these tenures, all others were for the life of the grantor and grantee at
most, yet when the others became perpetual, these continued long after
to be only for the joint lives of the grantor and grantee, namely, as
long as kings and great lords were considered as tenants for life, and
incapable of alienating their demesnes, or laying any permanent charge
upon them. But when, by the frequency of the example of alienations,
and by the occasional indigence of the kings and other lords, and the
desire designing persons had to take advantage of it, alienations of the
demesnes were once introduced, to the prejudice of the successor, these
grants, as was very natural, as they were less hurtful than an absolute
alienation, were continued for the life of the grantee, though the
grantor had died before[124].
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.
LECTURE IX.
_Tithes—The voluntary contributions of the faithful, the
original revenue of the church—The establishment of regular
payments—The appropriations of the church—The history and
general rules of tithes in England._
The next kind of incorporeal benefices taken notice of by the law of
England, that I shall mention is _tithes_; the New Testament, as well
as common reason, says, that _they who serve by the altar, should live
by the altar_; but is silent as to the manner in which this support
should arise. In the very first times, when their numbers were but few,
and those confined to Jerusalem and its neighbourhood; the christians
sold all they had, and lived out of the common stock. But this lasted
a very short time. When they increased to multitudes, that method was
found impracticable, so that each retained his possessions, and gave a
voluntary contribution out of it at his discretion. This was the fund
of the church; and in those times of fervent zeal in the laity, and
simplicity of manners in the clergy, it was found abundantly sufficient,
not only to support the ministers, and their own power, but also to build
churches, and to do many acts of charity to some of the pagans.
The revenues of the church went on continually encreasing to the time
of Constantine; and though by the Roman laws, no _colleges_, as they
called them, that is, communities or fraternities, unless they had the
sanction of the imperial authority, could accept legacies or donations,
yet, such was the devotion of the times, that many such private grants
were made; and the principal churches obtained great acquisitions,
not only in moveable goods, but in landed estates; insomuch that some
of the persecuting emperors were thought to be as much instigated to
their cruelties by avarice, as by their blind attachment to their pagan
superstition[135].
In the fourth century, the restraint being taken away, these largesses
from the rich and superstitious, to the church became much greater; but
the general voluntary contributions from all who could spare, diminished,
the apparent necessity for them being lessened; and the zeal of the
people, which persecution had kept warm and fervent, slackened from ease
and security. The bishops, who were the distributers, prided in vying
with each other in the magnificence of their churches; and, being now
raised to an eminent rank in the state, were not satisfied to live in
such a manner as contented the simplicity of the antient fathers of the
church; so that by the year 400, the inferior clergy and the poor were,
in many places, but in very scanty circumstances. This induced many of
the pious to fix upon a certain rate out of their own annual gains to
supply these necessities, and as the tenth was what had been assigned to
the Levites in the mosaical law, that generally became the proportion.
But as the payments of those tithes were purely voluntary, so did the
givers appropriate them in such manner as they pleased, and as they
thought they were most wanted[136].
In Egypt, where, it seems, this practice began, they were commonly
given to the monks, who had devoted themselves to a religious poverty;
in Illyricum generally to the poor; in other places to the inferior
clergy of such a district, or, if the church itself was indigent, to
the bishop, for the use of his church. The famous preachers about this
time, particularly St. Ambrose and St. Augustine, inforced this practice
with all their eloquence, and insisted on the levitical law of tithes
as binding on christians. This had great, but not general effects. Some
gave the tithe, others, of more zeal, gave more, and others less; and
though these contributions began now to be aided by the spiritual arms of
excommunication, yet were these only used to oblige a man, in testimony
of his being a christian, to make some offering, not to pay precisely the
tenth, or any other portion[137].