Incouragement of those in Holy Orders to attend upon the Service of God in them and the Law of the Land hath so annexed the Spiritual Duty with the Temporal Advantage that no one can be capable of the latter that is not obliged to the other So that the Right of Discharging a Spiritual Trust and the Right of Enjoying the Profits go together But to prevent the unspeakable mischief of Purchasing the Profits which are devoted to such a Spiritual use this hath been called by the detestable Name of Simony and very severe Laws have been made not only against the giving of Money but the using of any indirect means to obtain a Presentation Because such things do lessen the Esteem of those who use them and not only thereby make them more uncapable of doing Service but expose the Sacred Function it self to Contempt 2. Another great End of these Laws is to keep the Clergy from Oppression and Slavery I am far from going about to lessen the Just and Legal Rights of Patrons who by our Laws enjoy some Privileges which are not allowed them in other Countries where the Ecclesiastical Law is stricter than here in England as in the liberty of Selling the Rights of Advowsons their Trial at Common Law the six Months for Patrons c. But for our right understanding the present matter it must be consider'd as to the Rights of Patrons That it was not an Original and Absolute Right to dispose of Benefices as they pleased but a limited Trust reposed in them to put-in Fit Persons to Discharge the Duties of their Places It is very well known to all persons who have looked into these matters that in the first Settlement of this Church of England the Bishops of the several Dioceses had them under their own immediate Care and that they had the Clergy living in a Community with them whom they sent abroad to several parts of their Dioceses as they saw occasion to Imploy them but that by Degrees they saw a necessity of fixing Presbyters within such a Compass to attend upon the Service of God among the People that were the Inhabitants that these Precincts which are since called Parishes were at first much larger and cast into such Divisions in each Diocese as probably make up the several Deaneries since that when Lords of Manors were inclined to build Churches for their own Conveniencies they found it necessary to make some Endowments to oblige those who officiated in their Churches to a diligent Attendance that upon this the several Bishops were very well content to let those Patrons have the Nomination of Persons to those Churches provided they were satisfied of the Fitness of those Persons and that it were not deferred beyond such a limited time So that the Right of Patronage is really but a limited Trust and the Bishops are still in Law the Judges of the Fitness of the Persons to be Imployed in the several parts of their Dioceses But the Patrons never had the Absolute Disposal of their Benefices upon their own Terms but if they did not present Fit Persons within the limited time the Care of the Places did return to the Bishop who was then bound to provide for them Some pretend That before the Lateran Council there was no time of Lapse to the Bishop if the Patron did not Present but that the Bishop was to provide one to serve the Cure in the mean time and the Patron might present when he would But this is certainly a Mistake however it be asserted by Persons of great Authority My Lord Coke cites Bracton and Fleta for it but I can find nothing like it in either of them Bracton indeed speaks of the time of Lapse by the Council of Lateran which was to be after six Months if a Dispute happen'd about the Title and this Constitution is extant in the Decretals and the same Words are used by Fleta but not a Word in either of them of any unlimited Power which Patrons had before as far as I can find Which made me wonder at such a Maxim as I find by several father'd on Bracton Ante Concilium Lateranense nullum currebat tempus contra Praesentantes But Rolls very fairly reports it just as it is in Bracton yet afterwards he recites Mr. Selden's words Before this Lateran Council Alex. had sent a Constitution hither which allow'd the Bishops in case any Difference happened about the Patronage to sequester the Profits without fixing the Time which is all the Foundation I can meet with for this famous Maxim But before this we may observe several Canons of Councils which limited the Patrons to three Months These Canons were never receiv'd in England which if I mistake not had always the privilege of six Months for Patrons This I ground upon the Register a Book of great Authority and considerable Antiquity where it is said expresly That the Bishops have not the Right of Lapse till six Months are passed which is said to be Secundum legem Consuetudinem Regni Angliae according to the ancient Custom and Law of England And the like was observed in the old Customs of Normandy But by the Ancient Law of England notwithstanding the Right of Patronage the Bishop of the Diocese had these