held under him, two years after, complaining that, of late years, perfons have procured benefices et prælaturas, [parith-pricfts are prælati see Index to Lindwool in prælatus:] not only vacant, but likely to become fo, non precibus & obfequiis tantum, fed & apertis muneribus, fo that elec tionum faluberrima formæ quæ per canones libræ effe deberent, vel fraudibus obtenebrata funt, vel ad compromiffi neceffitatem redacte: directs, that Bishops prevent thefe things, and take care by themfelves and their officers, efpecially quos in prælatorum electionibus tanquam directores & confultores intereje continget, that fraudes & pactiones be excluded and if any one have got, per pecuniæ & munerum firdes, prælaturam vel beneficium ecclefiaft cum, 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 presentations, or receiving it for refignations (2). And therefore 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 (0). And it hath been urged that by how much foever a perfons ieffens the value of a benefice to himfelf 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 a contract; the oath prefcribed at this time muft naturally be understood 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.

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.

(2) 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 inilitution to fwear that he neither hath given nor pro mifed, nor will give, any thing. And Tit. de beneficiis conferendis forbius only compacts by which benefices are leffened. See Wake, p. 36. who goes too far in faying the words are general against all manner of contracts or promises. The preamble of the oath in Can. 40. condemns only buying and felling of benefices. The Latin is nundinatio. But Stillingfleet faith, p. 719, this takes in any benefit accruing to the patron, because nomine emptionis & venditionis intelligitur omnis contractus non gratuitus.

(0) See Wake, p. 18, 24. StillingAcet, 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, vok 4. P. 7, 8.

(p) Stilling fleet, p. 722.

VOL. VI.

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 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 those who shall 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 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 juftly apprehend them to be inconfiftent with the conftitutions of the church, which we ought to obey; and with the oath against fimony,

(q) Stillingfleet, p. 735. &c. Wake, p. 49. &c. Indeed Stillingfleet, 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 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 5 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 Stillingfleet, 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 conusance 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) Stillingfleet, p. 718. faith the words fimony or fimoniacal contra& 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; becaufe by that t means the common law would have been judge what fhould have been fimony, and what not." And Stilling Acet, 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 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),

fimony, which ought to be taken in the fenfe 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 greatest divines of this church have declared against them; and I think none for them. Though indeed, were the oath out of the question; 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 ill ufe of them, equity will relieve the incumbent. But I have fhewn you, that their confequences must 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 suppose, that a feemingly reasonable condition were expressed in these bonds: for inftance, to resign 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 purposes. And the generality of thefe, instead of confidering their right of prefentation as a fpiritual truft, to be confcientiously discharged, will of course look on it

as

(t) Stilling fleet, p. 716. fuppofes this to be the intent, with which an abfolute bond is required, and faith, it is a cafe, wherein a bond may be though 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 question:" 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 notwithftanding, as an obligation, which the patron has no right to impofe, 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.

as a temporal inheritance, which fi ce they have bought, they may fairly fell, at any time, in any manner, for what they can or at belt merely as the means of providing a maintenance for fuch perfors as they pleafe: who therefore, unless they will be caft off intirely by their friends, must, when they are of age, however unfit for the cure of fouls, however averfe from it, fubmit to be prefented, and perhaps cannot be rejected. Then further, in proportion as this cuftom prevails, benefices, and particularly the more valuable ones, coming to be of a temporary and precarious tenure, contrary to what they were intended; perfons of character and abilities, and a proper fpirit, will not fo often care to take them. Or if they do, they will not ufually, indeed it cannot fo well be expected they fhould, either defend the rights of them, or exercise hofpitality and charity upon them, in the fame manner, as if they were to hold them for life. Nor will the people, generally fpeaking, refpect thofe who come in thus, and muft behave, and go out again thus, as they ought always to refpect their minifters.

