[347]

or covenanted gain for the presentation of any one: And if any should be found guilty hereof by conviction or confession; we do decree by the king's authority and by our own, that he shall for ever be deprived of the patronage of that church. Lind. 281.

In the name of a portion] That is, as a portion from a father or grandfather, to his son or grandson. Johns. Wether.

We do decree by the king's authority] Lindwood says, that de facto the king of England hath cognizance in causes of the right of patronage; which this constitution takes notice of as such; although he says, the contrary is true by the canon law.

Lind. 281.

Shall for ever be deprived of the patronage] Which seemeth to be intended, during his life; and not to extend to his heirs after him; so as to punish them for their father's or other ancestor's crime. Lind. 281.

And Sir Simon Degge observes upon this, that a canon is not sufficient to deprive a man of his freehold or inheritance; and this canon (he says) was never put in execution, or attempted so to be, so far as he can find. Deg. p. 1. c.5.

3. Othobon. Whereas we understand that it frequently happeneth, that when a presentation is to be made to a vacant church, he who is to be presented first maketh a bargain with the patron for a certain sum to be paid to him yearly out of the profits of the church, and he who hath made such contract is presented to the church; we, intending to provide against this act of simony and detriment to the church, do utterly revoke all pensions heretofore imposed on parish churches, unless they who have or receive the same, are warranted from the beginning by lawful prescription or special privilege, or other certain right Athon. 135.

Neither was this canon, (saith Sir Simon Degge) of better effect than the other, as to the making contracts yoid, which were only determinable at the common law, where this canon could not be pleaded in bar. Deg. p. 1. c. 5.

But there were some general canons (he says) of the church of greater force; whereby a person simoniacally promoted is punished by deprivation, and a simoniac by deprivation and perpetual disability, not only as to the church he was presented to upon a simoniacal contract, but also as to all others. p' 1. c. 5. (a)

Deg.

4. Simony is the more odious (lord Coke says) because it is ever accompanied with perjury; for the presentee is sworn to commit no simony. 3 Inst. 156.

Thus by a canon of archbishop Langton, it is ordained as followeth: We do decree, that the bishop shall take an oath of him

(a) See Apvowson, 4. & 5. and Deprivation in the note.

who shall be presented, that for such presentation he neither promised nor gave any thing to the person presenting him, nor made any agreement with him for the same; especially if he who is presented be probably suspected of the same. Lind. 108.

Bishop] Or other ordinary who hath power to grant institution. Lind. 108.

He neither promised] By word or other stipulation. Lind. 108. [ 348 ] Nor gave] Either by exchange, or recompence, or confirm

ation of what had been given before, or by bequest, or remis

sion.

Lind. 109.

To the person presenting him] And if he promise any thing to another, although it be not to him who hath the presentation: yet if it be so that he shall not otherwise have the benefice, this also is simony. Lind. 109.

And by Can. 40. To avoid the detestable sin of simony, because buying and selling of spiritual and ecclesiastical functions, offices, promotions, dignities, and livings, is execrable before God; therefore the archbishop and all and every bishop or bishops, or any other person or persons having authority to admit, institute, collate, instal, or to confirm the election of any archbishop, bishop, or other person or persons to any spiritual or ecclesiastical function, dignity, promotion, title, office, jurisdiction, place, or benefice with cure, or without cure, or to any ecclesiastical living whatsoever, shall, before every such admission, institution, collation, installation, or confirmation of election respectively, minister to every person hereafter to be admitted, instituted, collated, installed, or confirmed in or to any archbishopric, bishopric, or other spiritual or ecclesiastical function, dignity, promotion, title, office, jurisdiction, place or benefice, with cure or without cure, or in or to any ecclesiastical living whatsoever, this oath in manner and form following, the same to be taken by every one whom it concerneth, in his own person, and not by a proctor: "IN.N. do swear, that I have made no simoniacal pay"ment, contract or promise, directly or indirectly, by myself, or by 66 any other to my knowledge or with my consent, to any person or persons whatsoever, for or concerning the procuring and obtain"ing of this ecclesiastical dignity, place, preferment, office, or "living," [respectively and particularly naming the same, whereunto he is to be admitted, instituted, collated, installed, or confirmed ;] "nor will at any time hereafter perform or satisfy "any such kind of payment, contract or promise made by any other "without my knowledge or consent: So help me God through Jesus "Christ."

66

And this oath, whether interpreted by the plain tenor of it, or according to the language of former oaths, or the notions of the catholic church concerning simony, is against all promises whatsoever. Gibs. 802.

Therefore though a person comes not within the statute of the 31 El. hereafter following, by promising money, reward, gift, [349] profit, or benefit; yet he becomes guilty of perjury, if he takes this oath, after any promise of what kind soever.

Id.

Dr. Watson queries whether the oath against simony be not abolished with the oath ex officio: But Mr. Johnson says, he may as well query the oaths of allegiance and supremacy; for that a clerk is no more obliged to accuse or purge himself of simony by the one, than of rebellion or popery by the other. Wats. c.15. Johns. 73.

Which latter opinion is agreeable to the general practice and allowance, especially as the makers of the statute which repealeth the oath ex officio, do not seem to have had any thought or intention of touching upon this oath against simony (b); albeit the reason here alleged may of itself perhaps not be sufficient, for the oaths of allegiance and supremacy are enjoined by statutes subsequent to that which abolished the oath ex officio.

