Abridgment of Ecclesiastical Laws

CHAP. XXXVII.

Of Defamation.

• 1. What Defamation is; how many ways it may be; and where Cognizable.
• 2. Two ways of prosecution at the Civil Law in Causes of Defamation.
• 3. Prohibition for suing in the Ecclesiastical Court upon the words [ Drunkard and Drunken Fellow. ]
• 4. Several differences in reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander.
• 5. Whether Action lies for calling one Quean?
• 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage.
• 7. Matters determinable at Common Law, not Cognizable in the Ecclesiastical Courts.
• 8. Whether these words [ Thou hast taken a false Oath ] be Actionable, and in what Court?
• 9. Whether Action lies at Common Law, for saying Thou art a Whore, &c.
• 10. Words of Slander to the • inderance of Marriage, are Actionable at the Common Law.
• 11. Defamatory words [ Thou art a Bawd and keepest a Bawdy house ] whether and where Actionable?
• 12. To say A. is a Cuckold, and that B. had lain with the Wife of A. is a Defamation suable in the Spiritual Court.
• 13. The Difference as to Cognizance between the words [ Thou art a Bawd, and I will prove thee a Bawd ] and the words [ Thou keepest a House of Bawdry. ]
• 14. To say [ Thou art a Drunkard or a Drunken Fellow ] whether such words are suable in the Ecclesiastical Court?
• 15. The words [ he is a Cuckoldly knave ] are suable not in the Temporal, but in the Ecclesiastical Court.
• 16. Whether the calling of Pimp, Common Pimp, be Actionable, and in what Court.
• 17. Welch J • de, expounded to be Welch whore, and cognizable in the Ecclesiastical Court.
• 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court?
• 19. Action in that Court for Scandalizing a Parson.
• 20. Whether Action lies in the Ecclesiastical Court, for saying of one that kept a Victualling house, that she kept a House of Bawdry.
• 21. Whether the words [ Thou art a Pander ] be Actionable at the Common Law?
• 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery, and Action of Defamation brought in the Ecclesiastical Court thereon.
• 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age?
• 24. Several other Cases at the Common Law pertinent to this Subject of Defamation; what of them cognizable in the Ecclesiastical Court; and wherein the Prohibition lies or not.

(1.) DEFAMATION, properly so called, is the utterance of Reproachful Speeches, with intent of raising an ill Fame of the Party so reproached; Defamare, est in mala Fama ponere: Bart. l. turpia. ff. de Legat. 3. This extends itself to Writing, as by defamatory Libels; as also to Deeds, as by Reproachful Postures, Signs and Gestures; Lindw. c. authoritate. verb. quacunque. in gloss. de Sent. Excommunicat. And as for the most part it proceeds of malice, implying matters either of Crime or Defect; so it generally aims at some prejudice or damage to the Party defamed. Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by virtue of Prohibitions and Actions upon the Case; yet it will not be denied, but that the Cognizance of Defamations, where they are duly prosecuted, doth properly belong to the Spiritual Law, specially where the matter of the Defamation is only Ecclesiastical.

(2.) In all causes of Defamation the Party defamed had his Election by the Civil Law, whether he would prosecute the Defamer ad Vindictam publicam, or ad privatum interesse; the former whereof was made choice of, where the Defamed aimed more at the Defamers shame, than his own Interest; and chose rather to reduce him to a Recantation, than augment his Cash by his own Credit's diminution; l. in constitutionib. §. ult. ff. L. Cornel. The other, viz. ad privatum interesse, was chosen by such Defamed ones as valued their Credit at a certain Rate, and chose rather a Pecuniary Compensation, than an unprofitable Recantation; aiming more at their own private satisfaction, than at the Defamers public Disgrace. l. stipulationum. §. plane. ff. de verbor. obligat. & l. si quis ab alio. ff. de re judic. But both of these the Defamed could not have; for having determined his Election, he was therewith to rest satisfied; only having obtained a Sentence against the Defamer, for his Recantation or public Disgrace by prosecuting him ad publicam vindictam, he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation. The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction, the other to the Cognizance of the Secular: Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say, viz. where the Prosecution is merely for the Punishment of Sin, and Money not demanded, there the Spiritual Court shall have the Cognizance: But where Money is demanded in satisfaction of the Wrong, there the Temporal, specially if the Defamer undertake to justify the matter, or the words express or imply a Crime belonging to the Cognizance of the Common Law. These Actions of Defamation are of a higher Nature, than they seem primo intuitu to be (a man's good Name being Equilibrious with his Life;) and therefore the Law calls them Actiones praejudiciales, that is, such as draw lesser Causes to them, but themselves are drawn of none.

(3.) One Libelled against another in the Ecclesiastical Court, for saying That he was a Drunkad, or a Drunken Fellow, and an addle Drunken Fellow, and by the opinion of the whole Court a Prohibition was granted, and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp .

(4.) One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd; Jones Justice conceived, that these Differences ought to be observed, where a Man calls a Woman Whore, or such like Slander, for which Suit lies in the Ecclesiastical Court against the Party (if the matter appear) in that Case Suit lies for Slander there, and no Prohibition lies; e contra, if a man be called Thief, Traitor▪ or the like, whereon no Suit lies for the Principal in the Ecclesiastical Court, but at the Common Law, if one be sued for such Slander in the Ecclesiastical Court, a Prohibition lies. If a man call one Bawd, for which Suit lies at the Spiritual Court and also at the Common Law; there if the Suit be for Slander in the Ecclesiastical Court, in that case no Prohibition lies, for the Party hath Election to sue in which Court she please: So if a Woman be Slandered in her Reputation, whereby she is hindered in her Marriage, she may sue either at the Common Law or in the Spiritual Court for Slander. And lastly, if a man speak any words, for which no Suit lies at Common Law, nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance, it seems that in such Case if Suit be in the Spiritual Court for Slander, as for Convitia, a Prohibition lies, as for calling one Knave, Drunkard, or the like. Quaere of that, the Chief Justice agreed to that, the others said nothing therein .

(5.) A Suit was commenced in the Ecclesiastical Court, where the Lilbel was, that he called the Plaintiff Quean, or words to that effect, or importing the same Sense; in this Case a Prohibition was granted: (1) Because no Action lies for that Word Quean. (2) For the uncertainty thereof .

(6.) The Defendant said to one Anthony Elcock (who was a Suitor to the Plaintiff, and with whom there was near an Agreement of Marriage) I know Davies Daughter, well, she did dwell in Cheapside, and a Grocer did get her with child, and the Plaintff declared, that by reason of these Words, Elcock refused to take her to Wife. Adjudged, that the Action would lie at the Common Law, and the Suit was not to be in the Spiritual Court for Defamation; but at the Common Law, for that she is prejudiced in that which should be her Temporal advancement; and the ground of the Action is Temporal. The truth of the Case was this; an Action upon the Case for a Slander was brought by Anne Davies against John Gardener: That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock; the Defendant to the intent to hinder the said Marriage, said and published, that there was a Grocer in London that did get her with Child, and that she had the Child by the said Grocer, whereby she lost her Marriage. To which the Defendant pleaded Not guilty, and was found guilty at the Assizes at Aylesbury to the damages of Two hundred Marks, and now it was alleged in Arrest of Judgment, that this matter appeareth to be merely Spiritual, and therefore not determinable at Common Law, but to be prosecuted in the Spiritual Court. But per Curiam, the Action lies here, for a Woman not Married cannot by intendment have so great advancement as by her Marriage, whereby she is sure of maintenance for her life, or during her Marriage, and Dower and other benefits which the Temporal Laws give by reason of her Marriage; and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement, for which it is reason to give her remedy by way of Action at Common Law: As if a Woman keep a Victualling house, to which divers of great credit repair, whereby she hath her livelihood, and one will say to her Guests, that as they respect their Credits, they take care how they use such a House, for there the Woman is known to be a Bawd, whereby the Guests avoid the House, to the loss of her Husband: shall not she in this Case have an Action at Common Law for such a Slander? It is clear that she shall. So if one sa • th, that a Woman is a Common Strumpet, and that it is a Slander to them to come to her House, whereby she loseth the advantage that she was wont to have by her Guests, she shall have her Action for this at Common Law. So here upon these collateral circumstances, whereby it may appear that she hath more prejudice than can be by calling of one Harlot, and the like. And judgment was given for the Plaintiff

(7.) Touching Defamation, for which Suit is in the Ecclesiastical Court. Resolved, the matter must be mere Spiritual and determinable only there; for if it concern any matter which is determinable at the Common Law, the Ecclesiastical Judge hath not the cognizance thereof .

(8.) Action was for these words, Pierce hath taken a false Oath in the Court of Consistory of Exeter. It was objected, that for matters in the Spiritual Court, an Action will not lie: And the Stat. of 5 Eliz. of Perjury, doth not extend to those Courts, but it was resolved, that the Action did lie for these words, and that the Statute doth extend to such and the like Courts; as the Court of Star-chamber, &c. And the words, that he hath taken a false Oath, shall be intended actively, and shall amount to these words, He is forsworn. In this Case it was said by Prideoux, that these words are Actionable, although the Perjury be supposed to be committed in the Spiritual Court; for he shall be Excommunicated if he will not appear, and he shall do penance in a white sheet, which is as great a disgrace as to be set upon the Pillory. And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington, upon these words, Thou art a Bastard, that an Action lieth, and yet Bastardy is a Spiritual matter, and there determinable; so for these words, Thou art a Pirate, an Action lieth, and yet Piracy is not punishable by the Common Law, but in the Court of Admiralty. And these words, He hath taken a false Oath, do amount to these words, He is forsworn. Wray conceived, that the words are not Actionable, for there is a Proviso in the Statute of Eliz. cap. 9. that the said Act shall not extend to any Ecclesiastical Court, but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been, and are yet used, and frequent in the said Ecclesiastical Court. Gaudy, upon these words, an Action doth not lie, for they are not pregnant of any Perjury in the Plaintiff, for he may be mere passive in it: for if one of the Masters of the Chancery Minister an Oath to any person, or any Commissioners, &c. and the Plaintiff sweareth falsely, a Man may say that the Master of the Chancery, or the Commissioners have taken a false Oath: and yet he is not guilty of falsity. And afterwards Mutata Opinione Wray, that the Proviso in the said Statute is to this intent, such an offense may be enquirable and examined in the Ecclesiastical Court in such manner as was before, but the same doth not take away or restrain the Authority of the Common Law, but that such an Offence may be here examined, &c. And as to the latter exception upon these words ( he hath taken a false Oath ) it shall be intended Actively, and not Passively; And if so, the Defendant ought to have so pleaded it: And afterwards Judgment was given for the Plaintiff .

(9.) Pollard and his Wife brought an Action against Armshaw, for these words, viz. Thou art a Whore, for I. S. Goldsmith hath the use of thy Body, and the Cart is too good for thee. Per Curiam, the Action will not lie; for the Common Law cannot define, who is a Whore; but where if one keep a Victualling House, it be said she keeps a house of Bawdry, an Action will lie .

(10.) Action upon the Case for words of Defamation. Whereas the Plaintiff was a Person of good Fame, and always free from Adultery and Fornication, &c. And after the death of Brian her late Husband, was in Communication with one Cowley for a Marriage betwixt them; That the Defendant to deprive her of her Fame, and to hinder her from the said Marrige, spake of the Plaintiff these words, viz. she is a Whore, and her Children (innuendo her Children which she had by the said Brian late her Husband) are Frambishes Bastards (innuendo one Nicholas Frambish. ) After Verdict upon Not Guilty, & found for the Plaintiff, it was moved in Arrest of Judgment by Grimston, that these words are not Actionable: For, for calling Whore, there lies not any Action; and to say that her Children by her former Husband, are Frambishes Bastards, is repugnant in itself; for they cannot be Bastards, which were born in the time of her former Husband: But all the Court held that the Action well lies. For to say of a Widow who is in Comnunication of Marriage with another, that she plaid the Whore in her former Husbands time, is a great Discredit: And to say that her Children are Bastards (although in truth they cannot be Bastards in Law, yet in Reputation they may be so) is cause of loss of her Marriage, and that none will marry with her; wherefore it was adjudged for the Plaintiff .

(11.) Action upon the Case. Whereas he keepeth an Alehouse Licenced by Justices of the Peace, that the Defendant to scandalize the Plaintiffs Wife, spake these words of her, Hang thee Bawd, Thou art worse than a Bawd: Thou keepest a House worse than a Bawdy house, And thou keepest a Whore in thy House to pull out my Throat. Upon not guilty pleaded, found for the Plaintiff. Stone moved in Arrest of Judgment, that these words are not Actionable; but agreed, that for saying One is a Bawd, and keeps a Bawdy house, Action lies, because it is a temporal Offence, for which the Common Law inflicts punishment. But to call one Bawd without further speaking, an Action lies not, no more than to call one Whore. But it is a Defamation punishable in the Spiritual Court. And to say That be keeps a House worse tha • a Bawdy house hath not any intendment what he means thereby; wherefore the Action lies not: And if it be intended, that such words should hinder Guests from coming thither, being an Alehouse, the Husband only ought to have brought the Action. And as to that, the Court ( absent Richardson ) agreed. But for the other words, they held, the Action lies by the Husband and Wife, for the slander to his Wife; and it is as much as if he had said, that she keepeth a Bawdy house; wherefore it was adjudged for the Plaintiff .

