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Simony, so called from Simon Magus, is the buying or selling of holy orders, or an ecclesiastical benefice.
The words ecclesiastical benefice comprehend every ecclesiastical dignity and promotion.
As by the purchase of ecclesiastical benefices worthy and learned men may be kept out of the church, and a door may, to the great scandal of religion and prejudice of morality, be opened to persons by no means qualified to discharge the duties of the sacred function, it is of the utmost consequence to society that it be prevented. With a view to this, canons were anciently made, by which a very strict oath was enjoined; and the purchaser of an ecclesiastical benefice was punished with deprivation or disability, as the case might require.
It has been said that simony was no offence at the common law ;(a) and the case of Gregory v. Oldbury, Moor, 564, has been as to this point
It is laid down in that case, that a bond to pay money upon a simoniacal contract is good, because simony is no offence at the common law. But, by attending to what is laid down in other books, it will appear, that although simony eo nomine be not an offence, either at the common law or against the statute, for the word simony is not therein contained, a corrupt bargain for presenting to a benefice is an offence at the common law.
[(a) Simony, as such, was unknown to the common law; though I agree that corrupt presentation was. Burnett's Past. Care, 22. But what is or is not simony now depends on the statute of 31 Eliz. c. 6, which did not adopt all the wild notions of the canon law; but has defined it to be a corrupt agreement to present. In Co. Entr. 516, it is expressed simoniace et corrupte; but the latter is the legal and effective word. Per De Grey, C. J., 2 Bl. Rep. 1054.]
In 1 Inst. 17 b, such corrupt bargain is said to be so detestable in the eye of the common law, that a plaintiff in quere impedit could not, before the statute of Westm. 2, recover damages for the loss of his presentation, it being considered as a thing of no value. In 1 Inst. 89, it is said, that a guardian in socage could not present to an advowson in right of his heir ; because, as he could take nothing for the presentation, he could not bring it to account.
This doctrine is confirmed in 3 Inst. 156, and it is added, that simony is the more odions to the common law, because it is ever accompanied with perjury; the presentee being sworn to commit no simony.
In Macaller v. Todderick, Cro. Car. 353, it is said that simony has, by the law of God and of the land, been always accounted a great offence.
In Winchcomb v. Pulleston, Hob. 167, it is laid down, that a bond upon a simoniacal contract is against law, because it is given upon a contract ex turpi causâ, and contrà bonos mores ; nay, that it is as void as an usurious bond, which, if an executor pay, he is guilty of a devastavit.
In Carth. 252, Bartlett v. Vinor, such bond is said to be void, as being against law, although it be not so declared by the statute,
(A) In what Simony consists. Other authorities might be added ; but these are sufficient to show that a corrupt bargain for presenting to a benefice is an offence at the common law.
As neither the consideration of the greatness of the offence of simony, nor the provision made against it by the canon or common law, was sufficient to put a stop to this offence, it was at length prohibited, under very severe penalties, by the 31 Eliz. c. 6.
Under this head it will be proper to consider, (A) In what the Offence of Simony does consist. (B) How far a Bond for resigning a Benefice is good at Law. (C) Of the Power exercised over a Bond for resigning a Benefice by Courts of
Equity. (D) Whether the Penalty of a Bond for resigning a Benefice be saved, where the
Ordinary has refused to accept a Resignation.
1. By the Incumbent.
3. By the Ordinary: (G) In what Cases, and at what Times, Advantage may be taken of the Forfeitures
and Disabilities incurred by Simony. 1. By the King
2. By other Persons. (H) Of the Jurisdiction of Spiritual Courts in Simony. (I) of the Pleadings in an Action upon the 31 Eliz. c. 6.
(A) In what the Offence of Simony does consist. It has already been observed, that simony is an offence at the common law: but, as much the greater part of the determinations, as to what is simony, are founded upon 31 Eliz. c. 6, and some paragraphs of that statute not only contain a description of the offence, but likewise ordain what forfeitures and penalties shall be incurred, and who may take advantage thereof, it will be proper to recite the whole paragraphs in this place, and afterwards to refer to them; and as frequent mention will, in treating of this subject, be made of the oath against simony, that oath shall be likewise recited.
