THE Design of this Discourse, is to Enquire into a Case, too commonly Practised a­mong us, and too little Examin'd; which is concerning Bonds of Resig­nation given by Clergymen to Pa­trons in order to the obtaining a Presentation to a Benefice with Cure of Souls. This is a Case which re­spects both Law and Conscience: and it is not so easy a matter, as some seem to take it for granted, to Re­solve [Page 2] it as to either of them. For if such a Practice be within the Reason and Intention of the Law, which forbids all Corrupt Presentations and Resignations, 31 Eliz. c. 6. then it cannot be Justified by Law; and if it be against the Scope and Design of the Oath against Simoniacal Con­tracts, then it can much less be Ju­stified in point of Conscience. And whether it be or not, is the Subject of this present Discourse; which I am sorry there is so much occasion for; but since there are too many that Practise it, and others too ready to Defend it; and since it is of so mischievous Consequence to the In­terest of the Church of England, if it prevails▪ I think it highly necessa­ry to enquire more strictly into this Matter, than hath been hitherto done. Which I shall do in such a manner, as to make it appear that [Page 3] no Considerations whatsoever have swayed me, but those of Law and Conscience; and I hope those who have been drawn into such Snares will see cause to Repent, (if they do it not already) and others take care how they run themselves into such Perplexities, which no Precedents in point of Law, and no Authority in point of Conscience can give them Satisfaction in.

But I intend no Reflections on particular Persons; and I cannot believe that any who have imparti­ally weighed these things can main­tain the Lawfulness of them so, as to wish them generally practised. For, however there may be some Cases wherein such Bonds may be thought far more Reasonable than in others: yet it cannot be denied that there are far more Cases, wherein such a Practice must be destructive to the [Page 4] Legal Rights of the Church. Sup­pose some Patrons to be Persons of great Piety and Integrity, who do require these Bonds only to bind the Clergy the more strictly to do their Duty: suppose others have no Re­gard to their own Interest, but only take care of Minors, bred up with a prospect of such Benefices which they are not yet capable of: (which are the most Reasonable Considera­tions insisted upon in the Adjudged Cases:) but what are these to the multitude of most unjust and unrea­sonable Considerations, which may be made the Conditions of these Bonds? For the Bonds are suppo­sed to be General; and so the Pa­trons left at liberty to impose their own Conditions. And, are there no such kind of Patrons among us who may be too justly suspected to mind their own Interest above the [Page 5] Churches Good? and therefore will take all ways to lessen the Profits of Benefices in their Disposal, as far as they are told that the Law permits them? Such I mean, who have no Re­straint but what the Law lays upon them, having no Sense of Honour or Conscience in these matters. And if it once pass for an allowed Doc­trine in Law, that Bonds of Resig­nation are lawfull; what shall stop such Men from putting very unrea­sonable Conditions upon their In­cumbents, or else they may pre­sently call them to an Account for the Forfeiture of their Bonds? If then there be no effectual course so much as offer'd, against very hard and unreasonable Terms; how can such Bonds be thought Just and Rea­sonable?

It may be said, That if the Con­ditions be such as are allowed by Law, [Page 6] then the Bonds are lawfull, otherwise not. But this by no means clears the Difficulty. For the main Question is, Whether such Bonds be lawfull, where the Conditions are not ex­pressed; but meer notice of three or six Months? And these are the ge­neral Bonds of Resignation: and such I think I may with Reason af­firm to be against both Law and Conscience. But suppose there may be Conditions of both kinds requi­red, but it is not expressed in the Bonds what they are: what a mi­serable Slavery must the Clergy be under, who give general Bonds, and know not what Conditions will be required? And then they must go to Law, and be at greater Charge and Trouble than they can well bear, to know whether the Conditions requi­red of them be such as the Law al­lows or not? So that the general [Page 7] Allowance of Bonds of Resignation upon Notice, although the Law be left to determine the particular Con­ditions, is that which we have rea­son to look upon as very hard and unjust, and inconsistent with the Nature and Design of that Relation which the Law supposes between Patrons and Incumbents, as will appear more afterwards.

There are two things chiefly in­sisted on by those who plead for these Bonds of Resignation:

I. That there is no Law against them;

II. That there have been Cases adjudged for them: and both these I shall carefully examine.

I. That there is no Law against them. There are two Laws to be consider'd in this matter:

[Page 8] 1. The Law against Simoniacal Contracts 31 Eliz;

2. The Law which requires eve­ry Incumbent to take an Oath a­gainst Simony.

1. As to the Law against Simo­niacal Contracts: The Statute is ex­presly against Presenting to a Benefice for a Summ of Money, Reward, Gift, Profit or Benefit, directly or indi­rectly, or entring into Bond or Covenant for that purpose; 31 Eliz. c. 6. n. 5. Wherein these things are observable:

(1.) That it is not a meer Summ of Money which is here forbidden, but any Benefit whatsoever, directly or indi­rectly.

(2.) That not meer doing the thing, but entring into Bond or Covenant to do it is within the reach of this Law.

(3.) That the Penalty is against such who do Present for or by Reason [Page 9] of any Promise or Agreement for any Benefit whatsoever: or those who do accept such Presentations on those terms: i. e. so as it becomes the Motive of such Presentation or Acceptance.

(4.) That the same Law declares n. 8. against corrupt Resigning or Ex­changing the Benefice he enjoys, for any Summ of Money or Benefit whatso­ever.

(5.) That the Ecclesiastical Cen­sures still remain in Force against these Offences: which supposes that this Law doth not supersede the Ec­clesiastical Laws here in being. n. 9.

So that here are two material Questions to be resolved upon this Statute.

[1.] Whether since the making this Statute, there be any Simoniacal Contract, but what is against the Purport of it?

[Page 10] [2.] Whether a Bond of Resignati­on, upon which a Benefice is gi­ven and accepted, be within the De­sign of it?

[1.] As to the former; it is obser­vable that the words Simony or Simo­niacal Contract are never mentioned in this Statute. For, if they had, the Judges would have had sufficient Reason to have declared what was Simony and what not. We are told indeed by the Reverend and Lear­ned Judges in the Case of Mackaller and Todderick, Cr. Car. 361. That the Consideration to have Money to procure one to be Rec­tor of a Church is a Simoniacal Contract, and an unlawfull Act condemned by all Laws: and that the Common Law be­fore the Statute 31 Eliz. took notice of it. But they do not declare how far the Common Law could take no­tice of it, before that Statute; any farther than that it was not a thing [Page 11] allowed by it. For certainly it was then of Spiritual Cognisance: and the Persons guilty of it were to be proceeded against by the Ecclesia­stical Laws. And consequently, the Notion of Simony is to be taken from thence, and not meerly from this Statute: so that if Accepting a Benefice upon giving a Bond of Re­signation were Simoniacal before, it doth not cease to be so by this Sta­tute. Indeed corrupt Resignation of a Benefice hath not the same Penalty by this Statute with corrupt Accep­tance of it at first: for that is a Dis­ability, and the other double the Va­lue. But hereby we see that the one is against the Law, as much as the o­ther. So far then it is clear by this Statute, that any corrupt Resignation is against Law: and if the Enquiry be after the Penalty, the Statute must determine that. But if the Question [Page 12] be, Whether Resignation upon a Bond given before-hand in order to a Pre­sentation be a Simoniacal Act or not, as done in Pursuance of a Simoniacal Contract? in That the Statute gives no Rule; but only declares the Penalties of some particular Acts, which are there expressed.

Those who would have nothing now to be Simony, but what is there forbidden, must first prove that the Intention of the Law was to Limit and Determine the Nature of Simony; which (as is already observed) is not so much as menti­on'd in it. The Reason of the Law as to Penalties is one thing, and the Nature of a Simoniacal Contract ano­ther. If a Question be put, whether a Simoniacal Contract be void in Law or not? 3. Inst. 153. Marg. my Lord Coke saith, That the Statute doth not make the Bond, Covenant, Promise, or other Assurance [Page 13] void, but the Presentment &c. and so it was adjudged 40 Eliz. This is somewhat strange Doctrine: that a Presentment should be void by Rea­son of a Simoniacal Bond, and yet that Bond not be void in Law. For that which makes another thing void, one would think should be void in it self: especially since he saith in the same Chapter, F. 156. That Si­mony is odious in the Eye of the Common Law. But not so very odious: if a Simoniacal Contract be a good Con­tract according to the Common Law. But he distinguisheth be­tween Malum in se against the Common Law, and Malum prohibitum by Sta­tute Law. How doth this clear the point? The Presentation is void, being prohibited by the Statute: But is not a Simoniacal Contract malum in se against the Common Law? how then comes This not to [Page 14] be void? especially since it is con­tractus ex turpi causâ: and for that Reason my Lord Hobart held it void in Law; Hob. f. 167. and so the Court held in Mackaller's Case. Cr. Car. 361. But suppose my Lord Coke in the right as to a Simoniacal Contract; that it is not void at Common Law: it follows from thence, that the Consideration of Law and Conscience is different in this matter. For I suppose none will deny that a Simoniacal Con­tract is unlawfull in point of Con­science: and yet he asserts it, not to be void in Law. Why then may not Bonds of Resignation, although not within the compass of this Sta­tute, yet be unlawful in point of Conscience: as well as a Simoniacal Contract be unlawful in point of Conscience, and yet be good by the Common Law? Either therefore Simony, as odious as it is in the [Page 15] Eye of the Law, must not be ma­lum in se against Common Law, as my Lord Coke speaks: or if it be, there must be another Rule of Conscience in this matter from this Statute. I would fain know, what was Simony at Common Law before this Statute: and whether that which was so be­fore doth not continue so still, if it be not taken away by it? For, if there be no Simony now, but what is expressed in that Statute: then it must declare; what is Simony and what not. Simony, saith my Lord Coke, is described by this Act, 31 Eliz. and he saith in his Margin, Injustum est illa vendere, quae gratis distribui de­bent: which is a very good Illustra­tion of it. But the Question is, what is meant by Selling? whether it be meerly for a Summ of Money, paid down, or secured by Bond or Covenant? or whether it doth not [Page 16] take in any kind of Benefit or Emo­lument accruing to the Person who bestows it, which hinders it from being a Free Gift? The Casuists say, Sylvestr. v. Simon. Nomine emptionis & venditionis intelligitur omnis contractus non gratui­tus. But can that be called a Free Gift, where there is a Bond of Re­signation of such a thing, whereof the Possession and Reversion bear a Price, and have a real Value? We need not run to Simon Magus to un­derstand what Turpe Commercium is. There were many Laws among the old Romans against purchasing any Publick Offices; Sigon. de Ju­dic. l. 2. c. 30. and they thought it a great Reproach to them for any Price to be set upon them: as the great Roman Master said, Quintil. l. 12. Pretium quod habet, hoc ipso vilescit. By the Laws Acilia, V. Ciceron. [...]ro Plancio. Dion. l. 36. and Calpurnia, all that were Convict of giving Money for Offices, were under a Disability, [Page 17] or Incapacity of any for the future; and the Mercatores Potestatum were Infamous by their Laws. Lamprid. in Alex. Sever. Arist. Pol. l. 2. c. 12. Aristotle thought it a matter of very ill Con­sequence to any Government to have any thing of Money given for Offices: because it taught men to set a greater value on Money than Vertue. These Considerations, set­ting aside the Story of Simon Magus, were great enough to induce the Christian Church to be extremely Nice and Tender in this matter of Benefices: and not only to forbid the direct Sale of them for Money; but any indirect Trafficking which might take of the entire Freedom of the Presentation of Persons to them. I know to how little pur­pose it would be, to reckon up all the Canons which have been made in the Christian Church from the Apostles Times downwards against [Page 18] Simony: because some will say, That the Ecclesiasticks were always true to their own Interest. But let us set aside all Prejudice in this matter, and consider it Impartially. If any Of­fices in the World ought to be free from the Suspicion of Sordid Traffick­ing: certainly those of the Church ought, from the Nature and Design of their Imployments. The Question then will come to this, Whether gi­ving a Bond of Resignation in or­der to the Procuring a Benefice, be such a Trafficking or not? And we have three Rules to Judge by:

