Folia Theologica et Canonica 9. 31/23 (2020)

Ius canonicum

THE ORIGIN AND SPREAD OF PARISHES

83

of the Middle Ages, but it was not unknown in the Roman world either;65 it meant that lay lords appointed the clergy in their churches, sometimes without any involvement of the bishop at all. In addition, it was not uncommon for the clerics appointed to be unworthy.66 Faced with this situation, bishops and councils sought to reaffirm the need for the bishop's involvement in the foundation of a church, or at least in granting permission for the celebration of the liturgy in an oratory.67 Emphasis was likewise placed on the need for an act of the bishop in the appointment or assignment of a presbyter to a particular church.68 However, lay founders had the habit of directly appointing the clergy in their chapels and behaving as their employer. This situation was sometimes even tolerated by the Church.69 In 541, the Council of Orleans established a system for the division of responsibilities between the founding proprietor and the bishop: the proprietor was to propose a candidate to the bishop, to whom it belonged to make the appointment, but the cleric’s maintenance was the responsibility of the founder.70 Abbots could also found oratories on the same conditions. Most proprietary churches became “parish” churches during the sixth and seventh centuries as they were opened to the public to respond to the spiritual needs of the population.71 The spread of territorial parishes was, however, a long process even in France, where it was not completed until the twelfth century72 73. The system of proprietary churches was present throughout the West, and gave way to the better balanced system of the right of patronage13 only under the influence of canonical scholarship, with the legislation of Alexander III and the IV Lateran Council.74

65 Already Justinian was obliged to regulate the appointment of priests in such churches, underlining that the lay founder did not have the right to appoint the cleric but had to present him to the bishop for appointment; Nov. 57,2.

66 Cf. García y García, A., Historia del Derecho Canonico, 1: El Primer Milenio (Instituto de Historia de la Teológia Espanola, Subsidia I), Salamanca 1967. 385. Pontal, O., Die Synoden im Merowingerreich (Konziliengeschichte, Reihe A), Paderborn-München-Wien-Zürich 1986. 235.

61 Conc. Chalced. (451) c. 4; Conc. Agath. (506) c. 21 ecc.

68 Conc. Aurelian. (511) c. 7 with reference to goods of which the Church was granted the usufruct; cf. Pontal, O., Die Synoden, 31.

69 Cf. e.g., Conc. Arvernen. (Claremont.) (535) c. 4.

70 Conc. Aurelian. (541) c. 26.

71 Cf. Pontal, O., Die Synoden, 235 (citing Imbart de la Tour, R, Les origines religieuses de la France. Les paroisses rurales du IV au XI' siede, Paris 1900).

72 Cf. e.g., Lunven, A., Naissance de la paroisse «territoriale». L'apport de trois actes du XI' siecle relatif ä la Bretagne, in Annales de Bretagne et des Pays de l ’Ouest 121/2 (2014) 31 -46.

73 Cf. e.g., Landau, P., Ius Patronatus. Studien zur Entwicklung des Patronats im Dekretalenrecht un der Kanonistik des 12. und 13. Jahrhunderts, Köln-Wien 1975. Erdő, P., Patronato (derecho de), in Otaduy, J. - Viana, A. - Sedano, J. (dir.), Diccionario General de Derecho Canonico (hereafter: DGDC), I-VII. Pamplona 2012. V. 983-987, 984.

74 Conc. Lateranen. IV (1215) const. 32, 45 etc.