By $ 5 it is enacted, " That if any person or persons, bodies politic and corporate, shall, 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, directly or indirectly, present or collate any person to any benefice 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, that then every such presentation, collation, gift, and bestowing, and every admission, institution, investure, and induction thereupon shall be utterly void, frustrate, and of no effect in law; and that it shall and may be lawful for the queen, her heirs and successors, to present, collate unto, or give or bestow every such benefice, dignity, prebend, and
(A) In what Simony consists: living ecclesiastical, for that time or turn only; and that 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, seeking, or accepting any such benefice, dignity, prebend, or living, shall, thereupon and from thenceforth, be adjudged a disabled person in law to have or enjoy the same benefice, dignity, prebend, or living ecclesiastical.”
Every person presenting for corrupt consideration to forfeit the next turn, and every person giving or taking any thing for a presentation to forfeit the double value, and the presentee to be incapable of enjoying the benefice.
By $ 6 it is enacted, “ That if any person shall, for any sum of money, reward, gift, profit, or commodity, 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, directly or indirectly, admit, institute, install, induct, invest, or place any person in or to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, that every 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 that, 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, presentation, or collation shall by law appertain, shall and may, by virtue 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.”
Every person corruptly instituting to a benefice to forfeit the double value; and the benefice to be void.
By $it is provided, " That no title to confer or present by lapse shall accrue to any voidance mentioned in this act, but after six months next after notice given of such voidance by the ordinary to the patron.” No lapse to be till after six months' notice to the patron that the benefice is void:
By $ 8 it is enacted, “ That if any incumbent of any benefice with cure of souls shall corruptly resign or exchange the same, or shall corruptly take for or in respect of resigning or exchanging the same, directly or indirectly, any pension, sum of money, or benefit, that then as well the giver as the taker of any such pension, sum of money, or other benefit 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 double value of one year's profit before mentioned, to be to the queen's majesty, her heirs and successors, and the other moiety to him or them that will sue for the same, by action of debt, bill, or information, in any of her majesty's courts of record.”
The giver or taker of money for resigning or exchanging a benefice to lose double the sum.
By $ 9 it is provided, “That nothing in this act shall in any wise extend to take away, or restrain, any punishment, pain, or penalty, limited, pre
(A) In what Simony consists. scribed, or instituted 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 execution, as it might be before the making of this act.” The penalties of the ecclesiastical laws not taken away by this act.
By § 10 it is enacted, “ That if any person or persons shall at any time receive or take any money, fee, 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 him or themselves, or to any other of their or any of their friends, ordinary and lawful fees only excepted, for or to procure the ordaining or making of any minister or ministers, or giving of any orders, or license or licenses to preach, that every person and persons so offending, shall, for every such offence, forfeit and lose the sum of forty pounds of lawful money of England, and the party so corruptly ordained or made minister, or taking orders, shall forfeit" and lose the sum of ten pounds; and if at any time, within seven years next after such corrupt entering into the ministry, or receiving of orders, he shall accept or take any benefice, living, or promotion ecclesiastical, that immediately from and after the induction, investing, or installation thereof, or thereinto had, the same benefice, living, and promotion ecclesiastical, shall be eftsoons merely void ; and the patron or person to whom the advowson, gift, presentation, or collation shall by law appertain, may by virtue of this act present or collate unto, give or dispose of, the same benefice, living, or promotion ecclesiastical, in such sort, to all intents and purposes, as if the party so inducted, invested, or installed, had been, or were naturally dead: any law, ordinance, qualification, or dispensation to the contrary notwithstanding; the one moiety of which forfeitures shall be to her majesty, her heirs and successors, and the other moiety to him or them that will sue for the same, by action of debt, bill, plaint, or information in any of her majesty's courts of record.”
The taker of money to procure or give orders to forfeit forty pounds, and the party so ordained to forfeit ten pounds; and any benefice he is presented to within seven years after to be void.
I, A B, do swear, that I have made no simoniacal contract, payment, or promise, directly or indirectly, by myself, or by any other, to my knowledge or with my consent, to any person or persons whatsoever, for or concerning the procuring and obtaining of this ecclesiastical dignity, place, preferment, office, or living ; (here that to which the party is to be admitted, instituted, collater, installed, or confirmed, is to be particularly named ;) nor will at any time hereafter perform, or satisfy, any such payment, contract, or promise made by any other without my knowledge or consent; so help me God, through Jesus Christ. The oath against simony.
A donative is not within the words of the statute, yet, as a corrupt presentation thereto is within the mischief intended to be remedied, it is within the meaning:
Cro. Car. 331; Bawderok v. Mackaller.
The offences prohibited by the statute are more frequently committed when a church is void; but they may be committed when it is full.
If a contract be made when a church is full, to give a sum of money