ment; nor is any Papist to advise the Crown in such a matter.1 The legislature in these statutes, however, provided only for the case of the advowson belonging to a Papist in severalty, for if he is a tenant in common with another who is not Papist, that other may exercise the right as if he alone were the owner. This was held to be the construction of the Act which did least harm to the Protestant co-patron.2 Advowsons as donatives.-Another kind of incumbency is called a donative, which differs from the others in this, that no admission, institution, or induction by the bishop is required, and the patron puts the donee in possession at once. The origin of such a right is said to have been this, that some lord of a manor or donor had built and endowed the chapel on condition that he should have the nomination of the priest in his own hands, as well as the exclusive property of the benefice or presentation. And a donative includes various kinds of preferment, and among others, prebends. When the donee is once in possession he is in the same position as an incumbent after induction, and cannot be dispossessed. It is, however, necessary that he be a priest in orders, and have subscribed the declaration of conformity. In case of a vacancy in this kind of advowson the bishop can compel the patron to nominate. Coke says, that the king could by founding a church exempt it from ordinary jurisdiction, and he could license a subject to found a church with the same privilege." Hence, though the bishop has jurisdiction over the donee so far as clerical discipline is concerned, yet he has no jurisdiction over the church or chapel, as for example, in regard to the regulation of seats. And yet the ordinary 5 1 10 Geo. IV. c. 7, §§ 15, 18. 2 Edwards v Bp. Exeter, 5 Bing., N. C. 652. In 1831 there were 1,248 advowsons in the hands of archbishops and bishops; 787 in the hands of deans and chapters; 1,851 in the hands of ecclesiastical corporations sole; total, 3,886. There were also 952 in the hands of the crown; 721 in the hands of universities, colleges, &c. ; 53 in the hands of municipal corporations; 5,096 in the hands of private owners.-Martin's prop. Ch. Est. 75. Others estimated private patrons at 8,409.-Ibul. p. 88. 3 Farchild v Gayre, Cro. Jas. 63. 4 14 Ch. II. c. 4, § 10. 1205. has power over the churchwardens, who are the officers not of the patron but of the parish. But the Ecclesiastical Commissioners have latterly been empowered in certain ways to make schemes so as to render donatives subject to the bishop.2 Offence of Simony as to presentations.-Though the law has made an advowson a separate property in the hands of the patron, which he can sell and alienate almost at pleasure, and yet it is deemed a trust vested in him for the good of the public, it is singular that the law has made no provision for the fitness and acceptable qualities of the patentee; for as regards the laity, who form the congregation to be benefited by the efficient discharge of his duty, no attempt has ever been made to give the laity any voice whatever in the selection of their parson, nor has this view ever occurred as requiring much consideration. And yet the treatment of simony has long been a conspicuous qualification of the absolute right of sale and purchase, though it affects the relations existing between the bishop and patron and the presentee, and is not a matter in which the laity can directly or indirectly interfere. As Simon Magus was rebuked for presuming to purchase the gift of God with money, the name of simony was given to offences of that kind, namely, the purchase of holy orders or of benefices in the church. Coke says simony is odious in the eye of the common law, and is the more so because it is ever accompanied with perjury,3 All the memorable councils of the church denounced this as a wrong thing, and various canons marked it as a heinous offence. The Council of Chalcedon, in 451, desired that if any bishop ordained or gave preferment for money, both parties should suffer loss of office. And this rule was acted on more or less ever afterwards. 5 1 Castle Richardson, 2 Str. 715. 2 6 & 7 Will. IV. c. 77, § 10; 10 & 11 Vic. c. 98. 3 3 Inst. 153. 4 A. D. 1841, Dean of York's Case, 27. 5 Labbé, vol. iv. p. 755; Bing. Chr. Ant. b. 16, c. 6. To guard against anything resembling simony, Justinian made it incumbent on the voter in church elections affirmatively to disclaim that he voted in consideration of a gift or of friendship or such like cause.— Novell, 123, c. 1. The early bishops were elected by the clergy and laity in the diocese; at last the king came to have the confirmation And the same rules were adopted in the early English Church. The injunctions of Edward VI. and Elizabeth, and the canon of James I., repeat the declaration, that the buying or selling of benefices or sacred functions is a detestable sin. And an oath against simony was required by the 40th canon of 1603 as a condition preliminary to admission, which is now only superseded by a declaration to the like effect.3 6 Statutes prohibiting and punishing simony.-There being great looseness in the description of this offence of simony, it was found necessary in 1588 to define it more exactly by a statute, the effect of which was to make void the presentation or collation made to any ecclesiastical living for money or money's worth, directly or indirectly, or for the promise of it. The gift of the living for that one turn thereupon falls to the Crown, and the offending patron forfeits double the value of one year's profits. And the offending presentee is disabled from enjoying the same living. And to institute corruptly is also a void act.5 As a consequence, the patron may within six months make a fresh presentation. And so corrupt resignations, exchanges, and ordinations are equally void. One punishment is, that he who has been corruptly ordained is disqualified for seven years to hold any ecclesiastical living. In construing the statute with reference to of the election, and this soon became equivalent to the appointment. And it was at this stage that simony grew up, seeing that corruption could not be wholly eradicated from courts. The evil was great, and was condemned in 549 by the Council of Orleans.