1. The Nature and Reason of the thing: whether such Actings be not inconsistent with that Freedom, which ought to be used, both in Gi­ving and Taking Ecclesiastical Be­nefices? So that, if there were no Laws either Ecclesiastical or Civil in the Case; whether there be not [Page 19] something in these Transactions un­becoming the Design and Dignity of the Employment?

2. The Ecclesiastical Law of England; which hath been from time to time receiv'd here and allow'd by a general Consent; and still conti­nues in Force, where it is not repug­nant to any Laws of the Realm: which cannot be pretended in this Case.

3. The Statute Law; which doth not abrogate the Ecclesiastical Law as to Simony: it only Enacts some particular Penalties on some more Remarkable Simoniacal Acts, as to Benefices and Orders; but never once goes about to Repeal any Ec­clesiastical Laws about Simony, or to determin the Nature and Bounds of it.

[2.] But let us come more closely [Page 20] to the Statute it self; to see whether these Bonds of Resignation be not against the Design of it. The Words are, If any Person for any Summ of Money, Reward, Gift, Pro­fit or Benefit, directly or indirectly; or for or by reason of any Promise, A­greement, Grant, Bond, Covenant, or other Assurance of or for any Summ of Money, Gift or Profit whatsoever, di­rectly or indirectly; shall Present &c. Now we suppose a Patron to Pre­sent one to a Benefice, without any Money, or Bond for Money; but he declares before his Presenting him, that he must enter into a Bond to Resign his Benefice upon six months Notice under a severe Pe­nalty: to which he submits, on the Condition of obtaining his Benefice. After this, the Patron demands such a Portion of Tythes; or a Consent for him to Inclose, to the appa­rent [Page 21] Benefit of the Patron, and Di­minution of the Profits of the Li­ving. The Question is, Whether such a Bond be within the Design of this Statute? All that can be said is, that no such Consideration is expres­sed in the Bond, which is in General Terms: which implies, that if the Consideration had been Expressed in the Bond, it had been plainly a­gainst the Law. But suppose it be left out of the Bond: is not the Pe­nal Summ of the Forfeiture of the Bond sufficient to make the poor Incumbent comply with the Terms proposed afterwards? If none but just and reasonable things had been intended; why were they not clear­ly expressed in the Bond it self, so as to prevent any Fear or Jealousy of worse Designs? Have no such things ever been practised, or heard of among us? If there had not; [Page 22] doth it not look like a Contrivance to Deceive the Law, and to ham­per the Consciences of those who take Benefices? And whatever is done in Fraudem Legis, is against Law: for it frustrates the main In­tention and Design of a Law with­out breaking the Letter of it; which is the worst way of defeating a Law.

But we are told, That our Courts of Law are to judge according to the Law; and not according to an Equita­ble Construction of the Intention and Design of it. If it be really so; it doth only shew that such Courts are under a strange Limitation, which are tied up to the Letter of a Law, against the main Scope and principal End of it. But by the Judges Oath 18 E. 3. n. 2. 20 E. 3. n. l. they are bound to do Equal Law and Execution of Right to all the King's [Page 23] Subjects &c. What is here meant by Equal Law? Is it to pursue the Letter of the Law against the Rea­son and Design of it?

There are two sorts of Equity to be consider'd among us;

1. An Equity founded upon a Reasonable Construction of Law, according to the Intention of it:

2. An Equity for which the Com­mon Law hath made no Provision; as in Cases of Fraud, Accident and Trust: which is the true Foundation of the Court of Equity in Chancery; viz. to supply the Defects of our Law in those Cases.

The Question now is, Whether the Judges at Common Law are so tied up to the bare Letter of it, that they cannot take-in such Cases, which are according to the Reason of a Law, but not within the Words of it? And my Lord Coke allows [Page 24] this sort of Equity. For, saith he, Equity is a Construction made by the Iudges, [...]. Inst. 24. b. that Cases out of the Letter of a Statute, yet being within the same Mischief or Cause of making of the same, shall be within the same Remedy that That Statute provideth. These are remarkable Words of this great Oracle of the Law, and ought to be well weighed and considered in all such Cases as this. And he after­wards saith, that Equity is the Reason of the Law, which weighs Cases accord­ing to their due Measures; and so gives in paribus rationibus paria Iura & Iu­dicia. If then these Bonds of Resig­nation are within the Reason of this Law, and tend to the same Mis­chief; they ought to have the same Remedy: and it cannot be made any just Plea for them, that they are not within the Letter of the Law.

[Page 25] II. I now come to consider the Oath against Simony, which every In­cumbent is bound to take; which runs in these words: I, A. B. do swear that I have made no Simoniacal Pay­ment Contract or Promise, directly or indirectly, by my self 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; 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.

Simony, 3. Inst. 156. saith my Lord Coke, is the more odious, because it is ever ac­companied with Perjury; for the Pre­sentee is sworn to commit no Simony.

Here are two things fit to be con­sidered: [Page 26] 1. That the Oath is not meerly against direct Simony; but against any Simoniacal Contract for obtaining a Benefice.

2. That this Oath is not limited to the Statute 31 Eliz. nor made in pursuance of it; but was in being long before: and therefore must have its Interpretation from the Ec­clesiastical Law, as it was here re­ceiv'd; and not from the words of the Statute, which do not mention a Simoniacal Contract. Noy 25. We must then enquire what was a Simoniacal Con­tract by our Ecclesiastical Law.

In our Provincial Constitutions, C. de jurejur. Present. stat. which were receiv'd as part of our Law relating to Ecclesiastical Mat­ters, there is one about an Oath to be taken by every one presented be­fore the Bishop: That for the ob­taining the Presentation he had neither promised nor given any thing to him that [Page 27] presented him; nec aliquam propter hoc inierit pactionem; nor enter'd into any Bond or Covenant for that end: not a Covenant, to pay a Summ of Mo­ney, but to obtain the Presentation. Propter hoc, Lyndw. f. 56. saith Lyndwood, sc. ut praesentetur: and he declares it before, that whatever is done with an Inten­tion to induce the Patron to present, is Simoniacal; and whatever Com­pact any enter into for that purpose, is a Simoniacal Contract. Nay he goes so far as to say, the doing Any thing with that Design to obtain a Benefice makes it a Mental Simony: (which reaches not to the Oath, and requires no more but Repentance) but if there be a Bargain between the Patron and the Party to be pre­sented, he declares it to be a Simo­niacal Contract. He puts the Que­stion, If a Person offers to serve a Patron for a Year or two, with that [Page 28] Intention to obtain the Presentation to such a Benefice by it, Whether such a one can with a safe Consci­ence take the Oath? He answers Negatively, If this were his princi­pal Design, and there were a Bond or Covenant between them to that purpose: for this were Simony. From whence it follows; that any Bond or Covenant enter'd into for that End, to obtain a Presentation, was Simoniacal according to the sense of our Law Ecclesiastical.

In the time of Archbishop Court­ney, the Form of the Oath was more full and express, as it is extant in the Archbishop's Register called Morton, and in Spelman's Councils: for there is this Clause added, That neither themselves nor any Friends of theirs are under any Bonds about the Resignation or Exchange of their Benefices. Here the Oath is express against any Bonds [Page 29] of Resignation. But why is this Clause left out since? Because it was supposed to be sufficiently im­plied in the other Words: since this was at least an indirect Simoniacal Contract.

It may be said, ‘That Men are not now tied up to the Cano­nists Opinions about Mental and Conventional Simony: for out Law owns nothing but real Simony; i. e. either Actual Payment, or a Bond to pay such a Summ of Money to obtain a Presentation: and if there be no Contract for that End, it is no Simoniacal Con­tract according to our Law.’

This is all that can be said in this Case: but I think it can give no considering Man satisfaction. For the Intention of the Law, in being so strict and severe against all Simo­niacal Contracts, was twofold:

[Page 30] 1. To preserve the Dignity of the Sacred Function; which could never be upheld, if mean and sordid Trafficking were allowed as to Be­nefices. For the People can never have any due Respect or Veneration for a Person, whom they suspect to have come into his Place among them by indirect Practises; although it be not the Payment of so much Money. For they have so much Sense as to know, that what is va­luable by Money is as good as Mo­ney according to its proportion: and if a Man gives a Bond to Re­sign his Living upon Notice; they know how much this abates of the Value of it to him, when he holds it on such a Precarious Title: and that he gives so much to obtain the Living, as it is of less Value to him, than if he had it without any such Bond. He that is forced by a Bond [Page 31] to resign his Benefice, must part with what was really valuable to him; as much as the Possession of it for so many years, as he might other­wise enjoy it, would come to: and he that gives a Bond to that purpose to obtain a Presentation, doth oblige himself to give to the Patron so much as that Interest can be valued at. Is not a free unconditional In­terest in a Benefice really more va­luable, than that which depends on the Pleasure of another? If it be; then he that gives a Bond of Resig­nation, doth give something really valuable in Money, to obtain the Presentation. And how can this be excused from Simony? Yes; some may say, Simony is only a frightfull Word used by Ecclesiasticks to deter people from making the best of their own: whereas the true Notion of Simony is only buying the Gifts of the [Page 32] Holy Ghost: but what Relation is there between the Gifts of the Holy Ghost and a Benefice?

