notice, or on request from the patron. It was held, however, in 1780, that by this arrangement a patron could not obtain complete command over the living and use it as an investment, for the holder of a living could not obtain it or hold it for a less term than for life. And though the courts of law long held such a bond to be valid, yet the House of Lords reversed their decision and held such a bond void. And that decision settled the law, that a general resignation bond was void.2

The next great question which arose was, whether a similar bond of resignation to resign on request for the purpose of presenting a particular person was also void. For after the decision in 1780, the courts of law still treated bonds of resignation, which required the obligor to live personally on the benefice, and to perform all the spiritual duties till a particular person was capable of succeeding, to be valid and binding. These courts held that the objection to general resignation bonds was, that they enhanced the value of the living to the patron, and enabled him to sell with the means of procuring an immediate vacancy. But that view, it was said, did not apply to a special resignation bond, which did not give any benefit to the patron; except remotely by providing for a son or brother. When a case occurred in 1826, and the law was reviewed, a majority of the consulted judges then advised the House that special resignation bonds were as illegal as general resignation bonds. The House of Lords accordingly held that these bonds were void, for, as Lord Eldon, L. C., said, even after resignation there was no law on earth which could compel the patron to present the particular person designated in the bond. Therefore the one kind of bond was as contrary to public policy as the other. But as the law

1 Bp. London v Fytche, 1 Bro. P. C. 96.

2 In this case the House of Lords consulted eight common law judges, and seven held the bond was valid and one held it invalid. LORD THURLOW said he considered the patron as only a trustee for the public to dispose of the living; and the bishops helped Lord Thurlow to reverse the decision of the two courts below. The vote for reversing was 19 to 18, the majority including all the bishops present.-23 Parl. Hist. 878.

3 Fletcher L. Sondes, 3 Bing. 503. BEST, C. J., in 1826 defended the validity of these special resignation bonds at common law, as he said all the judges before him had done for 200 years,

had been deemed to be otherwise, and many had offended, an Act of Parliament was passed in 1829 for the express purpose of mitigating its severity and allowing these special resignation bonds to be valid in a few cases. Accordingly such bonds were declared to be, and they are now legal and binding, if made in order that the patron's uncle, son, grandson, brother, nephew, or grand-nephew (whether the relationship be by blood or marriage) shall be presented to the living. But this further condition is imposed, that part at least of the writing is to be registered within two months after its date, with the registrar of the diocese or jurisdiction, and it is to be open to public inspection on payment of a small fee. The bishop cannot then refuse to accept the resignation when tendered."

Remedy in case of simony.-Though a simoniacal presentation was contrary to law, yet it was deemed only voidable by deprivation, until a statute of Elizabeth made it utterly void. When a layman has taken part in it, the remedy is an action for penalties under that statute. And when the patron has made a corrupt presentation, the right to present devolves on the Crown. It is for the Ecclesiastical Court to entertain direct proceedings for the punishment of simony; that is to say, the presentee or ecclesiastical person can be proceeded against as for a criminal offence. And this is by virtue of the canon law, which

thus: "To hold these bonds void will cause owners of manors with advowsons annexed to sell the advowsons and break the connection between the landed interest and the clergy. The young men of family are from their education and habits likely to make the best parish priests. From their connections with the owners of lands in the parishes, all the inhabitants feel a respect for them which must add much to the effect of the instruction they give. Connection with proprietors of the soil gives to the clergyman the greatest interest in the happiness of his parishioners, and stimulates him to promote their spiritual welfare. Such persons will not take orders when the livings which their ancestors founded are severed from their families. I am aware these are rather considerations of policy than law."-Fletcher v L. Sondes, 3 Bing. 590.

19 Geo. IV. c. 94. 2 Ibid. 3 Ibid. § 5. 4 31 Eliz. c. 6.

5 Ibid.

6 3 Inst. 153.

7 Whish v Hesse, 3 Hagg. 693. SIR J. NICHOLS said there was no instance before or since the statute of Elizabeth of a proceeding against a person as simoniacè promotus without his being privy to the simony.

makes simony an offence.1 But though an ecclesiastical person simoniacally inducted may be proceeded against at once, it was enacted in 1688 that, if the offence be not discovered and punished in his lifetime, it would be too late to proceed after his death, and innocent successors were not to be disturbed and displaced on such an account. And though a layman may legally purchase a next presentation, it is illegal for a clergyman to do so in his own name, directly or indirectly, except in a way already pointed out. Such an induction would be void, and the Crown will have the bestowal of the next presentation. The clerk will be disabled by this statute, and punishable moreover by deprivation.5

2

Par

Vacancy and exchange of benefices.-The weakness of the older kings and Parliaments, perplexed by the boldness and confidence of the ecclesiastics, allowed a species of exaction called first-fruits and tenths to be collected by the pope's officers. First-fruits were the value of a spiritual living for one whole year after a vacancy; but Coke says small vicarages and parsonages were excepted, though all were to pay tenths." liaments had often protested against these exactions as being grievous. At last a statute of Henry VIII., again protesting that they never belonged to the pope, prohibited the payment of them, and transferred them to the Crown. During the vacancy of an incumbency the common law in theory treated the profits as held for the benefit of the Church, though by custom the bishop claimed them. To meet the growing evil of bishops and archbishops purposely delaying institution in order to appropriate these profits and first-fruits, the statute of Henry VIII. already mentioned gave all the profits to

1 Bp. St. David's v Lucy, 1 L. Raym 449. HOLT, C. J., said simony is an offence by the canon law of which the common law does not take notice to punish it, for there is not a word of simony in the statute of Elizabeth, but only of buying and selling.