-Concil. Aurel. V. (549) can. 10. The Pope, Nicholas I., in 865 tried to cure the evil by cutting off the right of suffrage from the laity. But after a long struggle between the Pope and the king, in the thirteenth century a kind of general appeal to Rome as the last resort for all Christendom was acquiesced in.-Lea's Ch. Stud. 151. The third council of Lateran in 1179 forbade even the gift or promise of the next presentation to an ecclesiastical benefice. And when a parent purchased a benefice for his son without the privity of the son, it was deemed as against the son a simoniacal act avoiding the living.-Van Esp. Jur. Ecc. p. 2, tit. 3. 2 A.D. 4 31 1 Ecbright Exc. A.D. 740; Lafranc's Can., A.D. 1075. 1547, 1559, 1603. 3 28 & 29 Vic. c. 122, § 2; Canon 1866. Eliz. c. 6, § 4; 3 Inst. 153. 5 Ibid. § 5. 6 Ibid. § 6. 7 Ibid. §§ 7,9. 8 Ibid. §9. The Statute of Elizabeth was passed "to put an end to the taunts of Papists, that cobblers, tailors, tinkers, and millers, were in course of being admitted to the ministry.”—1 Parl. Hist. contracts made for securing ordination and benefice, it has been laid down, that it is contrary to the public policy declared by the statute for any one to make an agreement to procure holy orders, for these are presumed to be conferred solely out of regard to the candidate's fitness. And it is equally against public policy to bind one's self to solicit the benefit of patronage in consideration of money, for it is presumed that a patron looks out for the fittest person, irrespective of such conditions. It was not necessary to this offence, that the patron should be privy to the corrupt contract; and hence where the father of a youth contracted with the patron's wife to give her 100%. if the patron presented his son to the living, this was held contrary to the statute. And so in another case, where a friend of the presentee had given a bribe to the patron's page, this made the presentation void.3 And it was the same where two fathers came to an agreement, and one covenanted with the other to procure a presentation for his son in consideration of the other's daughter marrying him. But an exchange of livings and a mutual agreement not to insist on payment for dilapidations does not necessarily amount to simony, for in exchanges each party proposes to himself some benefit; and these were expressly allowed by the statute of Elizabeth, though productive of temporal advantages to both parties. Nor is a contract. by the vendor of an advowson, who is not the incumbent, to pay interest on the purchase-money to the purchaser until a vacancy occurs deemed simoniacal." 4 Sale of advowson or presentation while incumbent in a dying state. The courts interpreted the statute of Elizabeth against simony to mean the corrupt obtaining or giving of the next presentation when the living was vacant or voidable. But it did not strike at a sale of the next presentation if the living was full, until a statute passed which avoided that also, if a clergyman was the purchaser, as this was deemed the height of indecency. But while a 746. This statute also was held to apply to donatives of the king's donation.-Bawdercock v Mackallar, Cro. Ch. 330. 1 Lord Kirkcudbright v Lady K., 8 Ves. 51. 2 Cro. Jas, 385. 3 R. v Trussel, 1 Sid. 329. 4 Byrte Manning, Cro. Ch. 425. 5 Goldham v Edwards, 16 C. B. 437; 17 C. B. 141; 18 C. B. 389; Wright Davies, 1 C. P. Div. 638, 6 Sweet v Meredith, 3 Giff. 610. 8 12 Anne, c. 11. 7 Grey Arketh, Amb. 268, clergyınan could not buy the next presentation for himself a layman might do so. The case then arose, whether it was lawful to sell the advowson when the incumbent was in a dying state. The courts at first held that this was simoniacal and void,1 and continued under that impression for 241 years, till in 1829 the House of Lords reversed the train of decisions, and laid down the rule, that though the incumbent is on his deathbed to the knowledge of the vendor and purchaser of the advowson, yet if this was without the privity or without any view to the nomination of the particular clerk, the sale was unimpeachable on the ground of simony.2 The court argued that every sale of an advowson must contemplate the death of the incumbent, and why should one incumbent be distinguished from another? If anything turned on the probabilities of immediate death, this was so vague a circumstance, that no evidence could establish it without great litigation; and as broad rules and tests were favoured by the law, by far the safer course was to hold, that, while the incumbent was alive, however near the point of death, the sale of the next presentation was good.3 Practice of resignation bonds.-A mode of defeating the simony statute was soon discovered, which consisted in a patron presenting A., on obtaining from A. a bond containing a condition, that A. would resign after an agreed 1 Cro. Eliz. 685. 2 Fox Bp. Chester, 6 Bing. 1. 3 The view of the courts of law was set forth as follows:-"The patronage of churches was at first yielded by the bishops to the lords of manors who founded or endowed them and annexed them to the manors in which the churches were situate. By the grant of a manor the advowson appendant to it passes to the grantee. Many of these advowsons have since been severed from the manors to which they were appendant. Although advowsons, when in gross, as those which are separated from the manors to which they belonged are called, are a species of spiritual trusts, yet they have been said by LORD KENYON and other judges to be trusts connected with interests, and they certainly do not lose the temporal character which originally belonged to them, but may be sold either in perpetuity or for the next or any number of avoidances. If it be proper to prevent the giving of money for a presentation, it seems equally proper to prevent the sale of that which gives the immediate right to present. But the courts of law have never thought that they were authorised to go this length."-Best, C. J., Fox v Bp. Chester, 6 Bing. 16. D D |