Rights reserved to him 1. The Right of Admission of the Person presented 2. The Right of Lapse or bestowing the Benefice if the Patron failed his six Months 3. The Right of making an Avoidance by Deprivation or Resignation 1. The Bishop hath by the Law the Right of Admission of the Person presented by the Patron For here from the time of Christianity being receiv'd among the Saxons at least as far as we can trace any Footsteps of the Settlement of a Parochial Clergy it was expresly provided for That no Presbyters should be fixed in any Places without the Consent of the Bishop For this we have a Canon of Theodore Archbishop of Canterbury preserved by Egbert Archbishop of York each the Seventh in their Sees but at some distance of time in his Collection of Canons the words are Statutum est ut sine Authoritate Consensu Episcoporum Presbyteri in quibuslibet Ecclesiis non constituantur nec inde expellantur siquis hoc facere tentaverit Synodali Sententiâ feriatur So that by the Original Constitution of this Church the Bishops had the Power of Fixing Presbyters in Churches and of Removing them if there were occasion and no other Persons could do it without them This doth by no means infringe the Right of Nomination or Presentation of Fit Persons to the Bishop but it implies that no such Presentation was sufficient unless the Bishop did first Approve and Consent to the Person Wherein the Ancient Right of Patronage here in England did consist we cannot have a better Account than from the Words of all the Nobility of England in their Remonstrance to Gregory IX when he attempted to
ways 1. By Royal Licence so my Lord Coke saith That the King may not only found a Church or Free Chapel Donative himself but may License any Subject to do the same But the Register supposes a Royal Foundation and not a meer Royal Licence and that it must be proved to be Ancient too and therefore a New Licence will not come up to the Register 2. By Peculiar Privilege As when a Lord of a Manor in a great Parish having his Tenants about him at a remote distance from the Parish-Church offers to build and endow a Church there provided that it should belong entirely to him and his Family to put in such Persons as they should think fit if they were in Holy Orders It 's very possible that the Bishops at that time to encourage such a Work might permit them to enjoy this Liberty which being continued time out of mind is turned into a Prescription If these Donatives had been common the Mischief would have been more visible but being so few in Comparison they have been less taken notice of And they are to be distinguished from those called Sine-cures and Exempt Iurisdictions For Sine-cures in Truth are Benefices Presentable but by means of Vicarages endowed in the same places the Persons who enjoy them have by long Custom been excused from Residence which is the most can be said for them And such Sine-cures if they be resigned it must be into the Bishop's hands Exempt Iurisdictions are not so called because under No Ordinary but because they are not under the Ordinary of the Diocese but have one of their own These are therefore called Peculiars and they are of several sorts 1. Royal Peculiars which are the King 's Free Chapels and are Exempt from any Jurisdiction but the King 's and therefore such may be Resigned into the King's hands as their proper Ordinary either by Ancient Privilege or Inherent Right But how far Resignations may be made to the King as Supreme Ordinary as in Goodman's Case it is not here a place to examine 2. Archbishops Peculiars which are not only in the Neighbour Dioceses but dispersed up and down in remoter places For it appears by Eadmerus That wherever the Archbishop had an Estate belonging to him he had the sole Iurisdiction as Ordinary 3. Deans and Chapters Peculiars which are Places wherein by Ancient Compositions the Bishops have parted with their Iurisdiction as Ordinaries to those Societies whose Right was not Original but derived from the Bishop and where the Compositions are lost it depends upon Prescription as in the Deans and Chapters of St. Pauls and Litchfield which are mentioned in the Books 11 H. 4. 9. 4. Peculiars belonging to Monasteries For the richer Monasteries were very uneasy until they had obtained either from the Bishops or from the Popes which proved the most effectual but more chargeable way an Exemption from Ordinary Jurisdiction Those Churches which the Monasteries had gotten to be annexed to themselves were called Appropriations but how far these were Exempt from the Ordinaries Jurisdiction is not fully understood and therefore I shall endeavour to explain it 1. Appropriations did not at first imply any Exemption from the Ordinary For it was expresly provided in the Canon Law that no Persons should be put into such Churches without Institution from the Bishop to whom the Incumbents were to be answerable in all Spiritual matters as in all Temporal to the Abbots And in the oldest Appropriations which I have seen there