Content area
Abstract
Historians have long debated the extent to which the early common law of property drew upon concepts from the older ius commune of Roman and canon law. One area that has been given relatively little attention in this debate is the common law of advowsons, or rights of presentation to churches. This dissertation argues that the distinction between ownership and possession, central to Romano-canonical property law, may have played a role in the development of the first two principal advowson writs, one of which (the writ of right of advowson) protected a right roughly analogous to ownership, while the other (the assize of darrein presentment) protected something akin to possession. However, a third writ, the writ of quare impedit, was developed slightly later, and did not fit the Romano-canonical scheme.
By creating the writ of quare impedit, Chancery filled a gap in the existing common law to benefit religious houses that had received advowsons by gift. Soon afterward, however, the royal courts adopted two significant rules that prevented some donees from successfully recovering their advowsons: the rule of subsequent presentation and the rule of subsequent transfer. Both rules limited the ability to claim advowsons on the basis of written evidence, and thus protected lay patrons from losing their advowsons due to forgery. Taken together, the early common law of advowsons seems to reflect an intentional balance between two competing interests: the king's lay subjects and the religious houses.