21 W. & M. c. 16, §§ 1, 2.

4 Ibid.

3 13 Anne, c. 11, § 2., ante p. 392. 5 Leev Merest, 39 L. J., Eccl. 52. 64 Inst. 120.

7 34 Ed. I; 50 Ed. III.; 12 Coke, 45.

And various statutes

8 25 Hen. VIII. c. 20; 26 Hen. VIII. c. 3. regulated the mode of ascertaining the values and appropriating them.-26 Hen. VIII, c. 17. ; 2 & 3 Ed. VI. c. 20; 1 Eliz. c. 4; 6 Anne, c. 54; 6 & 7 Will. c. 77; 3 Geo. I. c. 10.

the next successor towards payment of his first-fruits.1 And in construing this statute the successor or person next presented has been interpreted to mean the person de facto admitted, provided it is not declared by a court or statute to be a void admission. And in practice the churchwardens take out a sequestration authorising them to manage the temporal affairs, part of the profits being assigned for reasonable stipend to him who serves the cure.2

As an advowson is in most respects capable of being dealt with as other real estate, it is capable of being exchanged, which, however, is an operation which involves a double resignation and a double induction. And there were corrupt practices incident to this arrangement which a statute of Elizabeth attempted to punish.3 Another abuse much favoured in early times was the practice of bishops and others obtaining dispensations for the purpose of holding benefices in commendam, that is, committed to the care of another, and so held as to evade the law against pluralities. That practice, however, was put an end to in 1836.4

In ancient times, when remedies were slow and ineffectual, usurpations of benefices were frequent, and such superstitious importance was attached to the continuance of possession in the usurper, that the patron was held to lose his right altogether for not having in time prevented intrusion, there being no other remedy open to him. But a statute of Anne corrected this injustice, and treated a usurpation as not displacing the original right of the patron.5

1 25 Hen. VIII. c. 20.

2 1 Gibs. 749; 28 Hen. VIII. c. 11, § 3 1 & 2 Vic. c. 106, § 100.

3 31 Eliz. c. 6, § 7. Various powers as to the exchange of advowsons were given by statutes through the machinery of the Ecclesiastical Commissioners.-6 & 7 Will. IV. c. 77; 3 & 4 Vic. c. 113, § 73; 4 & 5 Vic. c. 39, §§ 22, 23; 16 & 17 Vic. c. 50; 23 & 24 Vic. c. 124, § 42; 31 & 32 Vic. c. 114, § 12; 33 & 34 Vic. c. 39.

4 6 & 7 Will. IV. c. 77, § 18; 1 & 2 Vic. c. 106. And sinecure rectories have in recent times been gradually suppressed. --3 & 4 Vic. c. 113.

5 7 Anne, c. 18.

CHAPTER IV.

ORDERS OF BISHOPS, PRIESTS AND DEACONS, AND INSTITUTION INTO BENEFICES.

A separate order of priests.-Montesquieu observed that the Egyptians, Jews, and Romans had a separate order of men as priests, and that people who have no priests are commonly barbarians. The separation into laity and clergy was indeed familiar to many other nations of antiquity. The priests of India, Persia, Assyria, Æthiopia, and Gaul all derived their temporal possessions from a celestial origin. The apostolic age, it is said, was remarkable for the vagueness of its organization in religious society. Faith and charity were the chief ties; independence and equality the leading ideas of mutual dependence, and the want of discipline and human learning was supplied by the occasional assistance of prophets, who were called to that function without the distinction of age, sex, or natural abilities, and poured forth their spirit under a divine impulse.3

In the Church of England ecclesiastical persons consist of three grades or orders, namely, bishops, priests, and deacons, and these are recognised in the liturgies, canons, and statutes. Early in the Christian era a distinction

4

1 Montesq. b. 25, c. 4.

2 Gibbon's Rome, c. 20. Even the Kaffirs consider it essential that their priests should be initiated before officiating, part of the duties being to detect and punish sorcerers and act as rain-makers. -Maclean's Kaffirs, 79, 83, 104.

3 Gibbon's Rome, c. 15.

"Those who are to

+ 3 & 4 Ed. VI. c. 10; 14 Ch. II. c. 4, § 16. instruct presumptuous ignorance, those who are to be censors over insolent vice, should neither incur their contempt, nor live upɔn