(12.) A prohibition was prayed, b • cause A. and his Wife sued in the Ecclesiastical Court for Defamation, and speaking these words of the Plaintiff, He was a Cuckold and a Wittal, which is worse than a Cuckold, and that Aylsworth had lain with Ayloffs Wife; And for these Defamatory words he sued there; and because it was alleged, that for these words, being but words of Spleen, Prohibitions had been usually granted, day was thereupon given until this Term, to show cause why a Prohibition should not be granted, and divers presidents were showed, that for calling one Cuckold or Whore, Prohibitions have been granted: But now upon advertisement all the Court agreed, that no Prohibition should be granted, but that the Ecclesiastical Court should have Jurisdiction thereof: For although they agreed, that there ought not to have been any Suit for the first words, they being too general; yet being coupled with a particular, showing that the Wife committed such an Offence with such a particular person, they be not now general words of spleen in common and usual discourse and parlance; But they held it was a Defamation suable in the Spiritual Court; whereupon the Prohibition was denied .— Brownlow chief Protonotary produced on that occasion several presidents, where Prohibitions had been granted to stay Suits for such words, viz. Trin. 15. Jac. rot. 2260. Purchas verse. Birrel, for that he was presented at several enquests within his Parish for being a Drunkard, and a Barretor. And Pasch. 6. Jac. rot. 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest. And Mich. 21. Jac. Barker verse. Pasmore: She is a Quean, and a tainted Quean. Prohibition granted.

13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words, Thou art a Bawd, and I will prove thee a Bawd. And because these are words properly dererminable in the Spiritual Court, and for which no Action lies at the Common Law, a prohibition was denied. But for saying, Thou keepest a house of Bawdry, this being matter determinable at Common Law by Indictment, Suit shall not be in the Spiritual Court . vid. 27 H. 8. and Co. lib. 4. fo. 20.

(14.) Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation, for these words, Thou art a Drunkard or drunken fellow. And by the opinion of Croke, Jones and Berkley, a Prohibition was granted: For these words do not concern any Spiritual matter, but merely Temporal, and they be but Convitium Temporale, and a common phrase of brawling, for which there ought not to be a Suit in the Spiritual Court; and so it was held in Martin Calthorp 's Case, in C. B. but Richardson doubted thereof, because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness; so it is not merely Temporal: But he assented to the grant of a Prohibition, and the Party may (if he will) demur thereto; whereupon a Prohibition was granted .

(15.) Prohibition was prayed by Bulstrod for Gobbet, to stay a Suit in the Spiritual Court for Defamation, in speaking these words, He is a Cuckoldly Knave, and cited presidents, that for saying, He is a Knave and a cheating Knave, Suit being in the Spiritual Court, a Prohibition was granted upon good advisement; and the Court said, that president is not like to this Case, for there was not any offense wherewith the Spiritual Court ought to meddle, but in this Case for these words, it is properly to be examined and punished there pro reformatione morum; for it is a disgrace to the Husband as well as to the Wife, because he suffers and connives at it, whereupon ( absent Richardson ) the Prohibition was denied. Again, it was moved, that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches, which is in the Archbishops Jurisdiction, and the words were spoken at Thistleworth in London Diocese, as appeared by the Libel. But Jones said, that he was informed by Dr. Duck. Chancellor of London, that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury, that if any Suit be begun before the Archbishop, it shall be always permitted by the Bishop of London; so as it is quasi a general License, and so not sued there but with the Bishops assent; and for that reason the Archbishop never makes any Visitation in London Diocese. And hereupon also the Prohibition was denied .

(16.) Action, for that the Defendant had said of and to the Plaintiff, being of good same, and one who had served as Captain in the Wars, haec verba in London, Thou art a Pimp, averring that in London that word was known to be intended a Bawd; and further said, that he was a common Pimp, and notorious, which he would justify. After Verdict for the Plaintiff, Littleton (the King's Solicitor) moved in Arrest of Judgment, that these words are not Actionable; for it is a mere Spiritual Slander, as Whore or Heretic, and punishable in the Spiritual Court, and not at the Common Law; and he said, that divers times Suits have been in the Spiritual Court for such words, and Prohibitions prayed and never granted. vid. 27. H. 8. 14. But to say that he keeps a Bawdy house, is presentable in the Leet, and punishable at the Common Law. Ward, e Contra, because it is spoken of one of an honorable profession, viz. a Soldier, and trenches on his reputation to be taxed with such a base Offence; and he said, that such offenses have been divers times punished in London by corporal punishment, but it was answered, that was by Custom; and there the calling one Where is Actionable. Jones Justice held that the Action lay not; and all the Justices agreed, that the exposition and averment (that Pimp is known to be a Name for a common Bawd ) is good. Croke and Berkley agreed, that the words are very slanderous, and more than if he had called him Adulterer or Whoremonger, &c. and may be indicted and punished for it corporally, as tending to the breach of the Peace; and rule was given that Judgment should be entered, &c. But was afterwards stayed .

(17.) Suit being in the Ecclesiastical Court for calling a man's Wife Welch Jade and Welch Rogue, Sentence being there in the Arches, the Defendant appealed to the Court of Audience; and in the Appeal mentioned the former words, and in the libel was interlined [ and a Welch Thief: ] and hereupon a Prohibition was prayed and granted, unless cause were shewn by such a day to the contrary: For it was held clearly, that for the word [ Welch Thief ] Action lies at the Common Law, and they ought not to sue in the Spiritual Court: And for the other words, it was conceived upon the first Motion, they ought not to sue in the Spiritual Court, for they be words only of Heat and no Slander. But it was afterwards moved and shewn, that the said words [ A Welch Thief ] were not in the first Libel, nor in the Appeal at the time of the Appeal; but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court, and that upon Examination in that Court, it was found to be falsely inserted, and ordered to be expunged. And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore; which being a Spiritual Cause and examinable there, it was therefore prayed that no Prohibition should be granted; and if it were granted, that a Consultation should be awarded. And of this Opinion was all the Court, that the words [ and a Welch Thief ] being unduly interlined, and by Authority of the Ecclesiastical Court expunged, and in that Court Jade is known and so expounded for a Whore, our Law gives Credence to them therein, and especially being after two Sentences in the Spiritual Court. This Court will not meddle therewith. Wherefore Consultation was granted, if any Prohibition was issued forth quia improvide; And Rule given, that if a Prohibition was not passed, that none should be granted .

(18.) It was moved for a Prohibition by Harris Serjeant to the Court of Audience, because that the Plaintiff was sued there for saying to one, Thou art a common Whore and a base Quean, and Harris said, that a Prohibition had been granted in this Court, for saying to one that she was a pimperly Quean: And it was the Case of Man against Hucksler: And Finch said, though the words are not Actionable in our Law, yet they are punishable in the Spiritual Court, For the word Quean in their Law implies as much as Whore: But Hobart said, that this word Quean is not a word of any certain Sense, and is to all intents and purposes an Individuum Vagum, and so incertain .

(19.) In an Action upon the Case; that whereas he is Parson of D. and a Preacher, the Defendant Slandered him in haec verba, Parrett is a lewd Adulterer, and hath had two Children by the Wife of I. S. I will cause him to be deprived for it. By the Court the Action doth not lie: For the Slander is to be punished in the Ecclesiastical Court. And so awarded Quod Quer. nil. cap. per. bill. .

(20.) D. had sued T. in the Ecclesiastical Court for this, viz. That whereas she was of good fame, and kept a Victualling House in good Order; that the said T. had published that D. kept an house of Bawdry. T. now brought a Prohibition, and by the Court well; for D. might have an Action for that at the Common Law, especially where she kept a Victualling house as her Trade. Note, 27. H. 8. 14. And by the Justices, that the keeping of a Brothel-house is enquirable at the Leet; and so a temporal Offence. And so was the opinion of the Court; Tr. 7. Car. B. R. Mrs. Holland 's Case .

(21.) W. sued L in the Ecclesiastical Court for a Defamation, and had Sentence; L. appeals, and depending the Appeal comes a Pardon, which relates to the Offence, and pardons it; then L. deferrs his Appeal, and for that W. had costs taxed him: And now L. prayed a Prohibition, because he defer'd his Appeal because of the Pardon, which had taken away the Offence. And by the Court in that Case, after the pardon the inferior Court cannot tax Costs; but it was urged that the superior Courts might tax Costs upon the desertion of the Appeal, which is an Offence after the Pardon. But it was answered on the other side, that it was in vain to prosecute the Appeal, when the Offence itself is pardoned. The words were, Thou art a Pander, to Sr. Hen. Vaughan: And there was much debate if they were actionable at Common Law; yet it was agreed, that a Suit may be brought for them in the Spiritual Court, as for calling one Whore, Bawd, or Drunkard: But otherwise by Jones, if he had said, That he was Drunk; for then a Prohibition lies. And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas; a Prohibition was granted in a Suit for calling one Whoreson. And in Weeks Case, a Prohibition in a Suit for calling one Knave .

(22.) E. and M. being reputed Church-wardens (but they never took any Oath, as the Office requires) present a Feme Covert upon a common report for Adultery, &c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation. And when Sentence was ready to be given for them, the Church-wardens appeal to the Arches, where the presentment was proved but by one Witness; they sentenced the Baron and Feme. But now Ward Serjeant, moved for a Prohibition, but it was denied by the Court; for they were Plaintiffs first. And also it is a Cause, which this Court had not any Cognizance of .

(23.) Note, upon evidence to the Jury, Resolved by the Court that an Action upon the Case for words, lies against an Infant of Seventeen years of age. For malitia supplet aetatem . And it is said at the Common Law, that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him, which he will maintain in an Action upon the Case at Common Law, a Prohibition lies .

(24.) If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch; although no Action lies for that at the Common Law, yet no Prohibition shall be granted, for peradventure he may have some Spiritual prejudice thereby, if he should be the Son of a Witch, as that he cannot be a Priest or the like: (for it seems all the force of the words consists in the last words, they being spoken in the disjunctive) .

If a Parson of a Church call A. B. Drunkard, upon which A. B. answers thou liest; if the Parson sue A. B. in the Ecclesiastical Court for giving him the lie, a Prohibition lies, for that the Cause for which he gave him the lie, is not Spiritual, but depending on a Temporal thing precedent . But if a Man call a Minister Knave, he may be sued for that in the Ecclesiastical Court, and no Prohibition lies . If one Man says of another, that he will not hear Sermons made by those who have been made Ministers by Bishops; he may be sued for that in the Ecclesiastical Court, and no Prohibition shall be granted .

If a Man says of another, that he keeps a Bawdy house, and is sued for it in the Ecclesiastical Court, although he might have an Action at Common Law, yet the Ecclesiastical Law hath a concurrent Jurisdiction in this, and the words are mixed, for which reason no Prohibition lies And if one says of another, that he is a Pander, he may be sued in the Ecclesiastical Court, for that the signification of that word is well known, and sounds to a Spiritual Defamation , Or if a Man says to another, Thou art a Cuckoldly Knave, and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation, no Prohibition lies, for that these words amount to a Spiritual Defamation, viz. that his Wife was incontinent; in this Case a Prohibition was denied .

Husband and Wife were Divorced for Adultery à mensa & thoro, & mutua cohabitatione (and as one of the Counsel said, de omnibus Matrimonialibus obsequiis, but the Counsel of the other party denied that) and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation, and Sentence there given for her, and penance enjoin'd to the party Defendant, and costs of Suit assessed for the Plaintiff; and afterwards the Defendant appeals, and after the Husband of the Wife releases all Actions, and that Suit and all appertaining thereunto, and the Defendant pleaded that Release, and they remitted back the Suit to the inferior Court again; and now Coventry Recorder of London prayed a Prohibition, for that notwithstanding the Divorce they continued Husband and Wife, and therefore the Release of the Husband should bar the Wife from having Execution of the Sentence, and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens, and Totte, the Case was, That after a Divorce for Adultery of the Husband à Mensa & Thoro, the Woman sued in the Ecclesiastical Court for a Legacy, devised to her by the Testator, and the Defendant pleaded a Release thereof from the Husband, and thereupon a Prohibition was granted, and he showed that president in Court, but the President did not comprehend the Divorce; But Doddridge said, he well remembered when that Case was argued, and the parlance then was about the Divorce. Wentworth, it seems that no Prohibition shall be granted, Hill. 7. Jac. in this Court. A Suit was commenced in the Ecclesiastical Court by two Church-wardens, and the Defendant there pleaded the Release of one of them, and thereupon a Prohibition was here granted, and after a consultation was granted, for that they shall try that, having cognizance of the Principal, and in this Case the Release is after the appeal, and therefore it may not be pleaded upon the appeal, for the Judges in the appeal have no power but to examine the former Sentence, and not any collateral matter. Coventrie, I agree the Case of the Church-wardens, for that the Release of one is not any Barr in Law, for 38. El • z. it was here resolved between Methon and Winns, that a gift by the Church-wardens without the Assent of the Sidemen or Vestry is void; but it is otherwise here, for here the Release of the Husband is sufficient to discharge the Execution of that Sentence, the which is all that we demand, 10. l • . 3. such Divorce is not any Barr of Dower. The Court seemed to incline that no Prohibition should be granted, for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law, and this is matter merely Spiritual viz. Defamation, and therefore we have nothing to do therewith, and the Release of the Husband shall not discharge the Suit of the Wife, which is only to restore her to her Credit and Reputation which was impeached by the other, and the Costs of Suit is not for any Dammage, but merely for the Charge of the Suit, and therefore the Suit being not discharged, the Costs shall remain also; and this Case is not like the fore-cited Case of Stephens, for the thing for which that Suit was, was originally a Legacy due to Husband and Wife, and therefore there the Release of the Husband was a good discharge, but here was no duty in the Husband originally, Ergo, &c. Curia advisare vult .