I do not think there are any so weak, as to imagine the Gifts of the Holy Ghost can be purchased with Money given to Patrons: and if they could, the Dealers in such Bar­gains would not think them worth their Money; which they could lay out upon things of greater value to them. But here lies the true state of the Case. It hath been the Wis­dom and Charity of Princes and o­ther Persons of Estates, to make En­dowments of Parochial Churches for the Support and Incouragement of those in Holy Orders to attend upon the Service of God in them: and the Law of the Land hath so annexed the Spiritual Duty with the Temporal Advantage, that no one can be capable of the latter, that is [Page 33] not obliged to the other. So that the Right of Discharging a Spiritual Trust and the Right of Enjoying the Profits go together. But to prevent the unspeakable mischief of Purcha­sing the Profits which are devoted to such a Spiritual use, this hath been called by the detestable Name of Si­mony: and very severe Laws have been made, not only against the gi­ving of Money, but the using of any indirect means to obtain a Pre­sentation. Because such things do lessen the Esteem of those who use them; and not only thereby make them more uncapable of doing Ser­vice, but expose the Sacred Functi­on it self to Contempt.

2. Another great End of these Laws, is to keep the Clergy from Oppression and Slavery. I am far from going about to lessen the Just and Legal Rights of Patrons; who [Page 34] by our Laws enjoy some Privileges, which are not allowed them in o­ther Countries, where the Ecclesia­stical Law is stricter than here in England: as in the liberty of Selling the Rights of Advowsons; their Trial at Common Law; the six Months for Patrons &c. But for our right understanding the present matter, it must be consider'd, as to the Rights of Patrons, That it was not an Original and Absolute Right to dispose of Benefices as they plea­sed; but a limited Trust reposed in them, to put-in Fit Persons to Dis­charge the Duties of their Places. It is very well known to all persons who have looked into these matters, that in the first Settlement of this Church of England, the Bishops of the several Dioceses had them under their own immediate Care; and that they had the Clergy living in a Com­munity [Page 35] with them, whom they sent abroad to several parts of their Dio­ceses, as they saw occasion to Imploy them: but that by Degrees, they saw a necessity of fixing Presbyters within such a Compass, to attend up­on the Service of God among the People that were the Inhabitants: that these Precincts which are since called Parishes, were at first much larger, and cast into such Divisions in each Diocese, as probably make up the several Deaneries since: that when Lords of Manors were incli­ned to build Churches for their own Conveniencies, they found it neces­sary to make some Endowments, to oblige those who officiated in their Churches to a diligent Attendance: that upon this, the several Bishops were very well content to let those Patrons have the Nomination of Persons to those Churches; provided [Page 36] they were satisfied of the Fitness of those Persons, and that it were not deferred beyond such a limited time. So that the Right of Patronage is really but a limited Trust; and the Bishops are still in Law the Jud­ges of the Fitness of the Persons to be Imployed in the several parts of their Dioceses. But the Patrons never had the Absolute Disposal of their Bene­fices upon their own Terms; but if they did not present Fit Persons within the limited time, the Care of the Places did return to the Bishop, who was then bound to provide for them. 2. Inst. 361. Some pretend, That before the Lateran Council, there was no time of Lapse to the Bishop, if the Patron did not Present: but that the Bishop was to provide one to serve the Cure in the mean time, and the Patron might pre­sent when he would. But this is cer­tainly a Mistake: however it be as­serted [Page 37] by Persons of great Authority. My Lord Coke cites Bracton and Fleta for it: but I can find nothing like it in either of them. Bracton indeed speaks of the time of Lapse by the Council of Lateran, Bract. l. 4. 341. which was to be after six Months, if a Dispute hap­pen'd about the Title; and this Con­stitution is extant in the Decretals: Ext. de Jure Patron. c. 22. and the same Words are used by Fleta: Fleta l. 5. c. 14. but not a Word in either of them of any unlimited Power which Patrons had before, as far as I can find. Which made me wonder at such a Maxim, as I find by several father'd on Bracton, Selden of Tythes, c. 12. 389. Ante Concilium Lateranense nullum currebat tempus con­tra Praesentantes. Abridgment 2. 354. But Rolls very fairly reports it just as it is in Brac­ton; yet afterwards he recites Mr. Selden's words. Ext. de Offi­cio Jud. Or­din. c. 4. Before this Lateran Council, Alex. had sent a Constituti­on hither, which allow'd the Bishops, [Page 38] in case any Difference happened a­bout the Patronage, to sequester the Profits, without fixing the Time: which is all the Foundation I can meet with for this famous Maxim. But before this we may observe seve­ral Canons of Councils, Eugen. 2. in Synod. Rom. c. 24. which li­mited the Patrons to three Months. These Canons were never receiv'd in England; Leo 4. in Sy­nod. Rom. c. 25. ed. Holst. which, if I mistake not, had always the privilege of six Months for Patrons. This I ground upon the Register, Registr. f. 42. a Book of great Authority, and considerable Anti­quity; where it is said expresly, That the Bishops have not the Right of Lapse till six Months are passed; which is said to be Secundum legem & Consu­etudinem Regni Angliae; according to the ancient Custom and Law of Eng­land. And the like was observed in the old Customs of Normandy. Cust. Norm. Art. 69.

[Page 39] But by the Ancient Law of Eng­land, notwithstanding the Right of Patronage, the Bishop of the Diocese had these Rights reserved to him:

1. The Right of Admission of the Person presented:

2. The Right of Lapse, or be­stowing the Benefice, if the Patron failed his six Months:

3. The Right of making an A­voidance, by Deprivation or Resigna­tion.

1. The Bishop hath by the Law the Right of Admission of the Person presented by the Patron. For here from the time of Christianity being receiv'd among the Saxons, at least as far as we can trace any Footsteps of the Settlement of a Parochial Cler­gy, it was expresly provided for; That no Presbyters should be fixed in [Page 40] any Places, without the Consent of the Bishop. For this we have a Canon of Theodore Archbishop of Canterbu­ry, preserved by Egbert Archbishop of York (each the Seventh in their Sees, but at some distance of time) in his Collection of Canons: the words are, pelm. Con­il. Statutum est ut sine Au­thoritate & Consensu Episcoporum, Presbyteri in quibuslibet▪ Ecclesiis non constituantur, nec inde expellantur; & siquis hoc facere tentaverit, Synodali Sententiâ feriatur. So that by the Original Constitution of this Church the Bishops had the Power of Fixing Presbyters in Churches, and of Re­moving them if there were occasi­on; and no other Persons could do it without them. This doth by no means infringe the Right of Nomi­nation or Presentation of Fit Persons to the Bishop: but it implies that no such Presentation was sufficient, [Page 41] unless the Bishop did first Approve and Consent to the Person. Where­in the Ancient Right of Patronage here in England did consist, we can­not have a better Account; than from the Words of all the Nobility of England in their Remonstrance to Gregory IX. when he attempted to in­croach upon them by Papal Provi­sions: Matt. Paris. A. D. 1239. p. 513. Cum igitur à primâ Christiani­tatis Fundatione in Angliâ, tali fuerint hactenus progenitores nostri gavisi liber­tate, quod decedentibus Ecclesiarum Rectoribus, Ecclesiarum Patroni Per­sonas idoneas eligentes ad easdem, Dio­cesanis praesentaverunt ab eisdem Ecclesi­arum Regimini praeficiendas. These are words of great Weight; and do plainly shew, that the Right of Patronage consisted in the Nomina­tion of Fit Persons to the Bishop of the Diocese for any vacant Places: but that the Bishops were, if they [Page 42] approved them, to put them into the Possession of them. In the time of Innocent III. the King wrote to the Pope; Innocent E­pist. l. 1. that the Nobility and Bishops of England did insist upon it, as their Right by the Ancient Custom, to build Chur­ches on their own Lands: and the Pope yielded it to the Laity, provided that they had the Consent of the Bishop of the Diocese; and that the Rights of former Churches were not prejudiced thereby. Selden of Tythes 361. But saith Mr. Selden, they challenged it without Licence. What to do? To build Churches on their own Lands: but not a word of putting-in any Incumbents by their own pow­er without the Bishop's Consent and Approbation. Nay, it appears that they could not build Churches on their own Lands without the Bishops Allowance. Mr. Selden would fain have it believed, [...]. 387. That the Right of Presentation to the Bishop of the Dio­cese [Page 43] came in by the Canon Law about A. D. 1200. But the Insinuations of that kind, as they are frequent in his Book of Tythes, so they do shew his want of Skill or Ingenuity at that time, as much as any one part of it. But I need go no farther, than this Letter of the Nobility to the Pope; who were extremely jealous of their Rights of Patronage, and yet they challenged nothing thereby, but a Right of Nomination of a Fit Person to the Bishop of the Diocese: not a word of Investiture or Col­lation by the Patron; which Mr. Selden talks of. He doth not deny, That after A. D. 1200, 83. 86. 38 [...]. it was the un­doubted Law of England for the Pa­trons to present to the Bishops. But I say, it was the Law of England, be­fore ever the Decretals were made: it was the Original and Fundamen­tal Law of the English Church; and [Page 44] as Ancient as the Right of Patronage. In the same Epistle, they desire the Pope to leave them to their ancient Liberty, which was Personas ido­neas praesentare. But who is to be Judge of the Fitness of the Persons? For that, we have a full Declaration of the Ancient Law and Custom of England, in Artic. Cleri, c. 13. De Idoneitate Personae praesentatae ad Bene­ficium Ecclesiasticum, pertinet Exami­natio ad Iudicem Ecclesiasticum, & ita est hactenus usitatum, & fiat in posterum. Upon which my Lord Coke saith, 2. Inst. 632. That the Examination of the Ability and Sufficiency of the Person belongs to the Bishop, who is the Ecclesiastical Iudge; and in this Examination he is a Iudge and not a Minister; and may and ought to refuse the Person presented, if he be not Persona idonea. And that this was no new Law, appears by the words, That it had been hitherto so used, and [Page 45] should be so for the time to come. And so Coke truly saith, that this Act was but a Declaration of the Common Law and Custom of the Realm. So that the Bishops Power of Examining and Iudging the Fitness of the Person pre­sented is a part of the Common Law of England.

