Abridgment of Ecclesiastical Laws, Treatise · Chapter 39

Abridgment of Ecclesiastical Laws · Treatise · Chapter 39

p. 535CHAP. XXXIX.

Of Simony.

1. The Definition and deſcription of Simony; the penalties thereof.

2. The difference between Simoniacus and Simoniace Promotus; the latitude of that word Simony.

3. How the anuual value of the Benefice is computable upon the Forfeiture by reaſon of Simony.

4. Whether a Clerk Simoniacally preſented, but not privy to the Simony, be diſabled for that turn to be preſented by the King to the ſame Church?

5. The diverſifications of Simoniacal Contracts, or the various ways of committing Simony.

6. An Obligation to preſent one upon condition of reſignation, may not be Simony.

7. To promiſe one a Sum of Money to beſtow his endeavour to procure one to be preſented to a Benefice, is a Simoniacal Contract.

8. Several ways of contracting, obliging, and agreeing, which will amount to Simony.

9. A Clerk may oblige to his Patron to pay a Sum yearly, and yet no Simony.

10. The Plea of Simony is a good Barr to the Parſons demand of Tithes.

11. Whether the Fathers free Covenant with his Son in Law, upon the Marriage of his Daughter to preſent him to ſuch a Living when it falls, be Simony?

12. Whether a Simoniacal Ʋſurper ſhall prejudice the rightful Patron, by giving the King the preſentation.

13. Whether an Incumbent that is in by Simony, may after a General Pardon be removed.

14. The grand Caſe of Calvert and Kitching at the Common Law touching Simony.

15. To convey a corrupt gift by an innocent hand, will not excuſe it from being Simony.

16. The Kings Caſe againſt the Archbiſhop of Canterbury, Sir John Hall, and Richard Clark touching Simony.

17. The Proof of Simony in a Parſon is good to harr him of Tithes.

p. 53618. A Patrons Preſentation upon the Preſentees Obligation to make a Reſignation within Three months after the Patron ſo pleaſe, may amount to Simony within the Statute of 21 Eliz. cap. 16.

19. A corrupt Contract for an Advowſon may make the ſubſequent incumbent Simoniacal.

20. To plead a Simoniacal Contract againſt a Bond, it not ſo appearing, is no admiſſable Plea.

21. Maſters of Chancery, why ſo called, and what they were anciently.

22. Prihibition to the High Commiſſioners, that would have put a Parſon to his Oath touching Simony.

23. In what Caſes (by reaſon of Simony) the Patron may preſent after Six months; and the Church ſaid to be full as to one, not to another.

24. The injunction of King Ed. 6. againſt Simony.

25. The form of the Oath of Simony.

26. A Simoniacal Contract a good plea in Barr of Tithes.

27. A further deſcription in Law of the difference between Simoniacus, and Simoniace Promotus.

28. The Simoniace Promotus, though ignorant of the Simony, yet is deprivable in the Eccleſiaſtical Court.

29. A Simoniacal Contract, to which neither the Incumbent nor the Patron are privy, may yet be Simony within the Statute of 31 Eliz.

30. Simony in it's utmoſt latitude is properly cognizable in the Eccleſiaſtical Court.

31. Simony worſe than Felony; A Bond or Obligation good, though entred into upon a Simoniacal Contract.

32. Whether a Parſon outſed for Simony, may be after admitted to the ſame Benefice by the Kings preſentation.

33. A Perſon Simoniace promotus, and ouſted, is by the expreſs words of the Statute diſabled to accept the ſame Benefice.

34. Where Simony is pleaded in Barr of Tithes, the Eccleſiaſtical Court ſhall take cognizance, and no Prohibition lies.

35. Whether the Father may buy the next avoidance, and preſent his Son; no Simony to buy an Advowſon.

36. To procure a Man (in conſideration of Marriage) to be preſented to a Benefice, is Simony.

37. Four obſervations on the Statute of 31 Eliz. cap. 6. by the Lord Coke.

38. The extent of the words (Preſent or Collate) in the ſaid Statute, alſo the diverſity in Law between a Preſentation made by a Rightful Patron and an Uſurper.

p. 53739. What puniſhment by the Canon Law in caſe of Simony; and the ſtrange conceit of Rebuffus touching the ſame.

40. The reaſons why it hath its denomination from Simon Magus; how many ways it may be committed according to the Canon Law.

(1.)SIMONY (from Simon Magus, as Thomas Aquinas and others conceive, Tho. Aquin. 20. 2. ae. q. 100. art. 1. & 40.) is according to Panormitan's definition thereof,) ſtudioſa voluntas emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere ſubſecuto, Panor c. Nemo extra, &c. Or it may be deſcribed thus,Simonia eſt vox Eccleſiaſtica, à Simone illo Mago deducta, qui donum Spiritus Sancti pecuniis emi pura vit. viz. Injuſtum eſt illa vendere, quae gratis diſtribui debent.Simony is when any perſon is preſented or collated to any Benefice with Cure of Souls, Dignity, Prebend, or Living Eccleſiaſtical, &c. or hath any ſuch given or beſtowed on him, for or in reſpect of any Sum of Money, reward, payment, gift, profit, or benefit directly or indirectly, or for or by reaſon of any promiſe, agreement, grant, bond, covenant or other aſſurance for any Sum of Money, reward, payment, gift, profit or benefit whatſoever, directly or indirectly, or for or in reſpect of any ſuch corrupt cauſe or conſideration; and every Preſentation, Collation, and gift, as alſo every Admiſſion, Inveſture, and Induction thereupon is by the Statute utterly voidccStat. 31. Eliz. c. 6., and whereby the King his Heirs and Succeſſors for that one turn only ſhall preſent, collate, &c. And every perſon ſo giving or taking any ſuch Sum of Money, &c. or taking or making any ſuch promiſe, &c. doth forfeit and loſe the double value of one years profit of every ſuch Benefice. Moreover, the perſon ſo corruptly taking any ſuch Benefice is thereupon and from thenceforth adjudged a perſon diſabled in Law to hold and enjoy the ſame BeneficeddStat. ibid.. The like penalty of the ſaid double value doth he incurr, who for any Sum of Money, reward, &c. directly or indirectly (other than the Lawful Fees) or for or by reaſon of any promiſe, &c. doth admit, inſtitute, inſtall, induct any perſon to, or in any Benefice with Cure, &c. Likewiſe, if any Incumbent of any ſuch Benefice ſhall corruptly reſign or exchange the ſame, or for or in reſpect thereof ſhall corruptly take, directly or indirectly, any penſion, ſum of money, or benefit whatever, in ſuch caſe both the giver and taker corruptly as aforeſaid, ſhall forfeit double the value of the ſum ſo given, taken, or had, whereof the one Moiety to the King, &c. the other to him that ſhall ſue for the ſame in any Court of Recordeeibid.. In which Statute of 31 Eliz. there is a Proviſo, that the cenſures Eccleſiaſtical ſhall not be reſtrained by any of the premiſes therein contained.

(2.) They that Simoniacally buy Eccleſiaſtical Livings are compared to Simon Magus, and they that ſell them to Gehazi the Servant of Eliſha ff2 Kin. 5. 20. &c.2 Kgs 5:20if a perſon be poſſeſt of an Eccleſiaſtical Living p. 538by ſuch Simony as whereunto he was not privy, be is ſaid to be in only Simoniace: but if he be in any corrupt and Simoniacal Contract, to which himſelf is a party, and was privy and conſenting thereunto, in that caſe he is Simonaicus; both which are inhibited by the Canons Eccleſiaſtical or Provincial Conſtitutions, as alſo are the ſaid corrupt and Simonaical ſelling as well as buying Eccleſiaſtical Livings, Lindw. e. Nulli liceat Eccleſiam &c. Quia plerunq, and that under penalties greater than the Temporal Laws did then, or now will allow of. And although by Simony in the vulgar acceptation of the word, is commonly underſtood ſuch corrupt Contract for Eccleſiaſtical Livings as aforeſaid, yet it hath a more extenſive ſignification and that is a more proper ſenſe, which is by corrupt Ordinations of Miniſters, or for undue Licences to Preach; for prevention whereof it is provided in the Statute aforeſaidhhDict. St. 31 Eliz., that if any perſon ſhall receive or take any Money, Fee, Reward, or any other profit directly or indirectly;Univerſas promiſſiones & pactiones Simoniacas penitus revocamus, & eas in poſterum fieri diſtrictius in hibemus.—Conſtit. Otho…on. cap. quia p…erum que or any Promiſe, Agreement, Covenant, Bond, or other aſſurance thereof (Lawful Fees excepted) for or to procure the Ordaining or Making of any Miniſter, &c. Or giving any Order and Licenſe to Preach, ſhall forfeit Forty ſhillings, and the Miniſter ſo made Ten pound, beſide the loſs of any Benefice, Living, or other Eccleſiaſtical promotion after Induction, that any ſuch Miniſter ſhall within Seven years next after ſuch corrupt entring into the Miniſtry accept and take; the one half of which Forfeitures do go to the King, &c. the other to the Informer, &c. And the Patron in that caſe may preſent, &c. as if the party ſo inducted were naturally dead.

