HAving many Years since, in a Publick Discourse, cast some Reflections up­on Bonds of Resignation, I was not a little importuned to make them yet more Publick; and, amongst o­ther Solicitations, received the fol­lowing Letter from a very worthy Gentleman, dated July 12th. 1684.

Upon the Receipt of which Let­ter I immediately drew up this short Account.

First, Of the Unlawfulness of Bonds of Resignation; and, Secondly, Of their great Mischief and Inconveniency.

The Unlawfulness of Bonds of Resignation appears,

• I. From the Statute of the 31 st. of Elizabeth.
• II. From the Ecclesiastical Ca­nons, confirm'd by that Statute.
• III. From the Absurdities that follow upon the Practice of them.

First, By the Statute of 31st. Eliz. c. 6. That no Person shall Present for any Summ of Money, Reward, Gift, Profit or Benefit, directly or in­directly; or for, or by reason of any [Page 4] Promise, Agreement, Grant, Bond, Covenant, or other assurance of, or for any Money, Reward, Gift, Profit, or Benefit whatsoever, &c. In which Words, all Bonds for Money, or whereby any Profit or Benefit, di­rectly or indirectly, may accrue to the Patron, are expresly forbidden. And whoever Presents for, or in Consideration of the Clerk's ha­ving given a Bond to Resign, when his Son comes to be of the Age of a Priest, most certainly Presents for, or in consideration of a Bond, that is to the Profit and Benefit of the Patron, and really preferable to a considerable Summ of Money. And of this we need no other Proof than the Bonds themselves, which are constantly for a greater, or lesser Summ, proportionable to the Value of the Parsonage.

There are two Cases inCrook's 2 Rep. p. 248, & 274. Crook's Reports, which are commonly urged in behalf of those Bonds: When the Pa­tron (to put the most favoura­ble Case) hath a Son design'd to succeed. And Sir S. D. pleads for these Bonds, That Nature teacheth us to provide for our Children. But that Gentleman should have consi­der'd, that Nature doth not teach us to provide for our Children by indirect and unlawful Methods; That Daughters are to be provi­ded for as well as Sons; and if this Pretence of Nature will not justifie a Patron to take 500 l. of a Clerk, as a Portion for his Daugh­ter, it will not justifie his taking a Bond of Resignation (which may really be worth more) to make provision for his Son. The Eccle­siastical [Page 6] Canons forbid a Patron Ec­clesiamnomine dotalitatis ad aliquemtrans­ferre; and the Common Law will not allow a Patron to covenant with a Clerk, that upon the condition of his marrying of his Daughter, he will present him to his Church; and the pretence of Nature's teach­ing of them to provide for their Children, will not excuse them.

But before I leave these two Cases in Crook's Reports, it's ve­ry observable that the Point in Issue was only the Validity of such Bonds against the Clerks that gave them, for the Payment of the Money; but whether such Bonds were within the Corru­ption condemned by the Statute, and so their Preferments void, was not in Issue. And in that famous Case-betwixt Jones and Lawrence, [Page 7] where the Clerk alledg'd in Arrest of Judgment, the illegality of the Contract, the Court agreed that that was not material as to the Bond, because the Statute did not make the Bond void, tho' it did the Presentation: And so the Judges punish'd those Clerks, by making of them pay the Penalty of their Bonds for not Re­signing; but did not secure them from the Penalty of the Statute, and being turn'd out for their cor­rupt Contracts. But had these two Cases been never so full in behalf of such Contracts; yet we see daily that Judges do not look upon themselves as bound up by the Opinions of their Predecessors, but vary from them as often as they see reason for it; and in this very Matter there is a Case reported by Noy, p. 22. betwixt Sir John Pascall [Page 8] and one Clerk, in the 15th. Year of King James, where such Bonds were adjudged illegal. There is also a farther Clause in this Statute, of Queen Elizabeth, that is very obser­vable; viz. That if any Incumbent of any Benefice with Cure of Souls, do, or shall comply, resign, or exchange the same, or corruptly take for, or in respect of the resigning of the same, directly or indirectly, any Sum of Money or Be­nefit whatsoever, shall lose double the Value of the Summ so given, &c. Now whoever Resigns for, and upon the Account of his having a good Bond of 500 l. or any o­ther Summ, given back to him, doth certainly either directly or indirectly Resign for a Sum of Mo­ney, or Benefit, and loseth dou­ble the Value of the Bond given up, one half to the King, and the [Page 9] other half to the Informer, as the Act expresseth it. And this Sta­tute will be so far from justifying such corrupt Resignations, that it expresly forbids them and puni­sheth them. And, to summ up this Matter, If, after a Bond given to Resign, it be unlawful for a Clerk to Resign upon the Ac­count of being free'd from the Pe­nalty of the Bond; and yet if he doth not Resign at the time ap­pointed, the Patron will recover of him the Penalty of the Bond; then these Bonds are in effect the same, as if they had been abso­lutely for so much Money at the time agreed on; and so there is no doubt but that such Bonds are cor­rupt, and against the Statute.

