A bare Inftitution enough to make an Avoidance. Many Qualifications to elude gainft Pluralities. the Statute a Difpenfation. and the Patron might present another; and that his Prefentee was to have the Benefit of the fame, as if the Incumbent had died or refigned, and that any Licence, Union, or Difpenfation to the contrary fhould be void. 'Tis true, the Statute is, that the Perfon must be inftituted and inducted into the fecond Living; but yet a bare Inftitution, without Induction, will make an Avoidance: for otherwife, a Man may get Inftitution to feveral Benefices, and hinder other Perfons to be prefented, and by getting Sequeftrations of the Profits, may not only defeat this Act, but all Canons made against Pluralities. 4. This had been an excellent Law against Pluralities, and all Difpenfations to obtain them, if it had gone no further; but there being about three thousand four hundred Benefices in England, of ten Pounds per Annum in the King's Books, by the latter Part of this Statute, there are fo many Qualifications to be a Pluralift, that the Nobility may qualify above one thousand Chaplains, befides thofe of the King, and probably as many may be qualified by Birth and Dignities, which in a great Measure eludes the Force and good Intentions of this Act. Vide the A&t. For it feems clear, that the Parliament chiefly had Regard to the Poverty of fmall Benefices, because the Act doth not make the fecond Living void, where the firft is under eight Pounds per Annum, that is according to a Valuation made Anno 26 H. 8. and then returned into the Exchequer, and now in the Firft- Fruits Office; and not according to the real Value; for the Livings which are worth fifty Pounds per Annum, are valued in the King's Books at eight Pounds and no more; though fome Books are to the contrary as Noy's Reports 38. Cro. Eliz. 853. The Damages recovered in a Quare impedit fhall be tried according to the real Value, becaufe 'tis against a Wrong doer, to the Prejudice of another Perfon. But Archdeaconries, Chancellor fhips, Chantorships, Deaneries, Prebends in Cathedral or Collegiate Churches, Parfonages, where there is a Vicar endowed, are not comprehended in this Act under the Name of Benefices with Cure. 5. N. B. If a Clergyman hath Difpenfation to hold two Benefices with Cure, &c. and afterwards he accepts a third, if the Difpenfation is particular, that is, if it express the very Benefices which are dispensed to be retained, then if he hath no other Difpenfation, the two firft are void; but if he hath only a general Difpenfation to hold two Benefices without naming them, then, if he accepts a third, the first is only void. Noy 149. Perfons qualified 6. I fhall mention in what Manner Perfons may be qualified to have Difpen- to have Difpenfations to hold two Livings; and that is, ift, by Retainer or Service; 2dly, by Birth; 3dly, by Dignity. Wide the Statute. fation. 7. As to Retainer or Service, if a Lord or other Perfon 1ft, By Retainer doth retain his full Statute Number, and likewise some more, or Service. thofe Supernumeraries are not qualified for a Plurality, though they fhould be firft preferred. Dyer 312. Moor 277, 678. Gro. Eliz. 723, 839. 4 Rep. 90. Moor 561. So if any Peer fhall have a double Capacity to qualify Clergymen, as if a Baron fhould be made Mafter of the Rolls, he can qualify only accordingly as he is a Peer, and no more; for that is his beft Capacity. And if the eldest Son of a Peer retaineth Chaplains in the Life-time of his Father, who afterwards dies, fuch Retainer fhall not qualify thofe Men, because the Son was not capable to do it at the Time of the Retainer. But if a Baronefs, being a Widow, retains two Chaplains, and marries before either of them are preferred to a fecond Living, this Retainer is good. 4 Rep. 118. b. 79. And it is to be observed, that these Retainers must be before the Inftitution to the fecond Benefice; for if they come afterwards, 'tis too late. 4 Rep. 77. b. 8. Qualification by Birth, is where the Clerk is Brother or 2dly, By Birth. Son of any Temporal Peer, or the Son of any Knight born in Marriage, he may have a Difpenfation to hold two Livings; fo that the Son of a Knight hath in this Refpect a greater Privilege than the Son of a Baronet, because that Dignity was not created when that Statute was made. 9. Qualification by Dignity, is where Perfons are admitted 3dly, Qualificato the Degrees of Doctors and Bachelors in Divinity, or in the tion by Dignity. Civil Laws in either of our Universities. 