(3.) The forfeiture of the double value of one years profit of the Church by way of penalty, as is beforementioned, is not to be computed only according to the valuation in the Kings Books in the Firſtfruit Office, but according to the juſt and full annual value of the ChurchiiCo. 3. Inſt. 154.. This double value ſhall be accounted according to the very or true value, as the ſame may be let, and ſhall be tried by a Jury, and not according to the extent, or taxation of the Church. Co. par. 3. Inſt. cap. 71. And albeit the Clerk be not privy to the Simoniack Contract, yet it ſeems the Patron ſhall pro hac vice loſe his Preſentation kkC…. 12. 74.. But the Title of the rightful, and uncorrupt Patron ſhall not be ſorſcited or prejudiced by the Simoniacal Contract of an Uſurper, albeit the Clerk be by his preſentation admitted, inſtituted and inducted, nor entitle the King to preſent.

(4.) The Church, notwithſtanding the Admiſſion, Inſtitution, and Induction, becomes void, whether the Clerk preſented were a party or privy to the corrupt and Simoniacal Contract or not; But Sir Simon Degee in his Parſon's Counſellor puts the material Queſtion, viz. Whether the Clerk that is preſented upon a Simoniacal p. 539Contract, to which he is neither party nor privy, be diſabled for that turn to be preſented by the King to that viz. the ſame Church? In order to the reſolution whereof he acquaints us with a Caſe reported, wherein it was adjudged, that if a Clerk were preſented upon a Simoniacal Contract, to which he was neither party nor privy, that yet notwithſtanding it was a perpetual diſability upon that Clerk as to that Church or LivingllPaſck. 17. Jac. B. R. Caſe Fowles verſ. Lapthorne. vid. the Parſ. Counſellor. par. 1. cap. 5. The like in another Caſe, where B. (the Church being void) agreed with the Patron to give him a certain Sum of Money for the Preſentation; B. preſented C. who knew nothing of the Simoniacal Contract till after his Induction; In this Caſe it ſeem'd by Warburton Juſtice, that C. was diſabled quoad hanc Eccleſiam mmMich. 42. and 43. Eliz. B. R. Caſe Baker and Roger, Cro. El. 788.. In which Caſe it was clear, that the grant of the Preſentation during the vacancy was meerly void; that B. preſented as an Uſurper; that C. was in by the corrupt Contract; and that were it not for the ſame, the Patron would not have ſuffered the Uſurpation. In further confirmation hereof it is alſo reported to us that Sir Edward Coke affirmed it hath been adjudged, that if a Church be void, and a Stranger contracts for a Sum of Money to preſent one who is not privy to the Agreement, that notwithſtanding the Incumbent coming in by the Simoniacal Contract, is a perſon diſabled to enjoy that Benefice, although he obtain a new preſentation from the King; for that the Statute as to that Living, hath diſabled him during LifennCaſe of the King and the Biſhop of Norwich, Cole and S…cker. Cro. Jac. 385. Bulſtr. 3. 92.. Notwithſtanding all which Premiſes, Sir Edward Coke in his Comment upon the ſaid Statute of 31 Eliz. aſſerts it to have been adjudged in the forecited Caſe of Baker and Rogers, that where the Preſentee is not privy nor conſenting to any ſuch corrupt Contract, there (becauſe it is no Simony in him) he ſhall not be adjudged a diſabled perſon within the ſaid Act, for the words of the Statute are (And the perſon ſo corruptly giving, &c.) And ſo (ſays he) it was reſolved. Mich. 13. Jac. Where the Preſentee is not privy nor conſenting to any corrupt Contract, he ſhall not be adjudged a diſabled perſon within the Act becauſe it is no Simony in him—Coke Inſt. par. 3. cap. 71.ooCo. 3. Inſt. 154. cap. 71.. Alſo it was ſo reſolved in Doctor Hutchinſons Caſe by the whole Court, viz. That if a Clerk be preſented upon a corrupt Contract within the ſaid Statute, although he be not privy thereunto, yet his preſentation, admiſſion, and induction are all void within the Letter of that Statute, but not within the clauſe of diſability within the ſame StatuteppCo. 12. 101. So was the Opinion of all the Judges of Serjeants Inn in Fleetſtreet. Mich. 8 Jac. Parſons Conſ. ubi ſupra..

(5.) The Contracts which are commonly held corrupt and Simoniacal, may be diverſified almoſt into as many kinds as transferences and proprietary negotiations are capable of: but thoſe which have been moſt in practice (as appears by the Caſes reported in the Law) have been by way of unlawful purchaſing the next p. 540Advowſon, by Exchanges, by Reſignation, Bonds, by Matrimonial compacts, by contracts remote and conceal'd from the Preſentee, by Obligations of an indirect nature, and the like. To the purpoſes aforeſaid it hath been held Simony for a Parſon to promiſe his Patron a Leaſe of his Tithes at ſuch a Rent, in caſe he would preſent another Parſon into his Benefice, with whom he was to exchange, albeit that other was not privy to the Contract, he making the Leaſe afterqqHill. 16. Jac. rot. 667. c. B. per Graunt and Bowdens Caſe.. It was likewiſe held Simony for a Father to preſent his Son by vertue of a purchaſe of the next Advowſon, which he made in the preſence of his Son, a Clerk, when the Incumbent was not like to live by reaſon of a Sickneſs, whereof he ſoon after diedrrCaſe Smith verſ. Shelburne. More 916. Cro. Eliz. 685.. Otherwiſe, in caſe the purchaſe had been made in the abſence of the Son, as is hereafter mentionedssibid. & infra eod. Noy Rep.. But per Hutt. it was held Simony to purchaſe the next Advowſon, the Incumbent being ſickttCaſe Sheldon verſ. Brett. Winch. 63.. The like in Winchcombes Caſe againſt the Biſhop of Wincheſter and Puleſton, a Caſe hereafter often Margined on ſeveral accounts, where it was held Simony in one Say, who was preſented upon a Contract which he made with the Patron (the Incumbent being then ſick) for Ninety pound to preſent him when the Church ſhould be voiduuHob. 165. vid. Parſon's Counſellor. par. 1. c. 5.. And as to Reſignationbonds, Sir Simon Degge affirms, That in the caſe of Jones and Lawrence the ſenſe of the Court was, that if a Man be preparing his Son for the Clergy, and have a Living in his diſpoſal, which falls void before his Son is capable thereof, he may Lawfully take a Bond of ſuch perſon as he ſhall preſent, to reſign when his Son becomes capable of the the Living; otherwiſe, in caſe the Patron take a Bond abſolutely to reſign upon requeſt without any ſuch or the like cauſe; as for avoidance of Pluralities, Non-reſidence, or other ſuch reaſonable deſignww8 Jac. Caſe. Jones and Lawrence. Cro. 248. 274. Parſ. Counſ. ibid.. The like you have in Babbington and Wood's Caſe hereafter mentioned. So that it ſeems Bonds and Obligations given and taken upon juſt and honeſt grounds to reſign are not in themſelves Simoniacal; Otherwiſe, where thers is corruption in the caſe, accompanied with ſome ſubſequent Act in purſuance thereof. And although preſentations made upon Simoniacal Bonds and Obligations are void in Law, yet ſuch Bonds themſelves, though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. xxCo. 3 Inſt. 153. Noy. 72..