But ftill perfons may plead that whatever is objected against other engagements from incumbents to patrons, yet if they engage only to be conftantly refident, to do faithfully the whole duty, which the laws of the church enjoin them, or perhaps fomewhat more; this must be allowable. And doubtlefs it is, provided the engagement be only a fin cere promife of acting thus, as far as they can with reasonable convenience. Nay if they bind themselves by a legal tie, to do any thing, which either belongs of courfe to their benefice, or hath by ancient cuftom been annexed to it, learned and judicious authors juftify them (u). But covenanting thus to do even a laudable action, as teaching fchool or prefcribing to the fick, if their predeceffors were not, without a covenant, obliged to it, hath been held unlawful and fimoniacal (w): becaufe it is promifing to fave, which upon the matter is promifing to give, fo much money either to the patron, or however to thofe for whom he interefts himself. And indeed, though perfons were to promise only what in confcience they are antecedently bound to; yet if they tie themfelves, either to do this, or to refign; whenever they fail in any one part of it, as to be fore they will in fome, fooner or later, though perhaps very innocently; fuppofing the rigour of their bond infifted upon, (as who can fay it will not?) they are at the mercy of the patron ever after. He becomes their ordinary; and is vefted, by their imprudence, with a much greater authority, than the Bishop hath: an authority of reftraining their liberty, where the wifdom of the church hath not reftrained it (x): an authority of proceeding fummarily; and depriving them, for whatever failures he hath thought fit to infert in the bond, without delay and without appeal: and this authority he may exercile ever after, when he pleafes, to juft the fame purpofes, as if they had covenanted at firft to refign when requested.

Still, without question, many good perfons have both required and given bonds of refignation of thele latter forts: and in many cafes, as

(u) Wake's Charge, 1709, p. 24. Stilling fleet's letter, p. 54. (w) Wake, p. 18.

3

(x) Wake, p. 25.

no

no harm at all hath been intended, fo no particular harm hath been done by them. But in fo many more there hath, and it is fo neceffary to go by general rules; and one fpecious exception doth fo conftantly produce others that are a little lefs fo; till at laft the moft pernicious practices creep in (y), that there is abundant reafon to refuse making any contracts whatfoever in order to obtain prefentation: and more efpecially there is reafon to refuse them, on account of their mischievous influence on the revenues of the church: which was the immediate occafion of my fpeaking of them now; though I thought it by no means proper to omit the other arguments against them.

Perhaps it may be faid: if patrons will have bonds of refignation, what can clergymen do? I anfwer, if clergymen will not give them, how can patrons help themselves? They mult prefent without them, or their right muft lapfe to the Bishop, who will. It may indeed be replied, that though one perfon rejects the offer, another will accept it: and therefore he may as well. But this would equally be an excufe for the worst of wrong compliances in every kind; and confequently it is an excufe for none. Befides, it may happen, that by arguing with pa-' trons against fuch contracts, they may be convinced; and learn fo just an esteem for thofe, who refute them decently and refpectfully, as not only to prefent them with double pleafure,, but do them afterwards greater fervices, than they intended them before. At least whatever clergyman behaves in fo worthy and exemplary a manner, will affuredly, if the rest of his conduct be fuitable to that part, either by the care of God's Providence, be raised in the world fome other way; or, by the influence of God's Spirit, be made eafy and happy in his préfent fituation.

But it may be objected further, that Bishops argue with an ill grace against bonds at prefentation, while they themfelves take them at inftitution. And it must be owned, that in feveral Diocefes, particularly that of Lincoln out of which this was taken, and of Peterborough which was alfo taken from thence (z), there is an ancient and immemorial cuftom, (customs, you are fenfible, not being the fame every where ;) for the clerk prefented to indemnify the Bishop and his officers from all fuits at law for inftituting him. And accordingly in this Diocefe, bonds appear to have been taken for that purpofe at all inftitutions for 120 years paft: within which time, there have been nearly, if not quite, 700 given, that are now lying in the registry: and hence we may presume the practice hath been the fame from the erection of the See. The original of it probably was, that a commiffion of enquiry being formerly fent out, as old registers prove, upon every vacancy (a) alledged, to certify

() Wake, p. 25.

(z) In Lincoln Diocese they are taken only when the Bishop hath any the leaft fufpicion about the patronage: in Peterborough and Litchfield always: in Canterbury whenever a new patron prefents: in Gloucester and Exeter they were taken till the time of the prefent Bishops.

(a) That it was on every vacancy appears from Archbishop Stratford's Constitution, Sava, A. D. 1342. in Lindw. p. 222. and from Lindw. p. 217.

on