LECTURE VIII.

Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum Gastaldiæ Feudum mercedis—Incorporeal benefices in England—Advowsons—Presentative advowsons—Collative advowsons—Donatives.

In the preceding lecture I began to treat of the several kinds of improper benefices, which are transferable only by the improper investiture, or, as the English law says, lie in grant; intending only to illustrate their general nature, without descending minutely into particulars; and of these I have already mentioned the feudum de camera, and that de cavena. I call these fiefs, even at the time I am now treating of, in conformity with the practice of the feudal writers: not with strict propriety, indeed; for feudum, properly speaking, signifies a tenure of inheritance, and such were not yet introduced. But before I quit them, it will be proper to take notice of some subdivisions of them, to be met with in the feudal writers.

I have already observed they were either gratuitous or officious, that is, without future service, or with it. Of the first kind there were two species, that called feudum soldatæ, from the word solidus, which signified a piece of money, and was a gratuitous pension, granted either out of the charity or bounty of the lord, or in reward of past services; the other called feudum habitationis; which is liberty of dwelling in an house belonging to the lord, in whom the property still doth, and the possession is still supposed to remain[125]. Of the officious ones Corvinus mentions three kinds, feudum guardiæ, feudum gastaldiæ, and feudum mercedis.

The feudum guardiæ hath annexed to it the defence of a castle, for the security of the realm; and this differs from the castle guard I have before mentioned, in as much as that, where lands were given for the defence of the castle, it was a corporeal benefice, and transferred by livery and seizin; namely, by admitting the constable into the castle, and delivering him the key thereof, and was an improper one only in respect of its duration, as, in the early times, it continued only a year; but this I am now speaking of was a pension, paid out of the king’s exchequer for the same purpose; and was of the same nature with the modern salaries of governors of garrisons[126].

The feudum gastaldiæ was a pension granted to a person for transacting the lord’s business, as for being his treasurer, steward, agent, or receiver. The feudum mercedis was in consideration of being an advocate or defender of the lord. Such are grants to lawyers pro consilio impendendo; and the salaries of the king’s lawyers, and the solicitors for the crown[127].

I shall next run over briefly the several kinds of incorporeal benefices which the law of England takes notice of, and explain their general nature. And the first I shall take notice of is an advowson, which is a right a man hath of nominating a proper person to fulfil the duties, and to receive the profits of an ecclesiastical benefice. These rights arose thus. In the infancy of the christian church, when the clergy were supported by the voluntary contributions of the people, the bishop was chosen by the clergy and people at large; and this method was so firmly established, that when the emperors became christians, although they made great donations of lands to the church, yet they left the manner of election as they found it; and so it continued in Rome until the year 1000 at least. But these elections, made by the giddy multitude, were the occasions of infinite disorders. The value of these offices being encreased, and the manners of the ecclesiastics corrupted by the accession of riches; parties and factions were eternally forming, and supported by all methods; and when a vacancy happened, the contest was frequently not decided without bloodshed. It is no wonder that all the sober part of the clergy, who were scandalized at these irreligious practices, and the emperors, who were concerned in the peace of their dominions, concurred in remedying these evils; which was at length effected by excluding the laity, gradually, and by insensible degrees, and confining the election to the ecclesiastics. Many of the emperors, indeed, struggled hard to get the nomination to themselves, but the clergy proving too powerful for them, they obtained, at most, but a power of recommendation[128].

In the northern kingdoms the same causes produced the same effects, as to the exclusion of the laity, but with more advantageous circumstances to the rights of these princes. For as the lands they gave to the bishops in right of their churches were held of them, so they gave the investiture; and there was a kind of concurring right between the clergy, who elected, and the king. He insisted on his right of giving the investiture, but generally received their nominee, and granted it to him.

But after the time of Charles Martel, when the clergy were stripped of most of their lands, things took a different turn. For when new grants were made to the church by the king, he insisted, as feudal lord, on the absolute nomination, and the giving investiture, by delivering the staff or crosier, the emblem of his pastoral care, and the ring, the symbol of his spiritual marriage with the church; but these rights were opposed by the clergy, who were strongly supported by the popes then setting up for being the feudal lords of all churchmen, and who hoped to derive, as they did, great advantage from these dissentions. From the year 1000 to 1200, great confusion subsisted throughout all Europe, occasioned by these contests, until the popes in general prevailed; but for four hundred years past, and particularly since the reformation, their power hath been on the decline; and from this last period the patronage or advowson of bishoprics hath been confessedly in our king, as hath been the case in several other kingdoms; and though in England a form of election is still retained, it is no more than a mere form[129].