In Palmer and Thorps Case it was resolved, that Defamation in the Ecclesiastical Court ought to have three Incidents. (1) That the matter be merely Spiritual and determinable in the Ecclesiastical Court, as for calling one Heretic, Schismatic, Advowterer, Fornicator. (2) It ought to concern matter merely Spiritual only; for if it concern anything determinable at common Law, the Ecclesiastical Judge shall not have Cognizance of it. See for this 22. E. 4. 20 the Abbot of St. Albons Case. (3) Though the thing be merely Spiritual, yet he which is defamed, cannot sue there for amends or damages, but the Suit there ought to be for punishment of the offender, Pro salute animae: For this see Articulis cleri, & Circumspecte agatis, and Fitz. 51, 52, 53. but yet the Plainshall recover Costs there, and there if the Defendant to redeem his Penance agree to pay a certain sum, the Party may sue for this there, and no Prohibition lies in that Case.

In a Case of Prohibition between M. and M. in the Ecclesiastical Court; the Case was, a Suit was there for Defamation, by the Wife of the party, a Sentence there given, and Costs pro expensis litis, the Husband did release these Costs, which they would not there allow of; upon a suggestion here that the Husband was divorced causa Adulterii, a Prohibition was prayed; and for which it was urged, that the Release by the Husband was good, the Suit being there for Defamation, Sentence there given, the Wife divorced à Mensa & Thoro, which doth not dissolve Vinculum Matrimonii, but that this notwithstanding they may come together again when they will; and such a Divorce is no Barr of Dower. Doddridge, They are only to restore the Party to her good Name, in Case of Defamation: The point here only is, the Husband and Wife are divorced, Causa Adulterii, the Wife sues in the Ecclesiastical Court for Defamation, and there recovers, and Costs are given, the which the Husband did release; whether this Release thus made by the Husband, shall bar the Wife of her Costs. And if they will not allow of this Release there, whether a Prohibition shall be granted or not. The Whole Court clear of opinion, that no Prohibition in this Case is to be granted. And so by the whole Court, the Prohibition was denied.

CHAP. XXXVIII.

Of Sacrilege.

• 1. Whence the word Sacrilege is derived, what it imports, and the several kinds thereof.
• 2. It is taken properly and strictly, or improperly & in sensu largo; and is of a mixed Cognizance.
• 3. The several ways whereby Sacrilege may be committed.
• 4. Who are intended by Persons Sacred, against whom Sacrilege may be committed; the division thereof.
• 5. Bartol 's Definition of Sacrilege; several severe punishments thereof Recorded by Historians.
• 6. The several punishments inflicted on Sacrilegious persons according to the Civil and Canon Law; The Civil Law more severe therein than the Canon; how punished anciently in this Realm according to the Ecclesiastical Constitutions thereof.
• 7. The dreadful Curse anciently and solemnly pronounced in Parliament against Sacrilegious persons.
• 8. A remarkable Judgment that happened to a Bishop of Bangor for Sacrilege.

(1.) SACRILEDGE, from Sacro & Lego, or à Sacris Legendis, that is, suffurandis for that word Lego sometimes signifies furari or rapere: Isidor. lib. 1. Origin. lit. s. Sacrilegus, qui sacra legit, h. e. furatur. In the Greek 〈 in non-Latin alphabet 〉 importing as much as to say 〈 in non-Latin alphabet 〉 , that is praedari vel violari Sacra, for Sacrilege is the violation or usurpation of something that is Sacred, Gloss. in cap. omnes Ecclesiae. 17 q. 4. and may be committed three several ways, As (1.) either in respect of the Person, as when a man doth wound or strike an Ecclesiastical Person in Holy Orders: or (2.) in respect of the Place, as when one violates the Privileges or immunities of the Church or Church-yard: or (3.) in respect of the Thing, as when a thing Sacred or Consecrated or deputed or dedicated to some Sacred use is usurped upon and taken away, and this holds true, whether auferatur Sacrum de Loco sacro, vel non sacro, vel non sacrum de sacro. Lindw. de Offic. Archipres. c. 1. glos. in verb. Sacrilegium.

(2.) Sacrilege is taken either strictly and properly, as when a thing sacred is stolen out of a sacred place; so it is held according to the Law generally, but either will amount to Sacrilege according to the Canons: or in a large sense and improperly, and so it extends to other Crimes. l. si quis c. de Epis. & cle. &c. de sacrileg. per totum. As infringing the Church's Liberties, invading Ecclesiastical goods and the like, whereof more hereafter. Lindw. de immun. Eccl. c. 2. glos. in ver. Sacrilegi. The Emperors held their Constitutions so sacred, that they called the violation thereof Sacrilege. l. un. c. de Crimi. Sacril. This Crime is of a mixed cognizance, partly Ecclesiastical, partly Secular, whereof each Jurisdiction may jure proprio take cognizance. c. cum sit generale. De foro compet. So that this Crime of Sacrilege is not merely Ecclesiastical, because the cognizance ••• reof in some Cases may appertain to the Secular Judge, at least quoad poenam, si quis in hoc c. de Epis. & Cler. And Hostiensis himself doth confess as much quoad poenam Corporalem; otherwise it is as to the censures of the Church contra talem fulminadas.

(3.) There are many ways whereby Sacrilege may be committed, as by invading the rights and goods of the Church, by unjust and illegal vexing and molesting the Church, by wasting and destroying the Church, by violating Ecclesiastics, by a Clerks consulting with Soothsayers and Diviners, by violating Church-privileges and Immunities, by striking a Clerk. Lindw. de immun. Eccl. c. seculi glo. in verb. ausu Sacrilego. Church-burners, Church-breakers, Church-robbers, by stealing the Church-bible, the Calais, or other thing out of the Church, by violating the Church-porch or breaking the Doors thereof, by striking in the Church, or apprehending and taking any one there, by obstructing the Jurisdiction of the Church, or hindering any of that free access which he ought to have to the Church, by usurping the Guardianship or custody of a Church that is void, and under that pretence posess themselves of the Goods and Revenues thereof, by usurping and occupying the Oblations and Offerings of the Church; but to explicate this Crime of Sacrilege to its full latitude, it is requisite in order thereto, to distinguish aright of things Sacred which are violated thereby; for as Habits are distinguished ex objectis, so Vices by the matters about which they are conversant; now the matter of Sacrilege is ever something Sacred, and therefore Sacriledges are distinguished according to the diversity of Sacred things; whence Aquinas infer's, that as there are Three kinds of things Sacred, viz. Persons, Places, and some other Things: So there is a Threefold kind of Sacrilege, viz. against Persons, against Places, and against other Things consecrated and dedicated to Divine Worship. Which distinction the Canonists do generally hold in each Member thereof: As Sacrilege, (1.) Against Ecclesiastical Persons. cap. sicut. &c. quisquis. 17. q. 4. & in c. si quis deinceps us{que} ad cap. si quis suadente. ead. Caus. & q. (2.) Sacrilege against sacred places. cap. Mirror, &c. Frater. (3.) Against the Goods and Revenues of the Church. cap. Sacrilegium. cap. Omnes Ecclesiae. & cap. Attendendum. It being expressly said, that Qui pecunias vel res Ecclesiae abstulerit, Sacrilegium facit. in cap. qui rapit. There is no Sacrilege but may be reduced to one of these three heads, although under them there may be divers other kinds of Sacriledges more particularly subdistinguish'd.

(4.) By Persons Sacred is here understood such, as in a peculiar manner are set apart and dedicated to Divine public Worship according to Sacred Ordination; and the principal kind of Sacrilege commissable against such, is the laying of violent hands on them, which is a violation of their Immunities or Privileges. cap. si quis suadente. 17. q. 4. And as to Sacrilege committed against Places sacred, the Canon is, That Sacrilegium Committitur auferendo Sacrum de sacro, vel non sacrum de sacro, aut sacrum de non sacro cap. quisquis 17. q. 4. Of which Three Members the Third doth not belong to this circumstance of Place. And as to the second Member thereof the Civil Law determines otherwise than the Canon, for in that Case the Civil Law says, that Res Privatorum, si in aedem sacram depositae, surreptae fuerint furti actionem non sacrilegii esse. l. Div. ff. ad leg. jul. pec. yet among the Canonists it is communis opinio, that furtum in loco sacro sacrilegium est. And where the Canon Law speaks of Churches, it says, si qui deposita, vel alia quaelihet exinde abstrahunt, velut Sacrilegi Canonicae Sententiae subjaceant. But every Offence done in the Church is not Sacrilege; yet it is held, that it is in the power of the Ecclesiastical Jurisdiction, so to prohibit the doing of some certain things and actions in the Church, that such as offend against the Prohibition, shall be reputed Sacrilegions, though the things in themselves are not Sacrilege. The Canonists also do hold, that the perverting of the Holy Scriptures, to uphold, maintain, or confirm errors, is gravissimum Sacrilegium. Suar • z. lib. 3. de Sacrilegio c. 7. nu. 1;

(5.) Notwithstanding what has been said, Bartol defines Sacrilege to be the taking away or stealing some sacred thing out of some Public sacred place; this is most properly Sacrilege, according to Bartol, Bart. in l. Sacrilegii poenam. ff. ad Leg. Jul. Pcculat. to which it may not be impertinent or superfluous to add [ cum animo furandi. ] The Civil Law punished it with death, Bart. ibid. & alii D D. in dict. L. & Menoch. de Arbit. Jud. l. 2. Cent. 4. Cas. 389. nu. 2. So the Athenians put a Boy to death for stealing a Plate of Gold out of Diana 's Temple which fell from her Gown. Aelian. lib. 5. de var. Hist. cap. 16. Among the Grecians the Sacrilegious Persons were not to have the common humanity of a Grave, but were cast out unburied. Diod. Sicul. lib. 16. Biblio. in 6. An. Philippi. Philip King of Macedon in his holy Warr against the P • ocenses, having taken their General Onomarchus and routed their Army, commanded the General to be hanged, the rest to be drownd like Sarcrilegious persons. Idem dict. lib. anno 8. Philip. Alexander the Great in the Olympic Games caused it to be proclaimed by an Herald, that all Exiles and Banished persons, except for Sacrilege and Murder, should be permitted to return to their own Country. Idem lib. 17. An. 9. Alexandri. & Gemist. Pl • though. lib. 2. de Gestis. Graec. post pugnam Mantineam. Pleminius Ambassador from Scipio to the Senate of Rome, having robbed the Treasure of Proserpina, and being now nigh dead by a most searful and horrid kind of disease before he was brought to his Trial, the Roman Senate notwithstanding condemned him in double the sum to Pr serpina. Livius lib. 9. Bel. 2. Punic. & Valer. l. 1. cap. 2. Domitian, when it was reported to him by the Flamens or Jupiter's High Priests, that one had erected a Monument for his Son with stones designed for the Temple or Capitol, commanded the Monument to be pulled down, and demolished, the Bones and Ashes of the Party to be cast into the Sea, and the stones to be restored to the Temple: Suetonius. in Domitian. cap. 8. Xenophon relates out of the Laws of the Athenians against Sacrilegious persons in these words, viz. Judge, O Athenians, in this matter according to the law made against Sacrilegious persons and Traitors, That if any hath committed Treason or Theft of things Sacred, let him be adjudged to death, and let Sentence be that be be not buried in Athens, and all his goods confiscate. Xenoph. de lege Atheniens. Another Law against Sacrilegious persons apud Constantinum Harmenopulum, in haec verba, Whoever steals any thing Sacred out of a Sacred place, let him have his Eyes plucked out. Const. Harmen. lib. 6. Prompt. jur. car. 5. Gunctranus King of the Parisians and Galls, with his Nobles and Bishops assembled on the Festival of Sumphorianus, made a Law that their Armies or Soldiers should not on pain of death, either on their March or on a Victory, rush violently into any Churches or rob the same. Greg. Turon. lib. 8. Hist. Franc. c. 30. Clearchus and Sitacles, Soldiers under Alexander the Great, being accused by his Army of robbing and spoiling Churches and removing ancient Monuments, were commanded to be put to death. Orxines, who succeeded Phrasaortes in the Kingdom of Persia, being accused and convicted of robbing and wasting the Temples, Churches, and the Monuments of the Kings, was by Alexanders command Crucified to death. Arria. lib. 6. in fin. de expedit. Alexan. The Law in some Cases doth leave the Penalty of Sacrilege Arbitrary, especially where any Churches are notoriously and violently broken open, and the Offerings or sacred Vessels thence stolen away by night, in which case the Punishment is Capital; and so practiced in the kingdom of Naples; Boerii Decis. 254. nu. 13. It is not the value of the thing stolen, that causes this crime of Sacrilege to be so severely punished, but because there is more of audacity and iniquity in this kind of Theft than of others of inferior Circumstances; and therefore Calistratus accused Menalopus that he had robbed'd Templi Custodes, Anglice, Churchwardens, and had thence stolen away three very small Vessels minimi ponderis, yet even this was punished as Sacrilege of a very criminal nature. Innumerable are the Presidents of this kind found among Historians; to which might be added that of Famous or rather Infamous Remark, touching Charles Martell, King of France, cujus animam (says Tritemius) visam deportari od Inferos, quod multas Ecclesias spoliasset, dum bellis inimicos persequeretur. Tritem in Breviar. Hist. Franc. in fin.

