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or for the benefit of any other clerk intended to be promoted, the next presentation to a benefice, whilst the church is full, or the incumbent lies "in extremis," if with the intention of presenting either the purchaser or any other particular clerk named at the time of the contract; for one who is in holy orders, or any other person in his behalf, to contract with the wife of a patron, or any one who may be fairly supposed to be able to influence his decisions, for being presented on the next avoidance of the patron's benefice-and it matters not whether the patron with whom the contract has been made is the true or the false patron, as far as the penalties incurred by the nominator and his nominee, and all actors in the matter, are concerned.* At first it was considered that such contracts as the above, if entered into by a father in behalf of his son, were not simoniacal, under the plea of a parent's duty of providing for his offspring. But as the duty of providing for one's self was equally bindingand the reasoning, if carried out, would have admitted the very contracts, for the exclusion of which the act had been framedit was decided, in full court, that such contracts were simoniacal, and, according to our division, simony of the highest class. It is a similar offence for a father to contract with his son to allow him a certain annuity until he is instituted to a living of a certain specified value, the son entering into a bond of the same date with the grant of the annuity, to qualify for orders as soon as possible, and to accept such a living when offered to him. And, lastly, it has been determined that where a clergyman, for the sake of being instituted to a benefice, enters into an agreement with the patrons to accept such a consideration for certain disputed tithes as will prevent him from ever disputing the right at law or equity, and for the sake of the agreement is presented, he is a simoniac.§ Nor would it seem to make much distinction

* Notwithstanding the many judicial decisions, that the purchase of the next presentation for any particular clergyman was an act of simony under the provisions of the statute, it began to be doubted in the beginning of Queen Anne's reign whether such a purchase by the clergyman himself was within the statute; to set this matter at rest, and to prevent the prevalence of the very worst kind of simony, as that undoubtedly was, if the meaning and not the letter of the law was considered, the act of the twelfth year of Queen Anne was passed, declaring such a buying or contracting, simony within the statute, and, according to our division, simony of the highest class. Mr. Fearne did not consider a purchase of an advowson in fee, by a clerk, and a presentation of himself, on the death of the incumbent, to be within the statute of Anne, or the employing another to purchase for him-but, surely this falls within the Institution Oath.

The earliest decision in favour of the father's right was given in the case of Smith v. Shelborn, in the 41st year of Elizabeth, against the opinion of the Chief Justice, and was reversed in the case of Winchcomb v. Pulleston, in the 15th year of James I. with the consent of all the Judges.

§ The case of Rex v. Bishop of Oxford is too curious to be omitted. "A chapel in a township was endowed with the vicarial tithes in 1428, and the right

when the contract has been once entered into and signed, whether the patron exact the conditions of the contract or present the simoniac gratis; for the intention to accept the benefice on those terms having been clearly shown by the bond, no one with such intentions can ever be a fit and proper person for the holy office of minister. If, without the knowledge or consent of the object of the contract, a corrupt agreement is made with a patron, or any one who has power over his decisions, for the next presentation to a living; or a father obtain a similar benefit for his son, for the consideration of marriage, without the knowledge of his son; or after that a church has fallen vacant, and a clergyman has been promised the benefice by the patron, but not instituted by the ordinary, any one makes a contract with the intended incumbent to permit the patron to retract his promise, and to present either the son of the contractor or his nominee, in consideration of some corrupt gift to the party thus turned out, and the contract be entered into and signed without the knowledge of the object for whose benefit it was made, it is simony under the statute, but of that inferior class in which the incumbent thus instituted becomes "non simoniacus, sed simoniace promotus." It has been very lately decided by the Court of Error, against the judgment of the Queen's Bench, that when a living has fallen vacant by the operation of the law, the patron cannot sell the next presentation to it with the advowson as although the patron had neglected to evict the original incumbent after he had committed such an act as rendered the living vacant, yet as the living was by law then vacant, no sale could be made of the presentation; and in that case the clergyman whom the purchaser of the advowson had nominated, was declared to be illegally appointed, and a claim for tithes instituted by him was rejected. The nominee of the purchaser of the advowson who had not purchased it with the intention of presenting any particular clergyman, became through that decision, not a simoniac, but merely one "simoniace promotus ;" this was the last decision that we know of respecting statute simony. The simony

