyng, chancellor and tenant-in-chief had not presented to the benefice in time. Even though the right of collation passed to the bishop after six months this did not foreclose the king after Peruyng's death, since the bishop had not exercised the right during Peruyng's lifetime. Therefore the king ‘recovered.’ The question came up again in Y.B. 43 Ed. III fol. 14, when the sergeant for the defendant tried to claim plenarty against the king, arguing that ‘by statute’ (obviously referring to 25 Ed. III st. 6 c. 1) time does not run against the king when he recovers in another's right, but does when he recovers in his own right. This was hardly a correct statement of the law, as Justice Finchden quickly pointed out. Kings had been presenting by the same titles as claimed in this case since the reign of Edward II. Compare 8 Ed. II (S.S. 37) 166–75. Google Scholar

⁶⁶ Y.B. 43 Ed. III fol. 14.Google Scholar

⁶⁷ See note 21 above.Google Scholar

⁶⁸ Y.B. 20 Ed. III (R.S.) 2.396ff. Google Scholar

⁶⁹ Y.B. 19 Ed. III (R.S.) 76; Y.B. 21 Ed. III fol. 6b; Maitland, Canon Law (n. 39 supra) ch. 5. These were not the only purely clerical problems that juries were asked to pronounce on, despite their obvious lack of qualifications. Apparently on the model of the rule requiring that the bastardy of a dead person be a jury issue rather than one sent to the bishop (Y. Bb. 20–21 Ed. I [R.S.] 192; Y.B. 30–31 Ed. I [R.S.] 290), the idoneity of a patron's deceased presentee was decided by the country, rather than by the bishop. At least the issue was tried in Cornwall, where the presentee resided and had been examined by the bishop, rather than in Somerset where, the plaintiff's sergeant argued, it ought to be tried, since the writ was taken in Somerset: Y.B. 39 Ed. III fol. 1b-2a. Google Scholar

⁷⁰ Rot. Parl. II 244–245.Google Scholar

⁷¹ 14 Ed. III st. 4 c. 2; 25 Ed. III st. 6 cc. 1, 2; Rot. Parl. II 244. Google Scholar

⁷² 25 Ed. III st. 6 c. 7; Stat. of the Realm I 326. (My italics). Google Scholar

⁷³ Y.B. 47 Ed. III fol. 10b. Google Scholar

⁷⁴ Y.B. 42 Ed. III fol. 7a. Google Scholar

⁷⁵ Y.B. 46 Ed. III fol. 15. Google Scholar

⁷⁶ Ellis, J.T., Anti-Papal Legislation in Medieval England, 1066–1377 (Washington, D.C. 1930) 120; Stubbs, W. The Constitutional History of England (Oxford 1896) III 338; Ramsay, J.H. The Genesis of Lancaster (Oxford 1913) I 375; Prynne, W., Records from the Reign of Edward II to Richard III (London 1657) 76; all quoted by Davies, C., ‘The Statute of Provisors of 1351,’ History n.s. 38 (1953) 116–7.Google Scholar

⁷⁷ Hay, D., The Italian Renaissance in its Historical Background (Cambridge 1961) 17. For some, despite what Davies, C. says, it is obviously still ‘a landmark.’Google Scholar

⁷⁸ Loc. cit. Google Scholar

⁷⁹ Holdsworth, W.S., A History of English Law I (London 1922) 585ff.; Deeley, A. ‘Papal Provisions’ (n. 35 supra); Perroy, E. L'Angleterre et le Grand Schisme d'Occident (Paris 1933) 19ff.; Wilkinson, B., Constitutional History of Medieval England (London 1958) III 383–389.Google Scholar

⁸⁰ Stat. of the Realm I 316.Google Scholar

⁸¹ Ore est le Pape devenu Franceys e Jesu devenu Engleys. Ore serra veou qe fra plus ly Pape ou Jesu. (A fourteenth century versicle quoted by Pantin, Eng. Church [n. 5 supra] 82.) Google Scholar

