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
A DISCOURSE CONCERNING Bonds of Resignation OF BENEFICES In Point of LAW and CONSCIENCE By the Right Reverend Father in God EDWARD Lord Bishop of Worcester LONDON Printed by I. H. for Henry Mortlock at the Phoenix in St. Paul's Church-Yard 1695. THE PREFACE THE Intention of Writing and Publishing the following Discourse was to give a stop if possible to a Dangerous and Prevailing Practise and so much the more Dangerous because it is managed with so much Secrecy and Persons are often drawn into it before they are aware of the Mischief of it They are told That there is no Law against it and that there are Adjudged Cases and Precedents in Law for it and that there is nothing amiss in the Bond of Resignation it self but if there be any corrupt or evil Practice after it that makes it fit to be condemned in Equity but not in Law But a general Bond of Resignation of a Benefice upon Notice in order to the obtaining a Presentation to that Benefice hath such a Simoniacal Appearance that any person who pretends to Conscience cannot but think it necessary to Examine how far such a Practice can be consistent not only with the Law but with the Oath which he is to take against all Simoniacal Contracts and Promises directly or indirectly c. for or concerning the procuring or obtaining the Rectory or Vicarage of c. How can any man that enters into these Bonds say that he doth it not in order to the Obtaining a Presentation And doth not such a Bond amount to a Contract How then can they satisfy themselves in taking this Oath after such a Bond All they can pretend is that although it be a Contract for such an End yet it is no Simoniacal Contract But which way are we to be satisfied in point of Conscience what is a Simoniacal Contract and what not Is it only from the Statute 31 Eliz. c. 6. so that what is there forbidden is Simoniacal and nothing else But where hath that Law determin'd what Simony is when it is never mentioned in it It severely prohibits some corrupt Practises as to Benefices but it never goes about to restrain the Notion of Simony to them as will appear in the following Discourse and the Ecclesiastical Laws as to this matter are left as they were before If therefore there be such a true Notion of a Simoniacal Contract as is allowed by our Laws which is not confined to that Statute then it must follow that there may be a Simoniacal Contract which is not condemned by that Law and therefore all persons who understand the Nature and Extent of our Laws will have a care of Restraining the Nature of a Simoniacal Contract to the Letter of that Statute It may be said that a Simoniacal Contract is an ill Name put upon we know not what if we go beyond the Law of the Land and that there must be some certain bounds set to such hard Words or else the snare may be greater another way and that here is no such thing as Real Simony in the case but the Word is applied to some indirect Practises in obtaining Benefices but what those are the Law must determine To which I answer that I am very far from going beyond the Law of the Land for determining this matter For I do acknowledge that since the Notion of Simony is extended beyond the first Occasion of the Name there must be a certain Rule to determin it and That I do freely grant is the Law of the Land But by it I do not mean a particular Statute made with respect to some more notorious Acts which are punishable in the Courts of Common Law but I understand by the Law of England that Comprehensive Body of Laws which have been here receiv'd as the Measure of our Iudgment and Actions in those things which are to be determin'd by them If a Question be made whether a Contract made at Sea be a good Contract it will be no good Answer to say it must be a good Contract because there is nothing in it contrary to the Rules of the Common Law For if our Common Law should happen to allow such Contracts which the Civil Law doth not will it be ground enough to Affirm that it is a good Contract because our Common Law doth not condemn it No certainly But it must be determin'd by that Law which is proper for it and being here receiv'd for such is in such Cases the Law of the Land So I say here the Ecclesiastical Law so far as it is receiv'd and allow'd by the Common Law is the Rule and Measure whereby the Nature of Simony is to be determin'd and that is allow'd by our most learned and judicious Interpreters of our Common Law to be of Ecclesiastical Cognisance only such Acts as come under Statutes belong to the Courts of Common Law And there was a general Presumption in Law before that no Patron was to make any Advantage to himself of a Right of Presentation And therefore my Lord Coke saith That a Guardian in Socage of a Manor whereunto an Advowson is appendant shall not present to the Church because he can take nothing for the Presentation for the which he may account to the Heir from whence he infers that Simony is odious in the Eye of the Common Law And it is very well if it so continues which I can hardly imagine if these Bonds of Resignation prevail But if by the Ecclesiastical Law as received here such Bonds are Simoniacal being a Contract in order to the obtaining a Presentation then it can give little satisfaction to any Man's Conscience to be told that they are not against Law i.e. against the Statute 31 Eliz c. 6. My business is not here to give a full Account of the Matters contained in the following Discourse but only to remove some general Prejudices against the Design of it Which is truly no other than to bring this secret Practice into open View and to have it fairly Examin'd and Discussed For while it is managed in this manner there is not only Mischief done to the Church but to the Consciences of Men who are very apt to suspect a Snare in all such Bonds and are very uneasie at the thoughts of them afterwards If there be any better Reasons to be given for them than I have yet seen I should be glad to be convinced of the Lawfulness of such indirect Practises and Private Contracts but at present I think if they be not timely prevented they will end in unspeakable Mischief to the Parochial Clergy who are the main Ecclesiastical Body of the Church of England and in whose welfare we ought to be all concerned And truly I cannot but be very tender in what relates to Their Rights for their Work and Duty is Great and Laborious if it be performed as it ought to be and they ought not to have any new Burdens imposed upon them under a pretence of
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