15 H. 7. 8. It is declared by all the Judges, That the Bishop in the Ex­amination of a Clerk, is a Iudge and not a Minister. And if he misbehaves himself, he is to be punished as a Iudge.

18 H. 7. Keilway saith, That the Bishop may refuse for Insufficiency; and is to give notice to the Patron.

It was Resolved by the Court in Specot' s Case, 5 R. 57. That the Court is to give Credit to the Bishop acting Iudici­ally: but then it is said, That the Plea must be special and certain.

And so Coke saith, that in a Quare Impedit brought against the Bishop [Page 46] for Refusal of his Clerk, he must shew the Cause of his Refusal specially and directly.

But it was the Opinion of Lord Chief Justice Anderson, Anders. 190. Leon. 3. 200. That in things not Triable at Common Law a General Plea was sufficient. But when the Case came to the King's Bench 32 Eliz. it was there said, That the Articuli Cleri mention a Reasonable Cause; which, say they, must be Special: for Causa vaga & incerta non est rationabilis. But the main point is, Who is to judge what is a Reasonable Cause? and I cannot but think that Anderson's Opinion is the truest and most Reasonable. If it be for a matter Triable at Common Law, that Court is to judge: but if not, I do not see how it can be avoided, but the Bishop must judge: and his Judgment of Insufficiency must be taken; as well as in any [Page 47] Certificate whatsoever. For, if the Law trust him with the Judgment of a Matter proper for him to judge of; other courts, which have no Cognizance of it, must give credit to such a Certificate: or else they must take upon them to judge in Mat­ters that are not of their Cognisance; which is to confound the Jurisdiction of Courts. I grant, the Judgment of the Bishop is not Conclusive: but the Appeal then lies to the Supreme Ecclesiastical Court; and the Me­tropolitan is to be Judge of the Suffi­ciency of the Person.

‘But is not this a great Preju­dice to the Right of Patrons, if the Bishops are to judge of the Fitness of Persons presented; and so the Patrons Presentation may signify nothing, if the Bishop pleases?’

[Page 48] This is a Trust which the Law reposes in the Bishop, and it lies upon his Conscience to act sincerely in this matter: and in case of Exa­mination of Fit Persons, a Trust must be placed somewhere: and in whom more properly than in the Bishop of the Diocese? to whom the Care of it doth especially belong; and that by as plain Law as any we have. Are not all Judges trusted in Matters that come before them? But this is no Decisive Judgment: for an Ap­peal lies according to the Nature of the Matter. And this is no other Trust than hath been allow'd in all other Christian Nations, where the Rights of Patronage are owned. Iu­stinian owns it several times in his Novels; Novel. 53. [...]it. 12. c. 2. 23. c. 18. not only that the Bishops are to Examine and Approve those who are nominated by Founders of Churches; but if they find them un­worthy, [Page 49] they may put others in their room. By the Capitulars, Cap. l. 1. c. 84. l. 5. 98. or old Ec­clesiastical Laws of France, Addit. 4. 95. the Lay Patrons are not only to present to the Bishop such as were Probabilis Vi­tae & Doctrinae; but if upon Exa­mination they found them other­wise, it was in their power to reject them. Ext. de Jure Patr. c. 29. As to the Canon Law, there can be no Dispute in this Point: but if the Bishop refused, an Appeal did lie to the Pope; and if he were unjustly refused, the Bishop was bound to provide for him: but during the Appeal, the Patron might present another; whom if the Bishop approved, the Appeal did fall. Re­buffus Rebuff. de Nomin. n. 10. a noted Lawyer saith, That it is a damning Sin in a Bishop, not to Examine the Fitness of those who are presented by Patrons. And a late learned French Canonist saith, Those are to blame who lay the Fault of so [Page 50] many unworthy Men being in Places on the Lay Patrons: Fra. de Roye de Jure Pa­tron. Proleg. c. 25. for, saith he, the Bishops are to blame, who are bound to Examine, and if they see Cause, to re­ject them. So that we have not on­ly our own Law, but the General Consent of the Christian World, where the Right of Patronage is al­low'd; as to the Bishops Right of Examining and Iudging the Fitness of Persons presented to Benefices.

2. The Right of Collation upon Lapse belongs to the Bishop, not­withstanding the Right of Patronage. It is said by Lord Hobart, Hob. 154. That a Lapse is not an Interest naturally, but a meer Trust in Law; and afterwards; That the Ordinary, or he that is to pre­sent by Lapse, is as a kind of Attourney made by Law, to do that for the Patron; which it is supposed he would do him­self, if there were not some lett: and therefore the Collation by Lapse is in the [Page 51] Right of the Patron and for his Turn. This seems to me to be a mistaken Notion of a Lapse: for the true Question is, Whether upon a Lapse the Ordinary doth collate Iure ple­no, or Iure devoluto? Some French Lawyers held the latter; De Roye de Jure Patr. p. 95. 145. but Car. Molinaeus and others utterly reject that Opinion, for this Reason; Be­cause Churches and Dioceses were Iure communi under the Care of the Bi­shops; but it was by particular In­dulgence, that the Patrons had the Right of Presentation: which being neglected, things do return to Com­mon Right: and therefore the Bishop hath a true Interest, and acts not in the Right of the Patron, but his Own.

It's true, there is a Devolution af­terwards by our Law: for as the Author of the Doctor and Student saith, Dr. & Stud. c. 36. 125. The Law of the Realm is, that if a Benefice falls void, then the Patron [Page 52] shall present within six Months; and if he do not, that then the Ordinary shall present: but yet the Law is farther in this Case, that if the Patron present before the Ordinary put-in his Clerk, that then the Patron shall enjoy his Pre­sentment: and so it is, though the time should fall to the Metropolitan. For, as he saith, by our Law, if the Bishop doth not collate within six Months, then the Metropolitan presents. But this is by a Right of Devolution, and then why not the other?

The Answer is, That the Bishop is Ordinary of the Diocese, and there­fore it comes to him of Common Right: but it falls to the Archbishop, not as Ordinary, but as Superiour; to whom the Right of Devolution falls upon the Inferiour's Neglect. For, although in some respects, and in the Excepted Cases, the Arch­bishop may be said to be Ordinary of [Page 53] the whole Province: yet that is not so much in respect of Immediate Iuris­diction; Hob. 17. Brownl. 21. 27. which Hobart and others say, was by virtue of the Legatine Power which was annexed to his See. But the Archbishop hath a Power as Metropolitan, to supply the De­fects of the Suffragans of his Pro­vince; and so this Right of collating upon defect of the Ordinary comes to him by Right of Devolution.

But how then comes the King to his Right after the Metropolitan's Neglect? That is, Dr. & Stud. 124. say our Lawyers, Because the King is Patron Paramount of all the Benefices within the Realm. Plowd. Com. 498. b. The meaning is, That the King by Right of his Crown is to see that all Places be duely supplied with Per­sons fit for them: and if all others whom the Law hath entrusted, do neglect their Duties; then by the natural Order and Course of Go­vernment, [Page 54] it falls to the Supreme Power, which is to supply De­fects, and to reform Abuses.

3. The Bishop hath the Right of making an Avoidance by Depriva­tion or Resignation. For, as he hath the Power of putting-in; so the Law hath lodged in him the Judicial Power of proceeding against Offen­ders, and hath not left that to the Judgment of the Patron. If we en­quire, Who by our Law is made the proper Judge of a Beneficed Person, whether he behaves himself so as to deserve to lose his Benefice? Will any one say, that the Law hath put this into the Patron's hands? Yet all those who justify these Bonds of Resignation must in Effect say, that the Patrons are the proper Jud­ges: for they have the real Power of Deprivation in their Hands, and may execute it when they please. [Page 55] Which is such an Arbitrary Jurisdic­tion, as would be thought intolera­ble in other Hands.

In all Causes of Deprivation of a Person actually possessed of a Bene­fice, these things must concur:

1. A Monition or Citation of the Party to Appear:

2. A Charge given him, to which he is to Answer, called the Libel:

3. A Competent Time assigned for the Proofs and Answers:

4. A Liberty for Counsel to de­fend his Cause; and to except a­gainst the Proofs and Witnesses:

5. A Solemn Sentence after hear­ing all the Proofs and Answers.

These are the Fundamentals of all Judicial Proceedings in the Ec­clesiastical Courts, in order to a De­privation: and if these things be not [Page 56] observed, the Party hath just cause of Appeal, and may have Remedy by a Superiour Court. And these Proceedings are agreeable to the Common Justice and Reason of Mankind: because the Party accu­sed hath the liberty of Defence, and the Right of Appeal. But there is nothing of all this, in Bonds of Re­signation: for the Patron takes the Advantage of the Forfeiture of the Bond; and so without any Trial, or Proof, or Sentence, deprives him of his Benefice.

