Monday, 17 September 2012

On Advowsons

The Legal Position of Advowsonst

Extracts from

The History of English Law before the Time of Edward I.
Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1.

...

The church claims cognizance of a cause for one of two reasons:—either because the matter in dispute is of an ecclesiastical or spiritual kind, or because the persons concerned in it, or some of them, are specially subject to the ecclesiastical jurisdiction.55

Matters of ecclesiastical economy.I. (a) In the first place, she claims an exclusive cognizance of all affairs that can fairly be called matters of ecclesiastical economy, the whole law of ecclesiastical status, the ordination and degradation of clerks, the consecration of bishops, all purely spiritual functions such as the celebration of divine service, also the regulation of ecclesiastical corporations and the internal administration of their revenues. In this region the one limit set to her claims is the principle asserted by the state that the rights of the patrons (advocati) of churches are temporal rights, that the advowson (advocatio ecclesiae) is temporal property. To start with, the majority of churches had been owned by the landowners who built them. The spiritual power had succeeded in enforcing the rule that the “institution” of the clerk lies with the bishop; the choice of the clerk still lay with the landowner. Henry II. maintained, Becket controverted, Alexander condemned this principle; but, despite papal condemnation, it seems to have been steadily upheld by the king’s court, which prohibited the courts Christian from interfering with the right of patronage; and very soon we may find two prelates in litigation about an advowson before the royal justices. In this instance the clergy seem to have given way somewhat easily; both parties were at one in treating the advowson as a profitable, vendible right. Henry’s victory at this point was of the utmost importance in after ages. It distinguishes England from other countries, and provides a base for anti-papal statutes. As regards other matters falling under the present head there was little debate; but it behoves us to notice that our temporal lawyers were thus excluded from some fruitful fields of jurisprudence. The growth of our law of corporations is slow, because our courts have nothing to do with the internal affairs of convents and chapters—the only institutions, that is, which seem to require treatment as fictitious persons; and we might have come by a law of trusts sooner than we did, if the justices had been bound to deal with the administration of revenues given to prelates or convents as a provision for particular purposes, such as the relief of the poor or the maintenance of fabrics.

...

...

The owned church.
Then, as we are beginning to understand, the German has brought with him into the Roman and Christian world the notion that, if he builds a church upon his land, it is his church. If in the days of heathenry he had built a god-house on his land, it would have been his god-house, and he would have made profit out of it. This is the origin of ecclesiastical patronage. The right which from the twelfth century onwards appears as a mere right of patronage, an advocatio or advowson, is in origin an ownership of the soil upon which the church stands and an ownership of any lands or goods that have been set apart for the sustenance of a priest who offers sacrifice at the shrine. By slow degrees, which are now being traced, this church-founder and his heirs have to be taught that they cannot do just what they like with their own; and, for example, that they cannot have their church worked for them by ordained slaves. The bishop will not consecrate the altar unless a sufficient provision of worldly goods is secured for the priest. The owner or patron, whichever we call him, must hand over the church and an appurtenant glebe to the priest by way of “loan.” In modern England it is in this context and this context only that we still know, though only in name, the “land-loan” of the old Frankish world: the parson still has a “benefice,” a beneficium. It is long before the founder’s ownership is whittled down to patronage. We may be fairly sure that the famous ceorl who throve to thegn-right by “having” five hides of his own land, “church and kitchen, bell-house and burhgeat,” was conceived to “have” the church in no very different sense from that in which he “had” the bell-house and the kitchen.338 In Domesday Book the village church is apt to appear as an owned thing if also as an owning person: “There are here a church and seven serfs and one mill”: “There are here a chapel and three serfs and one mill”: “There is one chapel which renders eight shillings”: “Culling the burgess has a church of St. Mary of 26 acres, Leofstan the priest has a church of St. Augustin of 11 acres, Leoflet a free woman had a church of St. Laurence of 12 acres.” Even Bracton must complain that the layman will talk of giving a church when he means that he is giving an advowson. Hence the strongly proprietary element that there is in the right of patronage, an element of which the “religious” take full advantage when they engulf the parish churches in the property of their minsters. Modern ecclesiastical reformers who would curtail such rights as the patron still enjoys may fairly say that they are consummating the work of a thousand years; but they should not talk of “restoration.”