is a Salvo per omnia Iure Episcopali which words are inconsistent with an Exemption 2. The Forms of Appropriation were different afterwards For although none could be made without the Bishop's Consent yet that Consent was expressed in different ways and had different Effects If the Bishop only confirmed the Lay-Patron's Gift then nothing but the Right of Patronage passed and his Jurisdiction remained If the Bishop joyned in the Donation in these words Concedimus vobis talem Ecclesiam then he passed away his Temporal Rights as to that Church If the Bishop granted the Church Pleno jure then the Canonists say he passed his Diocesan Right which consisted in Rights which the Bishop had distinct from his Episcopal Iurisdiction which it was thought he could not part with by any Act of his for that were to devest himself of his Order 3. Appropriations confirmed by the Papal Authority were allow'd to carry with them Exemptions from the Ordinary And therefore the Monasteries which could bear the charge did not think themselves free from their Ordinaries till they had obtained Bulls for that purpose and then they took themselves to be free in their Conventual Churches as well as their Chapels or Oratories on their own Lands 4. All Papal Exemptions are taken away by Act of Parliament 31 H. 8. c. 13. and the Churches so exempted are put under the Iurisdiction of the Ordinary of the Diocese or such Commissioners as the King shall appoint So that no Papal Exemption can now be pleaded as to Appropriated Churches how clear and full soever the Charters of Exemption were This is a thing so little taken notice of that I shall set down the words Sect. 23. Be it further enacted that such of the said Monasteries c. and all Churches and Chapels to them or any of them belonging which before the Dissolution c. were exempted from the Visitation or Visitations and all other Iurisdiction of the Ordinary or Ordinaries within whose Diocese they were situate or set shall from thenceforth be within the Iurisdiction and Visitation of the Ordinary or Ordinaries within whose Diocese they or any of them be situate and set or within the Visitation and Iurisdiction of such Person or Persons as by the King's Highness shall be limited or appointed this Act or any other Exemption Liberty or Iurisdiction to the contrary notwithstanding Therefore no Persons who enjoy the Estates belonging to Monasteries can now plead an Exemption by virtue thereof from the Ordinaries Iurisdiction nor that they have a Power to put-in and put-out as they please without any regard to the Bishop's Authority But suppose there were no Endowment and that the Churches were built on the Site of the Monasteries and so were supplied by their own Body then such Persons are wholly at their Will and they may turn them out as they please I answer I confess the Condition of such Stipendiaries is as bad as of those who hold their Benefices under Bonds of Resignation For Tenures at the Will of the Lord are the worst of any But it is to be hoped that such Persons who enjoy such Estates as were originally designed for the support of the Parochial Clergy however at first fraudulently perverted by the Combination of the Monks and Popes will at the least take Care that the Cure of Souls be duely provided for in such Places For that Burthen goes along with the Churches Revenue in whose hands
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
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
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
upon a Person to discharge such a Cure of whom at the same time he discovers such a mistrust as to need a Bond to make him do his Duty And if a Man makes no Conscience of his Duty without a Bond I doubt he will make very little with it If he could make him a good Man by his Bond it were of great Use but if he be not he may do the more Mischief by continuing in his Place by the Force of a Bond. So that I look on such Bonds as apt to raise Scruples in good Mens Minds and to do no good upon bad ones 2. That all wise and good Patrons will consider the general Mischief more than a particular Inconvenience And what greater Mischief can come to our Church than to have Bonds of Resignation brought into Request For besides corrupt Patrons as to Bargains what Advantage will corrupt Patrons as to Religion make of it who by that Means will be able to turn out the Incumbents upon Notice given when Opportunity serves them as is before observ'd in the Preface 2. Suppose it be a very equitable Case as for a Minor is a Bond of Resignation unlawfull I answer That there may be a Lawfull Trust in such a Case I do not question but whether the Person who takes this Trust can enter into a Bond and take the Oath I very much question upon the Reasons already mention'd For there may be a confidential Simony as the Casuists call it and the way to prevent it is say they That the Trust be sine pretii pacti modi vel conditionis interventu For the taking of a Bond argues a Mistrust and is therefore contrary to the Nature of a Trust. 