(6.) B. brought Action againſt C. upon an Obligation, The condition whereof was, that whereas the Plaintiff did intend, and was about to preſent the Defendant to the Benefice of Stow, if the Defendant at the requeſt of the Plaintiff ſhould reſign the ſame to the hands of the Biſhop of London, then the Obligation to he void. The Defendant demanded Oyer, and demurr'd, and adjudg'd for the Plaintiff, for the reſignation might be upon a good intention to prevent p. 541pluralities, or ſome other cauſe, and it ſhall not be intended Simony, if it be not ſpecially pleaded and averr'd; and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly, and affirmed an Error, which the Court viewd, and thereupon Judgement was given for the PlaintiffaaHill. 5. Car. B. R. Caſe Babinglon verſ. Caleb Wood. Jones Rep..

(7.) The Plaintiff declared, that the Rectory of St. Peters infra Turrim London was void, and that the Defendant in conſideration that the Plaintiff would beſtow his labour and endeavour to cauſe or procure him to be Rector of the ſaid Rectory, promiſed to give him Twenty pounds; and that after the ſaid Plaintiff procured him to be Rector by the Kings Commiſſion, and notwithſtanding that he had requir'd him to pay the ſaid Twenty pounds, &c. and thereupon he brought his Action upon the Caſe in the Court of the Tower of London, and upon Non Aſſumpſit, it was found for the Plaintiff, and Judgement was there given, upon which the Defendant brought Error, and una voce all agreed that the Judgement was erroneous, for the conſideration was Simoniacal and againſt Law, and not a good conſideration, therefore the Aſſumpſit was not good, the Judgement was revers'd; the Atturney ſaid, that that Court was a Court-baron, as appears by a Record in the time of King Henry the SixthbbPaſch. 10. Car. B. R. Todderidge verſ. Mackalley. Jone's Rep..

(8.) If A. be obliged to preſent B. &c. and he preſents by Simony, yet the obligation is forfeitedccper Hob Caſe Winchcomb verſ. Pulleſton. Noy Rep.. Or if one contract with the Patrons Wife to be preſented for Money, and is accordingly preſented by her Husband, it is Simony within the Stat. of 31 Eliz. and makes the preſentation voidddMich. 13. Jac. B. R. Caſe of the K. verſ. Biſhop of Norwich. Rolls Rep.. For the contract of the Wife is the contract of the Husbandee27 H. 8. 26.. Likewiſe if the Patron preſent one to the Advowſon, having taken an Obligation of the Preſentee, that he ſhall reſign when the Obligee will after Three months warning, this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam ffTrin. 15: Jac. C. B. Rot. 1052. Sir J…. Paſchal verſ. Clark. Noy. Rep….. Alſo if one promiſes to a Man that hath a Mannor with an Advowſon appendant, that if he will preſent him &c. after the then Incumbents death, he will give him ſuch a certain Sum of Money, and the other agree thereto, and that by agreement between them the next avoidance ſhall be granted to B, &c. who after the then Incumbents death preſents accordingly; this is Simony becauſe there was a corrupt Contract for the Advowſon ggCaſe Winchcombe verſ. Vulleſto… Noy Rep.. For although the next avoidance may be bought and ſold bona fide without Simony, yet if it be granted to one to perform a corrupt Contract for the ſame, it is otherwiſehhibid.. But if the Father purchaſe the next avoidance, and after the Incumbents death preſents his Son, this is not Simony iiAdjudg. 42. and 43. Eliz. … & … Caſe. Noy Rep.. Yet by Hob. Chief Juſtice it was held, that if in the grant of the next avoidance it appears that it was to the intent to preſent his Son or his Kinsman, p. 542and it was done accordingly, it is Simony kkNoy ibid.. Likewiſe if a Mans Friend promiſes the Grantee of the next avoidance a certain Sum of Money, and ſo much certain per Annum, if he will preſent B. to the Church, Quando, &c. and B. not knowing any thing of the Contract be preſented accordingly, this is Simony ll7 Jac. Calvert verſ. Parkinſon in Cam. Scaccar. Noy Rep., For if a Stranger contract with the Patron Simonaically, it makes the preſentation voidmmMic. 13 Jac. B. R. Caſe of the K. verſ. Biſhop of Norwich Roll..

(9.) A Patron took an Obligation of the Clerk whom he preſented, that he ſhould pay Ten pounds yearly to the Son of the laſt Incumbent, ſo long as he ſhould be a Student in Cambridge unpreferr'd; this is not Simony; otherwiſe, if it had been to have paid it to the Patrons Son. per Cur. nnAdjudg. in Bakers Caſe. verſ. M…undford Noy's Rep.. An Obligation was made by a Preſentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children; the Parſon kept and enjoyed the Parſonage, notwithſtanding great oppoſition to the contrary ooE. of Suffex Caſe v…ch'd by Forſter Juſtice in dict. Bakers Caſe. Noy. Rep..

(10.) A Parſon preferr'd his Bill for Tithes, the Pariſhioner pleaded that he was preſented by corruption, &c. and by Simony, and a Prohibition was granted, notwithſtanding the Parſon pleaded pardon of the Simony by the King; and it ſeem'd, that it was now triable by the Common Lawpp10 Eliz. Doctor Hutchinſons Caſe cited by Warburton and Hutton. Noy Rep.. The Church may be full or void in effect, when there is a Simoniacal Incumbent; yet to ſay the Church was full for Six Months is no plea, when he was in by Simony; For a Quare Impedit may be had by the rightful Patron after the Six Months againſt the Incumbent of an uſurper, that is in by Simony qqDict. Caſ. Winchcombe verſ. Pulleſton.. And the death of a Simoniacal Incumbent doth not hinder but that the King may preſent, for the Church was never full as to the King, and that turn is preſented to the King by force of the Statuterribid..

(11.) In the Stat. of 31 Eliiz. there is no word of Simony, for by that means then the Common Law would have been Judge, what ſhould have been Simony and what notssNoy. Winchcombs Caſe.; by which Law the Simoniack is perpetually diſabledttdict. Caſe of the King verſ. the Biſhop of N…rwich. Roll. Rep.. And a Covenant to preſent ſuch a one, made under any conſideration whatever, be it of Marriage or the like, may be Simoniacal; But if a Father in Law upon the Marriage of his Daughter, do only voluntarily and without any conſideration, Covenant with his Son in Law, that when ſuch a Church, which is in his Gift falls void, he will preſent him to it; It hath been held, that this is no Simony within the ſaid Statute uuCro. Car. 425..

(12.) A Simoniacal Uſurper preſenting ſhall not prejudice the rightful Patron, by giving the King the preſentationwwHob. 167.. The proof of Simony will avoid an Action of Tithes commenced by a Simoniack ParſonxxPaſch 17. Jac. Caſe of Sir Jo. Bowſe verſ. Wright. 167, 168, 177.; who dying in poſſeſſion of the Church, p. 543the King loſes not his preſentationyyHob. ibid, becauſe the Church was not full of an Incumbent; but remains void though the Simony or Penalty thereof were pardoned (y]. Laſtly, all corrupt reſignations and exchanges of Eccleſiaſtical Livings, are puniſhable with the forfeiture of double the Sum given and received, both in Giver and Taker, by the ſaid Statute, but it ſeems this works no avoidance or diſability in the publick perſon.