Secondly, These Bonds are contrary to the Ecclesiastical Ca­nons, [Page 10] which are now in force, and were confirm'd by that very Sta­tute of Queen Elizabeth. For there it follows in these Words: Provi­ded that this Act shall not extend to take away, or restrain any Punishment, Pain, or Penalty, limited, prescribed, or inflicted, by the Laws Ecclesiastical, for any of the Offences before, in this Act mention'd; but that the same shall remain in force, and may be put in due Execution, as it might be before the ma­king of this Act, or any thing contained therein to the contrary thereof, in any wise, notwithstanding. And there­fore if at any time the Bishop of the Diocese will proceed to a Sen­tence of Deprivation against a Clerk for giving Bond to Resign, I take it that there can lie no Pro­hibition against him, from any Common-Law-Court, because the [Page 11] very Act of Parliament that ap­points other Punishments to the Buying and Selling of Ecclesiasti­cal Preferments, reserves and con­firms this Power to the Ecclesiasti­cal Courts. Now the ancient Ecclesiastical Law, in this Mat­ter, is in a Council held at West­minster by Edmond Archbishop of Canterbury, in these Words, Nulli liceat pro Praesentatione alicujus personae, pecuniam vel aliquod emolumentum, pa­cto interveniente recipere, &c. Also in Linwood, l. 2▪ de Juramento & Constit. Stephani & Cant. Episc. by which every Clerk, before he received Institution, was to take this Oath. Quod propter Praesentationem illam, nec promiserit, nec dederit aliquid Praesen­tanti, nec aliquam propter hoc inierit pactionem; i. e. That he hath neither given, nor promised any thing to his [Page 12] Patron, for presenting him, nor enter'd into any Bond or Agreement upon that Account. And at this day, pursu­ant to the Canons of King James the First, every Clerk, before he receives Institution, must swear, That he hath made no Simoniacal Pay­ment, Contract, or Promise, directly or indirectly, by himself or any other, to his knowledge, or with his consent, to any person or persons whatsoever, for, or concerning the procuring and obtaining of this Ecclesiastical Dignity, Place, Preferment, Office, or Living, nor will at any time hereafter perform or satisfie any such kind of Payment, Contract, or Promise made by any other, without his knowledge and consent. Now if there be any doubt or scruple, what is, and what is not a Simoniacal Contract, this can­not be determin'd by Statute or [Page 13] Common Law, where the Word Simony or Simoniacal is never used, nor by those two Cases, in Crook's Reports, which relate only to the validity of Bonds of Resig­nation against the Clerks, for the payment of the Forfeiture, with­out determining whether such Bonds include any corruption a­gainst the Statute or Canons, but by the Ecclesiastical Canons; and there is no doubt but that the Canonists did always account such Bonds Simoniacal Contracts. Fa­ther Paul, of Matters Beneficiary, p. 75. hath these Words: 'Tis con­stantly affirm'd by all Canonists and Ca­suists, That every Contract, in Mat­ters of Benefices, is Simoniacal, if it be made without the Pope's participation; but with his Intervention, it is legitimate; holding for constant this general Propo­sition, [Page 14] That the Pope, in Beneficiary Matters cannot commit Simony. So that except our English Patrons can get the Pope on their sides, to legitimate every particular Bond of Resignation that they require, they are undoubtedly Simoniacal. The Pope himself is esteem'd a­bove all Laws and Canons, Legi­bus Canonibus (que) solutus; but for any other Patron to conferr a Benefice, for a limited time, is held unlaw­ful in all those Churches where these Canons are in force. Even Resignations, if they were occa­sion'd through fear or compulsion, and were not purely voluntary, were accounted void: Every valid Resignation the Canonists call Spon­taneam ejurationem, & siquis ad bene­ficium ejurandum metu adigatur, irrit [...] est ejuratio, Duarenus, l. 8. c. 2 [Page 15] So that in the Canon Law these Bonds destroy themselves; and whilst they compel a Clerk to Re­sign, make his Resignation▪ forc'd, and by consequence not good.