⁸² Howell, , Regalian Rights (n. 5 supra) 186ff. has given an important account of the origins and development of the idea that the king was patron paramount. The theory of an original royal foundation was much more than a theoretical commonplace. It had legal consequences at Common Law. The Y.B. 17 Ed. III reports a curious case in which the king claimed to present to an elective deanship, void during the vacancy of the see of York. In reply to the chapter's contention that the office was elective, Justice Stonor announced, ‘The king is patron paramount of the whole bishopric …; and in former times the king gave the bishoprics, and, although he has sincc given license to the chapters to elect, the patronage still remains with him, and, when he is patron, and finds a vacancy, it belongs to him to present’; pp. 538ff. (R.S.).Google Scholar

⁸³ Martin, V., Les origines du Gallicanisme (Paris 1939) I 293.Google Scholar

⁸⁴ Mollat, G., ‘L'application en France de la soustraction d'obédience à Benoît XIII jusqu'au concile de Pise,’ Revue du moyen âge latin 1 (1945) 149–63.Google Scholar

⁸⁵ Rot. Parl. I 220, virtually repeating the words of the letter from the ‘clerus et populus’ of England to the pope protesting the ‘effrenatam multitudinem provisionum: ibid I 207.Google Scholar

⁸⁶ Rot. Part. II 141, 144; CPR 1343–45 pp. 164–5, 276; Calendar of Close Rolls [CCR] 1343–46 pp. 356–7; Rot. Parl. II 162, 172–173, 228.Google Scholar

⁸⁷ Graves, ‘Stat. Praemunire’ (n. 60 supra) 68ff. How easy it was for a patron other than the king to get a provisor arrested is not clear. In 1347 Walter de Rodeney petitioned in Parliament for remedy against a provisor who was trying to oust his presentee from a church. The response was an ambiguous ‘Declare sa peticion.’ Rot. Parl. II 184. Google Scholar

⁸⁸ CPR 1343–45 pp. 73, 78, 84, 86, 87, 94…. Google Scholar

⁸⁹ Ibid. 95 160, 161.Google Scholar

⁹⁰ Ibid. 164–5.Google Scholar

⁹¹ CCR 1343–46 pp. 356–7. Google Scholar

⁹² CPR 1343–45, pp. 284, 285, 286, 288, 290…. Google Scholar

⁹³ Ibid. 279.Google Scholar

⁹⁴ For examples of this see ibid. 289; CCR 1343–46 p. 356. Google Scholar

⁹⁵ CPR 1343–45 p. 277. Google Scholar

⁹⁶ Rot. Parl. II 152 (my italics). Years earlier, a Commons had asked the king to declare the using of provisions by aliens a capital crime; ibid. 9. They were turned down.Google Scholar

⁹⁷ The king's interests are too clearly considered in this petition as well as in the final statute of provisors for Wilkinson's claim (Const. Hist. III 384–5) that these anti-papal activities ‘also attacked abuse of royal power’ to be accepted without serious reservations. Google Scholar

⁹⁸ CPR 1343–45 pp. 295, 386, 399, 406, 407, 409, 419 Google Scholar

⁹⁹ Slat. of the Realm I 318.Google Scholar

¹⁰⁰ Canon Law (n. 39 supra) 68–9.Google Scholar

¹⁰¹ Y.B. 11 Henry III fols. 38–39.Google Scholar

¹⁰² See Appendix, , infra. Google Scholar

¹⁰³ I have checked the CPR for the five years following the statute, the years Miss Davies claimed the statute was enforced, and, for the remainder of the century, a full year at fouryear intervals. Any use must have been very rare to escape this search. Google Scholar

¹⁰⁴ A most striking case is the ratification given a papal provisor on Feb. 26, 1351. He is not to be disturbed ‘by reason of the bishopric of London or archbishopric of York having been void or their temporalities in the king's hands or that of his progenitors.’ No mention is made of the statute. CPR 1350–54 p. 57. Google Scholar

¹⁰⁵ Rot. Parl. II 241.Google Scholar

¹⁰⁶ Ibid. 244ft.Google Scholar

¹⁰⁷ See, for example, Y.B. 29 Ed. III fol. 44; Y.B. 41 Ed. III fol. 5b-6; Y.B. 44 Ed. III fol. 3. When the ‘Statute of Provisors’ is mentioned (as in Y.B. 39 Ed. III fol. 7) it is the statute now known as the ‘Statute of Praemunire’ that is being discussed. Google Scholar