The advowson, or patronage of inferior benefices, came in another way. In order to understand this, let us consider how dioceses came to be subdivided into parishes. Antiently, I mean about the year 420, the bishop had the sole cure of souls throughout his whole district, and received all the profits of it; which he and the clergy distributed into four parts, not exactly equal ones; but unequal, according to the exigences of the several interests to be considered; one to the bishop, to maintain hospitality, and support the clergy residing with him, and the Christians of other places, who were often forced to fly from persecution, or travelled on their necessary concerns; one for the building and repair of churches; one for the poor, and one to support the inferior clergy, whom the bishop used to send to particular places, as his deputies, and to remove or recal at his pleasure. The clergy who lived in the city where the bishop resided, were supported by him in a collegiate way at first; until at length their particular shares were ascertained, and carved out of the general revenue of the church; and this was the origin of chapters [130].

To return to the country clergy. The manner in which they came to have settled establishments was thus: It was usual, as soon indeed as tithes were established as a law, that is, before or about the time of Charlemagne, for the bishop to allocate to his vicar or curate in any district, the whole, or a part of the tithes or other profits arising there; but when England, France, and other countries were ravaged by the Danes and Normans, the fury of these barbarous heathens fell particularly on the ecclesiastics. Their churches they burned, and themselves they slaughtered without mercy; insomuch that, when their devastations ceased, there ensued not only a great scarcity of clergymen, but such a want of means of proper support for them (the old estates of the church having been turned into military fiefs) that the feudal lords were willing, for the sake of having divine service performed in their districts, for the benefit of themselves and their vassals, to alienate part of their lands to the church, which was then in indigence, for the purpose of building houses for the parson, and providing a competent glebe for him, and also for building new churches where they were wanted. Altho’ alienation was at this time entirely disallowed by the feudal customs, yet the necessity of those times prevailed against it in those instances, especially as these superstitious people attacked, or ready to be attacked by an heathen enemy, thought the lands so given to be really given for military service, as they were given for the service of God, the Lord of Hosts, who was to speed their arms. However, the circumstances and opinions of that age would not allow any grant, without an acknowledgment of the superiority of the grantor; nor allow any lord to give any grant materially detrimental to his military fief. Hence, as an acknowledgment that the lands so granted to the church proceeded from the bounty of the Lord, he was allowed to nominate a clergyman to the bishop; who, if he was qualified, was obliged to admit him. But as the patron might present an improper person, and such an one as the bishop must be obliged in conscience to reject; and might do this repeatedly, for any considerable length of time, during which the duties of religion would be neglected, it was, in after times, settled, in all countries, that the right of the patron’s presentation should last only a limited time. In our countries it is six months; after which time lapsed from the vacancy, the bishop’s original right of nomination revives[131].

But the customs of those ages not admitting of the alienation of any part of a military tenure, but what was absolutely necessary, it followed that these glebes were far from being sufficient for the maintenance of a parson. These grants, therefore, were not made without the consent of the bishop, to allocate, in aid of the glebe, the tithes of that precinct, to the use of the parson. And now the parson began to have a permanent interest for life in his parish, and a permanent cure of souls therein; but not exclusive of the cure of souls in the bishop, who was concomitant with him in that point, though not in the profits. For when the bishop, for the good of the church, appropriated a part of the revenues of the church to a particular person and his successors, which, for the public good, he was allowed to do, he could not, however, divest himself, or his successor, of that general cure of souls through his whole district, which was the essence of his office. As the parson, therefore, though named by a layman, was his deputy, he was in truth (to speak by way of accommodation) his feudal tenant. From him he received institution, which is the improper investiture; to him he gave the oath of canonical obedience, which is equivalent to the oath of fealty; and by him, or persons appointed by him, he was inducted into his church, that is, had livery and seizin given him[132].

This was the origin and nature of presentative advowsons, in which, though a matter ecclesiastical, the lay patron was allowed to have a temporal and a valuable interest: inasmuch as it might serve for a provision of one of his children, or any other relation that was qualified for it; and consequently be an ease to him; and as, at the time that these glebes were granted, most fiefs were hereditary, at least none were suffered to be granted but by those who had such (because the lord superior might else be disinherited) this right of advowson presentative descended to the heir. The church in its distress exceedingly encouraged and fostered these rights for a time; but when her circumstances changed, and, in ages when profound ignorance prevailed both among the clergy and laity, many were the attempts to deprive the laity of their rights, and many the exclamations against the impropriety and impiety of such persons pretending to name any one to an holy office. But I do not find they ever thought of restoring to the laity the glebes, in consideration of which, for the necessities of the church, those rights were first allowed.

Thus much for presentative advowsons, which, I hope, from what hath been already observed, will be sufficiently understood for the present. I now must proceed to collative advowsons, namely, those given by the bishop, which were of two kinds; either absolutely in his own right, or by lapse, when the patron neglected to present; which was in truth but a devolution of the antient right he had parted with, to him; and therefore, as there is no substantial difference, they may well be treated of together. As the bishop in the case of lapse, collates, that is, institutes in his former right in default of the person who had the right of presentation, I observed before, that the bishop had used to grant to the country clergy a part or the whole of the tithes of the precincts they served in; but when once, by the allowance of presentative advowsons, parsons had got freeholds in them, the example became contagious, and much to the benefit of the church. Those parts of the diocese which still remained in the bishop’s hands were divided into parishes; and the tithes of them, or at least a considerable part of them, were assigned to the minister for his life. I need observe no farther of these, than to say, that they differed no otherways in their nature from the last mentioned, than that, as a patron had nothing here to do, there was no presentation, and that collation is, in the case where the bishop hath the sole right, what is called institution in the case of a clerk presented.

