And we acknowledge there have been times, when that was the danger. But they are long paft: and God forbid we fhould defire to revive them. Placing exceffive wealth in the hands of ecclefiaftics, would both endanger others and corrupt them: as the examples of past ages have too fully fhewn. But the parochial Clergy of thofe times, inftead of being the authors of this error, were the heaviest fufferers by it. And to renew the attempt in these days, would be folly equal to its wickedness of which we fhould fo certainly and immediately be made fenfible, indeed we are fo univerfally fenfible of it already, that there can be no need of giving cautions on this head. All we wish for is, the unmolested enjoyment of what clearly belongs to us, and a reasonable allowance of what is confeffedly requifite for us, in order to attain the only ends of our inftitution, the present and future happiness of mankind. In how many and fad inftances we fail of poffeffing in peace fuch a competent provifion, I need not fay. Let us all behave under whatever ufage we receive, with the innocence and the prudence, which our Mafter enjoins. But we fhall be wanting in both, if we wrong ourselves and those that will come after us, by improper voluntary diminutions of what is allotted for our fupport: which, through inconfiderateness and indolence, hath been often done: defignedly, I would hope, but seldom. And we may be guilty of it, either at coming into our benefices, or during our incumbency on them, or when we quit them: to which three heads I shall speak in their order.

Yet indeed, as I am now directing my difcourfe to perfons, moft of them already poffeffed of benefices, it may feem too late to give cautions refpecting the time of entering upon them. But all who have acted right then, will at least hear with pleasure their conduct approved. If any have acted wrong; which I do not know, that any of you have ; on being fhewn it, they may repent of it, they may confider how far they can undo what they have done, or prevent the bad confequences that are likely to flow from it. And both forts may be influenced more ftrongly, to take no improper fteps on any future occafion, and to warn their friends against such errors.

I proceed therefore to say, that benefices ought neither to be given, nor accepted, with any other condition or promife, than that of doing our duty in relation to them. This engagement is always understood, whether it be expreffed or not: and no other fhould either be required or complied with. For when Bifhops, originally the fole patrons, to encourage the endowment of parishes, gave others a right of presenting fit perfons to them; or that right was confirmed or granted by the civil power: they must be fuppofed to give it only to be exercised for the future, as it had been before: when whoever was appointed to any station in the church, enjoyed the benefit of all he was appointed to, fo long as he behaved well. And therefore attempting to bring the Clergy into a worfe condition, is ufurpation: and fubmitting to the attempt, is encouraging ufurpation.

Yet there is a great difference between the things to which our fubmiffion may be demanded. Some are grofsly and obviously unlawful. If for inftance any person, in order to obtain a benefice, promifes to give up fuch a part of the income, to connive at fuch a leffening of it, to ac

cept

cept of fuch a compofition for it, to allow fuch a penfion or make fuch a payment to any one out of it: these things are in effect the fame with laying down beforehand fuch a fum for it: which is the nearest approach, excepting that of bribing for holy orders, to his fin, who thought the gifts of God might be purchased with money, and was answered, Thy money perish with thee (c). Nor can it take away, if it alleviate the guilt, that the payment or penfion, thus referved, is alloted to uses really charitable. Still it is buying, what ought to be freely beftowed: this forced charity must difable a man from voluntary almsgiving, in proportion to its amount: and one compliance in a feemingly favourable inftance, will only make way for another in a more doubtful cafe, and fo on without end. Another excufe I hope nobody will plead; that obligations of this kind may be fafely entred into, fince they are notorioufly void. For we can never be at liberty to make an agreement, merely because it is so bad a one, that neither law nor confcience will let us keep it.

