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bonds of resignation is so closely analogous to that of statute simony, that we may be allowed to offer a few remarks upon it as a conclusion to our paper. The decisions of the law courts have divided these bonds into two kinds, special and general. In the former, the condition is to resign in favor of a certain person specified in the bond, as soon as he shall be canonically capable of being presented to the benefice. In the latter, the temporary incumbent is bound to resign on request. From the time of the Elizabethan statute to the year 1783, general bonds were always held to be legal by every common-law judge. In the case of Peel v. the Countess of Carlile, in the sixth year of King George II., the court refused to let the defendant's counsel argue the validity of such bonds, they having been so often established, even in equity; and in the case of Grey v. Hesketh, Lord Hardwicke said, "These bonds are held good at law, and so they are in equity, unless an ill-use is attempted to be made of them, in which case that court will interfere."
These unanimous decisions of the law authorities seem to have met with the equally unanimous reprobation of our Bishops, and many fruitless attempts were made by them to remedy the evil; still the judges remained firm and the legislature seemed unwilling to interfere. Thus matters remained until the Bishop of London brought things to a crisis by refusing, in 1781, to admit the Rev. J. Eyre to the rectory of Woodham Walters, in Essex, on the presentation of L. D. Fytche, the legal patron, because a general bond of resignation had been the reason why the Rev. Mr. Eyre had been presented. The patron forthwith brought his writ of Quare Impedit against the Bishop in the Common Pleas, and that court having unanimously recognized the validity of the bond, the Bishop brought his Writ of Error in the King's Bench; the judges of the latter court affirmed the decision of the court below. On this judgment another Writ of Error was brought by the Bishop in the House of Lords, in the year 1783; counsel were heard, the Judges summoned, and certain questions having been proposed to them, seven of them delivered their opinions that such a bond was not corrupt or illegal within the meaning of the statute, and that consequently the presentation was not void; one alone, Baron Eyre, held the contrary opinion. The point was warmly debated, and the eloquence of Lord Thurlow, joined to the honest zeal of the Bishops, so far prevailed, that the opinion of Baron Eyre was affirmed as law by a majority of one. The consequence of this decision was, that the judges considered themselves bound to follow it in such cases alone as were identical in every respect with the case on which the decision had been given; and, consequently, whenever
a difference could be drawn, the established series of precedents was always followed in preference to the majority of one.*
General bonds having been thus disposed of, a series of attacks were commenced against the special class of resignation bonds. But with respect to these also, the views of the lower courts of law were not to be shaken, and bonds conditioned to resign in favour of the son or nephew, or other blood relation of the patron, were held to be legal; and in a case where a father and son had agreed to suffer a recovery, on the condition that a certain sum of money should be paid by the son to the father; and also that in case a certain living should fall vacant during the lifetime of the son and his younger brother, the son in whose favour the recovery was to be suffered, should present the younger brother to the living, the court held that, at common law, the good could be separated from the bad, and the bond, so far as it was for a good purpose, considered legal. Forty-three years after the decision in the House of Lords against general bonds, the House was called upon to decide on a bond of the other kind. A clergyman of the name of Fletcher had given a bond to the patron, Lord Sondes, to resign on request, in favour of a younger brother of his lordship's, under a penalty of some thousands; on the request being made he refused to perform the conditions, and Lord Sondes brought an action of debt for the penalty. The Courts of the Exchequer and King's Bench supported the validity of the bond, and drove Fletcher to an appeal to the Lords. The Judges were again summoned; Littledale, Burrough, and Best admitted the validity of the bond; Garrow, Hullock, Park, Graham, Alexander, and Abbott, considered such bonds illegal. After several adjournments, the House, acting on the advice of Lord Eldon, decided unanimously against the bond. As the effect of this decision being to subject numerous innocent patrons to fines and forfeitures, the Archbishop of Canterbury, on the evening of the day of the decision, brought in a bill of a retrospective character, to relieve all patrons, who had entered into such bonds previously to the decision, from fines and forfeiture, and to establish all such bonds already made as legal. In the year following, the parliamentary power of ecclesiastical patrons so far prevailed as to convert the retrospective bill into a perpetual prospective act, and to declare, by the 9th Geo. IV., chapter 94, that henceforth all special bonds entered into boná fide, previous to presentation or appointment, should be exempt from the penalties imposed by the statute of Elizabeth, and be
When the House divided, there appeared nineteen for declaring the bond illegal, and eighteen in support of the decisions of the lower courts.
considered, from the date of the act, statutably legal. One very important condition was imposed, namely, that the person named in the bond, in whose favour the resignation was to be made, shall be "either by blood or marriage, an uncle, son, brother, grandson, nephew, or grand-nephew of the patron, or one of the patrons of the spiritual office."
The stamp of legality having been impressed on the bonds, equity cannot relieve against them, unless converted to an improper use; were such a bond to be made the means of preventing an incumbent from demanding tithes of his patron, or the patron had offered to stay all action on the bond for so many hundred pounds, or instead of requesting the incumbent to resign when the proposed person was canonically qualified to succeed to the cure, he had accepted an annuity as the price of non-disturbance, in all such cases the Court of Chancery would relieve against the bond as opening a door for simony.
