Omnes barones qui fundaverunt abbatias, unde habent cartas regum Angliae, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.
All barons who have founded abbeys for which they have charters of the kings of England, or ancient tenure, are to have the custody of them when they are vacant, as they should have.
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.
Clause 46 is the only one in Magna Carta to be solely concerned with the ecclesiastical rights of laymen (there is also a phrase devoted to the same subject in Clause 53). The descendants of barons who founded religious houses inherited various rights in them, spiritual and secular. They could expect to benefit from their prayers, during their lives and after their deaths, when they were usually buried in them alongside their forebears. They could hope to be able to provide their clerks with livelihoods by appointing them to churches which had been granted to the monasteries of which they were patrons, and they also commonly had custody of those monasteries after the death of an abbot or prior, and had a role (its terms varied greatly) in the choice of his successor. The king enjoyed the same rights in monasteries founded by his predecessors, and also added to them from time to time, permanently when a baron’s lands reverted to him for lack of heirs or through forfeiture, temporarily when a baron died and his lands, with the rights attached to them, came into the king’s hands because the heir was a minor and consequently in his wardship. But this was not always enough for Henry II and his successors, and there is evidence that they regarded themselves as having superior rights over all monasteries described as abbeys, that is, the larger and wealthier houses. When the canons of Woodham Ferrers had their priory made an abbey by Richard I in 1190, their action was bitterly resented by the patron, Geoffrey FitzPeter, who saw it as significantly compromising his own interests there.
King John twice made grants of the crozier (`the pastoral staff’) in terms which suggest that he regarded patronal rights as his to dispose of. When a papal interdict was imposed on England in 1208, he responded with widespread confiscations of monastic property, which he often then placed in the hands of the patrons of the houses concerned, but as an act of royal grace, not as a matter of right. Evidence is scarce for his usurpation of patronal rights in specific cases (there are serious gaps in the records for the period 1208-13), but sufficient to show what could happen. At Kenilworth Priory a disputed election gave John an excuse to impose his own candidate as prior and receive the revenues of the house for several years, ignoring the rights of the patron completely. At Whitby Abbey those rights had come to be shared by two members of the Percy family, one of whom was a royal ward. This gave John the opportunity to exploit all the resources of the abbey, not just half of them, and to present to its churches when these fell vacant. And at Tewkesbury and Keynsham Abbeys, both founded by lords of the honour of Gloucester in the twelfth century, John withheld patronal rights when the lands of the honour were conveyed to Geoffrey de Mandeville, earl of Essex, following his marriage to Isabel of Gloucester, who happened to be the king’s own first wife. If in acting thus John showed that he understood the value of a patron’s rights in a monastery, he also displayed his own insensitivity concerning matters which could have significant emotional appeal as well as economic value. Clause 46 shows that the barons saw their rights in similar terms, and were determined to preserve them.