*

of nominating the curate given to the inhabitants. By an inclosure act of 1797 it was recited as a doubt, whether the curate was entitled to the small tithes, or a modus in lieu of them. On a vacancy in 1801 the inhabitants present A, stating that he was to receive a certain money payment out of certain lands, and that the inhabitants thinking his stipend too small, voluntarily agreed to allow him the sum of 291. odd, provided that the additional payment should not in any way alter the payment of 401. 18s. 2d., wherewith the lands had been from time immemorial charged, thus declaring the modus, instead of the right to tithes, which A agreed to accept for the consideration of the extra stipend; this was decided to be simony." East's Report, vol. 7, 600.

* Case of Alston v. Atlay, decided by the Exchequer Chamber overruling the King's Bench. Alston, whilst incumbent of Cowsby, accepted the living of

or non-simony, according to the statute, in the purchase of advowsons and next presentations, seems to depend upon the intentions of the purchaser. If he intends to present any particular person, and contracts for the power for that particular purpose, the act is within the meaning of the statute; but if, on the other hand, the purchase is made without any such intention, then it is not statute simony. Nor does it savour of that crime, to exact from a clergyman, as the condition of his being presented, any contract, not for the benefit of the patron, but of the parishioners and of the whole church: such as a bond that he will never be absent from his parish for eighty days in any one year, or hold any other living by which his undivided attention may be lost to his former parishioners; nor to agree to pay an annuity to the widow and children of the last incumbent, until her eldest son shall obtain a benefice. Such contracts are neither within the meaning nor intention of the statute, and the judges have always been very tender of stretching the bounds of that act, as there is still another court cognizant of the crime. The distinction taken in another case, seems to be rather too fine to bear the test of reconsideration; the case was of this nature:-A covenanted with B that, in consideration of a marriage between the son of the former and the daughter of the latter, A would settle certain lands, and B certain sums of money, on the new married couple; besides this, in the same deed appeared a covenant from B to procure the living H for his son-in-law, on its next voidance. This contract was held to be out of the provisions of the statute, as a covenant independent of the marriage, and without any apparent consideration. What might be the decision of the present courts of law on such a subject we cannot say; but if we were the promoters of the suit against Mr. B.'s son-in-law, we should not fear the event of the action, although the dicta of Bramston, Jones, Coke, and Berkley, the judges in this action, were cited against us.*

Our sketch of the metes and bounds of statute simony completed, the forfeitures, disabilities, and punishments incurred by that offence, call for our consideration. "Presbyter si per pecuniam," said the Canon Law, "ecclesiam obtinuerit, non Odell; the patron of the former living then sold the advowson to Lloyd, who presented Atlay to the benefice. It was held that the living being vacant by the acceptance of the second cure, the next presentation could not pass with the sale of the advowson, and that consequently the nominee of the purchaser was not the proper incumbent. See Adolphus and Ellis, King's Bench, Mich. Term, 1837.

*The case of Byrte v. Manning, decided in the eleventh year of King Charles I.

solum ecclesià privetur, sed etiam sacerdotii honore spolietur;" and again, the same law enacted that "honore male acquisito careat, et emptor, et venditor, et intervento, nota infamiæ percellantur." The statute penalties admit several divisions, according to the person punished, whether he is incumbent, patron, or ordinary; and the former of these three is again divisible into an incumbent "simoniacus" and one only "simoniace promotus." The design of the statute in inflicting pains and penalties on the unconscious object of the illegal contract may, at first sight, appear harsh and unnecessary: but when we consider that it is an appeal to our good feelings, in direct opposition to our love of gain, we must admit that the framers of the act were right in thus adding one more defence to the purity of our Church, against the covetousness of evil-minded patrons. If the sense of his duty to himself, and what he owes to the public, will not restrain a patron from the guilt of simony, perhaps even with the most covetous of men, some regard for the person whom he intends to benefit by his crime, may have a more powerful influence over his conduct.

