Bracton: Thorne Edition: English. Volume 3, Page 217

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Volume 3, Page 217

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[001] without the bishop or other ordinary, let the assise be taken as though [the church]
[002] were vacant.]¹ The institution of a clerk in a church is a kind of spiritual marriage.
[003] And just as the bishop has cognisance of the contract of marriage² and the joining
[004] together,³ so will he have cognisance of the dissolution, if the marriage is dissolved.⁴
[005] For that reason, since spiritual and physical marriage are in many ways alike, cognisance
[006] [of vacancy] is not a matter for the secular judge, [Hence if the king on his
[007] own authority makes investigation and adjudges a church to be vacant, when it is
[008] not, and orders the bishop to admit, if he does not do so he will not be punished, despite
[009] his disobedience.] and let him who claims that it is vacant show it by the letters
[010] of the ordinary,⁵ on whose mandate reliance ought to be placed. In accordance with
[011] which the assise will proceed or remain. [But such mandate of the bishop does not
[012] always suffice for complete proof, without other supports, though it suffices to raise
[013] a presumption, which sometimes admits of true proof to the contrary.] The writ
[014] also says, ‘the advowson of which he says belongs to him,’ from which it may be
[015] drawn that the plaintiff must show, in founding his intentio, that the action and
[016] plaint belong to him. It also says, ‘who deforces him of such advowson.’ The plaintiff
[017] must show in his claim why the impediant is liable to him, that he wrongfully impedes
[018] [his] seisin of his presentation. Some say that because of the words ‘who⁶ deforces
[019] him of that advowson,’ the plaintiff asserts that the impediant is in seisin and the
[020] plaintiff out of seisin.⁷ To which the answer may be made that he sufficiently deforces
[021] who does not permit the other to use, at all or in the accustomed way, though he does
[022] not completely exclude, as in the case of him who⁶ [disseises, as] said above, [of novel
[023] disseisin, how it is committed, at the beginning.]⁸ Out of each of the aforesaid clauses
[024] of the writ many exceptions may be brought forth for extinguishing the assise completely
[025] or delaying it, but if the impediant admits them all he may except against the
[026] assise that he who brings it on the seisin and presentation of his ancestors gave that
[027] advowson (by itself or with the tenement to which it is appurtenant) to the impediant,
[028] after that presentation, or to one of his ancestors, by a charter which he produces
[029] and which so states.⁹ Thus he may well admit that

Notes

1. ‘de ecclesia vacante,’ as V

2. Om: ‘in causa bastardiae’

3. ‘coniunctione’; infra iv, 305

4. Om: ‘quod quidem . . . casu’

5. Om: ‘quia ad . . . vacatione’

6. ‘qui’

7. Supra 19, 206; Fleta v, ca.11

6. ‘qui’

8. Supra 19

9. Supra 210, infra 220, 226