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equally fufficient to pass them, except in the inftance of water; by a grant of which, nothing paffes but a right of fishing but the capital distinction is this; that by the name of a castle, meffuage, toft, croft, or the like, nothing else will pass, except what falls with the utmoft propriety under the term made use of; but by the name of land, which is nomen generaliffimum, every thing terrestrial will pass 1.
g Co. Litt. 4.
ǹ Ibid. 4, 5, 6.
CHAPTER THE THIR D.
OF INCORPOREAL HEREDITAMENTS.
N incorporeal hereditament is a right iffuing out of a thing corporate (whether real or perfonal) or concerning, or annexed to, or exercifible within, the fame 2. It is not the thing corporate itself, which may confift in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to thofe jewels. In fhort, as the logicians speak, corporeal hereditaments are the fubftance, which may be always feen, always handled: incorporeal hereditaments are but a fort of accidents, which inhere in and are fupported by that fubftance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abftracted contemplation; though their effects and profits may be frequently objects of our bodily fenfes. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for inftance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we confider the pro
a Co. Litts 19, 20.
duce of them, as the tenth fheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments for they, being merely a contingent springing right, collateral to or iffuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till fevered, capable of being fhewn to the eye, nor of being delivered into bodily poffeffion.
INCORPOREAL hereditaments are principally of ten forts; advowfons, tithes, commons, ways, offices, dignities, franchifes, corodies or penfions, annuities, and rents.
I. ADVOWSON is the right of presentation to a church, or ecclefiaftical benefice. Advowfon, advocatio, fignifies in cli entelam recipere, the taking into protection; and therefore is fynonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demefnes, and appointed the tithes of thofe manors to be paid to the officiating minifters, which before were given to the clergy in common, (from whence, as was formerly mentioned, arose the divifion of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating fuch minifter as he pleafed (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron".
THIS inftance of an advowson will completely illuftrate the nature of an incorporeal hereditament. It is not itself the bodily poffeffion of the church and it's appendages; but it is a right to give some other man a title to fuch bodily poffeffion. The advowfon is the object of neither the fight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal poffession be
b Vol. I. pag. 112.
This original of the jus patronatus, by building and endowing the church,
appears alfo to have been allowed in the Roman empire. Nov, 26. t. 12. c. 2. Nov. 118. c. 23.
had of it. If the patron takes corporal poffeffion of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to these the parfon has an exclufive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invifible mental transfer and being fo vested, it lies dormant and unnoticed, till occafion calls it forth when it produces a vifible, corporeal fruit, by entitling fome clerk, whom the patron fhall please to nominate, to enter and receive bodily poffeffion of the lands and tenements of the church.
ADVOWSONS are either advowfons appendant, or advowfons in grofs. Lords of manors being originally the only founders,` and of course the only patrons, of churches, the right of patronage or prefentation, fo long as it continues annexed to the poffeffion of the manor, as fome have done from the foundation of the church to this day, is called an advowson appendant and it will pafs, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowfon in grofs, or at large, and never can bẹ appendant any more; but is for the future annexed to the perfon of it's owner, and not to his manor or lands &.
ADVOWSONS are also either presentative, collative, or donative. An advowfon prefentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to inftitute his clerk, if he finds him canonically qualified: and this is the most ufual advowfon. advowfon collative is where the bishop and patron are one and the fame person: in which case the bishop cannot prefent to himself; but he does, by the one act of collation, or con
d Co. Litt. 119.
f Ibid. 307.
g Ibid. 120.
ferring the benefice, the whole that is done in common cafes, by both presentation and inftitution. An advowfon.donative is when the king, or any fubject by his licence, doth found a church or chapel, and ordains that it fhall be merely in the gift or difpofal of the patron; fubject to his visitation only, and not to that of the ordinary; and vested abfolutely in the clerk by the patron's deed of donation, without prefentation, inftitution, or induction, This is faid to have been antiently the only way of conferring ecclefiaftical benefices in England; the method of inftitution by the bishop not being established more early than the time of arch-bishop Becket in the reign of Henry II . And therefore though pope Alexander III', in a letter to Becket, feverely inveighs against the prava confuetudo, as he calls it, of inveftiture conferred by the patron only, this however fhews what was then the common ufage. Others contend, that the claim of the bishops to inftitution is as old as the firft planting of christianity in this ifland; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the third, recorded by Matthew Paris", which speaks of presentation to the bishop as a thing immemorial. The truth feems to be, that, where the benefice was to be conferred on a mere layman, he was firft prefented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vefted in him by the fole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclefiaftical benefices, and, in confequence of that, began to claim and exercise the right of inftitution universally, as a species of spiritual inveftiture.
HOWEVER this may be, if, as the law now ftands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and inftituted, the ad
i Co. Litt. 344.
* Seld. tith. c. 12. §. 2.
1 Decretal. l. 3. t. 7. c. 3a