Some who are no Friends to the Ecclesiastical Courts, would have no Deprivation of a Benefice, but by Proceedings at Common Law: because it is a Freehold. Suppose that it were so (which seems contrary to the course of the Law: for the Bishop in a Plea to a Quare Impedit, saith, Nihil clamat praeter Institutionem & [Page 57] Destitutionem Clericorum; and Eccle­siastical Deprivations have been still al­low'd at Common Law, if they have been according to the Ecclesi­astical Laws) but taking it for gran­ted, that a Deprivation of a Free­hold ought to be at Common Law: what then? what, without an In­dictment, and without a Trial by a Jury? No Hearing of the Cause, no Witnesses examin'd, no Counsel to be heard, no Judgment by his Peers? And can this be agreeable to the Fundamental Laws of Eng­land; to have Men forced out of their Freeholds in such an Arbitrary manner? What would they think; if other Freehold Estates, which hold of a Superiour Lord, were made so Arbitrary, as to Depend upon the Will of the Lord so, as to be turned out upon six Months notice? Let us see Bonds of Resignation practised [Page 58] upon such Estates: and then we shall soon find, what Clamours will be made against them, as over­throwing the Fundamental Rights and Liberties of the People. Is there not the same Reason in this Case? Is there not greater? be­cause these Benefices are not Free­holds, which are held of the Pa­trons; but they have only a Right to Present Fit persons to them. But it may be, that the Defenders of these Bonds will deny Benefices to be Freeholds by the Law of England. It is easy to guess, what some Men would have them to be, by these Bonds: I am sure far enough from Freeholds. But such private Tran­sactions cannot alter the Nature of things: and we are now enquiring, What Benefices are, by the Law of England? It is disputed at Common Law, In whom the Freehold of the [Page 59] Glebeland of a Benefice is, 1. Inst. 341. during the Voidance? And it is agreed, that it is neither in the Patron nor Ordi­nary: because it was given to the Incumbents and their Successors. And therefore they tell us, it is then in Abeyance; which is a pretty way of expressing, That the Law takes care that it shall come to the next In­cumbent, notwithstanding the Dis­continuance by Death of his Prede­cessor: and I think it had been as well said, that it was in the Law, although not in any Person. But it is not disputed, but that as soon as ano­ther Incumbent is in Possession, the Freehold is in Him: for those are Lit­tleton's words, Sect. 647. And my Lord Coke saith, That the Incumbent cannot be look'd on, as a meer Tenant for Life: because he may have such Writs, which none can have but a Te­nant in Fee-simple or Fee-tail; and he [Page 60] may receive homage, which Tenant for Life cannot do. And for this he goes as far back as the time of E. 1. But long before that, in Glanvil's time, which was of H. 2. it is said, Glanvil l. 13. c. 20. That he that is possessed of a Benefice by In­stitution from the Bishop, and judged fit by Him, shall enjoy it for his Life; although the Right of Advowson be dis­puted. Which is several times affir­med by my Lord Coke upon good Reason. In one place he saith, That at the Common Law, 1. Inst. 343. b. if a Church be once full, the Incumbent could not be removed: (excepting Just Cause of De­privation) and Plenarty generally was a good Plea in a Quare Impedit, or Assise of Darein Presentment: and the Reason of this was, to the Intent the Incumbent might apply himself to his Spiritual Charge. 2. The Law in­tended, that the Bishop that had Cure of Souls within his Diocese [Page 61] would admit and institute an able Man for the Discharge of his Duty and his own; and that the Bishop would do right to every Patron in his Diocese. In another place he saith, 2. Inst. 357. That by the order of Common Law, if one had presented unto a Church whereto he had no Right, and the Bi­shop had admitted and instituted his Clerk, this Incumbent could not be re­moved for divers Reasons: 1. For that he came into the Church by a Iudicial Act of the Bishop. 2. That by the Common Law, in every Town and Pa­rish there ought to be Persona idonea: and when the Bishop had admitted him able, which implied that he was idonea Persona, then the Law had his final Intention, viz. that the Church should be sufficiently provided for. 3. That the Incumbent having Curam anima­rum might the more effectually and peaceably intend so great Charge; [Page 62] the Common Law provided, that af­ter Institution he should not be subject to any Action, to be removed at the Suit of any common Person; without all Re­spect of Age, Coverture, Imprisonment, or Non-sane-memory; and without regard of Title, either by Descent or Pur­chase, or of any Estate. Are these things consistent with Bonds of Re­signation?

But it may be said, That here is no Deprivation supposed, but a volun­tary Resignation: and what hurt is there, if it be a Man's own Act?

I answer, that we are not only to consider the Act of the Person, but the Interest and general Concern­ment of the Church in it. For in all matters of such a Publick na­ture, we are not to regard so much the Consent of the Party, as the Na­ture and Consequence of the Act it self. If it be an illegal thing, and [Page 63] tend to subvert the Rights of the Church; it cannot make it legal to say, that it was his own Act. Now as to this kind of Resignation, we are to consider these two things:

1. That if the Resignation be not into the hands of the Bishop, it is an illegal Act, and void of it self:

2. That if it be into the Bishop's hands, he hath the Power in Law to Accept it or not.

1. That the Resignation must be into the hands of the Bishop. For a Resignation into the hands of the Patron, is by the Canon Law de­clared to be null and void of it self. So Innocent IV. ad c. 6. de rerum per. And this is grounded on the Text of the Canon Law. C. 17. Q. 2. c. Gonsaldus: and on the Ap­pendix to the Lateran Council under [Page 64] Alex. III. v. Flamin. Paris. de Re­signat. l. 7. c. 1. n. 9. De Renunt. tit. 15. c. pen. where it is declared to be an unworthy thing, and contrary to the Canons, to Resign into the hands of Patrons. And Alex. III. forbids it absolutely under an Anathema, De Renunt. c. 4. which is confirmed by Innocent III. c. 8. in the Decretals. But we are to con­sider especially, how far this part of the Canon Law was here receiv'd; and we can have no better a Judge in this Case than Lyndwood, who saith positively, Lyndw. f. 55. c. Ne lepra. that Renuntiatio fac­ta in manus Laici etiam sponte non te­net; i. e. a Resignation made into the hands of a Lay-Patron, if it be never so free, doth not hold: and therefore he saith, it must be made into the hands of Him who hath the Ordinary Iurisdiction, and therefore hath power to Admit.

He observes two things very ma­terial as to the point of Resignation:

[Page 65] 1. That a Voluntary Resignati­on, though not to the Ordinary, de­prives the Party of the Possession; so as he cannot recover, although he be not wholly devested of the Pro­perty, or Right to the thing: Quia sine Consensu Superioris non tenet Re­signatio: and this is founded on that Fundamental Reason, That the Care of the Diocese belongs to him, who hath the Ordinary Jurisdiction; who was the Bishop: but as Lyndwood ob­serves, by Custom and Composition, this is put into other hands; as in Places of Exempt Jurisdiction. And so, where the Power of granting In­stitution is lodged by the Bishop's Consent, and a Prescription upon it; there is a Power likewise of Receiving a Resignation: but not in any, who have only a Delegated Power from the Bishop. For there is a Diffe­rence in Law and Reason between [Page 66] an Ordinary Power depending on an ancient Prescription and Composition (as it is in several places in the Deans and Chapters within certain Precincts) and an Ordinary Power in a Substi­tute, as a Chancellor or Vicar-General. For although such an Officer hath the same Court with the Bishop, 6. de Appel. c. Roman. Lyndw. f. 54. so that the Legal Acts of the Court are the Bishop's Acts, by whose Autho­rity he sits there; so that no Ap­peal lies from the Bishop's Officer to himself, but to the Superiour: and although a Commissary be al­low'd to have the Power of the Ordina­ry in Testamentary Causes, which were not originally of Spiritual Iurisdiction, as it is said in Henslow's Case, 9 R. 41. De Testam. v. Stat. v. Approbat. with which Lindwood agrees: yet in Acts of Spiritual and Voluntary Iurisdic­tion the Case is otherwise. For the Bishop by Appointing a Chancellor, doth not devest himself of his own [Page 67] Ordinary Power: but he may dele­gate some parts of it by Commission to others, which goes no farther than is expressed in it. For it is a very great Mistake in any to think, that such who act by a Delegated Power, can have any more Power than is given to them; where a Special Com­mission is required for the Exercise of it. 6. De Ossicio Vicarii c. 2. For by the General Commission no other Authority passes, but that of hearing Causes: but all Acts of vo­luntary Jurisdiction require a Special Commission, which the Bishop may restrain as he sees Cause. For as Lyndwood saith, Nothing passes, vir­tute Officii, but the Hearing of Causes: so that other Acts depend upon the Bishop's particular Grant for that purpose. And the Law no-where determins the bounds of a Chancellor's Power as to such Acts; nor can it be supposed so to do, since it is but a [Page 68] delegated Power: and it is in the Right of him that Deputes, to Cir­cumscribe and Limit it. Neither can Use or Custom inlarge such a Power, which depends upon ano­ther's Will. And however, by modern Practise, the Patents for such Places have passed for the Life of the Person, to whom they were first granted; yet it was not so, by the ancient Ecclesiastical Law of Eng­land. De Sequestr. v. Officiales. For Lyndwood affirms, That a Grant of Jurisdiction ceases by the Death of him who gave it: Per Mortem deputantis cessat Potestas Offi­cialium: (or else it could never pass into the Dean and Chapter sede va­cante; or to the Guardian of the Spiritualties.) And he gives a good Reason for it; Nè invitus habeat Of­ficialem sibi fortassis odiosum. It's true, that by the Statute 37 H. 8. c. 17. meer Doctors of Law are made ca­pable [Page 69] of Exercising all manner of Ec­clesiastical Iurisdiction. But it doth not assign the Extent of their Juris­diction; but leaves it to the Bishops themselves, from whom their Au­thority is derived. And the Law still distinguishes between Potestas Ordinaria and Delegata: Bracton l. 5. c. 2. for the for­mer supposes a Person to act in his own Right and not by Deputation; Fleta l. 6. c. 37. 1. Inst. 96. Cowel. v. Ordin. which, I suppose, no Chancellors or Officials will pretend to. But how far now, a Commission to ex­ercise Jurisdiction doth hold, when the Person who gave it is dead, is not my present business to enquire: but in Sutton's Case, it seems to be taken for granted by the Counsel, that a Chancellor's Patent, Cr. Car. 65. confirm­ed by Dean and Chapter, doth give a Man a Freehold for Life, if he be capable of doing his Duty; other­wise he may be deprived for Insuf­ficiency, [Page 70] as Doctor Sutton was. But Noy saith, Noy 91. That the Court was in doubt, how far the Act of the Predeces­sor could bind the Successor as to the Profits. And in the Prebend of Hat­cherlies Case, 152. Dodderidge declared, That Ecclesiastical Iurisdiction in Iudi­cial Acts may be executed by Substitute: but a Grant of it is not good, but du­ring the Bishop's Life; and shall not bind the Successor. And Coke thought it a very hard thing, That the Suc­cessor should not remove him; but be bound to answer for the Acts and Offen­ces of a Commissary, which he never put-in. But these things belong not to our present business, any farther than to shew, that however in some Cases the Bishops may substitute o­thers; yet as to Resignations of Benefi­ces, for all that I can find, the Law only takes notice of the Bishop him­self.

[Page 71] Lyndwood observes, that there is a difference to be made between the Resignation of a Simple Benefice, i. e. where there is no Cure of Souls; and of such a one that hath such a Cure going along with it. In the former Case he saith, That a Resig­nation may be to the prejudice of the Party, without the Bishop's Consent: but in the latter, where it may be to the prejudice of Others as well as of himself, it hath no force without the Bishop's Ratification: In hoc Casu ne­cessaria est Ratihabitio Episcopi. So that no Resignation of a Cure of Souls can be of any Validity without the Bishop's Acceptance. In the Case of Smith against Foanes, it was resolved and agreed by all upon Evidence at Bar, Noy 157. That a Resignation to a Proctor, does not make the Church void, until it be accepted by the Bishop, and acknow­ledged before him.