But fuppofing a perfon binds himself to his patron, only that he will quit his benefice, when required: even this he ought not to do. For he hath no right to promise it; and no power to perform the promise. Whoever undertakes the care of a living, muft continue that care till the law deprives him of it, or his fuperior releases him from it (d). Therefore he can only fubject himself to a penalty which another may exact at pleasure, unless he doth what of himself he is not able to do, and knows not whether he fhall obtain permiffion to do. Can this be prudent? Can it be fit? If he pay the penalty, he gives money to the patron, though not for his firft poffeffion of the benefice, yet for his continuance in it befides that he must either diftrefs himself, or defraud religion and charity of what he ought to have beftowed on them. If then to avoid paying it, he begs leave to refign; he puts his Bishop under very unreasonable difficulties: who by refufing his requeft, may bring great inconveniences on the poor man: and by granting it, may lofe a minifter from a parish, where he was useful, and ought to have continued may expofe himself to the many bad confequences of having an improper fucceffor prefented to him, At least he will encourage a practice undoubtedly wrong and hurtful in the main, whatever it may be in the inftance before him. And why are not these, fufficient grounds for a denial; fince whatever the incumbent fuffers by it, he hath brought upon himself?

Besides, in bonds to refign, where no condition is expreffed, fome unfair intention almoft always lies hid. For if it were an honeft one, why fhould it not be plainly mentioned, and both fides cleared from imputations? Affuredly unless perfons are to a strange degree inconfiderate, this would be done if it could. The true meaning therefore too commonly is, to enflave the incumbent to the will and pleasure of his patron, whatever it fhall happen at any time to be. So that, if he demands his legal dues; if he is not fubfervient to the schemes, political or whatever, they are, which he is required to promote; if he reproves fuch and fuch vices; if he preaches, or does not preach, such and such doctrines;

(c) A&s viii. 20.

if

(d) See Stillingfleet on Bonds of Refignation, in the third volume of his works, p. 731.

if he ftands up for charity and juftice to any one when he is forbidden the terror of refignation, or the penalty of the bond, may immediately be fhaken over his head. How fhamefully beneath the dignity of a Cler gyman is fuch a fituation as this! How grievously doth it tempt a man to unbecoming, and even unlawful, compliances! What fufpicions doth it bring upon him of being unduly influenced, when he is not! Or however he may escape himself, what a fnare may his example prove to his poor brethren of weaker minds, or lefs eftablished characters!

1

To prevent thefe mifchiefs, both the ancient laws of other churches, and thofe of our own (e) ftill in force, have ftrictly forbidden fuch contracts (f). Particularly the council of Oxford, held in 1222, prescribed an oath against Simony, for fo it is entitled, by which every clerk fhall fwear at his inftitution, that he hath entered into no compact in order to be prefented (g). And Archbishop Courtney, in his injunctions to all the Bifhops of his province in 1391, condemns thofe, as guilty of Simony, who, before prefentation, engage to refign when required (b); and appoints. all perfons inftituted to be fworn (i), that they have not given, to obtain prefentation, either oath or bond to refign (k). Again, the Conftitutions of Cardinal Pole, when Archbishop, in 1555, cenfure, as being fimoniacal, all bargains or promises for procuring of benefices; and affert that benefices ought to be given without any condition, and order that the perfon prefented fhall fwear, he hath neither promised, nor given, nor exchanged, nor lent, nor depofited, nor remitted, &c. any thing, nor confirmed any thing given before (1). And a convocation

held

(e) Stilling fleet in his letter about bonds of refignation in Mifcell. Dif courfes, p. 42. &c. fhews feveral forts of contracts that are allowed; and objects not against trufts and confidences; [as indeed I have been affured that Dr. Bentley held a living in truft for the Bishop's fon] nor against what is done, in confideration of fervice, without a compact: but only against a legal obligation on the party, before his prefentation, to perform fuch a condition; and if he do not, to refign.

(f) The Council of Westminster, 1138, appoints that when any one receives inveftiture from the Bishop, he fhall fwear that he hath neither given nor promifed any thing for his benefice. Spelm. vol. 2. p. 39. apud Gibfon Cod. p. 845.

