cept of fuch a compofition for it, to allow fuch a pension 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 purchafed with money, and was anfwered, 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 ufes 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 seemingly favourable inftance, will only make way for another in a more doubtful cafe, and fo on without end. Ano ther excufe I hope nobody will plead; that obligations of this kind may be fafely entred into, fince they are notoriously 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.

may

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 promife. 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 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 muft either distress himself, or defraud religion and charity of what he ought to have bestowed 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 request, may bring great inconveniences on the poor man and by granting it, may lofe a minifter from a parifh, where he was ufeful, and ought to have continued may expofe himself to the many bad confequences of having an improper fucceffor presented 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 thefe, fufficient grounds for a denial; fince whatever the incumbent fuffers by it, he hath brought upon himself?

:

Befides, in bonds to refign, where no condition is expreffed, fome unfair intention almost always lies hid. For if it were an honeft one, why fhould it not be plainly mentioned, and both fides cleared from imputations? Affuredly unlefs perfons are to a ftrange 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 fchemes, political or whatever they are, which he is required to promote; if he reproves such and fuch vices; if he preaches, or does not preach, fuch and fuch doctrines;

() Ats viii. 20.

if

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

if he stands up for charity and justice 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 Clergyman 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 less established characters!...

To prevent thefe mifchiefs, both the ancient laws of other churches, and those of our own (e) still 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 presentation, 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 promifes for procuring of benefices; and affert that benefices ought to be given without any condition, and order that the perfon prefented shall 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 flect in his letter about bonds of refignation in Mifcell. Difcourfes, 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 Lynd-wood, L. z. 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 lofe their right of presenting for that time. Wilkins, vol. 4. p.

held under him, two years after, complaining that, of late years, perfons have procured benefices et prælaturas, [parifh-priefts are prælati see 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 quæ per canones libera effe deberent, vel fraudibus obtenebrata funt, vel ad compromiffi neceffitatem redacte: directs, that Bishops prevent thefe things, and take care by themselves and their offcers, efpecially quos in prælatorum electionibus tanquam directores & conful→ tores intereffe continget, that fraudes & pactiones be excluded: and if any one have got, per pecuniæ & munerum fordes, prælaturam vel beneficium ecclefiafticum, he be punished (m). It is indeed true, that the great evil, at which thefe 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, prescribed in them, exprefs the denial of having made fuch contract the bath prefcribed at this time muft naturally be underfood to imply the fame thing. For its being lefs explicit is no proof, that, what in common acceptation came under the name Simoniacal before, doth not come under it ftill.

a

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

(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 promifed, 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 fat in faying the words are general against all manner of contracts or promifes. The preamble of the oath in Can. 40. condemns only buying and Jelling of benefices. The Latin is nundinatio. But Stilling fleet faith, p. 719, this takes in any benefit accruing to the patron, because nomine emptionis & venditionis intelligitur omnis contractus 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 beftowing them for their own gain and profit. Wilkins, vol. 4. P. 7, 8.

(p) Stilling feet, p. 722. VOL. VI.

1

niacal (9). 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 queftions about this crime seem 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 fame manner as they did before. Now mak-. ing these provifions is not faying, that nothing fhall be deemed fimonia cal 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 juftly apprehend them to be inconfiftent with the conftitutions of the church, which we ought to obey; and with the oath against

fimony,

(a) 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 Fac. 1. in the cafe of Pafchal and Clerk, that it was fimony within the ftatute; and he cites Noy, 22. for it. But Wake mentions not this: and Watfon, 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 conufànce 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 case of Baker, 42 Eliz. held that it appertains to the fpiritual court to determine what is Simony, and not to this court to meddle therewith.

86

(s) Stilling fleet, p. 718. faith" the words fimony or fimoniacal com "tract 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, collations, and donations of and to benefices, &c. and in admiffions, inftitutions, 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: otherwife the act would provide only for avoiding fome forts of fimony. Accordingly ·Gibson Cod. p. 839. and Stillingfl. Pref. p. 714. and Difc. p. 718. think it only means to punish fome particular remarkable forts specified 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 (♥).

fimony, which ought to be taken in the sense of those who originally enjoined and ftill adminifter it; and not to have its meaning changed on the fuppofed authority of their opinions, who neither have undertaken to interpret it, nor, if the judgment of their predeceffors be allowed, have a right to do it.

At least refufing fuch bonds, on account of the oath, must be the fafeft fide especially, as the greateft divines of this church have declar ed against them; and I think none for them. Though indeed, were the oath out of the queftion; the bonds are apparently fo mifchievous, as to be for that reafon alone fufficiently unlawful. It may be faid, that if the patron attempts to make any ill ufe of them, equity will relieve the incumbent. But I have fhewn you, that their confequences muft be very bad, whatever ufe the patron makes of them. And befides, how expensive, indeed how uncertain, this pretended relief will be how feldom therefore it will or can be fought for; and how much better on all accounts it is to avoid the need of it; every one must perceive.

;

But let us now fuppofe, that a feemingly reasonable condition were expreffed in these bonds: for inftance, to refign when fuch a relation or friend of the patron's comes to the age of being prefented, who perhaps hath been educated with a view to the benefice vacant (t). Now I do not fay but a perfon may very lawfully, and fometimes very charitably form an intention of refigning at fuch a period, if circumftances then fhould make it proper; and may alfo fignify fuch intention beforehand. But if he bind himself to it abfolutely, befides the diftruft of him, which requiring this implies, perhaps when the time comes, the young perfon will refufe to take the benefice, or the patron to give it him, and yet the incumbent muft continue in perfect dependance thenceforward: for his cafe is become the fame, as if his bond had been originally without any condition. Befides, this contrivance for procuring an immediate vacancy at fuch a particular time, encourages perfons, even of low rank, to purchase patronages, feparate from the manors on which they were anciently appendant, merely to ferve interested purpofes. And the generality of thefe, instead of confidering their right of prefentation as a fpiritual trust, to be conscientiously discharged, will of course look on it

as

(t) Stilling fleet, p. 716. fapposes this to be the intent, with which an abfolute bond is required; and faith, it is a cafe, wherein a bond may be thought far more reasonable than in others. But he expreffes no pofitive approbation of it; nor doth he mention there giving a bond with this condition expreffed. But, in p. 736. he hath that cafe in view, where he faith, "that there may be a lawful truft in fuch a cafe, I do not queftion:" yet adds, "but whether the person who takes this truft can enter into a bond and take the oath, I very much question." And Wake, though in p. 22. he names this as one of the most favourable cafes that can be defired, condemns it notwithstanding; as an obligation, which the patron has no right to impose, nor the clerk any power to enter into; as contrary to the Canons, and the authority of the Bishop, and the oath of yielding him canonical obedience, and of doing what in the clerk lies to maintain the right of his fee; but he doth not fay it is contrary to the oath against fimony.