Saturday, 23 May 2015

Historical notes on Clause 2: Advowsons of the King's Fee


Ecclesiae de feodo domini regis non possunt in perpetuum dari sine assensu et concessione ipsius.
Churches [Advowsons] of the Fee of the Lord King may not be given away in perpetuity without his assent and permission.

King's Fee just means that the estate belonged to the King. In Feudal Law, Fee means an estate in land.  Anyone admitted to the patronage of a king's fee was technically enfeoffed on behalf of the king with the estate.

The Advowson of a church on the king's own estate [fee] held directly by him was exclusively in the king's gift. That no churches in fee of the king should be given away without his consent.

Canon law, however, by the 12th century, decreed that the right to present belonged to the saint to whom the church was dedicated and that only ecclesiastical courts could rule on cases involving advowsons. King Henry II's Constitutions of Clarendon held otherwise, and after Thomas Becket's murder, the king once more ruled that cases involving advowsons should be heard by secular courts [See Clause 1].

The patron saint of a church gives his or her name to the church and is technically called its titularIt has been noted that those who owned advowsons rarely bothered to mention the patron saints in the documents required for institution, and the bishops' registrars seldom cared to record them too. Papal registrars were generally more careful frequently requiring mention of the patron saints in the required documents.

Many legal documents use the wording "conveyance of the advowson and perpetual right of presentation" when transferring an advowson.

The Church was described as a perpetual corporation. Giving it anything would mean losing it forever. Later in 1279 and 290 Statutes of Mortmain were passed by King Edward I to circumscribe the church's holding of property in perpetuity for this very reason.

This principle is also found in the Common Law's Rule against Perpetuities.

From Selden's Janus Anglorum  [English Janus]
Even in the Saxons times it seems it was not lawful, without the Kings favour first obtained, to give away Estates to Monasteries; for so the old Book of Abington says.
A Servant of King Ethelred's called Wulfric Spot, built the Abbey of Burton in Staffordshire, and gave to it all his Paternal Estate, appraised at seven hundred pounds; and that this donation might be good in Law, he gave King Ethelred three hundred Marks of Gold for his confirmation of it, and to every Bishop five Marks, and over and above to Alfric Arch-Bishop of Canterbury, the Village of Dumbleton.
 
Amazingly the pope tolerated this clause.

References

Advowson - Wikipedia

Sloane, C. (1907). Advowson. In The Catholic Encyclopedia. New York


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
Published by: Oxford University Press
Stable URL: http://www.jstor.org/stable/556132

https://books.google.rs/books?id=Pnmw-YFgi_sC&lpg=PP1&pg=PP1#v=onepage&q&f=false


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


Moritz Fortenbach (1749). De Iure Patronatus. Kleyer. pp. 5–.



F. W. Maitland; David Runciman . Maitland: State, Trust and Corporation. Cambridge University Press. ISBN 978-0-521-52630-2.
 
The Third Lateran Council and the Ius Patronatus in England - Tate TLC presentation 1.3.pdf

Nicholas Orme (1996). English Church Dedications: With a Survey of Cornwall and Devon. University of Exeter Press. ISBN 978-0-85989-516-3.

Records of Buckinghamshire, Or, Papers and Notes on the History, Antiquities, and Architecture of the County, Together with the Proceedings of the Architectural and Archaeological Society for the County of Buckingham. Constitutions of Clarendon: J. Pickburn. 1870. pp. 227–42.

Mortmain - Wikipedia

Rule against perpetuities - Wikipedia 

Selden's Janus Anglorum Book 2 Chapters X, XI and XII
The reverse or back-face of the English Janus to-wit, all that is met with in story concerning the common and statute-law of England 
John Selden (1683). Tracts. The Lawbook Exchange, Ltd. pp. 69–. ISBN 978-1-58477-408-2.


Houses of Benedictine monks The abbey of Burton - British History Online  

The Law Journal Reports: Monthly List ... 1852. pp. 853–.
Edmund Hatch Bennett; Chauncey Smith (1854). English Law and Equity Reports. C. C. Little and J. Brown. pp. 418–.
 
Sir Edward Coke (1797). Institutes of the laws of England: containg the exposition of many ancient and other statutes ... Cap V - Advowsons: E. & R. Brooke. pp. 353–. 

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