(6.) Touching Sacrilege as diversified in respect of Persons, Places, and other things Sacred, the Canonists enumerate such kinds thereof, as would seem very uncouth and strange for us to hear of in this Kingdom, as the Constitution of the Ecclesiastical State thereof is now most Protestantly established; they are therefore here purposely omitted. The Penalties likewise inflicted on Sacrilegious persons vary according to Circumstances, and as the kinds or degrets of the Sacrilege are; and herein the Canon and the Civil Law have provided very different penalties; which at the Canon Law are of one kind, and at the Civil Law of another: But according to the ancient Ecclesiastical Constitutions of this Realm, Sacrilege of what kind soever, regularly incur's the penalty of Excommunication, which admitts also of distinctions: For as there is the greater and the lesser Excommunication; so there is Excommunication ipso facto, in Contradistinction to that which is only ipso jure; also the Law even in this point of Sacrilege doth distinguish between Excommunication latam, and ferendam; for if it be Sacrilege committed against an Ecclesiastical Person, then according to the Canon Law, and as heretofore practiced in this Realm, the penalty was Excommunicatio lata; but when it is in respect of some things pertaining to the Church, in that case the Punishment was Excommunicatio ferenda. Lindw. de immun. Eccl. c. 1. glo. in ver. omnibus poenis. And sometimes a pecuniary punishment was inflicted for Sacrilege. 17. q. 4. c. quisquis. &c. si quis contumax. The Ecclesiastical Law doth not punish Sacrilege with that austerity and severity as the Civil Law doth, l. Sacrilegio. ff. ad Leg. Jul. peculat. whereby the punishment sometimes is Damnatio ad bestias, sometimes the Sacrilegious person is burnt alive, sometimes hung on Fonk, sometimes condemned to the Mines, sometimes banished, and sometimes sentenced to death in the ordinary way of Execution. He that is guilty of Sacrilege against an Ecclesiastical person, is by the Canon Law excommunicatus ipso facto, 17. q. 4. c. si quis suadente. But if it be in rebus Ecclesiae, he is by that Law Excommunicandus. de Foro compet. c. conquestus. If it be committed in the Church, and that by firing or breaking it open, in that Case the Sacrilegious person is ipso jure excommunicated. de sent. Excom. c. conquesti. If it be without burning or breaking it open, as when a thing being left in the Church, is taken away, in that Case he ought to be excommunicated. De furtib. c. fin. And this (says Lindwood ) may stand as a rule in Law, that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione, it hath these several Fallentias, that is, it doth not hold in case of Burning, violating, spoiling and wasting of the Church, nor in burning or breaking open the Church door, nor in Sacrilege against an Ecclesiastical person, nor in case of striking or violently apprehending any man in the Church, nor in any forcible or violent taking away anything out of the Church, nor in any that were excommunicated before for the like Offence, nor in such as pull down or demolish the Body of the Church or any part thereof, and the like, Lindw. de immu. Eccl. c. ut invadentib. glo. in ver. Excomunicati. All which is likewiseexpresly set down in John de Athon 's Gloss on Cardinal Othobon 's Constitutions, de abstrahentib. Confug, ad Eccles. c. ad tutelam glo. in ver. Obsevari. and seems to have an adequate affinity with what Solomon (who, as in other things, so specially in matters of the Temple, had the best experience) says, It is a suare to the man, who devoureth that which is Holy. Pro. 20. 25.

(7.) The dreadful Curse denounced against Sacrilegious persons, appears in that remarkable passage in Parliament above Four hundred years since, where the Privileges of the Clergy, and Franchises of the Church, were (with the Liberties of the People) granted, confirmed, and settled by the King in full Parliament, Anno 1253. in such a solemn manner, as no History can parallel; The King stood up with his Hand upon his Breast, all the Lord's Spiritual and Temporal, stood with burning Tapers in their Hands, the Archbishop pronounceth as followeth, viz. By the Authority of God Omnipotent, of the Son, and of the Holy Ghost, &c. We Excommunicate, Anathematize, and sequester from our Holy Mother the Church, all those, who henceforth knowingly and maliciously deprive and spoil Churches of their right, and all those that shall by any art or wit rashly violate, diminish, or alter secretly or openly, in Deed, Word, or Counsel, those Ecclesiastical Liberties, &c. Granted by our Lord the King, to the Archbishops, Bishops, Prelates, &c. For everlasting memory whereof, we have hereunto put our Seal. After which, all throwing down their Tapers, extinguished and smoking, they all said, So let all that shall go against this Curse, be extinct and stink in Hell, And Ethelwolphus, the second sole Monarch among the Saxon on Kings, having by advice of his Nobles, granted forever to God and the Church, both the Tithe of all Goods, and the tenth part of all the Lands of England, free from all secular Service, Taxes, or Impositions whatsoever, concludes the said Grant or Charter of Donation in these words, viz. Qui augere voluerit nostram Donationem, augeat Omnipotens Deus dies ejus prosperos; si quis vero mutare vel minuere praesumpserit, noscat se ad Tribunal Christi rationem redditurum.

(8.) Dr. Heylin in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment, that in the time of Queen Mary befell Buckly Bishop of Bangor, An. 1541. for the Sacrilegious havoc he made of the Lands and Patrimony of that Church, who not content to alienate the Lands, and weaken the Estate thereof, resolved to rob it also of its Bells (for fear perhaps of having any knell rung out at the Churches Funeral;) and not content to sell the Bells which were five in number, he would needs satisfy himself with seeing them conveyed on Shipboard, and had scarce given himself that satisfaction, but was immediately struck blind, and so continued from that time to the day of his death:

CHAP. XXXIX.

Of Simony.

• 1. The Definition and description of Simony; the penalties thereof.
• 2. The difference between Simoniacus and Simoniace Promotus; the latitude of that word Simony.
• 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony.
• 4. Whether a Clerk Simoniacally presented, but not privy to the Simony, be disabled for that turn to be presented by the King to the same Church?
• 5. The diversifications of Simoniacal Contracts, or the various ways of committing Simony.
• 6. An Obligation to present one upon condition of resignation, may not be Simony.
• 7. To promise one a Sum of Money to bestow his endeavor to procure one to be presented to a Benefice, is a Simoniacal Contract.
• 8. Several ways of contracting, obliging, and agreeing, which will amount to Simony.
• 9. A Clerk may oblige to his Patron to pay a Sum yearly, and yet no Simony.
• 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes.
• 11. Whether the Fathers free Covenant with his Son in Law, upon the Marriage of his Daughter to present him to such a Living when it falls, be Simony?
• 12. Whether a Simoniacal Usurper shall prejudice the rightful Patron, by giving the King the presentation.
• 13. Whether an Incumbent that is in by Simony, may after a General Pardon be removed.
• 14. The grand Case of Calvert and Kitching at the Common Law touching Simony.
• 15. To convey a corrupt gift by an innocent hand, will not excuse it from being Simony.
• 16. The Kings Case against the Archbishop of Canterbury, Sir John Hall, and Richard Clark touching Simony.
• 17. The Proof of Simony in a Parson is good to harr him of Tithes.
• 18. A Patrons Presentation upon the Presentees Obligation to make a Resignation within Three months after the Patron so please, may amount to Simony within the Statute of 21 Eliz. cap. 16.
• 19. A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal.
• 20. To plead a Simoniacal Contract against a Bond, it not so appearing, is no admissable Plea.
• 21. Masters of Chancery, why so called, and what they were anciently.
• 22. Prihibition to the High Commissioners, that would have put a Parson to his Oath touching Simony.
• 23. In what Cases (by reason of Simony) the Patron may present after Six months; and the Church said to be full as to one, not to another.
• 24. The injunction of King Ed. 6. against Simony.
• 25. The form of the Oath of Simony.
• 26. A Simoniacal Contract a good plea in Barr of Tithes.
• 27. A further description in Law of the difference between Simoniacus, and Simoniace Promotus.
• 28. The Simoniace Promotus, though ignorant of the Simony, yet is deprivable in the Ecclesiastical Court.
• 29. A Simoniacal Contract, to which neither the Incumbent nor the Patron are privy, may yet be Simony within the Statute of 31 Eliz.
• 30. Simony in it's utmost latitude is properly cognizable in the Ecclesiastical Court.
• 31. Simony worse than Felony; A Bond or Obligation good, though entered into upon a Simoniacal Contract.
• 32. Whether a Parson outsed for Simony, may be after admitted to the same Benefice by the Kings presentation.
• 33. A Person Simoniace promotus, and ousted, is by the express words of the Statute disabled to accept the same Benefice.
• 34. Where Simony is pleaded in Barr of Tithes, the Ecclesiastical Court shall take cognizance, and no Prohibition lies.
• 35. Whether the Father may buy the next avoidance, and present his Son; no Simony to buy an Advowson.
• 36. To procure a Man (in consideration of Marriage) to be presented to a Benefice, is Simony.
• 37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke.
• 38. The extent of the words ( Present or Collate ) in the said Statute, also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper.
• 39. What punishment by the Canon Law in case of Simony; and the strange conceit of Rebuffus touching the same.
• 40. The reasons why it hath its denomination from Simon Magus; how many ways it may be committed according to the Canon Law.

(1.) SIMONY (from Simon Magus, as Thomas Aquinas and others conceive, Tho. Aquin. 20. 2. ae. q. 100. art. 1. & 40.) is according to Panormitan 's definition thereof,) studiosa voluntas emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere subsecuto, Panor c. Nemo extra, &c. Or it may be described thus, viz. Simony is when any person is presented or collated to any Benefice with Cure of Souls, Dignity, Prebend, or Living Ecclesiastical, &c. or hath any such given or bestowed on him, for or in respect of any Sum of Money, reward, payment, gift, profit, or benefit directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant or other assurance for any Sum of Money, reward, payment, gift, profit or benefit whatsoever, directly or indirectly, or for or in respect of any such corrupt cause or consideration; and every Presentation, Collation, and gift, as also every Admission, Investure, and Induction thereupon is by the Statute utterly void , and whereby the King his Heirs and Successors for that one turn only shall present, collate, &c. And every person so giving or taking any such Sum of Money, &c. or taking or making any such promise, &c. doth forfeit and lose the double value of one years profit of every such Benefice. Moreover, the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice . The like penalty of the said double value doth he incur, who for any Sum of Money, reward, &c. directly or indirectly (other than the Lawful Fees) or for or by reason of any promise, &c. doth admit, institute, install, induct any person to, or in any Benefice with Cure, &c. Likewise, if any Incumbent of any such Benefice shall corruptly resign or exchange the same, or for or in respect thereof shall corruptly take, directly or indirectly, any pension, sum of money, or benefit whatever, in such case both the giver and taker corruptly as aforesaid, shall forfeit double the value of the sum so given, taken, or had, whereof the one Moiety to the King, &c. the other to him that shall sue for the same in any Court of Record . In which Statute of 31 Eliz. there is a Proviso, that the censures Ecclesiastical shall not be restrained by any of the premises therein contained.

(2.) They that Simoniacally buy Ecclesiastical Livings are compared to Simon Magus, and they that sell them to Gehazi the Servant of Elisha if a person be possessed of an Ecclesiastical Living by such Simony as whereunto he was not privy, be is said to be in only Simoniace: but if he be in any corrupt and Simoniacal Contract, to which himself is a party, and was privy and consenting thereunto, in that case he is Simonaicus; both which are inhibited by the Canons Ecclesiastical or Provincial Constitutions, as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical Livings, Lindw. e. Nulli liceat Ecclesiam &c. Quia plerunq, and that under penalties greater than the Temporal Laws did then, or now will allow of. And although by Simony in the vulgar acceptation of the word, is commonly understood such corrupt Contract for Ecclesiastical Livings as aforesaid, yet it hath a more extensive signification and that is a more proper sense, which is by corrupt Ordinations of Ministers, or for undue Licences to Preach; for prevention whereof it is provided in the Statute aforesaid , that if any person shall receive or take any Money, Fee, Reward, or any other profit directly or indirectly; or any Promise, Agreement, Covenant, Bond, or other assurance thereof (Lawful Fees excepted) for or to procure the Ordaining or Making of any Minister, &c. Or giving any Order and License to Preach, shall forfeit Forty shillings, and the Minister so made Ten pound, beside the loss of any Benefice, Living, or other Ecclesiastical promotion after Induction, that any such Minister shall within Seven years next after such corrupt entering into the Ministry accept and take; the one half of which Forfeitures do go to the King, &c. the other to the Informer, &c. And the Patron in that case may present, &c. as if the party so inducted were naturally dead.

