Concerning Bonds of Resignation of Benefices in Point of Law, Title page – Preface
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,3. Inst. 156. 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 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.