(13.) The Patron of an Advowſon before the Statute of 31. Eliz. for Simony, doth ſell proximam Advocationem for a ſum of money to one Smith, and he ſells this to Smith the Incumbent: After which comes the general Pardon of the Queen, wherby the puniſhment of Smith the Incumbent is pardoned, and of Smith the Patron alſo. If the Incumbent may be removed was the Queſtion: Williams ſaid that the Doctors of the Civil Law informed him, That the Law Spiritual was, that for Simony the Patron loſt his Preſentation, and the Ordinary ſhall preſent, and if he preſent not within ſix montehs, then the Metropolitan, and then the King. Spurling Serjeant, This puniſhment cannot diſcharge the Forfeiture, although it diſchargeth the puniſhment. Glanvil contra; and ſaid that this point was in queſtion when the Lord Keeper was Atturney, and then both of them conſulted thereupon, and they made this diverſity, viz. Between a thing void and voidable, and for Simony the Church is not void until Sentence Declaratory, and therefore they held that by the Pardon before the Sentence all is pardoned, as where a man committs Felony, and before Conviction the King pardons him, by this Pardon the Lord ſhall loſe his Eſcheat, for the Lord can have no Eſcheat before there be an Attainder, but that is prevented before by the Pardon: And ſo here this Pardon prevents the Sentence Declaratory, and ſo no title can accrue to the Ordinary. Walmſley contra: if Patron be charged by the Sentence, he may plead the Pardon. But if a Quare Impedit be brought by a third Perſon, the Pardon of the King ſhall be no Barr to him, for the title appears not to him, but only the puniſhment. Anderſon, they may proceed to Sentence Declaratory, notwithſtanding the Pardon; for the Pardon is of the puniſhment, but the Sentence extends not to that, but only to declare that the Church is void. Glanvile, in 16. Eliz. a man was deprived of his Benefice for Incontinency, and after he was pardoned and reſtored. Walmſley, I doubt much whether the King can pardon Simony. And Williams ſaid, that the Proctors of the Civil Law ſaid, that neither the Pope nor the King could pardon Simony quoad culpam, but onelyonly quoad poenam they may: And the Court at laſt ſaid, that if the parties would not demurr, they would hear the Doctors on this matter zzHill. 41. Eliz. C. B. Smiths Caſe. Owens Rep..

p. 544(14.) In Calverts Caſe againſt Kitchin and Parkinſon in the Exchequer, where K. not knowing of any Simoniacal agreement was Preſented, Inſtituted, and Inducted to the Church of D. and this after the Statute of 31. Eliz. cap. 6. And this Preſentation belonging to the Queen by reaſon of this Preſentation for Simony by force of the ſaid Statute, the Queen preſented one B. and before that B. was Admitted and Inducted the Queen died; whereupon the King preſented C. without any recital or mention of the Preſentation made by the Queen, and without any revocation actually made of the ſaid firſt Preſentation, and thereupon C. is Admitted and Inſtituted; and for Tithes as Parſon he brought Treſpaſs. In this Caſe one of the points in Queſtion was, if within the ſaid Statute here be Simony in the Patron, and not in the Parſon, if this ought to prejudice the Parſon or not? In this point Hitchcock conceived, that although the Preſentee in this Caſe, was not party to this corrupt agreement, yet he ſhall be prejudiced by it, although not ſo prejudiced thereby, but that he may be capable to be preſented again to the ſame Benefice, but hac vice the preſentation of him is void; for as Littleton ſaith, the Preſentee ought to accept the Parſonage ſubject to ſuch charges as the Patron pleaſeth, who in the time of vacation hath power to charge it, and ſo by his Act had made it ſubject to the Forfeiture, and therefore the perſon who cometh under him ſhall be prejudiced, &c. Damport to the contrary; The Patron and a ſtranger corruptly agree to preſent K. whereupon he is preſented; If this ſhall be void againſt K. is the queſtion. To this he ſaid that at the Common Law, if one be Simoniacally preſented, yet this is not void until the Preſentee be deprived; and if before the ſaid Statute ſuch a corrupt Preſentation had been made, the Incumbent and Ordinary being free, then no Preſentation ſhould enſue; and he vouched the ſaying of Lindwood to be accordingly; but if money be given by the friends of the Preſentee, and after the King had notice thereof, and Aſſent, then it is not puniſhable, but pardonable at the diſcretion of the King; and now by him the Statute provides no puniſhment for the Parſon, when the Patron onelyonly conſents to the Simony; for he obſerved that after the ſaid ſtat. of 31. Eliz. had appointed a puniſhment for the Patron, then in the laſt part of this Branch, the words are, The perſons ſo corruptly taking, &c. ſhall be incapable of the Benefice aforeſaid; and ſo it ſeemeth, that the intent of the Statute is not to puniſh any party, but he that is to the Simony, and this is alſo explained to be ſo, by other clauſes in the Statute, for another clauſe inflicts puniſhment upon the Ordinary, if there be any corruption in him, and another clauſe inflicts puniſhment upon him who is party to a corrupt Reſignation, and ſo in all the clauſes, thoſe only who are p. 545partakers of the crime ſhall be puniſhed, &c. And in this Caſe was no agreement aſſented unto by the Parſon; and this diverſity alſo ſeems to be good, that if A. hath the Preſentation, and B. the Nomination to a Benefice, and the Preſentor upon a corrupt agreement, makes a preſentation unknown to the Nominator, here the Nominator ſhall not be prejudiced within this Statute, &c. In this Caſe Bromley Baron declared his opinion, that the intent of the Statute was to eradicate all manner of Simonies; and therefore the words are not if any man give money to be preſented, but they are If any preſent for money, and the jurors here found 20 l. to be given, and nothing for what it was given, or to whom it was given, for if money be the meed, a Preſentation is void, and therefore if I. S. be patron of the Church of D. which is void, and a ſtranger ſaith to me, procure the Preſentation for A. and you ſhall have 100 l. and he procured A. to be Preſented; here if the Patron had notice of the money given to me, this Preſentation is void, but otherwiſe not: And in this Caſe without notice of the Parſon, the Admiſſion and all that enſued thereupon is void, by reaſon of the Simony in the Patron; and it is void as to the Parſon alſo; and if in this Caſe we are not within the words of the Statute, yet we are within the intent clearly, &c. And Panormitan ſaith, That Simonia eſt ſtudioſa voluntas emendi vel vendendi aliquid ſpirituale, vel ſpirituali annexum cum opere ſubſequente. Altham Baron was of the ſame opinion, and ſaid that the words of the Statute are, That if a Preſentation be made for money, it ſhall be void, and that the King may preſent that turn; and therefore the want of privity in the Incumbent is nothing to the purpoſe, as to the avoiding of the Benefice; but his want of privity availeth to excuſe him of being Simoniacus, yet he is Simoniace Promotus, and therefore the Preſentation is void, and the King ſhall have it by the expreſs words of the Statute; and therefore as it ſeems, if in this Statute there had been an expreſs ſaving of the Intereſt of the Incumbent, by reaſon of his innocency, yet ſuch a ſaving of Intereſt had been void and repugnant, in reſpect that it was expreſly given to the King before, as it is in Nichols Caſe in Plowden upon the Stat. of 1. H. 7. &c. And to prove that by the Simony in the Patron that the Parſon ſhall be prejudiced, he vouched 42. E. 3. fo. 2.—Snig Baron concurr'd in opinion with the former, and ſaid that as to the point of Simony by the Civil Law, it was puniſhable by Deprivation, and the guilt of the Patron ſhould prejudice the Parſon, as to matter of commodity in the Parſonage; and at the Common Law if the Parſon will plead ſuch Preſentation, he ſhould be prejudiced, and here by the Incumbency the words of the Statute will not be ſatisfied, &c. Alſo it ſeemeth that if I. S. hath an Adowſon, and A. purchaſe the next avoidance to the intent to preſent B. and the Church becomes void, and A. preſents p. 546B. this is Simony by averment, as by good pleading the Preſentation of B. ſhall be adjudged void, &c. Tanfield accordingly, as this Caſe is, here is Simony by the Civil Law, and the party had his Benefice by Simony, although he be not cognuſant thereof. Secondly, admit here was not Simony by the intendment of the Civil Law, yet the Statute hath made an avoidance of the Benefice in this Caſe, although it be not Simony, for the Statute ſpeakes not one word of Simony throughout the Act, and yet by expreſs words it doth avoid ſuch Preſentations as this is; and as to the Civil Law ſuch Benefice is to be made void by Sentence Declaratory, but it is not void ipſo facto, as it ſeems in the Caſe where a common perſon was conſenting to the Simony, but the text of the Civil Law ſays expreſly, that the Church ought not to be filled Corruptive, or by corruption, and the Civil Law expreſſeth ſuch a perſon as in this Caſe by Simoniace promotus, and calls him who is Particeps Criminis, Simoniacus, and he who is Simoniacus, is by the Civil Law deprived not only of the Benefice ipſo facto, but alſo is deprived to be a Miniſter, and adjudged guilty, in culpa & poena. Petrus Benefieldus ſaith, that if a Friend give money to a Patron, to make a promiſe to him &c. and the Incumbent pays it, ſuch an Incumbent is Simoniacus by the Civil Law; and ſo if the Incumbent pay the money not knowing it till after the induction, yet he is Simoniacus; and by him if a Friend give money, and the Parſon is thereupon preſented, though the Parſon knew not of the money given, yet he ſhall be deprived of the Benefice; and this difference was certified by Anderſon and Gawdy to the Council-Table upon a Reference made to them by the King, touching the filling of Benefices by corrupt means; And the Statute of purpoſe forbears to uſe the word Simony, for avoiding of nice conſtruction in the Civil Law as to that word, and therefore the makers of the Act ſet down plainly the words of the Statute, that if any ſhall be promoted for money, &c. So that by theſe words it is not material from whom the money comes; and then in ſuch Caſes for the avoiding of all ſuch grand Offences a liberal Conſtruction ought to be made, as hath been uſed in ſuch caſes, &c. for which and many other reaſons mentioned in this Report, he commanded Judgment to be entred for the Plaintiff aaTrin. 7. Jac. in the Exchequer. C…lvert againſt Kitchin and Parkinſon. and Kitchin againſt Calvert. Lanes Rep..

