BEN 



enjoying the same. And by Mat. 12 Anne, MM. 2. r. 1 .'. :. 

 purchaac* by a clergyman, cither in his own name or that of 

 another, of tin- next presentation/or himself, i* declared to be 

 simony, and is attended with tlie sumo penalties ami for- 

 feiture as are ini|Msed by the statute of Elizabeth. Upon 

 the construction of this statute of Elizabeth it has been 

 held, that if the next presentation can be shown to hnve 

 IK-CH purchased with thu intention of presenting a particular 

 person, who. upon a vacancy taking place, is presented ac- 

 cordingly, this fact is MiUicicnl to render the transaction 

 simoniacal. An exception has indeed been made in the 

 cue of a father providing for his son by the purchase of a 

 next presentation, but the principle of this exception has 

 lately Ix-cn denied. (Vide 2 B. & C. 05-2.) 



The cirrutustanco of the incumbent being at the point of 

 death at the time of the contract, may also vitiate the 

 transaction ; except where the fee simple of the advowson 

 is purchased, in which ease it has been decided that the 

 knowledge of the state of the incumbent's health docs not 

 make the purchase simoniacal. 



It has been a question much agitated in our courts, whe- 

 ther a presentation is valid where the person presented 

 enters into a bond or agreement, either generally to resign 

 the benefice at the patron's request, or to resign it in favour 

 of a particular person specified in the instrument. After 

 several contrary decisions in the courts below, it was finally 

 decided by the House of Lords towards the latter end of the 

 last century, that general bonds of resignation were simo- 

 niacal and illegal. A similar decision has lately been mode 

 by the same tribunal with respect to bonds of resignation in 

 favour of specified persons. As there is no objection on the 

 grounds of public policy to the last-mentioned instruments, 

 if restrained within due limits, the interference of the legis- 

 lature has been thought necessary in order to regulate 

 transactions of this nature. On this account, after a retro- 

 spective act (7 & 8 Geo. IV. c. 25) had been passed, to re- 

 medy the hardships that might otherwise have been occa- 

 sioned by the last-mentioned judgment of the House of 

 Lords, it was finally enacted by the 9 Geo. IV. c. 94, that 

 every engagement, bond fide made for the resignation of 

 any spiritual oflice or living, in favour of a person, or one of 

 two persons to be specially named therein, being such per- 

 sons as were mentioned in a subsequent section of the act, 

 should be valid and effectual in the law, provided such en- 

 gagement were entered into before the presentation of the 

 party entering into the same. By the section referred to, 

 where two persons arc specially named in the engagement, 

 each of them must be, either by blood or marriage, an uncle, 

 son, grandson, brother, nephew, or grandnephevv of the 

 patron (provided the patron is not a mere trustee), or of the 

 person for whom the patron is a trustee, or of the person by 

 whose direction the presentation is intended to be made, or 

 of any married woman whose husband in her right is patron, 

 or of any other poison in whose right the presentation is 

 intended to be made. The deed containing the engage- 

 ment to resign must be deposited for inspection with the 

 registrar of the diocese wherein the benefice is situated, and 

 every resignation made in pursuance of such an engage- 

 ment must refer to the same, and state the name of the 

 person for whose benefit it is made and becomes void 

 unless that person is presented within six months. The 

 statute is limited in its operation to cases where the pa- 

 tronage is strictly private properly. 



There are certain benefices of which the patronage is 

 either by custom or act of parliament vested in certain 

 public officers or corporations. Thus, the lord chancellor 

 bos the absolute patronage of all the king's livings which arc 

 valued at20/. per annum or under in the king's books. It is 

 not known how this patronage of the chancellor was derived ; 

 but it appears from the rolls of parliament in the 4th Ed. 

 III., that the chancellor at that time had the patronage of 

 all the king's livings of the value of 20 marks or under, 

 and it is not improbable that at the time of making the new 

 valuation of benefices in the reign of Henry VIII., a new 

 grant was made to the chancellor by the crown, in consi- 

 deration of the altered value of ecclesiastical property. By 

 tat. 3 James I. c. 5, popish recusants arc disabled from 

 exercising any right of ecclesiastical patronage , and the 

 patronage of |IUI;L'S in the gift of such persons is vested in 

 the two universities, according to thu several counties in 

 which the living* are situat .-. This disability :- 

 firmed by the subsequent statutes I Will. & Mary, <. -'i, 

 \'i Ann. icss. '2. c. 14, and extended to cases Vlieiv the 



right of patronage 



s not rein 



224 BEN 



a a trustee for a papist ; and 

 with the other disabilities affecting 

 Roman Catholics) by stat. 111 (',, 9. l\ . c. 7. But tin- 

 mentioned act provides, that where am i. i pa- 



tronage U connected with any office in the gift of the 

 crown, which ollice is held by a Human Catholic, the pa- 

 tronage, so long as the office'is so held, shall be exercised 

 by the archbishop of Canterbury. 