The power of the ordinary to refuse to accept a resignation in pursuance of such bonds is still a matter of doubt, though an opinion prevails through the legal profession, that unless some further reasons were adduced than the mere fact of such a bond, the ordinary would hardly be justified in such a refusal. Whether the Bishop accept or not, the clergyman who has bound himself to vacate at a certain time, has also bound himself to obtain the Bishop's acceptance of his resignation; and unless he can do so, will be liable for the penalty of the bond.
The benefit conferred by the statute which legalised these bonds may well be questioned, when the present effect of this warming-pan system is considered. How far a clergyman, who accepts a temporary cure by virtue of such a bond, when he is conscious that, were it not for the condition contained in the bond, he would not be presented; or consents to accept a living which has been purchased for him, though technically without the terms of the statute, can take the institution oath, we are unwilling to inquire. Let every man be judged by his own conscience. Let us not, however, flatter ourselves that the fearful crime of simony is on the decrease, because so few cases can be brought within the grasp of the statutes, and thus made to appear on the records of our courts. Man's ingenuity will evade the strictest statute, and his love of gain will ever prompt him to make even God's house a house of merchandise.
Since this article was composed, the book which we have. placed at the head of our paper has appeared; and, although, from the strictly professional nature of the work, it but touches on those points which we have thought it proper to enlarge on, we believe we may claim it on our side of the question. Taken as a compilation of cases, so useful to the professional man, it is a
work of much care and accuracy: but if looked on as a treatise, it exhibits the usual want of broad principles to be found in almost all our lately concocted legal books. We are afraid to recommend it, as a manual, from its unwieldy size; a beauty in the eyes of a lawyer, though hardly so much esteemed by the rest of the reading world.
ART. IV.-Demosthenes upon the Crown. Notes. By HENRY LORD BROUGHAM. and Co. 1840.
Translated, with London: Knight
VARIOUS were the surmises to which the first announcement of a forthcoming translation, by Lord Brougham, of the speech of Demosthenes upon the Crown, gave rise in the literary world; and various the opinions prematurely delivered upon a topic which appeared to excite more than ordinary interest in the minds of those who had hitherto regarded with distrust and doubt the multifarious productions of his Lordship's pen. The versatile genius, the omniscient empiric, the would-be philosopher, theologian, metaphysician, orator, statesman, politician, mathematician-ToXXŵv ovoμáτwv μoppǹ μía-was again, in despite of many former rebuffs, and no little obloquy entailed upon him by certain previous publications, about to enter the literary arena, and exhibit in a department in which he had, as yet, ventured to make but little display-that of classical scholarship. The noble author was determined to shew that his attainments are boundless, inexhaustible. On what subject could he not make a book? was to be the question for admiring posterity.
Grammaticus, rhetor, geometres, pictor, aliptes,
Augur, schoenobates, medicus, magus, omnia novit ! Curiosity was awakened far and wide;-no doubt considerably to the advantage of the publisher, and an excellent substitute for intrinsic merit in the aristocratic bantling to which his press was destined to give birth. A translation of "the greatest oration of the greatest of orators" by one to whom universal consent has awarded so distinguished a place among the eloquent of modern times, could not fail to excite a host of various expectations in the minds of all who had heard anything about Lord Brougham or his writings. Some few of his Lordship's most staunch supporters confidently predicted complete success in the undertaking; others, who have always looked with suspicion upon his miscellaneous acquirements, and
entertained very serious misgivings as to his soundness in classical scholarship, were far from sanguine about the result of what they deemed a decidedly rash experiment on the part of the noble editor; while such as maliciously maintain that Lord Brougham is nothing better than an universal sciolist, anticipated a failure, of which the subsequent publication of the work has afforded many convincing proofs.
The impression left upon our minds by a perusal of this extraordinary translation, with its accompanying luminous and original commentary, was much such an one as an "interesting" culprit on his way to the scaffold is likely to create in the compassionate spectator. For, while we felt that very rash and unwarrantable presumption was doomed to meet with very signal and deserved punishment, in the contempt which his Lordship's production could not fail to excite, we, at the same time, pitied the hard fate which the writer was bringing upon himself by his own indiscretion-a fate which, if he can feel anything, he is sure to feel acutely. We cannot contemplate without commiseration our author's crest-fallen appearance in the House of Lords, his humbled mien among his literary admirers, his lame apologies to his irate and deluded publisher, his complete degra dation in the eyes of the classical world, and his own ill-disguised chagrin at being unexpectedly crushed to annihilation by what was intended to have been the coping-stone of his glory! Never was a greater abuse and misapplication of talent exhibited than in the present work. Lord Brougham is about as fit to translate Demosthenes, as Mr. Alderman Harmer is to sit as Lord Mayor of London. Had his Lordship ever examined the nature and composition of a modern classical publication, even of the humblest pretensions-had he sought the counsel and followed the advice of any one but Dr. Arnold-he would have seen his folly, and not have put forth quite so hastily a work, which is destined to be a lasting proof of his utter incompetency, in almost every essential point, to become the translator of so vast a genius, so unapproachable an orator, as DE
We are no advocates for that ferocity of criticism which seizes, with ravenous tooth, upon an unfortunate victim, and rends it piecemeal with a savage joy very little short of absolute malignity; still justice to the public demands, that a candid and unbiassed opinion should be delivered upon every work reviewed, be its author a plough-boy or a duke-for these are not times when a great name will disarm criticism of its terrois. So far, indeed, is this from being the case, that great names would now seem to be carefully selected by most as legitimate