Selected quad for the lemma: judgement_n
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A61536
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A discourse concerning bonds of resignation of benefices in point of law and conscience by ... Edward Lord Bishop of Worcester.
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Stillingfleet, Edward, 1635-1699.
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1695
(1695)
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Wing S5572; ESTC R7708
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38,719
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132
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soever it be and so they are both in Law and Conscience to see the Places well supplied And by the Statutes of Dissolution as they do enjoy the Rights so they are bound to provide for the Churches and where they were Parochial to see that there were a fixed Incumbent with a competent Maintenance which the Law always took a particular Care of II. It is time now to consider the Precedents which have been produced to shew that these Bonds of Resignation are not against Law The first is of Iones and Laurence 8 Iac. A Bond was given to resign the Benefice he was presented to within three Months upon Request and it was alledged in Court that it was a Simoniacal Contract and against Law On the other side it was said That there doth not appear any Simony upon the Condition and therefore Iudgment was given for the Bond. But a Writ of Error was brought in the Exchequer Chamber and the principal Error insisted on was That this Condition was against Law But the Judges of the Common Bench and Barons of the Exchequer held That the Obligation and Condition are good enough For a Man may bind himself to resign upon good and valuable Reasons without any Colour of Simony as to be obliged to resign in Case of Plurality or Non-Residence or if his Son be at Age. But if it had been for a Lease of the Glebe or Tythes or a Summ of Money That had been Simony c. and so the Judgment was affirmed To this Precedent I answer That the Reason of the Judges is insufficient For it comes to this the Bond is good because there may be good Reason for it May it not be said on the other side The Bond is naught because there may be a very bad Reason for it And a Bond that may be turned to so very ill Uses it cannot but seem strange to me that the Judges should affirm it to be a good Bond. If the particular Reasons had been made the Conditions of the Bond they might have judged upon them but the Bond was general and no Condition in it but Notice Therefore their Judgment must be that a Bond is reasonable if no bad Condition appears in it which makes the Incumbent a Slave to the Patron and overthrows the just Rights and Liberties of the Clergy and lays them open to Perjury when they give such a Bond meerly to obtain a Presentation And they very well knew that none could be possessed of a Benefice without an Oath against all Simoniacal Contracts either directly or indirectly Why did not the Judges declare that it was Simony within their Oath But they were onely to judge of the Law And how could they judge this not to be a Simoniacal Bargain Because there was no Simoniacal Condition in it But what is a Simoniacal Condition Where hath the Common Law determin'd it And by what Rule Yes say they A Lease for Tythes or a Bargain for Money had been Simony But how come they to determine that no other Contracts are Simoniacal when they own That Simony is not under their Cognisance Did they ever offer to advise with the Civilians What was a Simoniacal Contract according to the Ecclesiastical Law Not the least mention of this and therefore I cannot but think this a Judgment without sufficient Reason to support it The same Cause came on again the next Year and there it is declared That it was not Simony but good Policy to tie him to resign and if it were it is not material Here are two good Points declared 1. That Bonds of Resignation are good Policy To what End To insnare Mens Consciences to make the Church a Prey to corrupt Patrons to keep Men from doing their Duties lest they should displease their Patrons If this be good Policy let it rather pass for that than for good Law 2. That it is not material as to the Goodness of the Bond whether it be Simony or not Then it seems a Simoniacal Contract holds good in Law which I think was no good Policy for Judges to declare But we are told That 15 Iac. in the Case of Paschal and Clerk it was said by the Court upon Evidence That if the Patron takes a Bond of Resignation at three Months warning it was Simony within the Statute And for this we are referr'd to the Roll 2051. I wonder this Judgment is not hitherto disproved if the Roll be falsified and if not here is Judgment against Judgment But again in the Case of Babington and Wood it was resolved on the same Grounds with that of Iones and Laurence and so deserves no new Consideration and several other Judgments are said to have been given since on the same Grounds But let us compare this Case with such as have been adjudged to be Simony in the Courts of Common Law In the Case of Byrte and Manning The Court held that if a Man entred into a Contract to procure a Presentation in Consideration of the Marriage of his Son that had been a Simoniacal Contract Why is not a Bond of Resignation as much Simony as a Consideration of Marriage when both are made equally the Conditions of obtaining a Presentation If a Simoniacal Contract be made and the Person presented not at all privy to it he is to incurr the Penalty of it but if a Man be Privy to a Bond of Resignation in order to a Presentation he shall not be guilty And yet in the one Case a Man swears with a good Conscience which I think he cannot in the other In the Case of Winchcomb and Pulleston it was declared to be Simony to purchase the next Presentation when the Incumbent was still alive but in a Fit of the Strangury And yet this was not within the Letter of the Law for the Living was not actually void Therefore such Acts as are against the Design and Reason of the Law are forbidden by it And the like was affirmed by Iustice Hutton in the Case of Sheldon and Bret. In a late Judgment in Chancery Bonds of Resignation at Pleasure to Patrons by their Clerks are damned in Equity when any ill use is made of them But why should any such Bonds be allowed in Law which are liable to such ill Uses I conclude with the Words of my Lord Coke That the Common Law doth detest Simony and all corrupt Bargains for Presentation to any Benefice and its design is that a fit Person for the Discharge of the Cure should be presented freely without Expectation of any thing How then can Bonds of Resignation be agreeable to Law Having thus dispatched the main Point against all General Bonds which are made the Conditions of obtaining a Presentation there remain only some Quaere's to be resolved 1. Suppose a Bond be required onely to tie Men up to do their Duties and to keep them from Non-Residence I answer 1. That the Patron is to blame to pitch
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