[Page 72] 2. But suppose the Resignation be made into the hands of the Bishop, is he bound to Accept it? By what Law? For what Reason? Must he not enquire into the Reason and Inducements of the Resignation, whe­ther it be Corrupt or not? No Bi­shop can be bound to accept a Cor­rupt Resignation; and whether it be so or not, he is bound to enquire: and if he be not satisfied; by what Law can he be required to do that, which he cannot do with a good Conscience? If the Law hath trust­ed him with accepting a Resignation; it hath likewise trusted him with Judg­ing, whether it be fit to be accepted or not. In Gayton's Case it is plain, That the Bishop may refuse a Resigna­tion before a Publick Notary, [...]wen 12. when there was a Condition annexed to it, which the Law doth not annex. For in this Case, the Condition was, [Page 73] That if such or such a Person were not presented within six Months, the Re­signation should be null: which Coke then said, made it void, because Re­signations ought to be free: and this is a Judicial Act, to which a Condi­tion cannot be annexed, no more than an Ordinary may admit upon Condition.

But it may be objected, that in Case of Donatives the Resignation must be into the Patrons hands, as in Gays and Fairchild's Case: Yelvert. 60 Mar. 765. why then may not a Resignation be good to a Patron in other Benefices, since those are as really Benefices as the o­ther?

The difference is, that there is no Presentation to the Bishop in Dona­tives. For, it is agreed by the Judges in that Case, Cr. 2. 63. That if there were a Presentation once made to the Bishop, 1. Inst. 344 it ceases to be a Donative, and becomes [Page 74] always Presentable. So that the Case of Donatives is very different; for we say, that wherever the Bishop hath a Right to admit, it is his Right to accept of a Resignation. But in this Case, the Bishop is supposed to have nothing to do in the Admission or Institution of the Person. If it be asked, how the Bishops came to lose their Right of receiving the Presentati­on to these Benefices? I answer, that they seem to me to have come one of these two ways: 1. By Royal Li­cence: so my Lord Coke saith, That the King may not only found a Church, 1. Inst. 344. or Free Chapel Donative himself; but may License any Subject to do the same. But the Register supposes a Royal Foundation, Registr. 40. 3. and not a meer Royal Licence; and that it must be proved to be Ancient too: and therefore a New Licence will not come up to the Register. 2. By Peculiar Privilege. [Page 75] As when a Lord of a Manor in a great Parish, having his Tenants a­bout him at a remote distance from the Parish-Church, offers to build and endow a Church there; provi­ded that it should belong entirely to him and his Family, to put in such Persons as they should think fit, if they were in Holy Orders. It's ve­ry possible, that the Bishops at that time, to encourage such a Work, might permit them to enjoy this Li­berty; which being continued time out of mind, is turned into a Prescrip­tion. If these Donatives had been common, the Mischief would have been more visible: but being so few in Comparison, they have been less taken notice of. And they are to be distinguished from those called Sine-cures and Exempt Iurisdictions.

For Sine-cures in Truth, are Be­nefices Presentable; but by means of [Page 76] Vicarages endowed in the same pla­ces, the Persons who enjoy them, have by long Custom been excused from Residence; which is the most can be said for them. And such Sine-cures, if they be resigned, it must be into the Bishop's hands.

Exempt Iurisdictions are not so called, because under No Ordinary; but because they are not under the Ordinary of the Diocese, but have one of their own. These are there­fore called Peculiars; and they are of several sorts:

1. Royal Peculiars: which are the King's Free Chapels, and are Exempt from any Jurisdiction but the King's; and therefore such may be Resigned into the King's hands as their pro­per Ordinary; [...]ynd. f. 64. 80 [...]olls Abrid. 356. either by Ancient Pri­vilege, [...]oke 12. 41, [...]. or Inherent Right. But how far Resignations may be made to the King as Supreme Ordinary, as in [Page 77] Goodman's Case, it is not here a place to examine.

2. Archbishops Peculiars: which are not only in the Neighbour. Dio­ceses, but dispersed up and down in remoter places: For it appears by Eadmerus, Eadm. Hist. in Anselm. p. 22. That wherever the Archbi­shop had an Estate belonging to him, he had the sole Iurisdiction as Ordinary.

3. Deans and Chapters Peculiars: which are Places wherein by Ancient Compositions the Bishops have parted with their Iurisdiction as Ordinaries, to those Societies; whose Right was not Original, but derived from the Bishop; Rolls Abrid. 2. 357. and where the Compositions are lost, it depends upon Prescripti­on; as in the Deans and Chapters of St. Pauls, and Litchfield, which are mentioned in the Books, 11 H. 4. 9.

4. Peculiars belonging to Monaste­ries. For, the richer Monasteries were very uneasy, until they had obtained [Page 78] either from the Bishops, or from the Popes (which proved the most ef­fectual, but more chargeable way) an Exemption from Ordinary Juris­diction. Those Churches, which the Monasteries had gotten to be annex­ed to themselves, were called Appro­priations: but how far these were Exempt from the Ordinaries Jurisdic­tion, is not fully understood; and therefore I shall endeavour to ex­plain it.

1. Appropriations did not at first imply any Exemption from the Ordi­nary. For it was expresly provided in the Canon Law, C. 16. Q. 2. c. [...]ane. that no Persons should be put into such Churches without Institution from the Bishop: to whom the Incumbents were to be answerable in all Spiritual matters; as in all Temporal, to the Abbots. And in the oldest Appropriations, which I have seen, there is a Salvo per omnia [Page 79] Iure Episcopali: which words are in­consistent with an Exemption.

2. The Forms of Appropriation were different afterwards. For al­though none could be made without the Bishop's Consent, yet that Con­sent was expressed in different ways, and had different Effects.

If the Bishop only confirmed the Lay-Patron's Gift, then nothing but the Right of Patronage passed, and his Jurisdiction remained. If the Bishop joyned in the Donation in these words, Ext. de Do­nat. c. Pastor Concedimus vobis talem Ecclesiam; then he passed away his Temporal Rights, as to that Church. If the Bishop granted the Church Pleno jure; Lyndw. f. 80 then the Canonists say, he passed his Diocesan Right: which consisted in Rights which the Bishop had distinct from his Episcopal Iuris­diction: which it was thought he could not part with by any Act of [Page 80] his; for that were to devest himself of his Order.

3. Appropriations, confirmed by the Papal Authority, were allow'd to carry with them Exemptions from the Ordinary. And therefore the Mo­nasteries which could bear the charge, did not think themselves free from their Ordinaries, till they had obtain­ed Bulls for that purpose: and then they took themselves to be free in their Conventual Churches, as well as their Chapels, or Oratories on their own Lands.

4. All Papal Exemptions are taken away by Act of Parliament, 31 H. 8. c. 13. and the Churches so exempted are put under the Iurisdiction of the Ordinary of the Diocese; or such Com­missioners as the King shall appoint. So that no Papal Exemption can now be pleaded, as to Appropriated Chur­ches; how clear and full soever the [Page 81] Charters of Exemption were. This is a thing so little taken notice of, that I shall set down the words, Sect. 23. Be it further enacted, that such of the said Monasteries &c. and all Churches and Chapels, to them, or any of them belonging; which before the Dissolution &c. were exempted from the Visitation or Visitations, and all o­ther Iurisdiction of the Ordinary or Or­dinaries, within whose Diocese they were situate or set, shall from thence­forth be within the Iurisdiction and Visitation of the Ordinary or Ordina­ries, within whose Diocese they or any of them be situate and set; or within the Visitation and Iurisdiction of such Person or Persons, as by the King's Highness shall be limited or appointed; this Act, or any other Exemption, Li­berty or Iurisdiction, to the contrary notwithstanding.

[Page 82] Therefore no Persons who enjoy the Estates belonging to Monasteries, can now plead an Exemption by vir­tue thereof from the Ordinaries Iuris­diction; nor that they have a Power to put-in and put-out as they please, without any regard to the Bishop's Authority.

But suppose there were no En­dowment, and that the Churches were built on the Site of the Monaste­ries, and so were supplied by their own Body; then such Persons are wholly at their Will, and they may turn them out as they please. I answer;

I confess the Condition of such Stipendiaries, is as bad as of those who hold their Benefices under Bonds of Resignation. For Tenures at the Will of the Lord are the worst of any. But it is to be hoped, that such Per­sons who enjoy such Estates as were [Page 83] originally designed for the support of the Parochial Clergy, (however at first fraudulently perverted by the Combination of the Monks and Popes) will at the least take Care that the Cure of Souls be duely pro­vided for in such Places. For that Burthen goes along with the Chur­ches Revenue in whose hands soever it be: and so they are both in Law and Conscience to see the Places well supplied. And by the Statutes of Dissolution, as they do enjoy the Rights, so they are bound to pro­vide for the Churches: and where they were Parochial, to see that there were a fixed Incumbent with a com­petent Maintenance; which the Law always took a particular Care of.

II. It is time now to consider the Precedents, which have been pro­duced to shew, that these Bonds of [Page 84] Resignation are not against Law.

The first is of Iones and Laurence, 8 Iac. A Bond was given to resign the Benefice he was presented to, within three Months upon Request: and it was alledged in Court, that it was a Simoniacal Contract, Cr. 2. 248. and a­gainst Law. On the other side it was said, That there doth not appear any Simony upon the Condition: and there­fore Iudgment was given for the Bond. But a Writ of Error was brought in the Exchequer Chamber: and the principal Error insisted on was, That this Condition was against Law. But the Judges of the Common Bench and Barons of the Exchequer held, That the Obligation and Condition are good enough. For a Man may bind himself to resign upon good and valuable Rea­sons, without any Colour of Simony: as to be obliged to resign, in Case of Plu­rality or Non-Residence; or if his Son [Page 85] be at Age. But if it had been for a Lease of the Glebe, or Tythes, or a Summ of Money; That had been Simony &c. and so the Judgment was affir­med.