Though the stat. 10 Ann. c. 12 restored the rights of pn- 

 tronage in Scotland (which had been abolished by the act 

 of the Scotch parliament which cstablUhcl lh< 

 terian form of church government at the beginning of Will. 

 III.'s reign), this law was so unpopular that it wa fir a 

 long time resisted, and became almost nugatory. The 

 people gradually assumed to themselves the privili 

 approving of their pastors before they were indued,! ; and 

 this popular sanction, which was denominated a rat!. 

 regarded as indispensable, and as possessing more authority 

 than the presentation of the patron. The General Asscni"- 

 bly of the Church of Scotland in 1 752 (chiefly through the 

 influence of the historian Robertson) passed a vote cen- 

 suring this practice, and vindicating the rights of patronage 

 as established by the legislature. (See Stewart's Life of 

 Robertson.) It seems, however, to have been the 

 though not uniform practice of that church subsequently 

 (notwithstanding positive law) to require a certain concur- 

 rence of the people before the person presented to a benefice 

 was invested with the cure of souls. (See Smith's H'rul/fi 

 of Nations, book v. chap. 1.) This concurrence api 

 however, to have been, in a great measure, a matter of torni, 

 until a recent determination of the General Assembly de- 

 clared that a call should be indispensable in all cases. The 

 Scotch law upon this subject is quite unsettled, and ob- 

 viously requires the interference of the legislature. The 

 church, of Ireland being the same with that of England, the 

 ecclesiastical polity of each is in its main principles the same. 

 The same law of ecclesiastical patronage, the same classifi- 

 cation of benefices, the same circumstances of lay impropria- 

 tions, and in short, the same ecclesiastical privileges and dis- 

 abilities may prevail in each country. But a most important 

 alti-r.it ion in the distribution of the revenues of the Irish 

 church was effected by the 3 & 4 Will. IV. c. 37, amended 

 by 4 &5 Will. IV. c. 90. By this act certain ecclesiastical 

 commissioners are established as a corporation, for the aug- 

 menting of small livings out of the funds, which come into 

 their hands by virtue of the act, and for other ecclesiastical 

 purposes. The funds in question are to arise, partly from 

 the revenues of certain bishopricks which are abolished, 

 and the surplus revenues of the rest above certain limits 

 fixed by the act ; partly from the money paid by the tenants 

 of lands held under bishops' leases renewable for ever, for 

 a conversion of such leasehold interest into a perpetuity ; 

 and partly from a tax levied on all ecclesiastical dignities 

 and benefices, according to a scale of taxation specified 

 in a schedule to the act ; in consideration of which tax all 

 first fruits are abolished. The Commissioners are invested 

 with extraordinary powers by the act. Thus, they have 

 authority to disapproprialc benefices united to dignities, and 

 to unite them to vicarages in lieu thereof. They have also 

 the power of suspending the appointment to benefices 

 which are in the gill either of the crown, of archbishops, 

 bishops, ur other dignitaries, or of ecclesiastical corporations, 

 where it appears that divine service has not been performed 

 within such benefices for three years before the passing the 

 act. The subject of the better regulation of the rev. 

 and discipline of the Irish church still (1835) engages the 

 attention of the legislature. 



We have already mentioned the attempts of the popes to 

 acquire the right of patronage to all ecclesiastical bciu 

 in Europe, and the successful niea-urcs, that were taken in 

 England for resisting their pretensions. After ineffectual 

 attempts had been made at the councils of Constance and 

 Basle in 1414 and 1433 to check the papal encroachments, 

 each of tho principal European government!! seems to have 

 asserted in smiie m. .istical indepen- 



dence, either by entering into concordats with the pope, 

 in- assuming the right of controlling his pretensions by 

 national legislation. Tho latter course seems to have been 

 adopted by Spain towards the end of the fifteenth century. 

 >. vol. ii. p. 361.) The emperor 



of Germany in Ills entered into a concordat at Aschuflen 

 burg with the |'..pe. which is said to be still the law of tho 

 >' ~tates of Germany. By this treaty the pope oh 