¹⁰⁸ Y.B. 50 Ed. III fol. 27. Google Scholar

¹⁰⁹ CCR 1349–1354 pp. 469–70. Google Scholar

¹¹⁰ Graves, ‘Stat. Praemunire’ passim. See also CPR 1350–54 p. 291 (April 30, 1352): the king appoints two proctors to prosecute two bulls of provision before the archbishop of Canterbury and the bishop of Winchester. The manner of handling provisors did not change one bit; ibid. 340, 341; CCR 1349–54 p. 407,443; CPR 1354–58 pp. 118, 329, 335, 400, 401, 447…. There is no mention of the statute of provisors in any of these letters. On January 20, 1353, a letter was sent to the papal nuncio ordering him to stop trying to collect first fruits from provisors, or under color of provisions, though the collations had not been effected. The statute was not mentioned. CCR 1349–1354 p. 457. Google Scholar

¹¹¹ Gray, H.L. notes that, unlike many other statutes of the period, the statute of provisors was granted in answer to a petition for remedy couched in general terms; The Influence of the Commons on Early Legislation (Harvard Historical Studies 34; Cambridge, Mass. 1932) 250. Professor Wilkinson seems to be stretching the point a bit when he insists vehemently on the important role the Commons played in its enactment (Const. Hist. [n. 79 supra] III 284–5).Google Scholar

¹¹² Y.B. 20 Ed. III (R.S.) pt. 1 p. 522. Google Scholar

¹¹³ Pace Wilkinson, Const. Hist. III 385 n. 19.Google Scholar

¹¹⁴ This was the only objective that the clause could have served, since the statute did not give anything to ecclesiastical patrons and collators that they did not have before. The pope was taking their patronage; the statute did not restore it to them, but rather prescribed penalties to be visited upon their clergy if the ordinary collators did not themselves obstruct the papal provisors. Here, as usual, Maitland saw it all; Canon Law 63–73. Google Scholar

¹¹⁵ Stat. of the Realm I 318.Google Scholar

¹¹⁶ Y.B. 11 Henry IV fol. 38.Google Scholar

¹¹⁷ Ibid. fol. 59. Google Scholar

¹¹⁸ See in general, Barraclough, Papal Provisions 95–7, 131–52, and more especially his ‘Executors of Papal Provisions in the Canonical Theory of the Thirteenth and Fourteenth Centuries,’ Acta Congressus Iuridici Internationalis (Rome 1936) III 111–53. Google Scholar

¹¹⁹ In the case of The King v. Chichele, Y.B. 11 Henry IV, Hill at one point argued for the king: ‘And as for what has been said, that if the bulls did not oust the patron from his title, then the title still belongs to the patron and not to the king, this does not at all follow. For in cases of provision made to benefices in the patronage of bishops, abbots, or other patrons, they could very well sue a writ of Quare impedit or of Praemunire facias if they so chose according to our law: the statute of provisors was not made because the patrons lacked an action (for they had an action by our law before, and this proves that by the Common Law the pope cannot oust anyone from a right that belongs to him by Common Law, if the latter wishes to sue), but the statute of provisors was made because ecclesiastical patrons were disturbed and did not dare sue the pope in the king's court …’ But very soon afterwards, ‘Hank.’ remarked that ‘Quare impedit against the pope had never been seen.’ And Hill and Horton conceded—despite what Hill had argued but a moment before—‘that the writ does not lie, because it had never been seen before …’; fol. 77. Google Scholar

¹²⁰ ‘ But,’ Hill and Horton went on, ‘the writ lies against the incumbent and the archdeacon, or whoever put him in …’; ibid. Google Scholar

¹²¹ For a detailed account, see Valois, N., La France et le Grand Schisme d'Occident (Paris 1901) III 150ff.Google Scholar

¹²² For example, Y.B. 2–3 Ed. II (S.S. 19) p. 75; Quare incumbravit, Y.B. 32–33 Ed. I (R.S.) p. 30; Darrein presentment, Y.B. 6 Ed. II (S.S. 34) p. 67; Quare non admisit, Y.B. 6–7 Ed. II, Eyre of Kent (S.S. 29) p. 161. Google Scholar