(g) The words are, quod propter præfentationem illam nec promiferit nec dederit aliquid præfentanti, nec aliquam propter hoc inierit pactionem: where boc moft naturally refers to negotium præfentationis understood.

See Conc. Oxon. c. 18. in Wilkins, vol. 1. p. 588. and Lyndwood, L. 2. de Jurejurando, cap. præfenti, in Wake's charge 1709. p. 34. and Stilling fleet on bonds, &c. p. 721. and letter about bonds, p. 39.

(b) But it appears, by the preamble, that this was defigned only against putting it thus in the patron's power to difpofe of the profits, or turn the incumbents out, and give pluralities of livings to fuch as he favoured. (i) Wilkins, vol. 3. p. 216. Wake, p. 35, 36.

(k) The injunctions of Ed. 6. in 1547, appoint that fuch as buy benefices, or come to them by fraud or deceit, fhall be deprived, &c. And fuch as fell them, or by any colour bestow them for their own gain or profit, fhall lose their right of presenting for that time. Wilkins, vol. 4. P.

7, 8..

(1) Wilkins, vol. 4. p. 124, 125.

held under him, two years after, complaining that, of late years, perfons have procured benefices et prælaturas, [parish-priefts are prælati fee Index to Lyndwood in prælatus:] not only vacant, but likely to become fo, non precibus & obfequiis tantum, fed & apertis muneribus, fo that elec tionum faluberrima forma que per canones libera effe deberent, vel fraudi bus obtenebrata funt, vel ad compromiffi neceffitatem redacta: directs, that Bishops prevent thefe things, and take care by themfelves and their offi eers, especially quos in prælatorum electionibus tanquam directores & confuls tores intereffe continget, that fraudes & pactiones be excluded: and if any one have got, per pecuniæ & munerum fordes, prælaturam vel beneficium ecclefiafticum, he be punifhed (m). It is indeed true, that the great evil, . at which these feveral directions were levelled, was giving or promifing money for prefentations, or receiving it for refignations (n). And there fore it may be argued, that where no money is directly paid, or taken, or covenanted for, nothing illegal is done. But the opinions delivered, and the judgments pronounced, by the Canon lawyers, plainly extend the prohibition to whatever is equivalent to money (o). And it hath been urged that by how much foever a perfon leffens the value of a benefice to himself by a bond of refignation to the patron in order to procure it, as unquestionably fuch a bond doth leffen it, fo much in effect he pays to obtain it (p). Or allowing, that in fome cafes this doth not hold yet nothing will prevent unlawful contracts in many cafes, but prohibiting in all cafes abfolute contracts to refign upon demand; which therefore the abovementioned Conftitutions have rightly done. And as the oaths, prefcribed in them, exprefs the denial of having made fuch á contract; the oath prefcribed at this time muft naturally be understood to imply the fame thing. For its being less explicit is no proof, that, what in common acceptation came under the name Simoniacal before, doth not come under it ftill.

However, we must acknowledge, that bonds of refignation on demand have been declared by the temporal judges valid, and not fimoniacal

(m) Wilkins, vol. 4. p. 165.

(n) The tenor of them fhews this. Particularly the corrupt refignations were to get penfions out of benefices, or money for quitting them, or exchanges gainful to the patron or his friends. The Ref. Leg. Eccl. Tit. de renunciatione, cap. 3. forbids only refignations for confideration of gain. See Wake, p. 48. And Tit. de admittendis ad Beneficia Ecclefiaftica, c. 24. only obliges a perfon at inftitution to fwear that he neither hath given nor pro mifed, nor will give, any thing. And Tit. de beneficiis conferendis forbids only compacts by which benefices are leffened. See Wake, p. 36. who goes too far in faying the words are general againft all manner of contracts or promifes. The preamble of the oath in Can. 40. condemns only buying and felling of benefices. The Latin is nundinatio. But Stilling fleet faith, p. 719, this takes in any benefit accruing to the patron, becaufe nomine emptionis venditionis intelligitur omnis contra&us non gratuitus.