The saint as owner.
The early history of church-property in England has never yet been written, and we cannot aspire to write it. We do not, for example, know how the parish church became an owning unit with rights distinct from those of the bishop and his cathedral church on the one hand and from those of the founder or patron on the other. But there is a supernatural element in the story. Great changes take place behind a mystic veil. At least for the purposes of popular thought and speech, God and the saints become the subjects of legal rights, if not of legal duties. “God’s property and the church’s twelve fold”:—such were the first written words of English law. In the old land-books this notion is put before us in many striking phrases. In the oldest of them the newly converted Æthelbert says, “To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides do I give a portion of my land.”343 The saint is the owner; his church at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. If a man will give land to the chief of the Apostles he should give it to St. Peter and his church at Gloucester, or to St. Peter and his church at Westminster; Justinian himself had been obliged to establish a rule for the interpretation of testaments by which the Saviour or some archangel or martyr was nominated heir and no church or monastery was named. The Anglo-Saxon charters and Domesday Book seem to suppose even a physical connexion between the land given to a saint and the particular church with which it is, or is to be, legally connected; geography must yield to law; the acres may be remote from the hallowed spot, nevertheless they “lie in the church.”345 Just as the earl or thegn may have many manors and a piece of land remote from the manorial centre may “lie in” or “be of” one of those manors, so the saint will have many churches each with land belonging to it. Gradually (if we may so speak) the saint retires behind his churches; the church rather than the saint is thought of as the holder of lands and chattels. When it comes to precise legal thinking the saint is an impracticable person, for if we ascribe rightful we may also have to ascribe wrongful possession to him, and from this we shrink, though Domesday Book courageously charges St. Paul with an “invasion” of land that is not his own. But how is the church conceived? In the first instance very grossly as a structure of wood and stone. Land belongs to a church, is an appurtenance of a church, just as other land belongs to or is appurtenant to some hall or dwelling-house. But, as the saint retires, the idea of the church is spiritualized; it becomes a person and, we may say, an ideal, juristic person.

The saint’s administrators.
All this while there are human beings who are directing the affairs of the saint and the church, receiving, distributing, enjoying the produce of the land. They are the saint’s administrators; they are the rectoresof his church. Some of them, notably the bishops, since their powers of administration are very large, may be spoken of as landholders; but still the land which the bishop has as bishop is hardly his own; when he demands it, he demands it not ut ius suum, but ut ius ecclesiae suae.
...

--------------------------------------------------------------------------------------

The holder of an advowson was known as the patron of the benefice. The holder had the right to nominate a clerk [cleric] to the benefice, and to present the nominee or candidate to the bishop of the diocese [Ius Praesentandi or Ius Patronatus]. If the bishop accepted the candidate he would institute the clerk [cleric] to the benefice, and the clerk [cleric] would become its incumbent. Once an incumbent had been instituted into his benefice, he had the right to enjoy it for the rest of his life.

A resident incumbent was called a rector; he was the pastor or shepherd, spiritual ruler of his parish. He was responsiible for the cure of souls in his parish. Very often those canons of the chapter of a cathedral owned benefices as part of their prebend, income which they had been granted. Unable to be resident, and subject to the licence of the local bishop they could nominate a  vicar to to fulfil their spiritual responsibilities in the parish of their benefice, to fulfil their spiritual duty. A vicar did not own the tithes, but could receive a stipend of a proportion of the annual income from the benefice.