¹²³ Adams, N., ‘The Judicial Conflict over Tithes,’ Eng. Hist. Rev. 52 (1937) 4ff.; Graves, E.B., ‘Circumspecte agatis,’ Eng. Hist. Rev. 43 (1928) 15.Google Scholar

¹²⁴ Provided that the tithes were ‘separated’ and were therefore ‘lay fee.’ Y.B. 6–7 Ed. II (S.S. 36) 16. Google Scholar

¹²⁵ As in the case of Thomas Sotheron described below. See also Rot. Parl. II 32 no. 6, a provisor's petition for a commission of oier and terminer against persons that had thrown him out of a church; Putnam, B.H., Proceedings Before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (Ames Foundation; London 1938) 453 no. 167: indictment of a chaplain and others for the trespass of breaking into a church.Google Scholar

¹²⁶ Even when the Statute of Westminster II allowed parsons to use Utrum to decide whose ‘free alms’ a given property belonged to (c. 24), what the jury decided was whether a property belonged to one church or to another, not who was the rightful parson of the church. Thus, in one case, because a previous parson in a Iurata utrum did not demand to have his patron and bishop called to his aid before the jury proceeded, his successors could have another Iurata utrum to recover what was lost. The assize was for the benefit of the church—and thus of all those whose profit was involved, parson, patron, and bishop —not for the particular benefit of the incumbent clerk. Y.B. 3–4 Ed. II (S.S. 22) 36–40; Sayles, Select Cases IV (S.S. 74) 16–8. In canonist language one might say that the Common Law considered the local church to have the real dominium of its property, while the incumbent was merely the administrator, or procurator. This was one of the several views taken by thirteenth-century canonists; see the discussion in Tierney, B., Foundations of Conciliar Theory (Cambridge 1955) 118-9, and more especially Gross, C., Das Recht an der Pfründe (Graz 1887) 138–40.Google Scholar

¹²⁷ Except, of course, for the writs of prohibition; but no rights were tried when someone was attached on the prohibition. Google Scholar

¹²⁸ The text of one of these manuals has been edited by Barraclough, G., ‘Modus et forma procedendi ad executionem seu protestationem gratiae alicui factae per dominum papam,’ Studi di storia e diritto in onore di Enrico Besta (Milan 1939) III 279–300, esp. 291–2, 295ff. See also Barraclough, ‘Executors.’Google Scholar

¹²⁹ These are discussed briefly below. Google Scholar

¹³⁰ Y.B. 20 Ed. III pt. 2 (R.S.) 401–3. Google Scholar

¹³¹ McNulty, J. ‘Thomas Sotheron v. Cockersand Abbey: A Suit as to the Advowson of Mitton Church, 1369–1370,’ Chetham Society, Remains Historical and Literary , vol, n.s. 100 (Chetham Miscellanies, n.s. 7; Manchester 1939); CPR 1367–70 p. 190.Google Scholar

¹³² A.N.X^1a 16 fols. 140^v-142^v. Google Scholar

¹³³ For a general discussion, Olivier, F.-Martin, Histoire de la coutume de la prévôté et vicomté de Paris ((Paris 1922–1930) II, chapter 2.Google Scholar

¹³⁴ From A.N.X^1a 5 (1321) onwards, there is not a volume of Jugés and Arrêts that does not have at least one case involving a clerical dispute over a benefice or other clerical right, until the work of the court is disrupted by the Anglo-Burgundian capture of the capital. Towards the end of the century they become very numerous; in the Parlement of 1380–81, I have counted eleven arrêts, six in the Parlement of 1381–82 (A.N.X^1a 30). The alternating political fortunes of the Avignonese pope at the beginning of the fifteenth century brought even more cases to the Parlement. Twenty-two out of 103 arrêts delivered by the Parlement of 1408–09 concern seisin of benefices (A.N.X^1a 57). Google Scholar

¹³⁵ Graves, , ‘Circumspecte agatis’ 15; Adams, ‘Conflict over Tithes’ 14; Y. Bb. 33–35 Ed. I (R.S.) 478ff.; Y.B. 7 Ed. II (S.S. 39) 20ff; Y.B. 16 Ed. III (R.S.) 86; Y.B. 18 Ed. III (R.S.) 352.Google Scholar