(3.) The forfeiture of the double value of one years profit of the Church by way of penalty, as is beforementioned, is not to be computed only according to the valuation in the Kings Books in the Firstfruit Office, but according to the just and full annual value of the Church . This double value shall be accounted according to the very or true value, as the same may be let, and shall be tried by a Jury, and not according to the extent, or taxation of the Church. Co. par. 3. Inst. cap. 71. And albeit the Clerk be not privy to the Simoniack Contract, yet it seems the Patron shall pro hac vice lose his Presentation . But the Title of the rightful, and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper, albeit the Clerk be by his presentation admitted, instituted and inducted, nor entitle the King to present.

(4.) The Church, notwithstanding the Admission, Institution, and Induction, becomes void, whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not; But Sir Simon Degee in his Parson 's Counselor puts the material Question, viz. Whether the Clerk that is presented upon a Simoniacal Contract, to which he is neither party nor privy, be disabled for that turn to be presented by the King to that viz. the same Church? In order to the resolution whereof he acquaints us with a Case reported, wherein it was adjudged, that if a Clerk were presented upon a Simoniacal Contract, to which he was neither party nor privy, that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case, where B. (the Church being void) agreed with the Patron to give him a certain Sum of Money for the Presentation; B. presented C. who knew nothing of the Simoniacal Contract till after his Induction; In this Case it seemed by Warburton Justice, that C. was disabled quoad hanc Ecclesiam . In which Case it was clear, that the grant of the Presentation during the vacancy was merely void; that B. presented as an Usurper; that C. was in by the corrupt Contract; and that were it not for the same, the Patron would not have suffered the Usurpation. In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged, that if a Church be void, and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement, that notwithstanding the Incumbent coming in by the Simoniacal Contract, is a person disabled to enjoy that Benefice, although he obtain a new presentation from the King; for that the Statute as to that Living, hath disabled him during Life . Notwithstanding all which Premises, Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers, that where the Presentee is not privy nor consenting to any such corrupt Contract, there (because it is no Simony in him) he shall not be adjudged a disabled person within the said Act, for the words of the Statute are ( And the person so corruptly giving, &c.) And so (says he) it was resolved. Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract, he shall not be adjudged a disabled person within the Act because it is no Simony in him— Coke Inst. par. 3. cap. 71. . Also it was so resolved in Doctor Hutchinsons Case by the whole Court, viz. That if a Clerk be presented upon a corrupt Contract within the said Statute, although he be not privy thereunto, yet his presentation, admission, and induction are all void within the Letter of that Statute, but not within the clause of disability within the same Statute .

(5.) The Contracts which are commonly held corrupt and Simoniacal, may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of: but those which have been most in practice (as appears by the Cases reported in the Law) have been by way of unlawful purchasing the next Advowson, by Exchanges, by Resignation, Bonds, by Matrimonial compacts, by contracts remote and concealed from the Presentee, by Obligations of an indirect nature, and the like. To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent, in case he would present another Parson into his Benefice, with whom he was to exchange, albeit that other was not privy to the Contract, he making the Lease after . It was likewise held Simony for a Father to present his Son by virtue of a purchase of the next Advowson, which he made in the presence of his Son, a Clerk, when the Incumbent was not like to live by reason of a Sickness, whereof he soon after died . Otherwise, in case the purchase had been made in the absence of the Son, as is hereafter mentioned . But per Hutt. it was held Simony to purchase the next Advowson, the Incumbent being sick . The like in Winchcombes Case against the Bishop of Winchester and Puleston, a Case hereafter often Margined on several accounts, where it was held Simony in one Say, who was presented upon a Contract which he made with the Patron (the Incumbent being then sick) for Ninety pound to present him when the Church should be void . And as to Resignationbonds, Sir Simon Degge affirms, That in the case of Jones and Lawrence the sense of the Court was, that if a Man be preparing his Son for the Clergy, and have a Living in his disposal, which falls void before his Son is capable thereof, he may Lawfully take a Bond of such person as he shall present, to resign when his Son becomes capable of the the Living; otherwise, in case the Patron take a Bond absolutely to resign upon request without any such or the like cause; as for avoidance of Pluralities, Non-residence, or other such reasonable design . The like you have in Babbington and Wood 's Case hereafter mentioned. So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal; Otherwise, where thers is corruption in the case, accompanied with some subsequent Act in pursuance thereof. And although presentations made upon Simoniacal Bonds and Obligations are void in Law, yet such Bonds themselves, though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. .

(6.) B. brought Action against C. upon an Obligation, The condition whereof was, that whereas the Plaintiff did intend, and was about to present the Defendant to the Benefice of Stow, if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London, then the Obligation to he void. The Defendant demanded Oyer, and demur'd, and adjudged for the Plaintiff, for the resignation might be upon a good intention to prevent pluralities, or some other cause, and it shall not be intended Simony, if it be not specially pleaded and aver'd; and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudged accordingly, and affirmed an Error, which the Court viewd, and thereupon Judgment was given for the Plaintiff .

(7.) The Plaintiff declared, that the Rectory of St. Peters infra Turrim London was void, and that the Defendant in consideration that the Plaintiff would bestow his labor and endeavor to cause or procure him to be Rector of the said Rectory, promised to give him Twenty pounds; and that after the said Plaintiff procured him to be Rector by the Kings Commission, and notwithstanding that he had required him to pay the said Twenty pounds, &c. and thereupon he brought his Action upon the Case in the Court of the Tower of London, and upon Non Assumpsit, it was found for the Plaintiff, and Judgment was there given, upon which the Defendant brought Error, and una voice all agreed that the Judgment was erroneous, for the consideration was Simoniacal and against Law, and not a good consideration, therefore the Assumpsit was not good, the Judgment was reversed; the Attorney said, that that Court was a Court-baron, as appears by a Record in the time of King Henry the Sixth .

(8.) If A. be obliged to present B. &c. and he presents by Simony, yet the obligation is forfeited . Or if one contract with the Patrons Wife to be presented for Money, and is accordingly presented by her Husband, it is Simony within the Stat. of 31 Eliz. and makes the presentation void . For the contract of the Wife is the contract of the Husband . Likewise if the Patron present one to the Advowson, having taken an Obligation of the Presentee, that he shall resign when the Obligee will after Three months warning, this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam . Also if one promises to a Man that hath a Manor with an Advowson appendant, that if he will present him &c. after the then Incumbents death, he will give him such a certain Sum of Money, and the other agree thereto, and that by agreement between them the next avoidance shall be granted to B, &c. who after the then Incumbents death presents accordingly; this is Simony because there was a corrupt Contract for the Advowson . For although the next avoidance may be bought and sold bona fide without Simony, yet if it be granted to one to perform a corrupt Contract for the same, it is otherwise . But if the Father purchase the next avoidance, and after the Incumbents death presents his Son, this is not Simony . Yet by Hob. Chief Justice it was held, that if in the grant of the next avoidance it appears that it was to the intent to present his Son or his Kinsman, and it was done accordingly, it is Simony . Likewise if a Mans Friend promises the Grantee of the next avoidance a certain Sum of Money, and so much certain per Annum, if he will present B. to the Church, Quando, &c. and B. not knowing any thing of the Contract be presented accordingly, this is Simony , For if a Stranger contract with the Patron Simonaically, it makes the presentation void .

(9.) A Patron took an Obligation of the Clerk whom he presented, that he should pay Ten pounds yearly to the Son of the last Incumbent, so long as he should be a Student in Cambridge unpreferr'd; this is not Simony; otherwise, if it had been to have paid it to the Patrons Son. per Cur. . An Obligation was made by a Presentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children; the Parson kept and enjoyed the Parsonage, notwithstanding great opposition to the contrary .

(10.) A Parson prefer'd his Bill for Tithes, the Parishioner pleaded that he was presented by corruption, &c. and by Simony, and a Prohibition was granted, notwithstanding the Parson pleaded pardon of the Simony by the King; and it seemed, that it was now triable by the Common Law . The Church may be full or void in effect, when there is a Simoniacal Incumbent; yet to say the Church was full for Six Months is no plea, when he was in by Simony; For a Quare Impedit may be had by the rightful Patron after the Six Months against the Incumbent of an usurper, that is in by Simony . And the death of a Simoniacal Incumbent doth not hinder but that the King may present, for the Church was never full as to the King, and that turn is presented to the King by force of the Statute .

(11.) In the Stat. of 31 Eliiz. there is no word of Simony, for by that means then the Common Law would have been Judge, what should have been Simony and what not ; by which Law the Simoniack is perpetually disabled . And a Covenant to present such a one, made under any consideration whatever, be it of Marriage or the like, may be Simoniacal; But if a Father in Law upon the Marriage of his Daughter, do only voluntarily and without any consideration, Covenant with his Son in Law, that when such a Church, which is in his Gift falls void, he will present him to it; It hath been held, that this is no Simony within the said Statute .

(12.) A Simoniacal Usurper presenting shall not prejudice the rightful Patron, by giving the King the presentation . The proof of Simony will avoid an Action of Tithes commenced by a Simoniack Parson ; who dying in possession of the Church, the King loses not his presentation , because the Church was not full of an Incumbent; but remains void though the Simony or Penalty thereof were pardoned ( y]. Lastly, all corrupt resignations and exchanges of Ecclesiastical Livings, are punishable with the forfeiture of double the Sum given and received, both in Giver and Taker, by the said Statute, but it seems this works no avoidance or disability in the public person.

(13.) The Patron of an Advowson before the Statute of 31. Eliz. for Simony, doth sell proximam Advocationem for a sum of money to one Smith, and he sells this to Smith the Incumbent: After which comes the general Pardon of the Queen, whereby the punishment of Smith the Incumbent is pardoned, and of Smith the Patron also. If the Incumbent may be removed was the Question: Williams said that the Doctors of the Civil Law informed him, That the Law Spiritual was, that for Simony the Patron lost his Presentation, and the Ordinary shall present, and if he present not within six montehs, then the Metropolitan, and then the King. Spurling Serjeant, This punishment cannot discharge the Forfeiture, although it dischargeth the punishment. Glanvil contra; and said that this point was in question when the Lord Keeper was Attorney, and then both of them consulted thereupon, and they made this diversity, viz. Between a thing void and voidable, and for Simony the Church is not void until Sentence Declaratory, and therefore they held that by the Pardon before the Sentence all is pardoned, as where a man committs Felony, and before Conviction the King pardons him, by this Pardon the Lord shall lose his Escheat, for the Lord can have no Escheat before there be an Attainder, but that is prevented before by the Pardon: And so here this Pardon prevents the Sentence Declaratory, and so no title can accrue to the Ordinary. Walmsley contra: if Patron be charged by the Sentence, he may plead the Pardon. But if a Quare Impedit be brought by a third Person, the Pardon of the King shall be no Barr to him, for the title appears not to him, but only the punishment. Anderson, they may proceed to Sentence Declaratory, notwithstanding the Pardon; for the Pardon is of the punishment, but the Sentence extends not to that, but only to declare that the Church is void. Glanvile, in 16. Eliz. a man was deprived of his Benefice for Incontinency, and after he was pardoned and restored. Walmsley, I doubt much whether the King can pardon Simony. And Williams said, that the Proctors of the Civil Law said, that neither the Pope nor the King could pardon Simony quoad culpam, but only quoad poenam they may: And the Court at last said, that if the parties would not demur, they would hear the Doctors on this matter .