(15.) Sr. George Cary being ſeiſed of an Advowſon, granted the next Avoidance to his ſecond Son, and died; and after the Son corruptly agreed with I. S. to procure the ſaid I. S. to be preſented to this Benefice, and the ſecond Brother knowing thereof; it was agreed that for the perfecting of the agreement, the ſecond Brother ſhould ſurrender his Grant and Intereſt to the elder Brother, which elder Brother not knowing of the ſaid corrupt agreement, p. 547preſented the ſaid I. S. who was Inſtituted, &c. all ſhall be void, for he is here preſented by reaſon of this corrupt agreement between the Patron who then was, and the Parſon, and the elder Brother was only uſed to convey a bad gift by a good hand, and all had reference to the corrupt agreement, with the Aſſent of the Patron who then wasbbGloſſe and Pompoyes Caſe vouched by Damport in Calverts Caſe againſt Kitchin. Lanes Rep..

(16.) The King brought a Quare Impedit againſt the Archbiſhop of Canterbury, Sr. John Hall, and Richard Clark, for the Church of M. and declares that Richard White was ſeiſed of the Mannor, to which the Advowſon belonged. And the 6. Jac. by Indenture, he covenanted to ſtand ſeiſed to the uſe of himſelf and his Wife for their lives, and to the heirs of Richard White. And after White preſents one Boynton, and dyes, and his Wife marries with Sr. John Hall, who the firſt of June. 6. Jac. by deed grants proximam Adocationem to two, to this intent, that he might receive of ſuch a Parſon, that he preſented, all money as ſhould be agreed between Grantor and Grantee: And that this was done Bointon lying in extremis. And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees, that for 200 l. to be paid by the Clerk Blundell, that the other Grantee ſhould preſent him. And the firſt of February Blundel pays Sr. John Hall the money, and the ſecond day he was Preſented, Inſtituted and Inducted accordingly. And that upon this it appertained to the King to preſent: The Biſhop pleads but as Ordinary: Sr. John Hall makes a title, and traverſes the corrupt agreement. The Incumbent pleads by Proteſtation that there was not any corrupt agreement, as it was alledged, and not anſwers whether the money were paid or not; but that he is Parſon Imparſonee of the Preſentment of—But 16. Jac. after ſuch an agreement (ſcil.) 17. Febr. he was preſented by the Letters Patents of the King to his Church,Trin. 4. Car. C. B. and never anſwers to the Simony. and it was held by the Court to be naught; and only pleaded to hinder the Execution before the Juſtices of Aſſize, if the trial went againſt the PatronccThe King againſt the Arch-biſhop of Canterbury Hetley's Rep.. And further in that Caſe between Hall and Blundell it was ſaid by Davenport, that this Parſon being preſented by ſimony is diſabled to this Church for ever, and cannot be preſented to this Church again; as it was adjudged in the Lord Windſors Caſe. But it was ſaid by Richardſon if he had ſaid, abſque hoc, That he was in ex Preſentatione of &c. it had been good enough which was granted. Henden, two exceptions had been taken. (1.) That the Incumbent doth not ſhew what Eſtate or Intereſt the King had to preſent him; which doth not need, if the King brought a Quare Impedit, then it is a good anſwer to ſay, that he is in of his Preſenting. But if it be brought by a ſtranger, then he ought to ſhew the title in his p. 548Preſentment. And he alledged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law. 41. Eliz. There was a Quare Impedit brought for the Church of Danell; a preſentation by the King was pleaded, without making a title, and it was admitted good. And in many Caſes it is more ſafe not to make a title. (2.) Becauſe that he pleaded a Preſentation by the King he is diſabled. As to that he ſaid, that before he be convicted of Simony, he may be preſented. But by Crook in Sathers Caſe, that if he be preſented before conviction, yet it is a void Preſentation. And it was ſo agreed by the Court, and they reſolved the plea was nought, becauſe he anſwers nothing to the Simony; for the Proteſtation is not any anſwer: wherefore Judgment was given for the PlaintiffddHall and Blundells caſe Hatley's Rep..

(17) F. Libels in the Eccleſiaſtical Court for Tithes, and a Prohibition was prayed upon a Suggeſtion that he came to the Church by Simony. By the Court, a Prohibition ought to be granted upon a ſurmiſe only, that he came to the Church by Simony. Then Honden ſhewed, that it was found by verdict in the Kings Bench, that he came in by Simony; And upon that verdict there was a Decree in the Court of Wards accordingly. And then the Court inclined to grant a Prohibition. And the Caſe here was, that F. being convicted of Simony, the King preſents Clapthorn, who was Admitted Inſtituted, and Inducted: And afterwards he takes another Benefice above the value of 8l. by which the other was void. Yet by the Aſſent of the Lord Windſor Patron, F. continued poſſeſſion. And by Richardſon, he cannot be any way removed until Lapſe incurreeFowlers Caſe. ibid..

(18.) It was ſaid by the Court in Sr. John Paſchall's Caſe againſt Clark upon evidence, that if the Patron preſent one to the Advowſon, having taken an Obligation of the Preſentee, that he ſhall reſign when the Obligee will after three Months warning, that that is Simony within the Statute of 21. Eliz. cap. 16.ffTrin. 15. Jac. C. B. rot. 2051. Sr. John Paſchall verſ. Clark. Noy's Rep..

(19.) A. Sciſed of a Mannor with an Advowſon Appendant: S. comes to A. and promiſes that if he would preſent him, &c. after the death of the now Incumbent, he would give him Seventy pounds, to which he agreed. And upon that it was agreed between them, that the next avoidance ſhall be granted to B, &c. the Incumbent dies, B. preſents S. who continues lacumbent from 27 Eliz. until the 7th of King James, Than A. grants the Mannor cam pertinent. to Winchcombe in Fee, S. the Incumbent dies, 7 Jac. And the King preſents Pulleſton by the Title of Simony: and Winchcombe brought a Quare Impedit, and adjudged that it doth not lie. In which Caſe two points were reſolved. (1.) That p. 549that is Simony; Firſt, becauſe there was a corrupt Contract for the Advowſon: Note, that in the Stat. of 31 Eliz. there is not word of Simony; for by that means then the Common Law would have been Judge, what ſhould have been Simony and what not. Secondly, although that the prochein Avoidance might be bought and ſold bona fide, without Simony, yet it was ſo granted to B. to perform the corrupt Contract, 2 Jac. was vouch'd, that it the Father purchas'd the prochein Avoidance, and preſents his Son after the death of the Incumbent, that is not Simony, and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Caſe. But by Hubbard, that if in the grant of the Prochein Avoidance it appears that it was to the intent to preſent his Son or his Kinſman, and it was done accordingly, that is Simony. In the 7th Jac. In the Exchequer Calvert againſt Parkinſon. The Coſin of C. being Clerk comes to the Grantee of the prochein Avodance, and promiſes him Twenty pounds, and Twenty pounds per an. if he will preſent C. to the Church quando, &c. C. not knowing any thing of the Contract, is preſented accordingly. This is Simony. Fortiori in this Caſe where S. himſelf who was to be preſented, was party to the firſt motion of the Contract for preſentation. (2.) It was reſolved, that the death of the Simoniacal Incumbent doth not hinder but that the King may well preſent, for the Church was never full as to the King, and that Turn is preſerved to the King by force of the Statute, yet it ſeems the Church is ſo full that a Stranger may not preſent for uſurpation; for it is not like 7 Rep. 28. where the King is to preſent by lapſe. And there are many Caſes wherein the Church may be full or void in effect, when there is a Simoniacal Incumbent. Hubbard ſaid that if A. be obliged to preſent B, &c. and he preſents by Simony, yet the Obligation is forfeited, &c. The rightful Patron may have a Quare Impedit after the Six months againſt the Incumbent of an uſurper, that is in by Simony. And by the Court, to ſay the Church was full for Six months, is no plea, when he is in by Simony. Warburton and Hutton cited Doctor Hutchinſons Caſe 10 Eliz. A Parſon preferrs his Bill for Tithes, the Pariſhioner pleads that he was preſented by corruption, &c. and by Simony, and a prohibition was granted, notwithſtanding that the Parſon pleaded pardon of the Simony by the King, and it ſeem'd that it was now triable by the Common Law. Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory againſt Ouldham. In debt upon an Obligation to perform certain Covenants, which in truth were Simoniacal Contracts, and the Plaintiff recovered, for it was ſaid that that obligation is collateral, and the Law does not at all look upon or take notice of the Simony, eo nomine, for it is not once named in the Statute, but only corrupt giving, &c. ggWinch-combe againſt Pulleſton. Noy's Rep. vid. dict Caſ..

