Advowson

 

 ADVOWSON, or ADVOWZEN (through O. Fr. advouson, from Lat. advocatio, a summons to), the right of presentation to a vacant ecclesiastical benefice, so called because the patron defends or advocates the claims of the person whom he presents.  At what period the right of advowson arose is uncertain; it was probably the result of gradual growth.  The earliest trace of the practice is found in the decree of the council of Orange, A.D. 441, which allowed a bishop, who had built a church in the diocese of another bishop, to nominate the clerk, but not to consecrate the church.  The 123^rd Novel of Justinian, promulgated about the end of the 5^th century, decreed “that if any man should erect an oratory, and desire to present a clerk thereto by himself or his heirs, if they furnish a competency for his livelihood, and nominate to the bishop such as are worthy, they may be ordained.” The 57^th Novel empowered the bishop to examine them and judge of their qualifications, and, where those were sufficient, obliged him to admit the clerk.  In England, for quite two centuries after its conversion, the clergy administered only pro tempore in the parochial churches, receiving their maintenance from the cathedral church, all the appointments within the diocese lying with the bishop.  But in order to promote the building and endowment of parochial churches those who had contributed to their erection either by a grant of land, by building or by endowment, became entitled to present a clerk of their own choice to the bishop, who was invested with the revenues derived from such contribution.  After the Norman Conquest, when the boundaries between church and state were more clearly marked, it became usual for patrons to appoint to livings not only without the consent, but even against the will, of the bishops.

Advowsons are divided into two kinds, appendant and in gross. Originally the right of nominating1 or presenting was annexed to the person who built or endowed the church, but the right gradually became annexed to the manor in which it was built, for the endowment was considered parcel of the manor, the church being built for the use of the inhabitants, and the tithes of the manor being attached to the church.  Consequently where the right of patronage (the right of the patron to present to the bishop the person whom he has nominated to become rector or vicar of the parish to the benefice of which he claims the right of advowson) remains attached to the manor, it is called an advowson appendant, and passes with the estate by inheritance or sale without any special conveyance.  But where, as is often the case, the right of presentation has been sold by itself, and so separated from the manor, it is called an advowson in gross. An advowson may also be partly appendant, and partly in gross, e.g. if an owner granted to another every second presentment, the advowson would be appendant for the grantor’s turn and in gross for the grantee’s.

Advowsons are further distinguished into presentative and collative. In a presentative advowson, the patron presents a clergyman to the bishop, with the petition that he be instituted into the vacant living.  The bishop is bound to induct if he find the clergyman canonically qualified, and a refusal on his part is subject to an appeal to an ecclesiastical court either by patron or by presentee.  In a collative advowson the bishop is himself the patron, either in his own right or in the right of the proper patron, which has lapsed to him through not being exercised within the statutory period of six months after the vacancy occurred.  No petition is necessary in this case, and the bishop is said to collate to the benefice.  Before 1898 there were also donative advowsons, but the Benefices Act 1898 made all donations with cure of souls presentative.  In a donative advowson, the sovereign, or any subject by special license from the sovereign, conferred a benefice by a simple letter of gift, without any reference to the bishop, and without presentation and institution.  The incumbent of such a living was to a great extent free from the jurisdiction of the bishop, who could only reach him through the action of an ecclesiastical court.  The Benefices Act of 1898 did not make any substantial change in the legal character of advowsons, which remain practically the same as before the act.  Briefly, it prevents the dealing with the right of presentation as a thing apart from the advowson itself; increases the power of the bishops to refuse the presentation of unfit persons, and removes several abuses which had arisen in the transfer of patronage.  Under the previously existing law, simony, or “the corrupt presentation of any person to an ecclesiastical benefice for gift, money or reward,” renders the presentation void, and subjects the persons privy or party to it to penalties; a presentation to a vacant benefice cannot be sold, and no clerk in holy orders can purchase for himself a next presentation.  An advowson may, however, be sold during a vacancy, though that will not give the right to present to that vacancy; and a clerk may buy an advowson even though it be only an estate for life, and present himself on the next vacancy.  Under the Benefices Act, advowsons may not be sold by public auction except in conjunction with landed property adjacent to the benefice; transfers of patronage must be registered in the registry of the diocese, and no such transfers can be made within twelve months after the last admission or institution to the benefice.  Restrictions had also been imposed on the transfer of patronage of churches built under the Church Building Acts and New Parishes Acts, and on that of benefices in the gift of the lord chancellor, and sold by him in order to augment others; but agreements may be made as to the patronage of such churches in favor of persons who have contributed to their building or enlargement without being void for simony.