The third and last kind of advowsons are those called donatives, in the giving seizin of which the bishop hath nothing to do, such livings being privileged, and exempt from the jurisdiction of the bishop, and visitable by the patron only. How these exemptions arose, when, at first, every place was a part of a diocese, and of the bishop’s cure of souls, it will be worth while to inquire. The bishops of Rome, aided by their great riches, and the fall of the western empire, did, by pursuing a settled plan for many hundred years, with the greatest art and unshaken perseverance (temporizing indeed when the season was unfit, but never giving up expressly any point that had been claimed) at length, instead of being the first bishops in rank, attained to a jurisdiction over all the west, and claimed a general cure of souls, which made the bishops, indeed, but pastors under them. However, conscious of their usurpations, in order to establish them, it was necessary to depress the episcopal order.

They began first with dismembering bishoprics, in order to found new ones, on pretence of the churches being better served; and this they did principally in Italy, where their influence was most extensive; and that with a view, by having a greater number of votes, to over-rule the determination of the general councils. They did the same, but more sparingly, for the reason aforesaid, in other countries, with the sovereigns; who, in these cases, were really actuated by the motive of advancing the public good, and promoting religion. The next step was more decisive. Their authority being now established, they took occasion, on several pretences, to exempt from the jurisdiction of the bishops, several places within their dioceses, which they kept immediately under themselves, to which they appointed clerks by this way of donation, and whom they visited by their legates, as their immediate ordinary. The clergy, thus provided for, served as faithful servants and spies to the pope, in all parts of the christian world, and were, next to the monasteries, the firmest support of his power. The same practice they pursued with respect to bishoprics, by exempting several of them in divers places from the archbishop of the province. And this was the origin of donatives. But, in order to shew the plenitude of their power, the next step they took was of a higher strain. They not only founded donatives for themselves, but for others, even of the laity; shewing by this, that all ecclesiastical jurisdiction and discipline was entirely subject to their will, and that, at pleasure, they could transfer it to hands before judged incapable of it.

These two kind of donatives still subsist in England, the latter in the hands of subjects, the former of the king as supreme ordinary, since the pope’s usurped power was transferred to Henry the Eighth. I am sensible many common lawyers insist that the king of England was always supreme ordinary, and that nothing new was gained at that time, but only his old authority, which the pope had usurped, restored to him. But what shall we say to the first fruits and tenths; which are certainly papal impositions, and comparatively of a modern date. The same I apprehend to be the case of the ordinary jurisdiction. As to the supreme patronage, I allow it was, originally, the king’s. My reason is, that I do not find in the antient church any trace of a layman solely exercising ecclesiastical jurisdiction, or enacting laws for the church[133].

In the apostolic times all things were transacted by the faithful at large; in the next age, they fell into the hands of the clergy, all excepting the election of bishops, and approbation of clergymen. After the emperors became christians, they published indeed ecclesiastical laws, but that was only giving the sanction of the imperial power to the canons the church had made; whose censures, when there were such multitudes of new and counterfeit converts, were likely to have little weight. In the northern nations the case was the same. Canons were made by the clergy, and these were often enforced and turned into obligatory laws by their general assemblies, who had the legislative authority; and if there are any instances in those times of laymen exercising ecclesiastical discipline as ordinaries, I own they have escaped me. I speak merely of ecclesiastical discipline: for as to things of a temporal concern, such as wills, administrations, marriages, tithes, &c. the authority undoubtedly was from the king. But not as to matters entirely spiritual, such as concern the salutem animæ [134].

I think therefore the king’s title to be supreme ordinary, stands better settled on the parliamentary declaration, and on the reason of the thing, that all coercive power should be derived from him, whom God hath made the superintendant; than on the assertions of lawyers, that it always was so. Matters of fact are to be determined by evidence, not by considering what ought to have been; and we need not be surprized to find, that an ignorant and superstitious people allowed practices, and a division of power in themselves unreasonable.

In these donatives there was neither institution nor induction. The patron gave his clerk a title by deed, on which he entered; for the plenitude of the papal power supplied all forms. The patron was the visitor, and had the power of deprivations; but what clearly shews, in my apprehension, that these donatives were incroachments on the episcopal authority, is, that, if once a common patron (for the king was saved by his prerogative) had presented his clerk, and he got institution and induction, the donative was gone for ever. The living became presentative, and the bishop’s jurisdiction revived.

I should next proceed to tithes, another kind of incorporeal benefice; but this would carry me too great a length for the present discourse.