(o) See Wake, p. 18, 24. Stilling fleet, p. 719, 722. and letter about bonds, p. 46. &c. The injunctions of Ed. 6. forbid patrons felling livings, or by any colour bestowing them for their own gain and profit. Wilkins, vol. 4.

P. 7, 8.

(p) Stilling fleet, p. 722.

VOL. VI.

C

niacal (q). And they are indeed the proper judges, whether they are fuch by the common and ftatute law. But whether the ecclefiaftical law permits them, is not fo clearly within their cognizance. Indeed all questions about this crime feem to have been entirely out of it (r), till an act was made, 31 Eliz. c. 6. which, for the avoiding of fimony and corruption in prefentations and collations, inflicts penalties on thofe who fhall either give or procure them for any fum of money, profit or benefit; or for any promife, bond, or affurance of it, directly or indirectly: but at the fame time allows the ecclefiaftical laws to punish the fame offences which the act doth, in the same manner as they did before. Now making these provifions is not faying, that nothing fhall be deemed fimoniacal by the fpiritual judge, but what the temporal judge fhall think is forbidden by this act (s). And therefore, though the latter may apprehend abfolute bonds of refignation to be confiftent with the ftatute; yet the former may justly apprehend them to be inconfiftent with the conftitutions of the church, which we ought to obey; and with the oath against fimony,

1

(q) Stilling fleet, p. 735. &c. Wake, p. 49. &c. Indeed Stilling fleet, p. 735. fays that the court, having given judgment for fuch a bond in the cafe of Jones and Lawrence, 8 Jac. 1. held, feven years after, viz. 15 Jac. 1. in the cafe of Pafchal and Clerk, that it was fimony within the ftatute; and he cites Nay, 22. for it. But Wake mentions not this: and Watson, c. 5. p. 40. fays it doth not appear by the roll that there was fuch a trial; and if there was, it is of no great authority, nor hath been regarded fince.

(r) See Wake, p. 39, 50. The preamble of Eliz. c. 23. compared with 13. fufficiently intimates that fimony is an offence appertaining merely to the jurifdiction and determination of the ecclefiaftical courts and judges. Yet Stilling fleet, p. 718. cites from Croke, Car. 361. the judges as faying, in the cafe of Mackaller and Todderick, that the common law before 31 Eliz. took notice of a fimoniacal contract. But Coke in Cawdrie's cafe, 5th Rep. fol. 8, 9. as cited by Wake, p. 50. puts fimony among the crimes the conulance whereof belongs not to the common but ecclefiaftical law, and repeats the fame, p. 40. And Croke, fol. 789. fays that the judges in the cafe of Baker, 42 Eliz. held that it appertains to the fpiritual court to determine what is fimony, and not to this court to meddle therewith.

(s) Stilling fleet, p. 718. faith the words fimony or fimoniacal contract are never mentioned in this ftatute.", And Wake, p. 50. cites Noy Rep. fol. 25. as faying that" in it there is no word of fimony; because by "that means the common law would have been judge what should have been

fimony, and what not." And Stilling fleet, ibid. allows, that if the word had been there, the judges would have had fufficient reafon to declare what was fimony and what not. Now in truth that part of the act which relates to the prefent affair begins thus. "And for the avoiding of fimony and "corruption in prefentations, coliations, and donations of and to benefi

ces, &c. and in admiffions, inflitutions, and inductions, to the fame, be it further enacted, that, if any perfon, &c." This may feem to imply that no other things but thofe mentioned afterwards were fimony: otherwise the act would provide only for avoiding fome forts of fimony. Accordingly Gibjon Cod. p. 839. and Stilling. Pref. p. 714. and Difc. p. 718. think it only means to punish fome particular remarkable forts fpecified in it: and Wake agrees that it abrogates no ecclefiaftical law. And this agrees with what is obferved here, note (n). But ftill the judges, after this act, thought that judging of fimony did not belong to them. See here, note (r).