p. 550(20.) In debt upon an obligation, it was ſaid that it was made upon a Simoniacal contract for preſentation to the Church, with the cure of Souls; and ſo it was for Simony. All that was averr'd the Court held to be matter debors, and not appear'd within the Deed; and for that the Plaintiff had Judgement. For no ſuch averment is given by the StatutehhGregory? verſ. Olden. Noy's Rep.. Note, the Statute doth not make the Bond, Promiſe, or Covenant void, but the Preſentation. And ſo adjudged, Paſch. 40. Eliz. Rot. 1745. C. B. Caſe of Gregory againſt Oldbury. Co. Inſt. par. 3. cap. 71.

(21.) If an innocent Incumbent be in by a Simoniacal Contract, to which he was no way privy, he is not Simoniacus though Simoniace promotus; and as he is not Simoniacus, ſo neither Perjurus, for Simony ſeldom goes without ſome kind of Perjury. An Action was brought upon 5 Eliz. for Perjury before one of the Maſters of Chancery, who had power to take an Oath. Adjudged Quod nihil cap. per breve. And the reaſon was, becauſe he does not ſhew that the Oath was in Court. By Whitlock they were called Maſters of Chancery, Maſters of Chancery, why ſo called.becauſe they were Prieſts and Clergy-men in ancient time: and that was the reaſon that the Lord Chancellor had the diſpoſal of the petty Offices of the King, for the preferment of theſe Clerks: that was alſo the reaſon that they could not Marry until they were enabled by the Stat. &c.iiLuther verſ. Holland. Noy's Rep..

(22.) Parſon L. was convented before the High Commiſſioners, and they would put him to his Oath touching Simony (ſuppoſing it to be committed by him.) And a Prohibition was granted, that none ſhall be compelled to accuſe himſelf upon his Oath; where he is to incurr a temporal puniſhment at the Common Law, or a temporal loſs as in that caſe of his Church: So for Vſury. Note Dyer 175. in the Margin. And Cook Chief Juſtice, vouch'd 10 Eliz. Smiths Caſe, an Atturney of that Court. The High Commiſſioners would put him to his Oath, for hearing Maſs. And a Prohibition was granted: for by that he is to loſe One hundred pounds by the Staute, and a Prohibition was now granted by the Court kkParſon Letters Caſe againſt Suſſex. Nay's Rep..

(23.) If a Stranger, having no Title, preſent per tort, to a Church (being void) Simoniacally, and Six months paſs, yet the true Patron may after preſent, for the Statute hath made ſuch Preſentation, Inſtitution and Induction void, and ſo he is no Incumbent, nor is the Church fullllCo. Lit. 120.. Likewiſe, if a Man be Preſented, Inſtituted, and Inducted by Simony to a Church, although it be void as to the King, and as to the Pariſhioners, yet it is not void as to an uſurper, for he that hath no right ſhall not preſent thereunto mmWinch-combs Caſe. Hob. rep. 227..

p. 551(24.) To avoid the deteſtable Sin of Simony, becauſe buying and ſelling of Benefices is execrable before God; it is therefore ordained by the Injunctions of King Ed. 6. An. 1547. That all ſuch perſons as buy any Benefices or come to them by fraud or deceit, ſhall be deprived of ſuch Benefices, and be made unable at any time after to receive any other Spiritual promotion. And ſuch as do fell them, or by any colour do beſtow them for their own gain or profit, ſhall loſe the right and title of Patronage, and Preſentment for that time, and the gift thereof for that vacation ſhall appertain to the Kings Majeſtynnvid. Biſhops Sparrow. Collection of Artic. &c. pag. 9..

(25.) The Oath of Simony is as followeth, viz. I. A. B. do ſwear that I have made no Simoniacal Payment,The Oath of Simony. Contract, or Promiſe, directly or indirectly by my ſelf, or by any other to my knowledge, or with my conſent, to any perſon or perſons whatſoever for or concerning the procuring or obtaining of the Rectory or Vicarage of A. in the Dioceſs of London. Nor will at any time hereafter perform or ſatisfie any ſuch kind of payment, contract, or promiſe made by any other without my knowledge or conſent. So help me God, &c.

(26.) P Parſon of R. in the County of W. ſued for Tithes in the Eccleſiaſtical Court before the Ordinary, and the Defendant here pleads that the ſame Parſon was preſented upon a Simoniacal Contract,Penns Caſe. Brownl. Rep. par. 2. and for that his Preſentation, Admiſſion, and Inſtitution was void, by the Stat. of 31 Eliz. the Simony was for that it was agreed between the ſaid Parſon and another that was Brother to the Biſhop of L. and C. who was Patron of the ſame Church; that if he ſhould procure three ſeveral Grants of three ſeveral next Avoidances, to them ſeverally granted, to ſurrender their ſaid ſeveral Grants, and procure the ſaid Biſhop to preſent him when the Church became void (it being then full of an old Parſon being mortally ſick) that he would make to him a Leaſe of parcel of the Tithes of his Rectory: and the Brother of the ſaid Biſhop procured the ſaid Grantees to ſurrender their ſeveral Grants accordingly (the Church being then full.) And alſo after when the Church became void, he procured the ſaid Biſhop to preſent him according to the firſt Contract, and then the ſaid P. made a Leaſe to him of the Tenths, and after ſued others of his Neighbours in the Eccleſiaſtical Court for Tithes, who pleaded the ſaid Simoniacal Contract; and here Nicholas Serjeant ſuggeſted, that the Judges Eccleſiaſtical would not allow of this Plea there; but the Court would not give credit to this ſuggeſtion; but ſaid, that if the Eccleſiaſtical Court make expoſition of the Statute of 31 H. 8. againſt the intent of it, that then they would grant a Prohibition, or if they ſhould deny to allow of this Plea; and for that adviſed him, that his Client might offer this Plea another time to them, and if they denied to grant that, they would grant a Prohibition.

p. 552(27.) The Patron of a Benefice may be ſued in the Eccleſiaſtical Court for preſenting his Clerk (who is alſo inducted) by Simony, for the Statute of Simony takes not off the Eccleſiaſtical Jurisdiction from puniſhing the party pro ſalute animae ooHill. 11. Jac. B. R. Sr. VVil. Bovers Caſe reſolved.. And where the Parſon is party or privy to the Simony, he ſhall be perpertually diſabled. Alſo if money or other reward be given for the Preſentation, be it with or without the agreement or knowledge of the Incumbent, yet it ſhall always diſable him from enjoying that ChurchppPaſch. 17. Jac. B. R. Lapthornes Caſe. Bath verſ. Potter Rol. Rep. par. 2.. In Wilſons Caſe againſt Bradſhaw it was ſaid by Doderidge Juſtice, that Simony is a contract either with the Patron to preſent, or with the Ordinary to inſtitute, and if it be not one of theſe it is not Simony by the Common Law; Simoniacus is he which makes ſuch a contract or promiſe, and he is diſabled to take any other Benefice, and ſhall be deprived of the Church in which he is: But Simoniace promotus, is he whoſe friend (without his privity or knowledge) gives money to the Patron or Ordinary for his Preſentation or Inſtitution, and he ſhall be deprived of the Benefice to which he is corruptly promoted, but not incapable of any other, nor of that, if he ſhall have it duely again; and every corrupt contract for aright to preſent, is Simony qqHill. 21. Jac. Rot. 1058. VVilſon verſ. Bradſhaw. Rol. Rep..

