; ment is, that the former presents the church to the parson, the latter the parson to the church and as a patron cannot present to a full church, so neither can a commendam be made to a church certain that is then full. (1) Hence this species of commendam should Incidents appertaining have two incidents. First, it should be recipere to it. et convertere in proprios usus. Secondly, it ought to be in utilitatem ecclesiæ vel persona as for want of a pastor as was the case in the infancy of the church. Besides this species of commendam, namely, the commendam retinere, there is the capere in commendam, which differs from the retinere, inasmuch as the former is merely to hold what was one's own before; the latter to take what belongeth to another. (2) Capere in commendam life. Hence the commendam capere for more than for Must be for six months, and less than life, cannot stand with the common law (3), for as a benefice is so entire and indissoluble, that it cannot be presented or commended by parts, as the cure without the fruits, nor the fruits without the cure, nor the (*) Colt and Glover v. The Bishop of Coventry, Hob. 150. (2) Colt and Glover v. The Bishops of Coventry and P 2 Freehold must not be ance. glebe to one and the tithes to another, so the state and perpetuity of an incumbent cannot be avoided or diminished, as that he may take and hold it for three or four years, or as long as he shall remain a bishop. The freehold cannot be kept in perpetual kept in abey- abeyance, which the law never admits but from necessity, as on the death of a bishop or parson or the like. (1) In this case there would be an injury to the patron, who would be deprived of his presentation, and it is therefore void by the common law. (2) Of the consent of the patron. Hence, in every commendam capere the consent of the patron is necessary before it is executed, and this must be expressed in the instrument of commendam (3); indeed if the archbishop commends to a certain church void, and the patron does not consent, the commendam is void, although the patron consents afterwards (4), and it cannot be made in any general terms to an uncertain church, but to some certain church then void. (5) The patron is the first actor and the com (1) Hob. R. 153. (3) Colt v. Glover, 1 Rol. Rex Gibs. Cod. tit. 913. (4) Wats. Cl. L. 201. Hob. R. 160. (5) Hob. R. 150. mendam works the effect of an admission, institution, and induction. (') capere and The main difference between the commendam Difference retinere, and the commendam capere, is the hold- between the ing that which is already one's own, and the retinere. taking that which is another's. (3) A temporary commendam retinere having ex- Retinere pired, a new commendam of the same benefice having exin the capere, has been granted. (3) (*) Colt and Glover v. The Bishops of Coventry and Litchfield. Hob. R. 151. (2) The King v. The Bishop of Landaff, Str. R. 1009. (3) Gib. Codex, tit. 37. 956. pired, capere has been granted. CHAP. VIII. On Simony. Definition of SIMONY is the corrupt presentation of any one to an ecclesiastical benefice for money, simony. Formerly selling orders. gift, or reward. (1) Simonia est vox ecclesiastica, a Simone illo Mago deducta qui donum spiritus sancti pecuniis emi putavit (2); or as it has been elsewhere defined, Est voluntas sive desiderium emendi vel vendendi spiritualia vel spiritualibus adhærentia. (2) In the council at London under Lanfranc, in the Conqueror's time, simony was forbidden under the name of buying and selling of orders. And it could be nothing else before the church's revenue was settled. In the time of Henry the First ecclesiastical benefices were forbidden to be bought or sold; and it was deprivation then to any clergyman to be convicted of it; and a lay (1) 2 Black. Com. 278. | Barret v. Glubb, 2 Bl. R. Baker v. Rogers, Cro. El. 1052. (3) Baker v. Rogers, Cro. El. 789. 790. (2) 3 Inst. 153. 1 Jer. Tayl. Works by Heber, 205. man was to be outlawed and excommunicated, and deprived of his right of patronage. In the reign of Henry the Second it was decreed, that if any person received any money for a presentation, he was to be deprived for ever of the patronage of the church. And this was not merely a provincial constitution, but two kings were present, namely, Henry the Second and his son, and added their authority to it. (') many church canons. Many church canons, particularly in the time Simony forof Henry the Eighth, in 1603, to which the bidden by clergy are subject; and in 1640 were also made against simony, whereby this offence was forbidden and punished by deprivation and disability. Pretium quod habet hoc ipso vilescit. Indeed the trafficking in benefices was ever considered by the canon law as a detestable sin; and is so much the more odious because, as Sir Edward Coke observes, it is ever accompanied with perjury, as the presentee is sworn to commit no simony (2), and takes the following oath : "I do swear, that I have made no simoniacal Oath taken payment, contract, or promise, directly or indi (1) 2 Concil. Ang. 8. 10. 105. Constit. Prov. 152. Still. Eccl. cases. 84. (2) 3 Inst. 156. Hoveden, 310. The Bishop of St. Da- by the pre sentee of a benefice. |