Droit de Regale

( jus regaliœ, jus regale, jus deportus; German Regalienrecht )

Droit de Regale originally denoted those rights that belonged exclusively to the king, either as essential to his sovereignty ( jura majora, jura essentialia ), such as royal authority; or accidental ( jura minora, jura accidentalia ), such as the right of the chase, of fishing, mining, etc. By abuse, many sovereigns in the Middle Ages and in later times claimed the right to seize the revenues of vacant sees or imperial abbeys, and gradually jus regaliœ came to be applied almost exclusively to this assumed right, It is a matter of dispute on what ground the temporal rulers claimed these revenues. Some hold that it is an inherent right of sovereignty; others, that it is a necessary consequence of the right of investiture ; others make it part of the feudal system; still others derive it from the advowson, or right which patrons or protectors had over their benefices. Ultimately, it had its origin in the assumption that bishoprics and imperial abbeys, with all their temporalities and privileges, were royal estates given as fiefs to the bishops or abbots, and subject to the feudal laws of the times. At first the right was exercised only during the actual vacancy of a see or abbey, but later it was extended over the whole year following the death of the bishop or abbot. Often the temporal rulers also claimed the right to collate all the benefices that became vacant during the vacancy of a diocese, with the exception of those to which the care of souls was attached.

It is difficult to determine when and where the jus regale was first exercised. In the Western Frankish Empire it made its first appearance probably towards the end of the Carlovingian dynasty, that is, in the course of the tenth century. The first historical mention we find of it is in connexion with King William II (Rufus) of England, who, after the death of Lanfranc in 1089, kept the archiepiscopal See of Canterbury vacant for more than three years, during which period the king seized all the archiepiscopal revenues. During the reign of Henry II (1154-89) it had become an established practice for the King of England to take possession of the revenues of all vacant dioceses. That the pope did not recognize the right is manifest from the fact that Alexander III condemned article 12 of the Council of Clarendon (1164), which provided that the king was to receive, as of seigniorial right ( sicut dominicos ), all the income ( omnes reditus et exitus ) of a vacant archbishopric, bishopric, abbacy, or priory in his dominion ( Mansi, XXI, 1195). In 1176 Henry II promised the papal Legate never to exercise the right of regalia beyond one year. With the exception of a few short periods, the right continued to be exercised by the English kings until the Reformation. Even at present the English Crown exercises it over the temporalities of vacant ( Anglican ) dioceses.

In Germany Henry V (1106-25), Conrad III (1138-52), and Frederic I (1155-89) are known as the first to have claimed it. Frederic I exercised it in its utmost rigour and styles it "an ancient right of kings and emperors" (Lacomblet, "Urkundenbuch für die Geschichte des Niederrheins", I, 288). King Philip of Suabia reluctantly renounced it, together with the jus spolii to Innocent III in 1203 (Mon. Germ.: Const. II, 9). Otho IV did the same in 1209 (ibid., 37). King Frederic II renounced it to Innocent III, first at Eger, on 12 July, 1213 (ibid., 58, 60), then in the Privilege of Würzburg, in May, 1216 (ibid., 68), and again to Honorius III, at Hagenau, in September, 1219 (ibid., 78). In 1238 he began to exercise it anew (ibid., 285), but only during the actual vacancy of dioceses, not for a whole year, as he had done previously. After the death of Frederic II the claims of the German Emperors to this right gradually ceased. At present the revenues of vacant dioceses in Prussia go to the succeeding bishop ; in Bavaria, to the cathedral church ; in Austria, to the "Religionsfond".

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In France we find the first mention of it during the reign of Louis VII, when, in 1143, St. Bernard of Clairvaux complains, in a letter to the Bishop of Palestrina, that in the Church of Paris the king had extended the droit de régale over a whole year (ep. 224, P. L, CLXXXII, 392). Pope Boniface VIII, in his famous Bull, "Ausculta fili", of 5 December, 1301, urged Philip the Fair to renounce it, but without avail. In France the right did not belong exclusively to the king: it was also exercised by the Dukes of Normandy, Bretagne, and Burgundy, and by the Counts of Champagne and Anjou. Entirely exempt from it were the ecclesiastical provinces of Bordeaux, Auch, Narbonne, Arles, Aix, Embrun, and Vienne, The Second Council of Lyons (1274) forbade anyone, under pain of excommunication, to extend the jus regaliœ over any diocese which was at that time exempt from it ( Mansi, XXIV, 90), and in 1499 Louis XII gave strict orders to his officials not to exercise it over exempt dioceses. Towards the end of the sixteenth century the restriction of the Council of Lyons began to be disregarded, and on 24 April, 1608, the Parliament decided that the king had the droit de régale over all the dioceses of France ; but Henry IV did not carry this parliamentary decision into effect. On 10 February, 1673, Louis XIV issued a declaration, extending the droit de régale over all France. The Parliament was pleased, and most bishops yielded without serious protest, only Pavilion, of Alet, and Caulet, of Pamiers, both Jansenists, resisting. These at first sought redress through their metropoiltans, but when the latter took the king's side they appealed, in 1677, to Innocent XI. In three successive Briefs the pope urged the king not to extend the right to dioceses that had previously been exempt. The General Assembly of the French clergy held at Paris in 1081-2 aided with the king, and, despite the protests of Innocent XI , Alexander VIII, and Innocent XII, the right was maintained until the Revolution. Napoleon I attempted to restore it in a decree dated 6 November, 1813, but his downfall in the following year frustrated his plan. In 1880 the Third Republic again asserted the right, overstepping even the limits of its former application.

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