A simoniac incumbent is liable to forfeit double the value of one year's income of his benefice, or of the reward he may have taken for corruptly resigning or exchanging a benefice, with a cure of souls; to be indicted and punished for perjury if he has taken the institution oath; to be deprived of his tithes from the time of the act of simony, as all right to them has been taken away by the corrupt contract; and lastly, he can never be presented to the same benefice again, or perhaps to any other, and his crime is specifically exempted from the benefit of all general pardons. If the incumbent be merely simoniace promotus, he does not incur the pecuniary forfeit; and although evicted from his benefice, he may yet be restored by the authority to whom, under such circumstances, the right of presentation may attach: until he is thus re-presented, his right to tithes is extinguished, and he is barred from sueing for them in any court of law. Previous to the reign of William and Mary, any act committed by an incumbent by virtue of his office, was null and void; but, by an act passed in the first year of their reign, leases granted by a simoniac were expressly excepted from the statute, unless the person to whom the lease had been granted could be proved to have been conscious of the simony at the time of the grant. Whether a court of equity would compel the incumbent who, for the sake of a fine or reward to himself, had granted a lease on terms injurious to the living, to refund so much as would compensate the injury, is a point unconnected with the matter of simony, and would be

decided on principles and precedents entirely irrelevant to our present subject. The legal patron who presents for a corrupt consideration, by his act of presentation transfers his right to present for that turn to the crown, and incurs a fine of the same amount as that imposed upon his nominee. If his was not the legal right of presentation, then the legal patron stands in the place of the crown. Should the corrupt contract have proceeded so far, that the simoniac is actually inducted, neither the King, nor any other person to whom, under such circumstances, the turn belongs, can present until the actual incumbent has been evicted from his cure by legal process where, however, induction has not taken place, as by the act of simony the presentation is void, the patron, whoever he may be, may present another clergyman, as if the cure was void by death or removal. It very often happens that the right of presentation to many livings is vested in one person, and that of nomination in another, in which cases the simony of the one does not affect in any way the right of the other. By the statute of William and Mary, to which we have referred before, an alteration of some importance was made in the statute of Elizabeth. By the latter act, if a patron, who had made a corrupt presentation, died previous to the incumbent whom he had presented, and that incumbent was allowed to remain undisturbed in his cure, and allowed to die in the possession of it, or to be translated to another without having been charged under the Act-still, whenever the living fell vacant, simony might be proved against the dead patron, and the right of presentation transferred from his innocent successor to the crown. By the act of William and Mary this crying injustice was abolished, and no act of simony allowed to be pleaded against the rights of the innocent patron or his nominee, unless the simoniacal incumbent or his patron had been indicted in the lifetime of the former.*

"There is of late," says Degge, "a practice introduced by corrupt patrons, that if not early nipt in the bud, will make this law (the statute of Elizabeth) of none effect:-I mean the bonds for resignation." The question of the validity of

* The preamble states:-Whereas it hath often happened that persons simoniac, or simoniacally promoted, have enjoyed the benefits of such livings many years, and sometimes their lifetime, by reason of the secret carriage of such simoniacal dealing;-And after the death of such simoniac person, another person, innocent of such crime, and worthy of such preferment, being presented or promoted by another person innocent also of such contract, have been troubled or removed on pretence of lapse or otherwise, to the prejudice of the innocent patron in reversion or of his clerk, whereby the guilty go away with profit of his crime, and the innocent succeeding patron and his clerk are punished, contrary to all reason and good conscience For prevention whereof be it enacted, &c.

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