Advowsons were saleable property, and had a market value. If advowsons were sold with their incumbent in place, the new holder could not evict the incumbent. Incumbents could only be deprived of their benefices if it was proved they had failed in the duties or obligations of their advowson, usually praying for the souls of the departed, or ecclesiastical services to their parish and its inhabitants.


References

Michael Burger (2012). Bishops, Clerks, and Diocesan Governance in Thirteenth-Century England: Reward and Punishment. Cambridge University Press. pp. 1–. ISBN 978-1-139-53674-5.

The Advowson: The History and Development of a Most Peculiar Property
Peter M. Smith
Ecclesiastical Law Journal / Volume 5 / Issue 26 / January 2000, pp 320-339
http://dx.doi.org/10.1017/S0956618X00003811

Encyclopaedia Londinensis, or, Universal dictionary of arts, sciences, and literature. Volume XVIII - Article on "Parson". 1821. pp. 642–.


R. H. Helmholz; John Hamilton Baker (2004). "Benefices and The Ius Patronatus"The Oxford History of the Laws of England: The Canon law and ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. pp. 477–. ISBN 978-0-19-825897-1.

CHAPTER IV: England under the Norman Kings - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 [1898]
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2313&chapter=219412&layout=html#a_3513138

CHAPTER II: The Sorts and Conditions of Men - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 [1898]
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2313&chapter=219450&layout=html#a_3513650

"Advowson".  <en.wikipedia.org/wiki/Advowson>

"Advowson."Encyclopaedia Britannica 1911, <www.1911encyclopedia.org/Advowson>

Sloane, C. (1907). Advowson. In The Catholic Encyclopedia. New York: Robert Appleton Company. : http://www.newadvent.org/cathen/01169a.htm

Peter Landau (1975). Jus Patronatus: Studien Zur Entwicklung Des Patronats Im Dekretalenrecht Und Der Kanonistik Des 12. Und 13. Jahrhunderts. Böhlau. ISBN 978-3-412-11575-3.


Liber Extra (Decretales Gregorii IX), ed. E. Friedberg, Corpus Iuris canonici 2 (Leipzig 1881, ...


Decretalium Gregorii papae IX
compilationis
liber II
Titulus I .
De iudiciis.
Capitulum III. [X 2.1.3 Decretal Quanto te]
Causa iuris patronatus spectat ad iudicium ecclesiae. H. dicit specifice et ad literam.

Alexander III. illustri Regi Angliae.

Quanto te divina gratia +[summaque providentia maioris gratiae privilegio decoravit, tanto viros religiosos maiori debes caritate diligere, et in iustitiis suis manutenere propensius et fovere.] Causa vero iuris patronatus ita coniuncta est et connexa spiritualibus causis, quod non nisi ecclesiastico iudicio valeat definiri, et apud ecclesiasticum iudicem solummodo terminari.

How much more so in the divine grace you are, they that fasten them with the utmost care, the greater the privilege of grace, the more you need to love, to love most religious men, and be inclined to act towards them more righteously, to maintain and foster that which is theirs. The reason for which is that the right of patronage is conjoined and so closely connected to spiritual causes, which we accept as only being able to be defined by the judgment of the Church, and solely to be decided by an ecclesiastical judge, .

Wilfred Lewis Warren (1973). Henry II. University of California Press. pp. 542–6. ISBN 978-0-520-02282-9.


The Ius Praesentandi in England from the Constitutions of Clarendon to Bracton
J. W. Gray
The English Historical Review
Vol. 67, No. 265 (Oct., 1952), pp. 481-509
http://www.jstor.org/stable/556132


The Third Lateran Council and the Ius Patronatus in England by Joshua C. Tate [Draft]
Canon Law in English Patronage Disputes

John Mirehouse (1824). A Practical Treatise on the Law of Advowsons. A. Strahan
 

See also

Writ or Assize of Darrein Presentment
Assize of darrein presentment - Wikipedia.
http://en.wikipedia.org/wiki/Assize_of_darrein_presentment.

No comments:

Post a Comment