¹³⁶ In the cases concerning annuities and pensions, the judges asked whether the right was proved. The judges attempted the same distinction of ‘right’ from ‘fact’ in cases involving mortuary fees: Y. Bb. 30–31 Ed. I (R.S.) 440ff. It was the standard distinction made in deciding whether a dispute over tithes concerned lay fee or spirituals: Y. Bb. 6–7 Ed. II (S.S. 36) 16; Y.B. 3 Ed. II (S.S. 20) 40. Google Scholar

¹³⁷ Suggested by Bongert, Y., Recherches sur les cours laïques du X ^e au XIII ^e siècle (Paris 1949) 262–7.Google Scholar

¹³⁸ Perrot, E., Les cas royaux (Paris 1910).Google Scholar

¹³⁹ Bracton, , De legibus fol. 143a-b (ed. Woodbine II 404).Google Scholar

¹⁴⁰ For a general discussion see Dawson, J., A Hislory of Lay Judges (Cambridge, Mass. 1960) 43ff., 118ff.Google Scholar

¹⁴¹ As an example, compare the jury verdict given in Bracton's Note Book (ed. Maitland, F.W.; London 1887) II 635 no. 825 with the answers given by the witnesses in a French inquest of 1202, in Boutaric, E., ‘Arrêts et enquêtes antérieurs aux Olim,’ Actes du Parlement de Paris (Paris 1863) I ccxcix.Google Scholar

¹⁴² Bibliothèque Nationale, MSS latin 13868 and 4641 are two late fourteenth-century registers of writs, unfortunately not yet analyzed from a point of view of legal history. Google Scholar

¹⁴³ See ‘La justice et le pouvoir royal’ (n. 7 supra). Google Scholar

¹⁴⁴ Bongert, , op. cit. 268–70; texts in Langlois, C.V., Textes relatifs à l'histoire du Parlement depuis les origines jusqu'en 1314 (Paris 1888) 40–2, 45–8.Google Scholar

¹⁴⁵ Bongert, , op. cit. 262–71.Google Scholar

¹⁴⁶ Suggested ibid. 270.Google Scholar

¹⁴⁷ Bracton's N.B. II 346 no. 428.Google Scholar

¹⁴⁸ Ibid. 223 no. 270.Google Scholar

¹⁴⁹ Stat. Westminster II c. 30.Google Scholar

¹⁵⁰ Rot. Parl. II 203 no. 22. See Plucknett, , Concise History of the Common Law (5th. ed. London 1956) 417.Google Scholar

¹⁵¹ I do not believe that the judges’ lack of training in Canon Law should be overemphasized. When they had to refer to it they did so with apparent ease—not only where it was necessary to get a benefice for the king's presentation. When it was necessary to decide a question of bastardy, the judges knew full well the difference between legitimation at Canon Law and legitimation at Common Law. Google Scholar

¹⁵² Boutaric, ‘Arrêts et enquêtes’ cccxii. Google Scholar

¹⁵³ Guilhiermoz, P., Enquêtes et procès (Paris 1892) Appendix I i passim. Google Scholar

¹⁵⁴ Boutaric, ‘Arrêts et enquêtes’ cccxi ff. Google Scholar

¹⁵⁵ See, in general, Pissard, H., Essai sur la connaissance et la preuve des coutumes en justice dans l'ancien droit français et dans le système romano-canonique (Paris 1910) 66ff.Google Scholar

¹⁵⁶ Local church custom: A-N. X^1a 35 fol. 169^v (1387); statutes and privileges: X^1a 35 fols. 111^v-115 (1387). Google Scholar

¹⁵⁷ A. de Boüard, ‘Un effet de la canonisation du droit romain au XII^e siècle: l'instauration de la juridiction gracieuse en France coutumière,’ Actes du Congrès de Droit Canonique (Paris 1950) 171–6.Google Scholar

¹⁵⁸ Y.B. 16 Ed. III, pt. 1 (R.S.) 148. Google Scholar

¹⁵⁹ Baudouin, A., Lettres inédites de Philippe le Bel (Paris 1887) no. 7.Google Scholar

