Advowson

(Lat., advocatio; Old Fr., avoëson).

In English law the right of patronage of a church or ecclesiastical benefice, a right exercised by nomination of a clergyman to such church or other benefice. English law recognizes two kinds of advowsons, presentative and collative. Until the year 1898 there was also a third kind, known as advowson donative.

I. In the very early Saxon period parishes and dioceses in England were coterminous, each bishop residing with his clergy at his Cathedral church. The clergy went forth to distant regions of the diocese, preaching and administering the sacraments. But all tithes and oblations were brought into a common fund for support of the bishop and clergy, repair of churches and other works of piety and devotion. In course of time parochial churches arose, in some places through the liberality of the inhabitants, in other places by the action of the bishops themselves. By the eighth century, it is said, great lords, such as the lords of manors, had begun to build and endow churches for the use of their families and tenants, or friends. Bishops would permit the founder of a church to nominate its resident priest; and, moreover, consented that, contrary to the ancient custom, the use of its income should be restricted to such a church. But as the Bishop's permission was required for the erection of a church, he had to pronounce upon the sufficiency of its endowment unde digne domus Dei sustentaretur (that the house of God should thereby be worthily supported), and the nominee was to be presented to him and approved of by him. The right of presentation constituted an advowson presentative. In those rude ages there followed on this right to nominate, the duty to defend, to become advocatus or advowee, champion or protector of the church of which the patron had named the incumbent. About the year 800 these lay foundations had become common. Moreover, monasteries were often vested with advowsons by act of their founders or benefactors. After the Norman conquest, French or Norman monasteries might hold the advowsons of English parishes. And when at the time of the Reformation the English monasteries were suppressed their advowsons passed with their estates to the lay beneficiaries of the suppression.

II. Advowsons donative were recognized by the law of England until 1898. A statute of that year made all such advowsons presentative. The owner of an advowson donative possessed by law extraordinary privileges. His right of patronage was exercised without presentation of his nominee to the bishop. The latter had not, as in advowsons presentative, the right of institution; that is, the right of conveying or committing the cure to the incumbent; nor the right of induction; that is, of issuing a mandate inducting the incumbent into possession of the church, with its rights and profits. The patron had sole right of visitation, and sole right to deprive the incumbent, and to the patron any resignation of the charge was to be made.

III. An advowson collative is an advowson held by a bishop; who is said to confer the benefice "by the one act of collation", remarks Sir William Blackstone. For, the same authority explains, as the bishop cannot present to himself, he does, by this one act, "the whole that is done in common cases by both presentation and institution" (Commentaries, II, iii, 22). Advowsons began to be regarded as a kind of property at about the period of the Norman conquest. From the spiritual point of view an ecclesiastical preferment was a duty, a cure of souls, with endowment for support of him to whom this spiritual duty or trust was confided, but from the English legal point of view the preferment (subject to performance of parochial duties) was a benefice enjoyed by the incumbent, who, to quote a reported law case of the year 1303, took the "great tithes, small tithes, oblations, obventions, and other kind of issues." (See Year Books of the reign of King Edward the First, ed. and tr. by Alfred J. Horwood, London, 1863, 31 Edward I, 338.)

English law rejected the view that presentation was "a personal, Spiritual trust" (Mirehouse v. Rennell, 8 Bingham's Reports, 490, p. 491), admitting the object of the advowson to be of a spiritual nature, but holding the advowson to be a temporal estate of inheritance with presentation as its mode of enjoyment, profit or rent. The canonical qualifications of the clergyman nominated are to be passed upon by the bishop in the instance of a lay advowson presentative. But the exercise of the right of nomination is subject to the King's Courts only. Writs even of the reign of King Henry the Second (1154-89) recited "lites de Advocationibus ecclesiarum ad Coronam et dignitatem meam pertinent." And after the Reformation the king was declared by law to be "the supreme ecclesiastical authority." As to nomination; "The incorrupt exercise of the trust is secured," remarks an English judge, "by the penalties against simony, and the selection of a fit clerk by the examination of the ordinary", (See 8 Bingham's Reports, 527.) Dr. Samuel Johnson expresses what had doubtless become the rule as to this examination when he states that "the bishop has no power to reject a man nominated by the patron, but for some crime that might exclude him from the priesthood." (Boswell; Life of Johnson, ed. G. B. Hill, Oxford, 1887, II, 243.)

An advowson, regarded by the law as property, is termed an incorporeal hereditament, "a right issuing out of a thing corporate." It is a marketable property, which may be granted by deed or will, which passes by a grant of all lands and tenements, and which may, therefore, become the subject of litigation. Blackstone, extolling King Edward the First as "our English Justinian", mentions among the king's achievements his having "effectually provided for the recovery of advowsons as temporal rights" (Commentaries, IV, xxxiii, 425, 426). And in the law reports of this king's reign we find a bishop sued by a prior whose nominee the bishop had refused, pleading that the prior's nominee was not suitable for reasons which are specified to the court, the bishop thus seeming to submit (at least, to some extent) the propriety of his acts to the court's judgment. (See Year Books already cited. 32 Edward I, 30, 1304.)

The right of presentation which, originally, was conferred on a person building or endowing a church, appears to have become, by degrees, "appendant to the manor in which it was built" (8 Bingham's Reports, 491), and, therefore, termed an advowson appendant. And the boundaries of manors became the boundaries of parishes. But in many instances advowsons passed from owners of land to other private persons, or to lay or ecclesiastical corporations. Advowsons thus severed from ownership of land are termed advowsons in gross. There are in the Church of England more than 13,000 benefices; of these, in or about 1878, private persons held the advowsons of some 7,000, and bishops, of only about 2,324, the remainder being divided among deans and chapters, the universities, and parochial clergy. The ancient duty of protection, or championship, ceased, long since, to attach to the right of presentation. An advowson may apparently be held by a Jew, if he be owner in his own right, and not merely in an official capacity. But no Roman Catholic or alien may exercise the rights of a patron or present to a living in the Church of England. To the king, as patron paramount of all benefices in England, belongs the right of presenting to those benefices to which no other person has a right of presentation.

MIREHOUSE, A Practical Treatise on the Law of Advowsons (London, 1824); STEPHEN, New Commentaries on the Law of England (14th ed., London, 1903), II, 681-685; BINGHAM, Reports (anno 1832), VIII (case of Mirehouse v. Rennell); MURRAY, A New English Dictionary on Historical Principles (New York, 1888), s.v.; GLANVILLE, Tractatus De Legibus et Consuetudinibus Regni Angliae (London, 1780); PHILLIMORE, The Ecclesiastical Law of the Church of England (London, 1895); FREEMAN, The History of the Norman Conquest o7 England (New York, 1876) V, 336 337; IDEM, The Reign of William Rufus and The Accession of Henry the First (Oxford, 1882), I, 420.

CHARLES W. SLOANE