Thirdly, There are many Ab­surdities that follow from the pra­ctice of these Bonds, both in the Common and Canon-Law. In our Common Law, the Parsonage-house, Church, Church-yard and Glebe, are the Parsons Free-hold; but to have a Free-hold determi­nable upon a certain number of Years, is absurd; and as a Lessee for Years (be they never so many) cannot grant an Estate for Life, because he cannot turn his Lease into a Freehold; so by parity of Reason, a Presentation of a Clerk virtually, pro tempore limitato, can­not [Page 16] be sufficient for a Bishop's In­stitution and Mandate of Induction, which give an Estate for Life and make a Free-hold. By the Cano­nists, a Parsonage is defined to be, Res Ecclesiastica quae sacerdoti vel Cle­rico ob sacrum Ministerium in perpetu­um conceditur—dicitur in perpetuum, quia cùm ad tempus Minister Ecclesiae ordinari non potest, necesse est Bene­ficium ipsum quod ministerio conjunctum est, perpetuum esse, Duarenus, l. 2. c. 4. i. e. Every Benefice is gran­ted to a Priest for ever; and there­fore it is for ever, because since no one can be ordain'd only for a sett time, the Benefice, or Title upon which the Ordination is founded, must be perpetual also. Antiqui­ty knew of no difference betwixt Ordination, and giving a Benefice; and if any one was ordain'd a [...] [Page 17] Priest without a Title, by the Ca­nons of the Fourth General Coun­cil, his Ordination was void. And if all lawful Ordinations fix a per­petual and indelible Character, as our Canons declare, then Presen­tations and Institutions must be un­limited also. So that Bonds for Resignation of a Benefice, at a sett time, are very contradictory to the Nature of a Benefice, and in­clude manifest Absurdities both in the Common Law of the Land, and the Canon-Law of the Church.

Fourthly, The Unlawfulness of these Bonds appears both from the Nature of the Obligation, and of the Condition▪ The Obligation is absolute for a Sum of Money; and if it be unlawful to give a Sum of Money for the Presentation, it [Page 18] is also to give a Bond; for every good Bond is virtually Money; and even our Common Lawyers are agreed, that where the Mo­ney, and not the Resignation is designed by the Patron, the Con­tract is corrupt. Now who knows what the Patron designs? Or if any one could know it, how should he be sure that he will con­tinue in that Mind and no Crosses nor Losses make him alter it? When the Bond is forfeited, its Money, if the Patron pleaseth; and should he wave the requiring of it, who knows what an Executor may do? And then the demand of the Money made by the Patron, and the payment of it by the Clerk, will be naturally construed in a Court of Judicature, to be no more than what was originally de­sign'd, [Page 19] and, by Consequence, cor­rupt. And if we look into the Conditions of these Bonds, we shall find that they will not help the Matter▪ for the Condition is, to resign the Benefice at a time ex­press'd. Now if this Condition be out of the Clerk's Power, and he cannot resign when he pleaseth, then the Bond will be still the same as if it were absolute. If a Man should give Bond to pay a Summ of Money, if before such a day he did not fly up to the Moon, such a Bond is as to the effect of it, the very same, as if it had been a Bond absolute for the Summ of Money mention'd. Now whoever is in­stituted into a Benefice, takes upon him the care of so many Souls, and cannot resign his Trust without the particular consent of his Ordinary [Page 20] that committed it to him. Father Paul saith, That it was never lawful for him that was put into any Ecclesiasti­cal Charge, to leave it off of his own Authoritysand 'tis at the Superior's liberty to receive the Resignation or not. And we have the concurring Opi­nion of the Canonists in Duarenus, l. 8. c. 2. So that for a Clerk to engage himself under a Summ of Money to resign the Benefice, at a time prefixed, is really to engage to do what is not in his power, and so will be very much the same as a Bond absolute for the Sum a­greed on.

Notwithstanding these Reasons for the illegality of Bonds of Re­signation, there are two popular Arguments in behalf of them, which deserve to be considered.

First, That it seems reasonable that such Gentlemen as are possessed of the Advowson of any rich Benefice, should have the liberty to present one of their own Sons, if fit for it; and should the Be­nefice become void, whilst his Son de­sign'd for it is only in his Education, and not qualify'd for Priesthood, that the Patron have Power to dispose of it pro­visionally, for a time, till his Son be fit.

In Answer to which, I grant, that if the Patron, or his Ancestors, had been the Donors of the Tem­poralties, there might have been some pretence; but if on the con­trary, the Right of Patronage arose from the Building of the Church, and neither Tith nor Glebe (generally speaking) were of the Patron's Do­nation; If the Temporalties (upon the Vacancy of the Church) do not return to the Patron, but the [Page 22] Bishop, and he, and not the Pa­tron disposeth of them, first by Sequestration, and afterwards by Mandate of Induction, and the Right of Patronage is purely a spi­ritual Trust to recommend a wor­thy Person, and not directly con­cern'd in the Temporalties at all, there will be very little Argument in this pretence; and if the Patron have the liberty to present his own Son, when he is fit, there is no rea­son that the Laws and Constitu­tions of Church and State should be strain'd to favour him farther, and enable him to give those Tem­poralties to his own Children, which were given to the Church by other Persons.