(28.) In a Prohibition, the Caſe, A. ſeiſed of the Advowſon of the Church of B. the Church being void: C. before the general pardon 39. Eliz. contracted with him for the Avoidance, who for 100l. granted it to him; and he by colour of this Grant preſented his Brother to the avoidance: This was held to be Simony in the Grantee the Incumbent, although he was not privy to the Simony at the firſt; and Simony was there defined to be Voluntas ſive deſiderium emendi vel ven dendi ſpiritualia vel ſpiritualibus adhaerentia vel anxa rrMich 42. & 43. Eliz. B. R. Baker and Rogers Caſe Cro. par. 1.. Or thus viz The Church being void, B. contracted with the Patron for 180l. to have the Preſentation, and thereupon preſented W. his Brother, who knew nothing of the Simoniacal contract, till after his Induction, notwithſtanding he was deprived in the Eccleſiaſtical Court, becauſe he was Simoniace promotus; and it was held in this Caſe, that if an uſurper preſent by Simony, the Clerk is puniſhable in the Eccleſiaſtical Court for the Simony, More. Caſe 1223.although the Patron doth recover the Advowſon and the Preſentation.

(29.)Mich. 13. Jac B. R. Cro. par. 2. In the Caſe between the King and the Biſhop of Norwich, and Saker, and Cole, It was ſaid by Coke Chief Juſtice, that if a Church be void, and a ſtranger without the privity of the after-Incumbent, procures the Patron to preſent him upon a Simoniacal contract, although that the Alter-Incumbent be not privy to the contract, yet he comes in by Simony; and ſo it is, where the Incumbent makes Simoniacal contract with the Friend or Wife p. 553of the Patron, and the Patron knows not thereof, and the Incumbent be preſented by the means of him with whom the Contract was made, it is Simony within the Statute of 31 Eliz. and the King ſhall preſent.

(30.) A man who was preſented by Simony, Libelled in the Eccleſiaſtical Court for Tithes. The Queſtion was, whether the Simony ſhould be tried in the Eccleſiaſtical Court, or by the Common Law;Cloſe's Caſe. More's Rep. the point was not reſolved. Note there Simony is defined to be ſtudioſa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa—and it is either Mentalis vel Conventualis, of both which the Eccleſiaſtical Law may Judge, but the Temporal Court only of Conventual Simony.

(31.) In Sir William Boyers Caſe for a Prohibition to the High Commiſſion Court, for their examining there upon Oath in Caſe of Simony, Hill. 11. Jac. B. R. Bulſr. par. 2.it was ſaid by Coke Chief Juſtice, that Simony is worſe than Felony, it is an enormous offence, if money be paid, for to preſent one to a Benefice, although it be not paid to the Patron, neither had he any knowledge of it, yet the Incumbent for this ſhall be avoided, and the Patron alſo ſhall loſe his preſentation pro hac vice. The Statute of 31 Eliz. cap. 6. is ſo ſtrongly penn'd againſt the Incumbent, that if the Patron be privy unto it, he ſhall alſo be puniſhed: an Action of Debt was brought in the C. B. the Defendant in Barr pleaded, that the ſame was entered for payment of money for Simony; yet the Bond was held good; and we are not to take any notice of Simony, this being puniſhable in the Eccleſiaſtical Court, and if they there meddle only pro ſalute Animae, they are not then to be prohibited; Otherwiſe it is, when they will there examine the perſon upon an Article tending to the Title of the Patronage, there, in ſuch caſe a Prohibition lies.

(32.) In caſe of the King againſt Zakar and others, It is ſaid that if one be preſented by Simony, Paſch. 13. Jac. B. R. Bulſtr. par. 3.and the ſame perſon afterwards obtain a preſentation from the King, this is not good, for he is now a diſabled perſon to take this Benefice, he hath a leproſie upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi. And Coke Chief Juſtice there declar'd, that notwithſtanding the King ſaith, that the ſaid Incumbent ſhall ſtill continue, yet the King ſhall have the next preſentation.

(33.) The Lord Winſor ſeized of an Advowſon, granted the next avoidance thereof to Doctor G. the Church void, R. F. the Father of H. F. Paſch. 17. Jac. B. R. Booth and Porters Caſe. Cro. par. 1.dealt with Doctor G. to permit the Lord Winſor to preſent H. F. who know not of the agreement, who was Preſented, Inſtituted, and Inducted accordingly. Reſolved, that this was Simony, and that the King was to preſent by the Statute of 31 Eliz. The King preſented J. S. who was Inſtituted and Inducted. p. 554R. F. the Father ſued J. S. before the High Commiſſioners for Miſdemeanors, and procured him to be deprived, and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the ſaid J. N. to preſent the ſaid H. F. &c. Reſolved, that the ſaid preſentation of the ſaid H. F. was meerly void, and that he was a Perſon diſabled by the expreſs words of the Statute to accept of that Benefice.

(34.) For a Prohibition upon a Suit for Tithes, ſuppoſing the Parſon had come in by Simony, Risby and Wentworth's Caſe.—Cro. par. 1.and thereby the Church void, and the Tithes not belonging to him: it was reſolved by the Court, a Prohibition did not lie, for that Simony might more aptly be tried in the Eccleſiaſtical Court.

(35.) The Incumbent of a Church being ſick, the Father contracts with the Patron in the preſence of his Son,Trin 41. Eliz. B. R. Smith and Shelbourne. Cro. par. 1. vid. More. Caſe. 1229. for the next avoidance for the Son, and agreed to give him One hundred pounds. The Grant is made, the Incumbent died; the Son is Preſented; Inſtituted, and Inducted; being ſued for Simony in the Eccleſiaſtical Court, he prays a Prohibition, and alledges the General Pardon 39 Eliz. which is after the Inſtitution and Induction, wherein Simony is not excepted: In this Caſe it was reſolved. (1.) That although the Pardon diſcharges the puniſhment of Simony, yet he may be examined of it by the Ordinary, and deprived for it: But it was (2) Reſolved in this Caſe, there was no Simony, for the Father might buy the next avoidance and preſent his Son, and it is not Simony in any to buy an Advowſon; therefore the Prohibition was granted.

(36.) In Debt upon an Obligation to perform Covenants. That T. Mich. 11. Car. B. R. Bryte and Mannings Caſe. Cro. par. 3.B. Son of W. B. ſhould marry A. the Defendants Daughter: In conſideration of which marriage, the Defendant amongſt other Covenants, Covenanted, that he would procure the ſaid T. B. to be Preſented, Inſtituted, and Inducted into ſuch a Benefice, upon the next avoidance of the Church, and the breach was aſſigned, for non performance of the ſaid Covenant, in procuring him to be Admitted, Inſtituted, and Inducted: It was demurred to by the Defendant, becauſe the Covenant is againſt Law, being a Simoniacal Agreement, and a Bond for performance thereof is not good. Reſolved, it it had appeared to have been, that in conſideration of the Marriage, of his Son, he would procure him to be Admitted and Inſtituted into ſuch a Benefice, that had been a Simoniacal Contract, and had avoided the Obligation; but here this Covenant is not in conſideration of the former Covenant, nor depending thereon, but it is a meer diſtinct Covenant of it ſelf, and independent upon the former; and without a ſpecial averring or ſhewing that it was a Simoniacal Contract, it ſhall not be intende, but it may be a p. 555Covenant upon a good conſideration. And it was adjudged for the Plaintiff.

(37.) In the forſaid Caſe of the King againſt Zakar alias Secker and others, it was ſaid by Coke Chief Juſtice, that it is put for a Rule in Green's Caſe,Bulſtr. ubi ſupra. that if one preſents Simaniace to a Church of the Kings, and the King afterwards preſents, jure Simaniace, this is a void Preſentment, becauſe he hath miſtaken his Title, but he ought to preſent jure Patronatus, not ratione Simoniace Preſentatus. And as to the diſability of a Simoniacal perſon by the State of 31 Eliz. cap. 6. Four things are to be obſerved upon this Statute. (1.) The Preſentation to be void. (2.) The King to have this Preſentment. (3.) A Fine to be impoſed by way of Forfeiture. (4) The party preſented to be utterly diſabled. For where there is matter of Simony, if there be Fraud in the Incumbent, or if Money be given for the Preſentation, though it be unknown to the Incumbent, to this let the Patron look; the Incumbent ſhall be removed. In this Caſe the whole Court agreed clearly in this, that the perſon party preſented by Simony, the preſentation is meerly void, and that the ſo preſented is utterly diſabled for ever by the Statute of 31 Eliz. c. 6. to take the ſame Benefice, to which he is preſented by Simony, and that he is incapable to have another preſentation to the ſame Benefice.