3. Suppose the Bishop himself requires a Bond of Resignation as to a Prebend of his Church if the Prebendary quit the Diocese is such a Bond justifiable or not The Bishop is no doubt bound to take all possible care of the Good of his Diocese and to make his Preferments serviceable to that End But if a Man knows before-hand that without this Condition he cannot obtain it and with it he may he runs into a Snare by giving a Bond for that End and after taking the Oath against any Simoniacal Contract directly or indirectly I do think these Bonds of so bad a Nature and Tendency that I do wish that no Countenance or Incouragement be given to them especially by such whose Example may encourage others to do that for Bad Designs which they do for Good And Wise and Good Men will always shew the greatest Regard to that which serves the most Publick Interest and prevents the most growing Mischief 4. Suppose the Incumbent of a Living makes an Agreement with another Clergy man that he shall have a Lease of his Benefice from three Years to three Years upon which he takes a Summ of Money and gives a Bond of Resignation before Harvest and is to procure a Presentation from the Patron is this Simony or not by our Law Here the Patron is onely supposed barely to know and to consent which is hardly to be supposed in such kind of Cases and that the Terms are onely between the two Parties for I will not suppose the Bishop accessary to such Bargains the Question is Whether the Incumbent can with a safe Conscience part with his Benefice on such Terms and whether the other can give a valuable Consideration for his Interest in it if the Patron consents I answer That the Law is as express against corrupt Resignations as against corrupt Bargains for a Presentation onely the Penalty is not so great The Words of the Act are That if any Incumbent of any Benefice with Cure of Souls shall corruptly resign or exchange the same or corruptly take for or in respect of the Resigning or Exchanging of the same directly or indirectly any Pension or Summ of Money or Benefit whatsoever that then as well the Giver as the Taker c. shall lose double the Value of the Money so given and double the Value of one years Profit 31 Eliz. c. 6. It may possibly be said That this is a distinct Clause from the other and hath another kind of Penalty and so cannot reach Persons in point of Conscience as the other doth But this is a strange way of dealing with Laws For there is the same Penalty in the former Clause onely there is added a present Avoidence and a disability in Law supposing these two left out the one stands upon the same Foot with the other And I would know whether if these were gone they could not as well make a Bargain for a Presentation as for such a Resignation And is there nothing of Conscience or Honour or a Regard to the Dignity of the Sacred Function in the Case No Reverence to Laws made on purpose to deter Men from such fordid Practises Is a Benefice to be look'd on as a meer Livelyhood to be bought and sold as other Estates are Is there no Sense of any Spiritual Imployment going along with it No Regard to the Charge and Trust that attends it If nothing of a Spiritual Nature is to be consider'd in a Benefice then there can be no such thing as Simony and then their Hearts are at Ease and they may publish Papers for Presentations as well as for Resignation of Incumbents But I will not suppose such hard things of Persons who pretend to be in Holy Orders but this I must put them in mind of that there is an Oath to be taken and a very strict one against all Simoniacal Contracts either directly or indirectly And is wilfull Perjury a thing to be slighted by any especially by Churchmen and in order to a Cure of Souls I have already mention'd my Lord Coke's Saying That Simony is the more odious because it is ever accompanied with Perjury for the Presentee is sworn to commit no Simony and for this he referrs to Lyndwood And I have already shew'd how Simony is to be understood according to him If a solemn Oath comes to be slighted and made little or nothing of how can such Men pretend to Religion or Conscience But it may be said That Simony is to be determined by the Law and the Law makes a Bargain with the Patron to be Simony and not with the Incumbent I have said enough already to shew that the Statute doth not determine what Simony is but only inflicts a severe Penalty on some sorts of it and therefore it may be Simony although not expresly against the Words of the Law But the Words of the Law are express against corrupt Resignations and I would fain know whether a Resignation for Money be not a Corrupt Resignation And supposing the Patron innocent can any Man of common Sense or Honesty take the Oath who comes in upon such Terms that he hath made no Simoniacal Contract or Promise to any Person or Persons whatsoever concerning the procuring or obtaining the Rectory or Vicarage
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