Secondly, It is objected, That these Bonds of Resignation are very rea­sonable, [Page 23] when the condition of them is only the Clerk's keeping strict Residence, or not accepting of another Benefice, or the like.

To which I Answer, That e­ven in these Cases, since the Pe­nalty of all these Bonds, upon the forfeiture, is payable only to the Patron, its shrewdly to be suspe­cted, that whatever the pretence be, yet the Patron collaterally and indirectly, at least, hath an eye to the gaining of the Money upon the forfeiture of the Bond.

Now that which should sway with every good Man, is the great heap of Mischiefs and Inconvenien­cies that attend these Bonds.

First, To such conscientious Cler­gy-men, as refuse to give Bonds of Resignation; who, tho' they be ne­ver so learned, never so pious and [Page 24] well qualified for the Cure, yet are slighted and passed by, and less worthy Persons preferr'd, for no other reason, but because these will enter into those Bonds, which the other will not.

Secondly, To such Clerks as give these Bonds, who many times are troubled in Conscience for what they have done, when it's too late to help it; and tho' they be not, yet having been settled in a Parish, and, perhaps, having a Wife and Children to provide for, they are then call'd upon to resign, when they want the Profits more than ever, and forc'd to seek Bread for themselves and Family; and since most Persons that have given Bond, are apt to persuade themselves, ei­ther that the Patron will not put the Bond in suit against them, or that the Son design'd to succeed, [Page 25] will either not be fit, or not wil­ling to take Orders, or may die be­fore that time, or that the Bishop may refuse to receive his Resigna­tion, or the like, they will be very apt to look upon their present Pre­ferments as Settlements, and run into the Inconveniencies mention'd.

Thirdly, To the Parishes where such Clerks live; for it cannot be imagin'd, that where the Incum­bent is limited to a certain number of years, that he can afford to re­lieve the Poor, and perform such Acts of Charity and Hospitality as become his Station. How can a temporary Incumbent afford to re­build the Parsonage-house, be it ne­ver so ruinous? How can he af­ford to repair and beautifie the Chancel? And therefore what is observ'd to happen often to old In­cumbents, that they let their Hou­ses [Page 26] decay with themselves, will be generally true of these, who see their end more certainly approach­ing than the other do, and will do as little in repairs, as possible, be­cause they see that they have but a short time.

Fourthly, To the Church and Kingdom. What Incroachments doth this occasion upon the Tithes, Glebes, and other Profits of the Church, when the Minister is kept in awe by his Patron, and hath neither Money nor Time that he can spare for managing a Law-suit in defence of them? How will such a one be able to oppose Vice and Faction; especially if his Patron be criminal? He must be contented to preach such Doctrine as will please him; and tho' embroiling the Civil Government be the Pa­tron's Design, yet the Clerk must [Page 27] blow the Coals, and preach Do­ctrine suitable, as was too visible in our Civil War; and, lastly, should the Patron be a Roman Catholick, Popery must be quite let alone in his Sermons, or touch'd very gently.

These, and many more Mischiefs are such natural consequences of Bonds of Resignation, and so easily to be observ'd by any one that will give himself time to think, that I shall conclude that Man to be no Friend either to Church or State, that doth not use his best Endea­vours to discourage them. And for the more speedy and effectual sup­pressing of this growing Evil, I Humbly propose it to my Lords the Bishops that they would please to take some pains to inform their Clergy of these Matters; espe­cially such as come for Priest­hood or Institution, that they [Page 28] would set before them the true and ge­nuine sense of the Oath against Simony, that it is not imposed by Statute or Com­mon-Law, but by the Ecclesiastical Ca­nons; and that the true sense and mean­ing of these Words is not to be learn'd from the Common Law, but the Eccle­siastical. That the Opinion of the Judg­es in the two Cases quoted for these Bonds, did only relate to the Law of the Land, and not to the Laws of the Church; and that even they, tho' they did de­clare these Bonds good against the Clerks that gave them, yet did not determine whether they did not make the Livings void: That the Statute of Queen Eliza­beth, over and above the Penalties there inflicted, expresly confirms and ratifieth all Ecclesiastical Punishments for such Offences; and that after such plain Ad­monition given by the Bishops, they would inflict the Ecclesiastical Censures for Simony and Perjury upon all such as should be found guilty, I doubt not but that such a Method would effectually sup­press such Contracts for the future, and deliver the Church from those mischie­vous Snares that have of late years so mightily prevailed.