(38.) The words [Preſent or Collate] in the Stat. of 31 Eliz. c. 6. are not intended (ſays the Lord Coke) onelyonly where the perſon preſenting or collating,Co. Inſt. pa. 3. cap. 71. hath right to preſent or collate, but alſo where any perſon or perſons, Bodies politick or corporate, do uſurp and have no Title to preſent or collate; and that ſo it was adjudged in caſe where the uſurpation was to a Church of the King. Sed quando Praeſentatio & Jus Poetronatus ſunt Temporalia Quaeritur quomodo ſit Simonia per donum pecuniae pro illis: Reſpondendum eſt, Quod Jus Patronatus & Praeſentatio dicuntur Spiritualia, veſpectu rei, ad quam praeſentatur, quae Spiritualis eſt. Vide Lindwood. cap. de Jurejurando. fo. 80. He ſays further, that there is a diverſity between a preſentation or collation made by a rightful Patron and an uſurpur. For in Caſe of a rightful Patron, which doth corruptly preſent or collate, by the expreſs Letter of the Statute the King ſhall preſent: But where one doth uſurp, and corruptly preſent or collate, there the King ſhall not preſent, but the rightful Patron: For the Branch that gives the King power to preſent, is onelyonly intended, where the rightful Patron is in fault; But where the rightful Patron is in no fault, there the corrupt act and wrong of the uſurper maketh the Benefice, &c. void, but taketh not away the Lawful Title to preſent from the rightful Patron And ſo it was adjudged Mich. 13. Jac. in Quare Impedit, between the King & the Biſhop of Norwich, Tho. Cole, and Rob. Secker, for the Vicarage of Haverel in Suffolk.

p. 556(39.) The Canon Law looks upon Simony as a kind of Hereſie, imò Simoniacos veluti primos & praecipuos Haereticos: Rebuff de Simon. in Reſign. nu 12. and excommunicates all Simoniacks to that degree as not to be abſolved but by the Pope himſelf, nor by him till at the point of death.—extra. cum ſit deteſtabile de Simonia. And are ipſo jure deprived of that Benefice wherein the Simony was Committed:—extr. ibid. And this holds true as well where the Simony is only Coventional or by Compact, as where it is real & per pecuniam numeratam; albeit there are ſome D D. who will not agree that a meer Conventional Simony ſhould incurr a Deprivation, although they conteſt it not as to the real Simony, viz. cum aliquid datur. Caſſad. in Deciſ. 5. de Conſt. But in the Council of Conſtans (touching this Matter) there is nothing ſaid de datione as to Deprivation, but only to as Excommunication; whether therefore it be a Conventional or a Real Simony, a Preſentation or Collation in conſequence of either, is ipſo jure void and null according to that Law. Rebuff. ubi ſup. nu. 10. It is worth an Aſterisk to obſerve, what an excellent expoſition Rebuffus the Canoniſt to this purpoſe makes on Matth. 21. 12. (poſſibly more like a Lawyer than a Divine) he ſays, that by the ſellers of Doves, is there meant, ſuch as endeavour to make ſale of the Sacred Impoſition of hands: And by the Money-Changer are intended ſuch as ſell Eccleſiaſtical Benefices: And pleaſing himſelf in this conceit, breaks out into a Peice of Eloquence, viz. Nuſquam reperitur (quod ſciam) Dominum tanta ſeveritate, tam diſtricta cenſura Juſtitiae peccatores corripuiſſe, non ſolum eloquio increpans, verum etiam facto flagello de funiculis verberans omnes eliminavit de Templo; and thence moſt infallibly inferrs, that our Lord and Saviour Jeſus Chriſt the Redeemer of Mankind, did caſt out of the Temple all Simoniacal perſons, and ſuch as ſell and make Merchandize of Eccleſiaſtical Benefices.—Rebuff. de Elect. derog. lit. d. in verb. Nonnullae.

(40) This moſt deteſtable Evil of Simony, may poſſibly (though rarely) be found in Ordinations; yet is moſt frequently negotiated in Preſentations (Roman Elections and Poſtulations) Collations, Reſignations, and Permutations of Eccleſiaſtical Benefices. It is ſuppoſed that it hath it's denomination from Simon Magus for theſe three Reaſons, (1.) Becauſe he was the firſt, that in the New Teſtament we meet with, that was ever infected with that Crime. (2.) Becauſe he was the ſuperlative Offender in this kind above all others that were anciently guilty thereof, for (as Auguſtine ſaith) he would buy the Holy Ghoſt on purpoſe to ſell the Holy Ghoſt. Aug. tract 40. in Johan. Num. 22.Num 22But thoſe that went before him ſold only ſome created Spiritual thing, as Balaam would have ſold his p. 557Propheſie; and Gehazi Servant to Eliſha, that health which he obtained from a Divine Power for Naaman the Syrian. 2 King 5.2 Kgs 5(3.) Becauſe Simon ſeemed obſtinately to perſiſt in ſuppoſing this thing to be Lawful, and ſo therein he thence became an Heretick, and as ſuch is generally condemned by the Fathers. The Definition which Panormitan makes of Simony ſeems defective according to Leſſius and other modern Authors; Panormita defines it as aforeſaid) to be ſtudioſam voluntatatem emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere ſubſecuto. But to make the definition adequate to the thing, there ſhould be added to it (pretio temporali;) for it is ſuppoſed, that if one Spiritual thing be given for another, in that Caſe it is not properly Simony, becauſe the Turpitude of this Evil conſiſts in this, that Spiritual things, which in their own Nature are ineſtimable, are here eſtimated at a Carnal, Humane, or Temporal price, which value or price the Law makes threefold, viz. Pretium muneris, as Money or ought elſe that may be ſold for Money: Pretium linguae, as undue and undeſerved Praiſe, or immoderate Flattery: Pretium obſequii, as ſome ſervice done, or to be done for the Patron in matters Temporal; or as when a Chaplain ſerves a Biſhop domeſtically without any Stipend or Salary, or remitts it on purpoſe that a Benefice may be beſtowed on him; which by the expreſs Letter of the Canon Law is no other than Simony. c. ſunt nonnulli. 1. q. 1. So likewiſe as to the Pretium linguae, that Law is expreſs againſt it, That Rogans pro indigno ut Beneficium obtineat, Simoniam committit; dict. c. ſunt nonnulli. &c. tuam, de aetat. & qualit. As to that Mental Simony which Navarr. cap. 23. nu. 102. And Cajetan alſo, verb. Simonia, and others would have to be one Member of the Diſtinction thereof, it ſeems to be wholly reſcinded by the two laſt words of the Definition, opere ſubſecuto. It is alſo the more received Opinion among the DD. that to reſign a Benefice into the hands of the Ordinary in favour of a Third Perſon, with this Clauſe (non aliter nec alias) is Simony; the Reaſon they give is, quia omnis pactio in ſpiritualibus Simoniam continet. cap. fin. de Pactis. & cap. ex parte. 1. de Offic. Deleg. To conclude, the Canon Law in this point of Simony is of a farr wider extent than the practice with us is capable of comprehenſion; remembring therefore we are in an Abridgement, we may abuſe the Reader in perplexing him with Exotick Queſtions in reference to this Subject, As whether every Sale or Exchange of Spirituals for Temporals be Simony? Whether an Exchange of Spirituals for Spirituals be Simony? Whether there be any Simony Jure Humano, and by what Contracts it may be diſcerned? Whether p. 558the Pope may be Simoniacal. Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed? Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal? Whether it be Simony in Eccleſiaſticks to take money for Sermons or Theological Doctrines? Whether it be Simony to reſign a Benefice reſerving a Penſion out of it? Whether it be Simony to reſign or beſtow a benefices upon Truſt or Confidence? With diverſe other ſuch Queſtions in the Canon Law, relating to this Subject, the Solutions whereof are not of any moment to us who are out of the Pope's Dioceſs.