¹⁶⁰ Ibid. no. 66 (1307). There is a similar phrase in letters of safeguard to the Abbey of Flines in 1303 and 1314, Hautecoeur, E., Cartulaire de l'Abqaye de F lines (Lille-Paris, 1873) pp. 504 no. 367, 519 no. 399.Google Scholar

¹⁶¹ E. de Laurier et al. (ed.), Ordonnances des Roys de France de la Troisième Race (Paris 1723–1849), 8.214 (1321); 5.590 (1323); omitted in letters of 1322: ibid. 4.115; 6.32. Included in 1324: JJ, A.N. 64 fols. 37 no. 71, 42^v no. 82. All these letters grant a guardian in case of necessity. The formulas for letters of ‘guard guardian’ of the late fourteenth century have a still more ‘juridical’ twist: ‘… ad statum pristinum et debitum celeriter reducendum … et ad ponendum res contenciosas inter eos et eorum adversarios ad manum nostram tanquam superiorem …’; MS, B.N. lat. 4641 fol. 10. Evidence is too rare to allow one to establish the precise time-table for changes in the formula.Google Scholar

¹⁶² See Beugneot (ed.), Les Olim (Collection de documents inédits; Paris 1839–1848) II 417 no. 4, 420 no.10. Google Scholar

¹⁶³ Breuil, Du, Stilus curie 2.10 (ed. Aubert p. 13).Google Scholar

¹⁶⁴ See, for example, a curious case decided by the Parlement in 1337. The count of Flanders had taken the seals of office from his chancellor, Peter of Chambly, who immediately complained to Parlement that his safeguard, which he had as prévôt of the church of Bruges had been broken. The Count argued that the case should be tried in his own court, but the Parlement retained cognizance. A.N.X^1a 7 fol. 179. There were apparently sufficient complaints for the king to be forced to issue an ordonnance restricting the safeguard to clergy widows, orphans and immediate subjects of the king. I have not found the text of this or, donnance, but two late fourteenth-century chancery formula books contain letters referrinto it: MS, B.N. lat. 13868 fol. 8^v; MS lat. 4641 fol. 23^v.Google Scholar

¹⁶⁵ A.N.X^1a 16 fols. 140^v-142^v. Google Scholar

¹⁶⁶ In the early fifteenth century a document slipped into a volume of Conseil, evidently by error, that reveals the kind of evidence the court might consider in a case of this kind. It is a list of documents given to the proctor of the bishop of Saintes by the court, relating to a suit in litigation. It includes six bulls of Clement VII and one of Benedict XIII granting benefices to the bishop of Saintes, three notarial instruments recording acceptance of these benefices, five instruments recording accords made by the bishop with various other clergy, one made by the archbishop of Rouen, none apparently made in the Parlement, and one letter of procuration. A.N.X^1₉ 1478 fol. 30^v. Google Scholar

¹⁶⁷ John de Mota, the provisor, had not been able to enter the benefice because it was occupied by one Henry Palmerii, who held it by right of archiepiscopal collation. John cited Henry to Avignon, where he finally won. But meanwhile the archbishop of Reims, who had collation of the benefice pleno jure, had died, and the temporals of the see were in the king's hands. Henry now got the benefice from the king en régale, claiming it was vacant both de jure and de facto, since a benefice is always vacant until a provision has been canonically accepted and the provisor inducted ‘realiter et de facto’ into possession. John claimed that once the case was decided in his favor at Avignon, he should be considered possessor from the time Henry had first opposed the execution of his provision. The court decided in John's favor and declared the royal collation ‘subreptice’ and invalid. A.N.X^1a 16 fols. 273^v-275. Google Scholar

¹⁶⁸ A.N.X^1a 43 fols. 73^v-75^v, 153^v-155^v; X^1a 4784 fol. 90. Google Scholar

¹⁶⁹ Quoted by Gaudemet, Coll, en régale (n. 1 supra) 34 n. 3. Google Scholar

¹⁷⁰ Ibid. 91–9, 125–38.Google Scholar

¹⁷¹ Ibid. Google Scholar

¹⁷² Valois, , Grand Schisme (n. 121 supra) III 161ff.Google Scholar

¹⁷³ Mollat, ‘Soustraction d'obédience’ (n. 84 supra). Google Scholar

¹⁷⁴ Y.B. 11 Henry IV fol. 60. Google Scholar