The right of presentation may be exercised by its owner whether he be an infant, executors, trustees, coparceners (who, if they cannot agree, present in turn in order of age) or mortgagee (who must present the nominee of the mortgagor), or a bankrupt (who, although the advowson belongs to his creditors, yet has the right to present to a vacancy).  Certain owners of advowsons are temporarily or permanently disabled from exercising the right which devolves upon other persons; and the crown as patron paramount of all benefices can fill all churches not regularly filled by other patrons.  It thus presents to all vacancies caused by simoniacal presentations, or by the incumbent having been presented to a bishopric or in benefices belonging to a bishopric when the see is vacant by the bishop’s death, translation or deprivation.  Where a presentation belongs to a lunatic, the lord chancellor presents for him.  Where it belongs to a Roman Catholic the right is exercised in his behalf by the University of Oxford if the benefice be situate south of the river Trent, and by that of Cambridge if it be north of that river.  Besides the qualifications required of a presentee by canon law, such as being of the canonical age, and in priest’s orders before admission, sufficient learning and proper orthodoxy or morals, the Benefices Act requires that a year shall have elapsed since a transfer of the right of patronage, unless it can be shown that such transfer was not made in view of a probable vacancy; that the presentee has been a deacon for three years; and that he is not unfit for the discharge of his duties by reason of physical or mental infirmity or incapacity, grave pecuniary embarrassment, grave misconduct or neglect of duty in an ecclesiastical office, evil life, or conduct causing grave scandal concerning his moral character since his ordination, or being party to an illegal agreement with regard to the presentation; that notice of the presentation has been given to the parish of the benefice.  Except by leave of the bishop or sequestrator, the incumbent of a sequestered benefice cannot be presented.  The act also gives to both patron and presentee an alternative mode of appeal against a bishop’s refusal to institute or admit, except on a ground of doctrine or ritual, to a court composed of an archbishop of the province and a judge of the High Court nominated for that purpose by the lord chancellor, a course which, however, bars resort being had to the ordinary suits of duplex querela or action of quare impedit. In case of refusal of one presentee, a lay patron may present another, and a clerical patron may do so after an unsuccessful appeal against the refusal.  Upon institution the church is full against everybody except the crown, and after six months’ peaceable possession the clerk is secured in possession of the benefice, even though he may have been presented by a person who is not the proper patron.  The true patron can, however, exercise his right to present at the next vacancy, and can reserve the advowson from an usurper at any time within three successive incumbencies so created adversely to his right, or within sixty years.  Collation, which otherwise corresponds to institution, does not make the church full, and the true patron can dispossess the clerk at any time, unless he is a patron who collates.  Possession of the benefice is completed by induction, which makes the church full against any one, including the crown.  If the proper patron fails to exercise his right within six calendar months from the vacancy, the right devolves or lapses to the next superior patron, e.g. from an ordinary patron to the bishop, and if he makes similar default to the archbishop, and from him on similar default to the crown.  If a bishopric becomes vacant after a lapse has accrued to it, it goes to the metropolitan; but in case of a vacancy of a benefice during the vacancy of the see the crown presents.  Until the right of presentation so accruing to a bishop or archbishop is exercised, the patron can still effectually present but not if lapse has gone to the crown.

 

AUTHORITIES.---Burn, Ecclesiastical Law; Bingham’s Origines Ecclesiasticae, or, the Antiquities of the English Church; Mirehouse, On Advowson; Phillimore, Ecclesiastical Law.

1 The distinction between nomination to a living and presentation is to be noted. Nomination is the power, by virtue of a manor or otherwise, to appoint a clerk to the patron of a benefice, to be by him presented to the ordinary. Presentation is the act of a patron in offering his clerk to the bishop, to be instituted in a benefice of his gift.  Nomination and presentation, though generally used in law for the same thing must be so distinguished, for it is possible that the rights of nomination may be in one person, and the rights of presentation in another.

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Source: 1911 encyclopedia.