To this Precedent, I answer, That the Reason of the Judges is insuffici­ent. For it comes to this: the Bond is good because there may be good Reason for it. May it not be said on the other side, The Bond is naught, because there may be a very bad Reason for it? And a Bond that may be turned to so very ill Uses, it cannot but seem strange to me, that the Judges should af­firm it to be a good Bond. If the particular Reasons had been made the Conditions of the Bond, they might have judged upon them: but the Bond was general, and no Con­dition in it but Notice. Therefore their Judgment must be, that a Bond [Page 86] is reasonable, if no bad Condition appears in it: which makes the In­cumbent a Slave to the Patron, and overthrows the just Rights and Li­berties of the Clergy; and lays them open to Perjury, when they give such a Bond meerly to obtain a Pre­sentation. And they very well knew that none could be possessed of a Benefice without an Oath against all Simoniacal Contracts, either directly or indirectly. Why did not the Judges declare, that it was Simony within their Oath? But they were onely to judge of the Law. And how could they judge this not to be a Simonia­cal Bargain? Because there was no Simoniacal Condition in it. But what is a Simoniacal Condition? Where hath the Common Law determin'd it? And by what Rule? Yes, say they, A Lease for Tythes, or a Bargain for Money, had been Simony. But how [Page 87] come they to determine that no o­ther Contracts are Simoniacal; when they own, That Simony is not under their Cognisance? Did they ever of­fer to advise with the Civilians, What was a Simoniacal Contract, according to the Ecclesiastical Law? Not the least mention of this: and therefore I cannot but think this a Judgment without sufficient Reason to support it.

The same Cause came on again the next Year: and there it is decla­red, That it was not Simony, but good Policy to tie him to resign; and if it were, it is not material. Cr. 2. 274. Here are two good Points declared: 1. That Bonds of Resignation are good Policy. To what End? To insnare Mens Consciences; to make the Church a Prey to corrupt Patrons; to keep Men from doing their Duties, lest they should displease their Patrons. [Page 88] If this be good Policy, let it rather pass for that, than for good Law. 2. That it is not material as to the Goodness of the Bond, whether it be Simony or not. Then it seems a Simoniacal Contract holds good in Law: which I think was no good Policy for Judges to declare.

But we are told, That 15 Iac. in the Case of Paschal and Clerk, it was said by the Court upon Evi­dence, [...]oy 2 [...]. That if the Patron takes a Bond of Resignation at three Months warning, it was Simony within the Sta­tute. And for this we are referr'd to the Roll, 2051. I wonder this Judgment is not hitherto disproved, if the Roll be falsified: and if not, here is Judgment against Judgment.

But again, [...]. Car. 180. [...]utton 110. [...]nes 220. [...]eble 2. 446. in the Case of Babing­ton and Wood, it was resolved on the same Grounds with that of Iones and Laurence, and so deserves no new Consideration: and several other [Page 89] Judgments are said to have been given since on the same Grounds.

But let us compare this Case with such as have been adjudged to be Si­mony in the Courts of Common Law.

In the Case of Byrte and Manning, Cr. Car. 42 [...] ▪ The Court held, that if a Man entred into a Contract to procure a Presentation in Consideration of the Marriage of his Son, that had been a Simoniacal Contract. Why is not a Bond of Resignation, as much Simony, as a Consideration of Mar­riage; when both are made equally the Conditions of obtaining a Pre­sentation?

If a Simoniacal Contract be made, Cr. Eliz. 789 C. 12. 100. Cr. 2. 385. Noy 25. Bulstrod. 3. 90. and the Person presented not at all pri­vy to it, he is to incurr the Penalty of it: but if a Man be Privy to a Bond of Resignation in order to a Presenta­tion, he shall not be guilty. And yet in the one Case, a Man swears with a good Conscience: which [Page 90] I think he cannot in the other.

In the Case of Winchcomb and Pul­leston, Hob. 165. it was declared to be Simony, to purchase the next Presentation, when the Incumbent was still alive, but in a Fit of the Strangury. And yet this was not within the Letter of the Law: for the Living was not actually void. Therefore such Acts, as are against the Design and Reason of the Law, are forbidden by it. And the like was affirmed by Iustice Hutton in the Case of Sheldon and Bret. Wynch 63. In a late Judgment in Chancery, Bonds of Resignation at Pleasure to Patrons by their Clerks, Rep. Chan­cery 2. 399. are damned in Equity, when any ill use is made of them. But why should any such Bonds be allow­ed in Law, which are liable to such ill Uses?

I conclude with the Words of my Lord Coke, 1. Inst. 17. b. That the Common Law doth detest Simony, and all corrupt [Page 91] Bargains for Presentation to any Bene­fice: and its design is, that a fit Per­son for the Discharge of the Cure should be presented freely without Expectation of any thing. How then can Bonds of Resignation be agreeable to Law?

Having thus dispatched the main Point against all General Bonds, which are made the Conditions of obtaining a Presentation; there re­main only some Quaere's to be re­solved.

(1.) Suppose a Bond be required onely to tie Men up to do their Duties, and to keep them from Non-Residence. I answer, (1.) That the Patron is to blame to pitch upon a Person to discharge such a Cure, of whom at the same time he discovers such a mistrust, as to need a Bond to make him do his Duty. And if a Man makes no Conscience of his Duty without a Bond, I doubt he [Page 92] will make very little with it. If he could make him a good Man by his Bond, it were of great Use; but if he be not, he may do the more Mischief by continuing in his Place by the Force of a Bond. So that I look on such Bonds, as apt to raise Scruples in good Mens Minds; and to do no good upon bad ones.

2. That all wise and good Patrons will consider the general Mischief, more than a particular In­convenience. And what greater Mischief can come to our Church, than to have Bonds of Resignation brought into Request? For, be­sides corrupt Patrons as to Bargains; what Advantage will corrupt Patrons as to Religion make of it? who by that Means will be able to turn out the Incumbents upon Notice given, when Opportunity serves them: as is before observ'd in the Preface.

[Page 93] (2.) Suppose it be a very equitable Case, as for a Minor; is a Bond of Resignation unlawfull?

I answer, That there may be a Lawfull Trust, in such a Case I do not question: but whether the Per­son who takes this Trust, can enter into a Bond, and take the Oath, I very much question, upon the Rea­sons already mention'd. For there may be a confidential Simony, as the Ca­suists call it: and the way to prevent it, is, say they, That the Trust be sine pretii, Navarr. Man. c. 23. n. 109. pacti, modi, vel conditionis in­terventu. For the taking of a Bond argues a Mistrust; and is therefore contrary to the Nature of a Trust.

(3.) Suppose the Bishop himself requires a Bond of Resignation, as to a Prebend of his Church, if the Prebenda­ry quit the Diocese; is such a Bond ju­stifiable, or not?

The Bishop, is no doubt, bound [Page 94] to take all possible care of the Good of his Diocese, and to make his Pre­ferments serviceable to that End. But if a Man knows before-hand, that without this Condition he can­not obtain it, and with it he may, he runs into a Snare by giving a Bond for that End; and after, taking the Oath against any Simoniacal Con­tract, directly or indirectly. I do think these Bonds of so bad a Nature and Tendency, that I do wish, that no Countenance or Incouragement be given to them: especially by such, whose Example may encourage o­thers, to do that for Bad Designs, which they do for Good. And Wise and Good Men will always shew the greatest Regard to that, which serves the most Publick Inte­rest, and prevents the most grow­ing Mischief.

[Page 95] (4.) Suppose the Incumbent of a Living makes an Agreement with ano­ther Clergy man, that he shall have a Lease of his Benefice from three Years to three Years; upon which he takes a Summ of Money, and gives a Bond of Resig­nation before Harvest, and is to procure a Presentation from the Patron: is this Simony or not, by our Law?

Here the Patron is onely suppo­sed barely to know and to consent, (which is hardly to be supposed in such kind of Cases) and that the Terms are onely between the two Parties, (for I will not suppose the Bishop accessary to such Bargains) the Question is, Whether the Incum­bent can with a safe Conscience part with his Benefice on such Terms? and whether the other can give a valuable Consideration for his Inte­rest in it, if the Patron consents?

[Page 96] I answer, That the Law is as express against corrupt Resignations, as against corrupt Bargains for a Presen­tation; onely the Penalty is not so great. The Words of the Act are, That if any Incumbent of any Benefice with Cure of Souls, shall corruptly re­sign or exchange the same, or corruptly take for, or in respect of the Resigning or Exchanging of the same directly or indirectly, any Pension or Summ of Mo­ney or Benefit whatsoever; that then as well the Giver as the Taker &c. shall lose double the Value of the Money so given, and double the Value of one years Profit. 31 Eliz. c. 6.

It may possibly be said, That this is a distinct Clause from the o­ther, and hath another kind of Pe­nalty; and so cannot reach Persons in point of Conscience as the other doth. But this is a strange way of dealing with Laws. For there is [Page 97] the same Penalty in the former Clause; onely there is added a pre­sent Avoidence, and a disability in Law: supposing these two left out, the one stands upon the same Foot with the other. And I would know, whe­ther if these were gone, they could not as well make a Bargain for a Presentation, as for such a Resignati­on? And is there nothing of Con­science, or Honour, or a Regard to the Dignity of the Sacred Function in the Case? No Reverence to Laws made on purpose to deter Men from such fordid Practises? Is a Benefice to be look'd on as a meer Lively­hood, to be bought and sold as other Estates are? Is there no Sense of a­ny Spiritual Imployment going a­long with it? No Regard to the Charge and Trust that attends it? If nothing of a Spiritual Nature is to be consider'd in a Benefice, then [Page 98] there can be no such thing as Simony: and then their Hearts are at Ease, and they may publish Papers for Presentations, as well as for Resigna­tion of Incumbents. But I will not suppose such hard things of Persons, who pretend to be in Holy Orders: but this I must put them in mind of; that there is an Oath to be ta­ken, and a very strict one, against all Simoniacal Contracts, either directly or indirectly. And is wilfull Perju­ry a thing to be slighted by any? especially by Churchmen, and in or­der to a Cure of Souls? I have al­ready mention'd my Lord Coke's Saying, 3. Inst. 156. That Simony is the more odious, because it is ever accompanied with Per­jury; for the Presentee is sworn to commit no Simony: and for this he referrs to Lyndwood. And I have al­ready shew'd, how Simony is to be understood according to him. If a [Page 99] solemn Oath comes to be slighted and made little or nothing of; how can such Men pretend to Religion or Conscience? But it may be said, That Simony is to be determined by the Law; and the Law makes a Bargain with the Patron to be Simony, and not with the Incumbent. I have said e­nough already to shew, that the Sta­tute doth not determine what Simo­ny is, but only inflicts a severe Pe­nalty on some sorts of it: and there­fore it may be Simony, although not expresly against the Words of the Law. But the Words of the Law are express against corrupt Resigna­tions: and I would fain know, whe­ther a Resignation for Money be not a Corrupt Resignation? And supposing the Patron innocent, can any Man of common Sense or Ho­nesty take the Oath, who comes in upon such Terms, that he hath made [Page 100] no Simoniacal Contract or Promise, to any Person or Persons whatsoever, con­cerning the procuring or obtaining the Rectory or Vicarage &c. Is not this Bargain in order to the Procuring or Obtaining the presentation? Let it be with whom it will, if it be for this End, it is Simoniacal; or else it will be hard to determine what Si­mony is. And as to such kind of Bonds of Resignation between Parties, without the Patron's privity; how can they signify any thing, if the Bi­shop do not accept the Resignation? which I have shewed before must be into his hands. But these Men seem to set the Bishop quite aside; or to suppose him very Weak and Inconsiderate. All they look at, is the Point of Law: And they may say, They have advised with Council; and they have told them, that there is nothing against Law in this Practise. [Page 101] How? not against Law? Did they ask them, whether this were not a Corrupt Resignation within the Sta­tute? No; but whether it were Simo­ny or not? I hardly suppose any man that understands what Simony is by our Law, would go so far: but they might say, it doth not void the Living, nor bring a disability on the Person; and so far they said as the Statute doth. But is this all, which Men of Conscience, and who take the Care of Souls, are to enquire af­ter? What! nothing but whether the Benefice will be void or not? Or, whether the King may Present or not? Are these all the Considerations, even of Clergymen, in such cases? Such kind of Practises, which sa­vour only of this world, are those which give such Advantages against our Profession, in such an Age of Infidelity as ours. Do not you see, [Page 102] say they, that they mind nothing but their bare Interest as to this World, and have no regard to Law or Conscience, where they contra­dict it? I am sensible, how unrea­sonable it is, to charge a Profession with the Faults of a Few; and those in comparison, I hope, not considerable in it. But we ought, if possible, to avoid any Scandal of this kind; for it strikes at the whole Body of the Clergy of our Church, and at Religion it self: which if we have any our selves, we shall be ve­ry tender of the Honour of. Some men have a mighty Prejudice against any Churchmen medling in Secular Affairs; although they be matters of Justice and Mercy, which the Law of the Land calls them to: but my great Prejudice is against such Churchmen, who bring Secular ways of Trafficking into Church-matters; [Page 103] as though nothing were really minded, but buying, and sel­ling, and getting gain. Advancing of Trade is a Noble Design in a Na­tion; and that which makes it con­siderable at Home and Abroad: but God forbid, that such a way of Trading should ever be brought in­to the Church, or be suffer'd to go unpunished in it: for it will certain­ly Ruine the best Church in the World; by lessening the Reputati­on of Churchmen; by taking off the good Affections of the People; and making them to run into Facti­ons and Infidelity.