(14.) In Calverts Case against Kitchen and Parkinson in the Exchequer, where K. not knowing of any Simoniacal agreement was Presented, Instituted, and Inducted to the Church of D. and this after the Statute of 31. Eliz. cap. 6. And this Presentation belonging to the Queen by reason of this Presentation for Simony by force of the said Statute, the Queen presented one B. and before that B. was Admitted and Inducted the Queen died; whereupon the King presented C. without any recital or mention of the Presentation made by the Queen, and without any revocation actually made of the said first Presentation, and thereupon C. is Admitted and Instituted; and for Tithes as Parson he brought Trespass. In this Case one of the points in Question was, if within the said Statute here be Simony in the Patron, and not in the Parson, if this ought to prejudice the Parson or not? In this point Hitchcock conceived, that although the Presentee in this Case, was not party to this corrupt agreement, yet he shall be prejudiced by it, although not so prejudiced thereby, but that he may be capable to be presented again to the same Benefice, but hac vice the presentation of him is void; for as Littleton saith, the Presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth, who in the time of vacation hath power to charge it, and so by his Act had made it subject to the Forfeiture, and therefore the person who cometh under him shall be prejudiced, &c. Damport to the contrary; The Patron and a stranger corruptly agree to present K. whereupon he is presented; If this shall be void against K. is the question. To this he said that at the Common Law, if one be Simoniacally presented, yet this is not void until the Presentee be deprived; and if before the said Statute such a corrupt Presentation had been made, the Incumbent and Ordinary being free, then no Presentation should ensue; and he vouched the saying of Lindwood to be accordingly; but if money be given by the friends of the Presentee, and after the King had notice thereof, and Assent, then it is not punishable, but pardonable at the discretion of the King; and now by him the Statute provides no punishment for the Parson, when the Patron only consents to the Simony; for he observed that after the said stat. of 31. Eliz. had appointed a punishment for the Patron, then in the last part of this Branch, the words are, The persons so corruptly taking, &c. shall be incapable of the Benefice aforesaid; and so it seemeth, that the intent of the Statute is not to punish any party, but he that is to the Simony, and this is also explained to be so, by other clauses in the Statute, for another clause inflicts punishment upon the Ordinary, if there be any corruption in him, and another clause inflicts punishment upon him who is party to a corrupt Resignation, and so in all the clauses, those only who are partakers of the crime shall be punished, &c. And in this Case was no agreement assented unto by the Parson; and this diversity also seems to be good, that if A. hath the Presentation, and B. the Nomination to a Benefice, and the Presentor upon a corrupt agreement, makes a presentation unknown to the Nominator, here the Nominator shall not be prejudiced within this Statute, &c. In this Case Bromley Baron declared his opinion, that the intent of the Statute was to eradicate all manner of Simonies; and therefore the words are not if any man give money to be presented, but they are If any present for money, and the jurors here found 20 l. to be given, and nothing for what it was given, or to whom it was given, for if money be the meed, a Presentation is void, and therefore if I. S. be patron of the Church of D. which is void, and a stranger saith to me, procure the Presentation for A. and you shall have 100 l. and he procured A. to be Presented; here if the Patron had notice of the money given to me, this Presentation is void, but otherwise not: And in this Case without notice of the Parson, the Admission and all that ensued thereupon is void, by reason of the Simony in the Patron; and it is void as to the Parson also; and if in this Case we are not within the words of the Statute, yet we are within the intent clearly, &c. And Panormitan saith, That Simonia est studiosa voluntas emendi vel vendendi aliquid spiritual, vel spirituali annexum cum opere subsequente. Altham Baron was of the same opinion, and said that the words of the Statute are, That if a Presentation be made for money, it shall be void, and that the King may present that turn; and therefore the want of privity in the Incumbent is nothing to the purpose, as to the avoiding of the Benefice; but his want of privity availeth to excuse him of being Simoniacus, yet he is Simoniace Promotus, and therefore the Presentation is void, and the King shall have it by the express words of the Statute; and therefore as it seems, if in this Statute there had been an express saving of the Interest of the Incumbent, by reason of his innocence, yet such a saving of Interest had been void and repugnant, in respect that it was expressly given to the King before, as it is in Nichols Case in Plowden upon the Stat. of 1. H. 7. &c. And to prove that by the Simony in the Patron that the Parson shall be prejudiced, he vouched 42. E. 3. fo. 2.— Snig Baron concur'd in opinion with the former, and said that as to the point of Simony by the Civil Law, it was punishable by Deprivation, and the guilt of the Patron should prejudice the Parson, as to matter of commodity in the Parsonage; and at the Common Law if the Parson will plead such Presentation, he should be prejudiced, and here by the Incumbency the words of the Statute will not be satisfied, &c. Also it seemeth that if I. S. hath an Adowson, and A. purchase the next avoidance to the intent to present B. and the Church becomes void, and A. presents B. this is Simony by averment, as by good pleading the Presentation of B. shall be adjudged void, &c. Tanfield accordingly, as this Case is, here is Simony by the Civil Law, and the party had his Benefice by Simony, although he be not cognusant thereof. Secondly, admit here was not Simony by the intendment of the Civil Law, yet the Statute hath made an avoidance of the Benefice in this Case, although it be not Simony, for the Statute speaks not one word of Simony throughout the Act, and yet by express words it doth avoid such Presentations as this is; and as to the Civil Law such Benefice is to be made void by Sentence Declaratory, but it is not void ipso facto, as it seems in the Case where a common person was consenting to the Simony, but the text of the Civil Law says expressly, that the Church ought not to be filled Corruptive, or by corruption, and the Civil Law expresseth such a person as in this Case by Simoniace promotus, and calls him who is Particeps Criminis, Simoniacus, and he who is Simoniacus, is by the Civil Law deprived not only of the Benefice ipso facto, but also is deprived to be a Minister, and adjudged guilty, in culpa & poena. Petrus Benefieldus saith, that if a Friend give money to a Patron, to make a promise to him &c. and the Incumbent pays it, such an Incumbent is Simoniacus by the Civil Law; and so if the Incumbent pay the money not knowing it till after the induction, yet he is Simoniacus; and by him if a Friend give money, and the Parson is thereupon presented, though the Parson knew not of the money given, yet he shall be deprived of the Benefice; and this difference was certified by Anderson and Gawdy to the Council-Table upon a Reference made to them by the King, touching the filling of Benefices by corrupt means; And the Statute of purpose forbears to use the word Simony, for avoiding of nice construction in the Civil Law as to that word, and therefore the makers of the Act set down plainly the words of the Statute, that if any shall be promoted for money, &c. So that by these words it is not material from whom the money comes; and then in such Cases for the avoiding of all such grand Offences a liberal Construction ought to be made, as hath been used in such cases, &c. for which and many other reasons mentioned in this Report, he commanded Judgment to be entered for the Plaintiff .

(15.) Sr. George Cary being seised of an Advowson, granted the next Avoidance to his second Son, and died; and after the Son corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice, and the second Brother knowing thereof; it was agreed that for the perfecting of the agreement, the second Brother should surrender his Grant and Interest to the elder Brother, which elder Brother not knowing of the said corrupt agreement, presented the said I. S. who was Instituted, &c. all shall be void, for he is here presented by reason of this corrupt agreement between the Patron who then was, and the Parson, and the elder Brother was only used to convey a bad gift by a good hand, and all had reference to the corrupt agreement, with the Assent of the Patron who then was .

(16.) The King brought a Quare Impedit against the Archbishop of Canterbury, Sr. John Hall, and Richard Clark, for the Church of M. and declares that Richard White was seised of the Manor, to which the Advowson belonged. And the 6. Jac. by Indenture, he covenanted to stand seised to the use of himself and his Wife for their lives, and to the heirs of Richard White. And after White presents one Boynton, and dies, and his Wife marries with Sr. John Hall, who the first of June. 6. Jac. by deed grants proximam Adocationem to two, to this intent, that he might receive of such a Parson, that he presented, all money as should be agreed between Grantor and Grantee: And that this was done Bointon lying in extremis. And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees, that for 200 l. to be paid by the Clerk Blundell, that the other Grantee should present him. And the first of February Blundel pays Sr. John Hall the money, and the second day he was Presented, Instituted and Inducted accordingly. And that upon this it appertained to the King to present: The Bishop pleads but as Ordinary: Sr. John Hall makes a title, and traverses the corrupt agreement. The Incumbent pleads by Protestation that there was not any corrupt agreement, as it was alleged, and not answers whether the money were paid or not; but that he is Parson Imparsonee of the Presentment of—But 16. Jac. after such an agreement ( scil. ) 17. Febr. he was presented by the Letters Patents of the King to his Church, and never answers to the Simony. and it was held by the Court to be naught; and only pleaded to hinder the Execution before the Justices of Assize, if the trial went against the Patron . And further in that Case between Hall and Blundell it was said by Davenport, that this Parson being presented by simony is disabled to this Church forever, and cannot be presented to this Church again; as it was adjudged in the Lord Windsors Case. But it was said by Richardson if he had said, absque hoc, That he was in ex Presentatione of &c. it had been good enough which was granted. Henden, two exceptions had been taken. (1.) That the Incumbent doth not show what Estate or Interest the King had to present him; which doth not need, if the King brought a Quare Impedit, then it is a good answer to say, that he is in of his Presenting. But if it be brought by a stranger, then he ought to show the title in his Presentment. And he alleged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law. 41. Eliz. There was a Quare Impedit brought for the Church of Danell; a presentation by the King was pleaded, without making a title, and it was admitted good. And in many Cases it is more safe not to make a title. (2.) Because that he pleaded a Presentation by the King he is disabled. As to that he said, that before he be convicted of Simony, he may be presented. But by Crook in Sathers Case, that if he be presented before conviction, yet it is a void Presentation. And it was so agreed by the Court, and they resolved the plea was naught, because he answers nothing to the Simony; for the Protestation is not any answer: wherefore Judgment was given for the Plaintiff .

(17) F. Libels in the Ecclesiastical Court for Tithes, and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony. By the Court, a Prohibition ought to be granted upon a surmise only, that he came to the Church by Simony. Then Honden shown, that it was found by verdict in the Kings Bench, that he came in by Simony; And upon that verdict there was a Decree in the Court of Wards accordingly. And then the Court inclined to grant a Prohibition. And the Case here was, that F. being convicted of Simony, the King presents Clapthorn, who was Admitted Instituted, and Inducted: And afterwards he takes another Benefice above the value of 8 l. by which the other was void. Yet by the Assent of the Lord Windsor Patron, F. continued possession. And by Richardson, he cannot be any way removed until Lapse incur .

(18.) It was said by the Court in Sr. John Paschal 's Case against Clark upon evidence, that if the Patron present one to the Advowson, having taken an Obligation of the Presentee, that he shall resign when the Obligee will after three Months warning, that that is Simony within the Statute of 21. Eliz. cap. 16. .

(19.) A. Scised of a Manor with an Advowson Appendant: S. comes to A. and promises that if he would present him, &c. after the death of the now Incumbent, he would give him Seventy pounds, to which he agreed. And upon that it was agreed between them, that the next avoidance shall be granted to B, &c. the Incumbent dies, B. presents S. who continues lacumbent from 27 Eliz. until the 7 th of King James, Than A. grants the Manor cam pertinent. to Winchcombe in Fee, S. the Incumbent dies, 7 Jac. And the King presents Pulleston by the Title of Simony: and Winchcombe brought a Quare Impedit, and adjudged that it doth not lie. In which Case two points were resolved. (1.) That that is Simony; First, because there was a corrupt Contract for the Advowson: Note, that in the Stat. of 31 Eliz. there is not word of Simony; for by that means then the Common Law would have been Judge, what should have been Simony and what not. Secondly, although that the prochein Avoidance might be bought and sold bona fide, without Simony, yet it was so granted to B. to perform the corrupt Contract, 2 Jac. was vouch'd, that it the Father purchased the prochein Avoidance, and presents his Son after the death of the Incumbent, that is not Simony, and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case. But by Hubbard, that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman, and it was done accordingly, that is Simony. In the 7th Jac. In the Exchequer Calvert against Parkinson. The Cosin of C. being Clerk comes to the Grantee of the prochein Avodance, and promises him Twenty pounds, and Twenty pounds per an. if he will present C. to the Church quando, &c. C. not knowing any thing of the Contract, is presented accordingly. This is Simony. Fortiori in this Case where S. himself who was to be presented, was party to the first motion of the Contract for presentation. (2.) It was resolved, that the death of the Simoniacal Incumbent doth not hinder but that the King may well present, for the Church was never full as to the King, and that Turn is preserved to the King by force of the Statute, yet it seems the Church is so full that a Stranger may not present for usurpation; for it is not like 7 Rep. 28. where the King is to present by lapse. And there are many Cases wherein the Church may be full or void in effect, when there is a Simoniacal Incumbent. Hubbard said that if A. be obliged to present B, &c. and he presents by Simony, yet the Obligation is forfeited, &c. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper, that is in by Simony. And by the Court, to say the Church was full for Six months, is no plea, when he is in by Simony. Warburton and Hutton cited Doctor Hutchinsons Case 10 Eliz. A Parson prefers his Bill for Tithes, the Parishioner pleads that he was presented by corruption, &c. and by Simony, and a prohibition was granted, notwithstanding that the Parson pleaded pardon of the Simony by the King, and it seemed that it was now triable by the Common Law. Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham. In debt upon an Obligation to perform certain Covenants, which in truth were Simoniacal Contracts, and the Plaintiff recovered, for it was said that that obligation is collateral, and the Law does not at all look upon or take notice of the Simony, eo nomine, for it is not once named in the Statute, but only corrupt giving, &c. .

(20.) In debt upon an obligation, it was said that it was made upon a Simoniacal contract for presentation to the Church, with the cure of Souls; and so it was for Simony. All that was aver'd the Court held to be matter debors, and not appeared within the Deed; and for that the Plaintiff had Judgment. For no such averment is given by the Statute . Note, the Statute doth not make the Bond, Promise, or Covenant void, but the Presentation. And so adjudged, Pasch. 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury. Co. Inst. par. 3. cap. 71.

