incroach upon them by Papal Provisions 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 approved them to put them into the Possession of them In the time of Innocent III. the King wrote to the Pope 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 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 That the Right of Presentation to the Bishop of the Diocese 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 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 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 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 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 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 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 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 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 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 not only that the Bishops are to Examine and Approve those who are nominated by Founders of Churches but if they find them unworthy they may put others in their room By the Capitulars or old Ecclesiastical Laws of France 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 As to the Canon Law there can be no Dispute in this Point but if the Bishop refused an Appeal did lie
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 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 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 Statute-Law Customs reasonable c. but he never mentions the Judgment of the 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 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 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 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 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 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 FINIS Page 73. lin 13. for Gays read Gayr Ibid. Marg. for Mar. read Moor. A Catalogue of Books published by the Right Reverend Father in God Edward Lord Bishop of Worcester and sold by Henry Mortlock at the Phoenix in St. Paul's Church-Yard A Rational account of the Grounds of Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. wherein the true Grounds of Faith are cleared and the false discovered the Church of England vindicated from the imputation of Schism and the most important particular Controversies between us and those of the Church of Rome throughly examined the second Edition Folio Sermons preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph Folio Irenicum A Weapon Salve for the Churches Wounds Quarto Origines Sacrae or a Rational Account of
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 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 many unworthy Men being in Places on the Lay Patrons 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 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 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 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 The Law of the Realm is that if a Benefice falls void then the Patron 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 the whole Province yet that is not so much in respect of Immediate Iurisdiction 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 say our Lawyers Because the King is Patron Paramount of all the Benefices within the Realm 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 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 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 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 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 upon such Estates and then
hath the same Court with the Bishop 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 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 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 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 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 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 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 for the former supposes a Person to act in his own Right and not by Deputation 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 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 as Doctor Sutton was But Noy saith 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 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 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 That a Resignation to a Proctor does not make the Church void until it be accepted by the Bishop and acknowledged before him 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 when there was a Condition annexed to it which the Law doth not annex For in this Case the Condition was 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 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 That if there were a Presentation once made to the Bishop it ceases to be a Donative and becomes 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
Law which neither they nor their Successors will be able to bear I am very sensible how much in this Age depends upon the Faithfulness and Diligence and Good Reputation of the Parochial Clergy of England For I am not much afraid of any Designs of our open Enemies or which may be worse of our pretended Friends if we be true to our selves i. e. if we seriously and conscientiously do our Duties with respect to God the People and our own Souls If we do not give way to unreasonable Suspicions and causeless Iealousies of one another if we mind the Interest of Religion more than our own and serve God and not our own Lusts if we sincerely promote the best Ends in the World the saving Souls and doing good to Mankind God will not be wanting to us but He that hath saved us from the Lion and the Bear will likewise save us from the Fox and the Viper I mean such who under fair and plausible pretences eat through the Bowels of their Mother and by secret and indirect Practises go about to ruine the Church they profess themselves to be of although by their Works they deny it If I had not some more than ordinary Reason to believe such things to be not only Practised but Incouraged by such who pretend not only to understand our Law but to Direct the Nation in it I should hardly have undertaken a Task of this Nature But having so just an occasion to search into this Matter as well as I could and finding so much Cause of Dissatisfaction as to these Bonds I thought it my Duty to doe what lay in me to prevent that Mischief which is hastning upon our Church by them If I am mistaken in any part of the following Discourse I shall be glad to be better informed and if I am not I hope that our Church may receive no disadvantage by it And as I honour the Profession of the Law and the many Worthy Persons who are and have been of it so I cannot but be concerned to find some Pretenses of Law made use of to such ill Purposes and Designs that if the number of Patrons that are against our Established Religion should happen to exceed those that are for it by the help of these Bonds of Resignation the Title to most of our Parochial Cures would in a little time fall into the hands of Popish Priests which would much facilitate the Introducing their Religion when so many Protestant Incumbents would so easily be turned out by no other means but by these Bonds of Resignation And therefore it is not meerly the Interest of our Parochial Clergy but of our Religion which lies at stake And this I suppose will be sufficient to justify this Undertaking Westminster Iuly 10. 1695. E. W. A DISCOURSE CONCERNING Bonds of Resignation c. 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 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 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 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 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 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
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 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 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 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 We must then enquire what was a Simoniacal Contract by our Ecclesiastical Law In our Provincial Constitutions 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 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 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 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 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 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 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 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
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 Glebeland of a Benefice is 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 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 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 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 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 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 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 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 Alex. III. 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 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 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 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