There is certainly something more to be regarded in these things besides our own Interest: there is that of Religion, of our Church, and of the Laws of the Land; which ought to overrule it. Suppose there were nothing but the bare Law in the [Page 104] case, which expresly forbids all Cor­rupt Resignations; is it not fit for those who are to Preach Obedience to Laws, to observe them, in what relates to themselves? Ought they not to be Examples to others, in e­very thing of good Report? and to abstain from whatever tends to take off from the Influence of their Doc­trine upon the People? and nothing doth it more, than when they are suspected to come among them by unlawful and indirect means.

I have taken the Liberty in this Discourse, to speak my Mind freely about Matters, which touch upon Law and Conscience; the Duties of Patrons and Incumbents: but I have done it, without any other Design, than of doing some Good, or at least preventing some Mischief to the Church I live in, and which I [Page 105] have a true and a just value for. If I had not thought, that this kind of Simoniacal Contracts were a great and growing Mischief; and had not had too much Reason to think so; I should have spared my Pains, as o­thers have done: for I do not love to be uneasy to my self or others. I know very well, how ill such Dis­courses are apt to be taken by all that are concerned in them; viz. Patrons, Incumbents, and all such Lawyers that go about to defend them. But before I conclude this Discourse, I must request some things of all these: and then let them judge as they please; so it be without Prejudice and Partiality.

1. That Patrons would consider, that the Right of Patronage is a Trust committed to them; of which they must give an Account to God: [Page 106] for there is an Obligation in Point of Conscience, going along with it. It is hard to believe what is com­monly Reported, how slight many great Patrons make of their Bestow­ing of Benefices, by letting Servants make their best Advantage of them; who scandalously expose the Li­vings, and themselves, and the Ho­nour of those they depend upon. If Servants deserve to be gratified; for God's sake, let it not be at the Price of Souls. If there were no such thing as Religion; but that the pre­tended Care of Souls is nothing but an Artificial way of Maintaining a Sert of Men, to keep the People in a little better Order, by telling them of Moral Duties, and another World; then there were some Co­lour for such an Affected Negligence in these Matters: But I do not be­lieve that any of these Persons can [Page 107] satisfy themselves in such Absurd and Unreasonable Imaginations; against the Sense of all the Wiser and more Considerate part of Mankind. But it cannot be denied, that the Things which they are to Teach the People in point of Morality, are very good things, and necessary to be told them. This is all I desire at pre­sent. And is it of no Consequence, what sort of Men those are, who are entrusted with the Teaching People their Duties to God and Man? If Religion were only to be regarded in point of Policy; those must be far from Politicians, who have no regard to the Qualifi­cations of the Persons they put into such Places. For Ignorant and Illi­terate Men can never give them good Instructions; Scandalous and Debauched Persons will certainly do abundance of Mischief, making [Page 108] the People more loose and debauch­ed than otherwise they would be. Men of ill Principles will instill them into the Heads of the busy part of those they converse among, and take upon them to guide; and make them far more ungovernable than otherwise they would be. I have no very great Opinion of the World as it is; but I cannot but think, that it would be yet much worse, if an Ig­norant, Vicious, Turbulent, Sedi­tious Clergy were put into all such Places as Patrons dispose of: and they know not, but they may be all such whom they Present, if they take no more care about them; but suffer their Servants to make what Bargains they think fit; who mind not the Men, but the Advantage they are to get by them. And there is a just Presumption, that those are not very Deserving, who are ready [Page 109] to drive such Bargains for them­selves: and such Men are not to be valued, as Cattle in a Market, by the Money they will yield.

2. That Lawyers would not en­courage their Clients in indirect me­thods of obtaining Presentations. For here lies a great part of our pre­sent Mischief: the Clergymen who want Benefices, They say; We are Ignorant of the Law; but we go to those whose business it is to un­derstand it: and they tell us, they have Cases and Precedents in their Books, for such Bonds; and they have been many times adjudged in the Courts of Law to be good; and therefore why are we to blame if we submit to them? But here lies the great Mistake: the Point is really a Point of Conscience as to the Oath; but the Question put to them can be only a [Page 110] Point of Law; who are to give Judg­ment upon the Statute, and accor­ding to the Rules of Judgment al­lowed in their Courts. But I can­not but observe, that there is no Precedent offer'd before 8 Iac. 1. and in the 15th. was a contrary Judgment. In the Beginning of Charles I. the former Judgment was affirmed; and from hence it hath come to be such a prevailing Opi­nion. I confess, that I am not sa­tisfied, how far such Precedents, or one or two Judicial Sentences make a thing to pass for Law; nor whe­ther the Authority of such a Sen­tence, or the Reason, is to give the Force of Law to it. I observe that my Lord Coke, when he speaks of the Laws of England; he reckons up Common-Law, 1. Inst. 11. 110. b. 115. b. Statute-Law, Cu­stoms reasonable &c. but he never mentions the Judgment of the [Page 111] Courts, as any Part of our Law; they being no more but a Declara­tory Sentence of the Majority of the Judges, when it may be the o­ther differ upon better Reasons; and when such Reasons come to be thought better by one more at ano­ther time, then the contrary must pass for Law on the same grounds. How often do we hear that the Judges were divided in their Opini­ons in point of Law? How often, that the greater number went one way, but Law and Reason on the other? Suppose a Lord Chief Ju­stice of great Skill and Knowledge in the Law, to be unequally yoked with others of far less Judgment; how is it possible to prevent that Judgment shall not be given on the wrong side, if the three happen to be of an Opinion against him; or [Page 112] one be absent, and two be against one? In a late great Cause, viz. of Commendam; although three Jud­ges concurred in Opinion, and the General Practise was allowed to be of that side; yet because one Judge differ'd from the rest, his Authority was produced against the Sentence of the Court: and for what Cause can this be, but the Supposition, that it is not the Sentence, but the Reason which makes the Law. My Lord Chief Justice Hales in a MS. Discourse of the History and Analysis of the Laws of England, Chap. 4. makes three Constituents of the Common Law of England: 1. The Common Usage and Custom: 2. The Authority of Parliament: 3. The Iudicial Decisions of Courts of Iustice: but how? Consonant to one another in the Series and Succession of Time. [Page 113] This is spoken with great Judgment: For, no doubt, a mighty Regard ought to be shewed to a Concur­rent Sense of so many Persons of Ability in the Law, in the different Times wherein such Matters have been before them; and this is the highest Authority for expounding the Law; but it cannot amount to the Making of a Law. For, as the same Excellent Person adds; It is true, the Decisions of Courts of Iu­stice, although by the strength of the Law of this Kingdom, they do bind as a Law between the Parties to it in that particular Case in Question, till Rever­sed by Error or Attaint; yet they do not make a Law: for that only the King, by the Assent of Parliament, can do. All that I aim at, is not in the least to take off from the Au­thority and Reverence due to Judi­cial [Page 114] Decisions, built upon a Gene­ral Agreement from time to time; or upon Evident Reason in point of Law: but only that things should not be so positively asserted to be Law, which are built only on a few Modern Precedents, without any convincing Evidence. Which I take to be the present Case.

3. That the Clergy would mind their own Honour and Interest, and that of the Church and Religion so much, as not to Accept of Benefi­ces upon such Ensnaring Terms, as those of Bonds of Resignation.

If what I have said on this Argu­ment be true; I am sure they have all the Reason in the World to Re­fuse them: when they know not what the Consequence of them may [Page 115] be; and they do know what kind of Oath they are to take. And no Man can honestly take an Oath, that is not satisfied, that such Bonds are no Simoniacal Contract in the Sense of that Law, by which he is required to take the Oath. Now the Oath is not imposed by the Courts of Common Law in pursuance of the Statute; for then it were to be un­derstood according to the Sense and Meaning of it; but that very Sta­tute leaves the Ecclesiastical Laws as they were; by which Simony is of a larger Extent than it is under­stood at Common Law; and by those Laws this Oath is required. There­fore my Request is to all such Clergymen, as are in danger of ha­ving such put upon them; that they would study the Case, and satisfy their Minds before they venture up­on [Page 116] taking an Oath; which may afterwards rob them of that Peace and Tranquillity of Mind, which every Good man will Esteem above any Benefice in the World.