(21.) If an innocent Incumbent be in by a Simoniacal Contract, to which he was no way privy, he is not Simoniacus though Simoniace promotus; and as he is not Simoniacus, so neither Perjurus, for Simony seldom goes without some kind of Perjury. An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery, who had power to take an Oath. Adjudged Quod nihil cap. per breve. And the reason was, because he does not show that the Oath was in Court. By Whitlock they were called Masters of Chancery, because they were Priests and Clergy-men in ancient time: and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King, for the preferment of these Clerks: that was also the reason that they could not Marry until they were enabled by the Stat. &c. .

(22.) Parson L. was convented before the High Commissioners, and they would put him to his Oath touching Simony (supposing it to be committed by him.) And a Prohibition was granted, that none shall be compelled to accuse himself upon his Oath; where he is to incur a temporal punishment at the Common Law, or a temporal loss as in that case of his Church: So for Usury. Note Dyer 175. in the Margin. And Cook Chief Justice, vouch'd 10 Eliz. Smiths Case, an Attorney of that Court. The High Commissioners would put him to his Oath, for hearing Mass. And a Prohibition was granted: for by that he is to lose One hundred pounds by the Staute, and a Prohibition was now granted by the Court .

(23.) If a Stranger, having no Title, present per tort, to a Church (being void) Simoniacally, and Six months pass, yet the true Patron may after present, for the Statute hath made such Presentation, Institution and Induction void, and so he is no Incumbent, nor is the Church full . Likewise, if a Man be Presented, Instituted, and Inducted by Simony to a Church, although it be void as to the King, and as to the Parishioners, yet it is not void as to an usurper, for he that hath no right shall not present thereunto .

(24.) To avoid the detestable Sin of Simony, because buying and selling of Benefices is execrable before God; it is therefore ordained by the Injunctions of King Ed. 6. An. 1547. That all such persons as buy any Benefices or come to them by fraud or deceit, shall be deprived of such Benefices, and be made unable at any time after to receive any other Spiritual promotion. And such as do fell them, or by any color do bestow them for their own gain or profit, shall lose the right and title of Patronage, and Presentment for that time, and the gift thereof for that vacation shall appertain to the Kings Majesty .

(25.) The Oath of Simony is as followeth, viz. I. A. B. do swear that I have made no Simoniacal Payment, Contract, 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 or obtaining of the Rectory or Vicarage of A. in the Diocese of London. Nor will at any time hereafter perform or satisfy any such kind of payment, contract, or promise made by any other without my knowledge or consent. So help me God, &c.

(26.) P Parson of R. in the County of W. sued for Tithes in the Ecclesiastical Court before the Ordinary, and the Defendant here pleads that the same Parson was presented upon a Simoniacal Contract, and for that his Presentation, Admission, and Institution was void, by the Stat. of 31 Eliz. the Simony was for that it was agreed between the said Parson and another that was Brother to the Bishop of L. and C. who was Patron of the same Church; that if he should procure three several Grants of three several next Avoidances, to them severally granted, to surrender their said several Grants, and procure the said Bishop to present him when the Church became void (it being then full of an old Parson being mortally sick) that he would make to him a Lease of parcel of the Tithes of his Rectory: and the Brother of the said Bishop procured the said Grantees to surrender their several Grants accordingly (the Church being then full.) And also after when the Church became void, he procured the said Bishop to present him according to the first Contract, and then the said P. made a Lease to him of the Tenths, and after sued others of his Neighbors in the Ecclesiastical Court for Tithes, who pleaded the said Simoniacal Contract; and here Nicholas Serjeant suggested, that the Judges Ecclesiastical would not allow of this Plea there; but the Court would not give credit to this suggestion; but said, that if the Ecclesiastical Court make exposition of the Statute of 31 H. 8. against the intent of it, that then they would grant a Prohibition, or if they should deny to allow of this Plea; and for that advised him, that his Client might offer this Plea another time to them, and if they denied to grant that, they would grant a Prohibition.

(27.) The Patron of a Benefice may be sued in the Ecclesiastical Court for presenting his Clerk (who is also inducted) by Simony, for the Statute of Simony takes not off the Ecclesiastical Jurisdiction from punishing the party pro salute animae . And where the Parson is party or privy to the Simony, he shall be perpertually disabled. Also if money or other reward be given for the Presentation, be it with or without the agreement or knowledge of the Incumbent, yet it shall always disable him from enjoying that Church . In Wilsons Case against Bradshaw it was said by Doddridge Justice, that Simony is a contract either with the Patron to present, or with the Ordinary to institute, and if it be not one of these it is not Simony by the Common Law; Simoniacus is he which makes such a contract or promise, and he is disabled to take any other Benefice, and shall be deprived of the Church in which he is: But Simoniace promotus, is he whose friend (without his privity or knowledge) gives money to the Patron or Ordinary for his Presentation or Institution, and he shall be deprived of the Benefice to which he is corruptly promoted, but not incapable of any other, nor of that, if he shall have it duly again; and every corrupt contract for aright to present, is Simony .

(28.) In a Prohibition, the Case, A. seised of the Advowson of the Church of B. the Church being void: C. before the general pardon 39. Eliz. contracted with him for the Avoidance, who for 100 l. granted it to him; and he by color of this Grant presented his Brother to the avoidance: This was held to be Simony in the Grantee the Incumbent, although he was not privy to the Simony at the first; and Simony was there defined to be Voluntas sive desiderium emendi vel ven dendi spiritualia vel spiritualibus adhaerentia vel anxa . Or thus viz The Church being void, B. contracted with the Patron for 180 l. to have the Presentation, and thereupon presented W. his Brother, who knew nothing of the Simoniacal contract, till after his Induction, notwithstanding he was deprived in the Ecclesiastical Court, because he was Simoniace promotus; and it was held in this Case, that if an usurper present by Simony, the Clerk is punishable in the Ecclesiastical Court for the Simony, although the Patron doth recover the Advowson and the Presentation.

(29.) In the Case between the King and the Bishop of Norwich, and Saker, and Cole, It was said by Coke Chief Justice, that if a Church be void, and a stranger without the privity of the after-Incumbent, procures the Patron to present him upon a Simoniacal contract, although that the Alter-Incumbent be not privy to the contract, yet he comes in by Simony; and so it is, where the Incumbent makes Simoniacal contract with the Friend or Wife of the Patron, and the Patron knows not thereof, and the Incumbent be presented by the means of him with whom the Contract was made, it is Simony within the Statute of 31 Eliz. and the King shall present.

(30.) A man who was presented by Simony, Libelled in the Ecclesiastical Court for Tithes. The Question was, whether the Simony should be tried in the Ecclesiastical Court, or by the Common Law; the point was not resolved. Note there Simony is defined to be studiosa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa —and it is either Mentalis vel Conventualis, of both which the Ecclesiastical Law may Judge, but the Temporal Court only of Conventual Simony.

(31.) In Sir William Boyers Case for a Prohibition to the High Commission Court, for their examining there upon Oath in Case of Simony, it was said by Coke Chief Justice, that Simony is worse than Felony, it is an enormous offense, if money be paid, for to present one to a Benefice, although it be not paid to the Patron, neither had he any knowledge of it, yet the Incumbent for this shall be avoided, and the Patron also shall lose his presentation pro hac vice. The Statute of 31 Eliz. cap. 6. is so strongly pen'd against the Incumbent, that if the Patron be privy unto it, he shall also be punished: an Action of Debt was brought in the C. B. the Defendant in Barr pleaded, that the same was entered for payment of money for Simony; yet the Bond was held good; and we are not to take any notice of Simony, this being punishable in the Ecclesiastical Court, and if they there meddle only pro salute Animae, they are not then to be prohibited; Otherwise it is, when they will there examine the person upon an Article tending to the Title of the Patronage, there, in such case a Prohibition lies.

(32.) In case of the King against Zakar and others, It is said that if one be presented by Simony, and the same person afterwards obtain a presentation from the King, this is not good, for he is now a disabled person to take this Benefice, he hath a leprosy upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi. And Coke Chief Justice there declared, that notwithstanding the King saith, that the said Incumbent shall still continue, yet the King shall have the next presentation.

(33.) The Lord Winsor seized of an Advowson, granted the next avoidance thereof to Doctor G. the Church void, R. F. the Father of H. F. dealt with Doctor G. to permit the Lord Winsor to present H. F. who know not of the agreement, who was Presented, Instituted, and Inducted accordingly. Resolved, that this was Simony, and that the King was to present by the Statute of 31 Eliz. The King presented J. S. who was Instituted and Inducted. R. F. the Father sued J. S. before the High Commissioners for Misdemeanors, and procured him to be deprived, and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the said J. N. to present the said H. F. &c. Resolved, that the said presentation of the said H. F. was merely void, and that he was a Person disabled by the express words of the Statute to accept of that Benefice.

(34.) For a Prohibition upon a Suit for Tithes, supposing the Parson had come in by Simony, and thereby the Church void, and the Tithes not belonging to him: it was resolved by the Court, a Prohibition did not lie, for that Simony might more aptly be tried in the Ecclesiastical Court.

(35.) The Incumbent of a Church being sick, the Father contracts with the Patron in the presence of his Son, for the next avoidance for the Son, and agreed to give him One hundred pounds. The Grant is made, the Incumbent died; the Son is Presented; Instituted, and Inducted; being sued for Simony in the Ecclesiastical Court, he prays a Prohibition, and alleges the General Pardon 39 Eliz. which is after the Institution and Induction, wherein Simony is not excepted: In this Case it was resolved. (1.) That although the Pardon discharges the punishment of Simony, yet he may be examined of it by the Ordinary, and deprived for it: But it was (2) Resolved in this Case, there was no Simony, for the Father might buy the next avoidance and present his Son, and it is not Simony in any to buy an Advowson; therefore the Prohibition was granted.

(36.) In Debt upon an Obligation to perform Covenants. That T. B. Son of W. B. should marry A. the Defendants Daughter: In consideration of which marriage, the Defendant amongst other Covenants, Covenanted, that he would procure the said T. B. to be Presented, Instituted, and Inducted into such a Benefice, upon the next avoidance of the Church, and the breach was assigned, for non performance of the said Covenant, in procuring him to be Admitted, Instituted, and Inducted: It was demurred to by the Defendant, because the Covenant is against Law, being a Simoniacal Agreement, and a Bond for performance thereof is not good. Resolved, it it had appeared to have been, that in consideration of the Marriage, of his Son, he would procure him to be Admitted and Instituted into such a Benefice, that had been a Simoniacal Contract, and had avoided the Obligation; but here this Covenant is not in consideration of the former Covenant, nor depending thereon, but it is a mere distinct Covenant of itself, and independent upon the former; and without a special averring or showing that it was a Simoniacal Contract, it shall not be intend, but it may be a Covenant upon a good consideration. And it was adjudged for the Plaintiff.

(37.) In the forsaid Case of the King against Zakar alias Secker and others, it was said by Coke Chief Justice, that it is put for a Rule in Green 's Case, that if one presents Simaniace to a Church of the Kings, and the King afterwards presents, jure Simaniace, this is a void Presentment, because he hath mistaken his Title, but he ought to present jure Patronatus, not ration Simoniace Presentatus. And as to the disability of a Simoniacal person by the State of 31 Eliz. cap. 6. Four things are to be observed upon this Statute. (1.) The Presentation to be void. (2.) The King to have this Presentment. (3.) A Fine to be imposed by way of Forfeiture. (4) The party presented to be utterly disabled. For where there is matter of Simony, if there be Fraud in the Incumbent, or if Money be given for the Presentation, though it be unknown to the Incumbent, to this let the Patron look; the Incumbent shall be removed. In this Case the whole Court agreed clearly in this, that the person party presented by Simony, the presentation is merely void, and that the so presented is utterly disabled forever by the Statute of 31 Eliz. c. 6. to take the same Benefice, to which he is presented by Simony, and that he is incapable to have another presentation to the same Benefice.

(38.) The words [ Present or Collate ] in the Stat. of 31 Eliz. c. 6. are not intended (says the Lord Coke ) only where the person presenting or collating, hath right to present or collate, but also where any person or persons, Bodies politick or corporate, do usurp and have no Title to present or collate; and that so it was adjudged in case where the usurpation was to a Church of the King. Sed quando Praesentatio & Jus Poetronatus sunt Temporalia Quaeritur quomodo sit Simonia per donum pecuniae pro illis: Respondendum est, Quod Jus Patronatus & Praesentatio dicuntur Spiritualia, vespectu rei, ad quam praesentatur, quae Spiritualis est. Vide Lindwood. cap. de Jurejurando. fo. 80. He says further, that there is a diversity between a presentation or collation made by a rightful Patron and an usurpur. For in Case of a rightful Patron, which doth corruptly present or collate, by the express Letter of the Statute the King shall present: But where one doth usurp, and corruptly present or collate, there the King shall not present, but the rightful Patron: For the Branch that gives the King power to present, is only intended, where the rightful Patron is in fault; But where the rightful Patron is in no fault, there the corrupt act and wrong of the usurper maketh the Benefice, &c. void, but taketh not away the Lawful Title to present from the rightful Patron And so it was adjudged Mich. 13. Jac. in Quare Impedit, between the King & the Bishop of Norwich, Tho. Cole, and Rob. Secker, for the Vicarage of Haverel in Suffolk.