10. In all thofe Cafes where a Perfon is qualified by Service, he muft carry his Teftimonial or Retainer, under the Hand and Seal of his Lord, to the Mafter of the Faculties, who is to make out the Difpenfation, and this must be sealed afterwards under the Great Seal; and then he may apply himself to the Bishop of the Diocese for Inftitution, and not before; for the first Living is void upon the Inftitution to the fecond. What qualifies a 1. A CHA P. X Of Simony... Church, notwithstanding Inftitution and Induction had, Stat. 31 El. c. 6. may remain void by the Act of the Law, by the In-fet forth. capacity of the Prefentee, because of fome Simoniacal Contract preceding the Prefentation to it, and upon which the Prefen D tation tation is made. For by Stat. 31 El. c. 6. 'tis enacted, That if any Perfon, for any Money, Reward, Gift, Profit, or Benefit, directly or indirectly, or for or by Reafon of any Promife, Agreement, Grant, Bond, Covenant, or other Affu rance for any Money, Reward, Gift, Profit, or Benefit whatfoever, directly or indirectly, fhall prefent or collate any Perfon to any Benefice with Cure of Souls, Dignity, Prebend or Living Ecclefiaftical, &c. or give, or beftow_the fame, for, or in Respect of any fuch corrupt Caufe or Confideration, that then every fuch Presentation, Collation, Gift, and Beftowing; and every Admiffion, Inveftiture, Inftitution and Induction thereupon, fhall be utterly void, &c. And the Queen, her Heirs and Succeffors, fhall presently collate, &c. for that one Turn only. 2. And every Person that shall give or take any fuch Sum of Money, &c. or that fhall take or make any fuch Promife, &c. fhall forfeit and lose the double Value of one Year's Profit of every fuch Benefice. And the Perfon fo corruptly taking any fuch Benefice, fhall thereupon, and from thenceforth, be adjudged a disabled Person in Law, to have and enjoy the fame Benefice, &c. 3. And further, if any Perfon fhall, for any Sum of Money, &c. ut fupra, admit, inftitute, &c. inftal, induct, inveft or place any Perfon in or to any Benefice with Cure, &c. that then every Perfon so offending, fhall forfeit or lose the double Value of one Year's Profit of fuch Benefice, &c. and that the faid Benefice, &c. fhall thenceforth be void; and the Patron or Perfon to whom the Advowfon, &c. fhall and may, by Virtue of this Act, prefent or collate, &c. as if the Perfon were naturally dead, but no Lapfe is hereby to incur 'till fix Months after Notice. 4. And if any Incumbent with Cure of Souls, do or fhall corruptly refign or exchange the fame, or corruptly take for refigning or exchanging the fame, directly or indirectly, any Penfion, Sum of Money, or Benefit whatsoever, that then the Giver and Taker of any fuch Sum, &c. corruptly, shall lofe double the Value of the Sum fo given, taken or had, the one Half to the Queen, &c. and the other to him who will fue for the fame in any Court of Record, &c. 5. And further, if any Perfon fhall receive or take any Money, Fee, Reward, &c. for or to procure the ordaining or making of any Minifter, &c. giving any Order and Licence to preach, shall forfeit forty Pounds, and the Minifter so made ten Pounds. 6. And if fuch Minifter within feven Years next after fuch corrupt entering into the Miniftry, &c. fhall accept or take any Benefice, Living, or Promotion Ecclefiaftical, the fame Living, &c. after Induction, &. fhall be void, and the Patron , Patron may prefent, &c. as if the Party fo inducted were naturally dead; the one Half of the Forfeitures to be to the Queen, her, &c. and the other to the Informer, &c. Law. 7. Mental or Intentional Simony is not punishable, either No Mental, Siby the Common or Statute Law, whatever it may be by the mony in our Canon; for to make it Simony by our Law, there must be actual Payment of Money, or a Contract to pay it. 8. By this Statute, the Patron is not only to lofe his Pre- Penalty on Pafentation pro hac vice, but he is alfo to forfeit double the tron taking; Value of the Living, according to the utmost Value; and this he forfeits upon a corrupt Contract only, though the Clerk is not prefented: But the King is not to have the Prefentation, unless the Clerk is actually prefented; and in fuch Cafe, if he dies Incumbent, the King fhall not lose his Presentation, because it was void, and the Church was never full of him. He who gives or takes fuch Reward or Affurance, forfeits on Perfon double the Value of one Year's Spiritual Promotion, and the giving. Perfon corruptly taking fuch Promotion, shall be difabled to enjoy the fame; fo that this Claufe takes in both Patron and Incumbent. 