Which statute abolishing the oath ex officio, is as followeth ; viz. It shall not be lawful for any archbishop, bishop, vicar general, chancellor, commissary, or any other spiritual or ecclesiastical judge, officer, or minister, or any other person having or exercising spiritual or ecclesiastical jurisdiction, to tender or admimister unto any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby such person to whom the same is tendered or administered, may be charged or compelled to confess, or accuse, or to purge him or herself of any criminal matter or thing, whereby he or she may be liable to censure or punishment: any thing in this statute, or any other law, custom, or usage heretofore to the contrary in any wise notwithstanding. 13 C. 2. c. 12. § 4.

In the case of K. and Lewis, M. 4 G. an information was moved for against a clergyman, for perjury at his admission to a living, upon an affidavit that the presentation was simoniacal. But the court refused to grant it, till he had been convicted of the simony. Str. 70.

II. By Statute. (2)

1. By the 31 Eliz. c. 6. § 4. "For the avoiding of simony "and corruption in presentations, collations, and donations, of

(b) 4 Bac. Ab. 475. Acc.

(2) Simony was not punishable criminally at common law. Moor. 564. It being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts have been made to restrain it by means of civil forfeitures.

"and to benefices, dignities, prebends, and other livings and "promotions ecclesiastical, and in admissions, institutions, and "inductions to the same."

It is enacted, that if any person or persons, bodies politic and [350] corporate, shall or do, for any sum of money, reward, gift, profit, or benefit directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever directly or indirectly, present or collate any person to any bene fice with cure of souls, dignity, prebend, or living ecclesiastical, or give or bestow the same for or in respect of any such corrupt cause or consideration; every such presentation, collation, gift, and bestowing, and every admission, institution, investiture, and induction thereupon, shall be utterly void, frustrate, and of none effect in law: And it shall be lawful for the queen, her heirs and successors, to present, collate unto, or give or bestow, every such benefice, dignity, prebend, and living ecclesiastical, for that one time or turn only: And all and every person or persons, bodies politic and corporate, that shall give or take any such sum of money, reward, gift, or benefit, directly or indirectly, or that shall take or make any such promise, grant, bond, covenant, or other assurance, shall forfeit and lose the double value of one year's profit of every such benefice, dignity, prebend, and living ecclesiastical And the person so corruptly taking, procuring, seekings or accepting any such benefice, dignity, prebend, or living, shall thereupon and from thenceforth be adjudged a disabled person (3) in law to have or enjoy the same benefice, dignity, prebend, or living ecclesiastical. § 5.

And if any person shall for any sum of money, reward, gift, profit, or commodity whatsoever, directly or indirectly (other than for usual and lawful fees) or for or by reason of any promise, agreement, grant, covenant, bond, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, admit, institute, instal, induct, invest, or place any person in or to any benefice with cure of souls, dignity, prebend, or other ecclesiastical living; every such person so offending shall forfeit and lose the double value of one year's profit of every such benefice, dignity, prebend, and living ecclesiastical; and thereupon immediately from and after the investing, installation or induction thereof had, the same benefice, dignity, prebend, and living ecclesiastical shall be eftsoons merely void; and the patron or person to whom the advowson, gift, present ation, or collation shall by law appertain, shall and may by virtue

(3) And the king cannot dispense with such disability, if the clerk is cognizant of the corrupt contract. See 3 Inst. 153, 4. Winchcomb v. Pulleston, Hobart. 185. and infra in notis.

of this act present or collate unto, give and dispose of the same benefice, dignity, prebend, or living ecclesiastical, in such sort to all intents and purposes, as if the party so admitted, instituted, installed, invested, inducted, or placed, had been or were naturally dead. § 6.

· Provided, that no title to confer or present by lapse, shall accrue upon any avoidance mentioned in this act, but after six [351] months next after notice given of such voidance, by the ordinary to the patron. §7.

And if any incumbent of any benefice with cure of souls shall corruptly resign (4) or exchange the same, or corruptly take for or in respect of the resigning or exchanging the same, directly or indirectly, any pension, sum of money, or benefice whatsoever; as well the giver as the taker of any such pension, sum of money, or other benefice corruptly, shall lose double the value of the sum so given, taken, or had; the one moiety as well thereof, as of the forfeiture of the double value of one year's profit before mentioned, to be to the queen, and the other to him that will sue for the same in any of her majesty's courts of record. § 8.

Provided always, that this act or any thing therein contained, shall not in any wise extend to take away or restrain any punishment, pain, or penalty limited, prescribed, or inflicted by the laws ecclesiastical, for any the offences before in this act mentioned; but that the same shall remain in force, and may be put in due execution, as it might be before the making of this act; this act or any thing therein contained, to the contrary thereof in anywise notwithstanding. §9.

And moreover, if any person shall receive or take any money, fee, or reward or any other profit directly or indirectly, or shall take any promise, agreement, covenant, bond, or other assurance to receive or have any money, fee, reward, or any other profit directly or indirectly, either to himself or to any other of his friends (all ordinary and lawful fees only excepted), for or to procure the ordaining or making of any minister, or giving of any orders (5), or licence to preach; he shall for every such offence

(4) Any resignation or exchange for money is corrupt, however apparently fair the transaction: as, where a father wishing that his son in orders should be employed in the duties of his profession, agreed to secure by bond the payment of an annuity, exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favour of his son. This resignation is corrupt and simoniacal; and the bond is void. Young v. Jones, E. T. 1782. Chr. note (8) to 4 Bla. Comm. 62.

(5) A bond was given by a father to secure an annuity to his son, till he should be in possession of a living of a certain value, and an agreement of even date was executed, reciting the bond, and declaring that the son would forthwith enter into orders, and accept such