(39.) The Canon Law looks upon Simony as a kind of Heresy, imo Simoniacos veluti primos & praecipuos Haereticos: Rebuff de Simon. in Resign. nu 12. and excommunicates all Simoniacks to that degree as not to be absolved but by the Pope himself, nor by him till at the point of death.— extra. cum sit detestabile de Simonia. And are ipso jure deprived of that Benefice wherein the Simony was Committed:— extr. ibid. And this holds true as well where the Simony is only Coventional or by Compact, as where it is real & per pecuniam numeratam; albeit there are some D D. who will not agree that a mere Conventional Simony should incur a Deprivation, although they contest it not as to the real Simony, viz. cum aliquid datur. Cassad. in Decis. 5. de Const. But in the Council of Constance (touching this Matter) there is nothing said de datione as to Deprivation, but only to as Excommunication; whether therefore it be a Conventional or a Real Simony, a Presentation or Collation in consequence of either, is ipso jure void and null according to that Law. Rebuff. ubi sup. nu. 10. It is worth an Asterisk to observe, what an excellent exposition Rebuffus the Canonist to this purpose makes on Matth. 21. 12. (possibly more like a Lawyer than a Divine) he says, that by the sellers of Doves, is there meant, such as endeavor to make sale of the Sacred Imposition of hands: And by the Money-Changer are intended such as sell Ecclesiastical Benefices: And pleasing himself in this conceit, breaks out into a Peice of Eloquence, viz. Nusquam reperitur (quod sciam) Dominum tanta severitate, tam districta censura Justitiae peccatores corripuisse, non solum eloquio increpans, verum etiam facto flagello de funiculis verberans omnes eliminavit de Templo; and thence most infallibly infers, that our Lord and Savior Jesus Christ the Redeemer of Mankind, did cast out of the Temple all Simoniacal persons, and such as sell and make Merchandize of Ecclesiastical Benefices.— Rebuff. de Elect. derog. lit. d. in verb. Nonnullae.

(40) This most detestable Evil of Simony, may possibly (though rarely) be found in Ordinations; yet is most frequently negotiated in Presentations (Roman Elections and Postulations) Collations, Resignations, and Permutations of Ecclesiastical Benefices. It is supposed that it hath it's denomination from Simon Magus for these three Reasons, (1.) Because he was the first, that in the New Testament we meet with, that was ever infected with that Crime. (2.) Because he was the superlative Offender in this kind above all others that were anciently guilty thereof, for (as Augustine saith) he would buy the Holy Ghost on purpose to sell the Holy Ghost. But those that went before him sold only some created Spiritual thing, as Balaam would have sold his Prophesy; and Gehazi Servant to Elisha, that health which he obtained from a Divine Power for Naaman the Syrian. (3.) Because Simon seemed obstinately to persist in supposing this thing to be Lawful, and so therein he thence became an Heretic, and as such is generally condemned by the Fathers. The Definition which Panormitan makes of Simony seems defective according to Lessius and other modern Authors; Panormita defines it as aforesaid) to be studiosam voluntatatem emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere subsecuto. But to make the definition adequate to the thing, there should be added to it ( pretio temporali; ) for it is supposed, that if one Spiritual thing be given for another, in that Case it is not properly Simony, because the Turpitude of this Evil consists in this, that Spiritual things, which in their own Nature are inestimable, are here estimated at a Carnal, Human, or Temporal price, which value or price the Law makes threefold, viz. Pretium muneris, as Money or ought else that may be sold for Money: Pretium linguae, as undue and undeserved Praise, or immoderate Flattery: Pretium obsequii, as some service done, or to be done for the Patron in matters Temporal; or as when a Chaplain serves a Bishop domestically without any Stipend or Salary, or remitts it on purpose that a Benefice may be bestowed on him; which by the express Letter of the Canon Law is no other than Simony. c. sunt nonnulli. 1. q. 1. So likewise as to the Pretium linguae, that Law is express against it, That Rogans pro indigno ut Beneficium obtineat, Simoniam committit; dict. c. sunt nonnulli. &c. tuam, de aetat. & qualit. As to that Mental Simony which Navarre. cap. 23. nu. 102. And Cajetan also, verb. Simonia, and others would have to be one Member of the Distinction thereof, it seems to be wholly rescinded by the two last words of the Definition, opere subsecuto. It is also the more received Opinion among the DD. that to resign a Benefice into the hands of the Ordinary in favor of a Third Person, with this Clause ( non aliter nec alias ) is Simony; the Reason they give is, quia omnis pactio in spiritualibus Simoniam continet. cap. fin. de Pactis. & cap. ex parte. 1. de Offic. Deleg. To conclude, the Canon Law in this point of Simony is of a far wider extent than the practice with us is capable of comprehension; remembering therefore we are in an Abridgement, we may abuse the Reader in perplexing him with Exotick Questions in reference to this Subject, As whether every Sale or Exchange of Spirituals for Temporals be Simony? Whether an Exchange of Spirituals for Spirituals be Simony? Whether there be any Simony Jure Humano, and by what Contracts it may be discerned? Whether the Pope may be Simoniacal. Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed? Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal? Whether it be Simony in Ecclesiastics to take money for Sermons or Theological Doctrines? Whether it be Simony to resign a Benefice reserving a Pension out of it? Whether it be Simony to resign or bestow a benefices upon Trust or Confidence? With diverse other such Questions in the Canon Law, relating to this Subject, the Solutions whereof are not of any moment to us who are out of the Pope's Diocese.

CHAP. XL.

Of Blasphemy and Heresy.

• 1. What Blasphemy is, and whence so called.
• 2. The several punishments inflicted on Blasphemers.
• 3. How may ways Blasphemy may be.
• 4. What Heresy is; a Conjectural derivation of that word Heresy, it is Threefold.
• 5. What shall he accounted Heresy; what the Lollards of old were, and why so called.
• 6. In whom the Jurisdiction of Heresy properly resides.
• 7. A Heretic convicted, and so persisting, whether according to Law combustable; The reason of that severe Law; Heresy is Lepra animae.
• 8. An Alphabetical black Catalogue of Heretics; their Errors, Heresies, and Blasphemies; and the times wherein they pestered the World.
• 9. A Catalogue of Jewish Heretics, but not in any Alphabetical manner as the former.

(1.) BLASPHEMIA, 〈 in non-Latin alphabet 〉 , quod laedat famam. 〈 in non-Latin alphabet 〉 is as it were 〈 in non-Latin alphabet 〉 , to hurt another's same or reputation: Soudas interpreteth 〈 in non-Latin alphabet 〉 , one who injureth God with contumelious words, which is when men detract from God the honor due unto him, or attribute any evil to him. Blasphemare, est tacit vel express, verbo vel scripto, contra deum aliquid contumeliosum dicere. Navar. cap. 12. nu. 81. Blasphemia est injuriosa in deum locutio, vel contumelia in deum verbo irrogata. Less. lib. 2. de Blasph. This is cognizable in the Ecclesiastical Jurisdiction, and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England, is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment, in order to punishment according to Law.

(2.) This Crime of Blasphemy was so odious to the Emperor Justinian, that he ordained, that the Blasphemer should undergo ultimum supplicium, be punished by death, for he made it capital. Auth. ut non. Luxur. Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots. An. 840. It is provided, that he that Blasphemeth shall have his Tongue cut out . Blasphemy is speaking Treason against the Heavenly Majesty, the belching out of exercrable words against God, whereby the Deity is reproached. Baldus says that Blasphemy is a kind of Heresy. Bald. in L. Qui accusationem C. Qui Accus. non posse. for which a Lay-man is Anathematized by the Church of God, and a Clerk deposed from all Ecclesiastical Orders. Can. si quis per capillum. 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime, probably for that they of the Roman Church do hold, that there is a Blasphemy against Saints, and Blasphemia Dei vel sanctorum hath but one and the same punishment with them, and that is a solemn and public penance if the Blasphemy were publicly committed. Extra. de Maledict. c. statuimus. And that the World may know how they abominate this sin of Blasphemy, they put the Question and demand, whether any Priest inferior to a Bishop, can absolve a man from this sin? for answer they distinguish and say, that if the Blasphemy be public and notorious, it cannot be absolved but by a Bishop: but if it were only private and occult ( non in platea, nec in camera multis audientibus ) then every Priest may absolve it. Ant. de pae. & re. si Episcopus. lib. 6. Steph. de Gaeta Repet. in c. ad Limina. 30. q. 1. nu. 139. Aquinas reckons it among the Mortal sins.

(3.) Lindwood in his Provincials says, that that is Blasphemy quae dicitur irreligiosa reprehensio, detractio, vel vituperatio, but (says he) to speak properly and strictly, Blasphemare, est Deo injuriam irrogare, which may be done three several ways, (1). Aliquid attribuendo quod deo non convenit. (2.) Ab ea removendo quod deo convenit. (3.) Creaturae attribuendo illud quod est proprium deo. Lindw. de Offic. Archipr. c. 1. verb. Blasphemia. In the Primitive times this sin was punished by a delivering the Offender over unto Satan, which was an Ecclesiastical censure by the Greater Excommunication, whereby the Offender became unto others as an Heathen and a Publican. Mat. 18. 17. and whereby he is dissiranchised of all the Privileges of the Church.

(4.) Touching Heresy, there are various conceptions as to the derivation of that word; some are of opinion that the word comes from ( Error and rectus ) and that from thence comes [ Haereticus ] that is, Errans à Recto sive Rectitudine Fidei Catholicae. l. 2. in sin. C. de Haeretic. Others will have the word Heresis to be from [ heriscor ] that is [ divido, ] and thence Heresy to be Divisio ab unitate Fidei. Azo. Sum. C. eod. tit. Others will have it to be from [ haereo & Error, ] thence Haeresis, quasi adhaesio Erroris, and Haereticus, quasi adhaerens Errori, for Error of itself doth not make an Heretic, but adhering to an Error doth. Lindw. de Haeret. c. 1. And others there are, who do conceive that the word [ Haeresis] dicitur ab Electione, because an Heretic doth choose to himself that Opinion which he thinks is best for himself . And he that inclines to this Opinion, seems to be least in an Error, for Haeresis is from the Greek 〈 in non-Latin alphabet 〉 Optio, vel electio, secta, ab 〈 in non-Latin alphabet 〉 Eligo. Heresy is an Opinion repugnant to the orthodox Doctrine of the Christian Faith, obstinately maintained and persisted in by such as profess the Name of Christ. that Heresy which is commonly called Haeresis univorsa, or Heresy in sensu largo is threefold, and doth consist either in a man's heart, or in his mouth, or in his works. Under the first of these are comprised all such as are Christians only by Name, but not so in truth and in deed: under the second are comprehended all vain Swearers, Covenant-breakers, and indevout approachers to God in his Worship: under the third are contained all Hypocrites, whose counterfeit devotion without any sincerity in the heart, consists only in the simulation of an external work; all these are by Lindwood. understood in a large sense as Heretics Lindw. de Offic. Archipr. c. 1 glos. in ver. Haeresis. But these are not the Heretics here meant or intended, nor indeed are they Heretics in any proper sense, whereby we commonly understand such as Heretics, who maintain and persist in any Opinion contrary to the True, Orthodox, Catholic Faith, or any of the Articles thereof grounded on the word of God.

(5.) By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresy, but such only as hath been so adjudged by the Authority of the Canonical Scriptures, and by the first four General Councils, or by any other General Council, wherein the same was declared Heresy by the express and plain words of the Canonical Scripture, or such as shall hereafter be determined to be Heresy by Parliament, with the assent of the Clergy in their Convocation, as appears by the said Statute; the occasion of the making whereof was (as supposed by reason of an Indictment against certain persons called Lollards, upon the Statute of 2 H. 4. c. 15. Whose Opinions were (1.) That it was not meritorious to go in Pilgrimage to St. Thomas, nor to St. Mary of Walsingham. Nor (2) To adore the Image of a Crucifix or of Saints. Nor (3) To confess sins to a Priest, but to God only, &c.

(6.) Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert, that both by the Books at Common Law, and by History it doth appear, that an Heretic may be convicted before the Archbishop and other Bishops, and other the Clergy at a General Synod or Convocation. Bract. Lib. 3. fo. 123, 124. in Council. Oxford. Newburgh. l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu. 29. Sautries Case. F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocese may convict any for Heresy, and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresy, and so it was practiced in all Q. Elizabeth's Reign: and accordingly it was resolved by all the Justices in the the Case of Legate the Heretic ; And that upon a conviction before the Ordinary of Heresy, the Writ de Haeretico comburendo did lie . Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresy, but was to proceed against him by the censures of the Church. And now (says the Lord Coke in the forecited place) In as much as not only the said Act of 2 H. 4. but also that of the 25