9. The Words of the Statute are, that the Perfon corruptly Cafes of Sitaking a Promotion, fhall be difabled to enjoy the fame. mony. Now this Claufe being fo very penal to the corrupt Taker, it hath been a Question, whether a Perfon can be faid to take a Benefice corruptly, who is not Simoniacus, but only Simoniace promotus; that is, who is admitted to it upon a corrupt Prefentation, to which he was not privy nor confenting. Lord Coke in his 3d Inflitute 134, tells us, that fuch a Perfon is not difabled by the Statute: But he fays, the Living is void; and if the King, whofe Turn it is, will then prefent him, 'tis good, and he fhall enjoy that Benefice; and Butler and Baker's Cafe is cited in the Margin of the 3d Inft. to prove it. This Cafe is reported by Juftice Croke, and Ser jeant Moor, in which it appeared, the Incumbent did not know the corrupt Agreement till after he was inducted; and yet he was difabled to enjoy that Living. Cro. Eliz. 788. Moor 913. But this must be taken only that the Prefentation is void, for a Man can never be faid to be corruptly taking, who is not privy to the corrupt Agreement. 10. But there may be Simoniacal Promotion, where neither the Patron nor the Clerk are privy to it; as if a Friend of the one give Money to a Relation of the other, to procure him to prefent that Clerk; in fuch Cafe, the Right of Prefentation will be vested in the King, pro hac vice. Sid. 329. 'Tis true Juftice Windham was against the Judgment; because the Pa tron's Right might be defeated by Collufion between two Strangers, which he held to be very unreasonable. But the D 2 Law Cafés of S'mony. Law in this is now in fome Sort altered in Favour of all Patrons not guilty of fuch Simony, and their Clerks, for which fee Stat. W. & M. c. 26. viz. when the Simoniac is dead, &c. For much Matter concerning Simony, fee the Case of the Bishop of St. David's v. Lucy, 1 Lord Raymond 447. 1. If the Clerk himself contract with the Patron for the next Presentation, when the Incumbent is fick, and for that Purpose that it should be granted to a Friend, who upon the Death of the Incumbent prefents that very Perfon, this is Simony. Hob. 165. Cro. Eliz. 686. So if a Stranger, or Relation of any Clergyman, during the Sickness of the Incumbent, agrees with the Grantee of the next Avoidance, to prefent him, and accordingly he is prefented; this is Simony, though the Clerk is not privy to the Agreement; a fortiori where he is a Party and knows. A Sale was of an Advowfon with a Covenant to prefent fuch a Perfon as the Bargainee shall nominate, the Church at that Time being full of an Incumbent by Ufurpation, and a Quare Impedit then pending to remove him, by which he was afterwards removed; this is Simony. Skin. go. Walker v. Hammerfly. But if the Father (the Incumbent of the Church being fick) purchases the next Avoidance, in the Prefence of his Son, with an Intent to present him, and doth prefent him, after the Incumbent's Death, it feems the better Opinion that this is not Simony, as was adjudged by three Juftices (according to Cro. Eliz. 685.) against Anderfon C. J. upon this Reason, that the Father is bound by Nature to provide for his Son. And Anderfon admitted, that this Contract with the Father, with an Intent to prefent the Son, without the Privity of the Son, would not have been Simony. It is to be remembered alfo, that according to Lord Hobart, if in the Grant of the next Avoidance it appears, that it was to the Intent to prefent his Son, and it is done accordingly, it is Simony; ideo quære, and why it is lawful and ufual to purchase the next Avoidance of Churches. 12. But if a Father, upon the Marriage of his Daughter, covenants to pay a Portion, &c. and there is a Diftinct Cove nant, that he will procure the Son-in-Law to be admitted to fuch Benefice upon the next Avoidance, this fhall not be intended to be Simoniacal, becaufe the Covenant had no Dependance upon the Marriage; it was an intire Covenant by it felf, and not made in Confideration of Marriage; for if it had, then it would have been Simony; but it may be made fo by a fpecial Averment, fhewing that it was Simoniacal. Like to this was a Cafe Anno 5 W. 3. where the Incumbent covenanted with the Patron, to refign by all lawful Means at is Request, fo that he might prefent again; and the Patron covenanted to pay |