The several contrivances to evade this oath, such as the electors accepting money under colour of borrowing it, and giving a promissory note, or other security, for it, which is cancelled after the election; receiving money from a stranger, or a person in disguise, or out of a drawer, or purse, left open for the purpose; or promises of money to be paid after the election; or stipulating for a Place, Living, or other private advantage of any kind; if they escape the legal penalties of perjury, incur the moral guilt; for they are manifestly within the mischief and design of the statute which imposes the oath, and within the terms indeed of the oath itself; for the word 'indirectly' is inserted on purpose to comprehend such cases as these.

CHAPTER XX.

OATH AGAINST SIMONY.

FRO

ROM an imaginary resemblance between the purchase of a benefice, and Simon Magus's attempt to purchase the gift of the Holy Ghost (Acts viii. 19), the obtaining of ecclesiastical preferment by pecuniary considerations has been termed Simony.

The sale of advowsons is inseparable from the allowance of private patronage; as patronage would otherwise devolve to the most indigent, and for that reason the most improper hands it could be placed in. Nor did the law ever intend to prohibit the passing of advowsons from one patron to another; but to restrain the patron, who possesses the right of presenting at the vacancy, from being influenced, in the choice of his presentee, by a bribe, or benefit to himself. It is the same distinction with that which obtains in a freeholder's vote for his representative in Parliament. The right of voting, that is, the freehold to which the right pertains, may be bought and sold as freely as any other property; but the exercise of that right, the vote itself, may not be purchased, or influenced by money.

For this purpose, the law imposes upon the presentee, who is generally concerned in the simony, if there be any, the following

oath: 'I do swear that I have made no simoniacal payment, contract, or promise, directly or indirectly, by myself, or by any other to my knowledge, or with my consent, to any person or persons whatsoever, for or concerning the procuring and obtaining of this ecclesiastical place, &c.; nor will, at any time hereafter, perform, or satisfy, any such kind of payment, contract, or promise, made by any other without my knowledge or consent: So help me, God, through Jesus Christ!'

It is extraordinary that Bishop Gibson should have thought this oath to be against all promises whatsoever, when the terms of the oath expressly restrain it to simoniacal promises; and the law alone must pronounce what promises, as well as what payments and contracts, are simoniacal, and consequently come within the oath; and what do not so.

Now the law adjudges to be simony,

1. All payments, contracts, or promises, made by any person for a benefice already vacant. The advowson of a void turn by law, cannot be transferred from one patron to another; therefore, if the void turn be procured by money, it must be by a pecuniary influence upon the then subsisting patron in the choice of his presentee, which is the very practice the law condemns.

2. A clergyman's purchasing of the next turn of a benefice for himself, 'directly or indirectly,' that is, by himself, or by another person with his money. It does not appear that the law prohibits a clergyman from purchasing the perpetuity of a patronage, more than any other person: but purchasing the perpetuity, and forthwith selling it again with a reservation of the next turn, and with no other design than to possess himself of the next turn, is in fraudem legis, and inconsistent with the oath.

3. The procuring of a piece of preferment, by ceding to the patron any rights, or probable rights, belonging to it. This is simony of the worst kind; for it is not only buying preferment, but robbing the succession to pay for it.

4. Promises to the patron of a portion of the profit, of a remission of tithes and dues, or other advantage out of the produce of the benefice; which kind of compact is a pernicious condescension in the clergy, independent of the oath; for it tends to introduce a practice, which may very soon become general, of

giving the revenue of churches to the lay patrons, and supplying the duty by indigent stipendiaries.

5. General bonds of resignation, that is, bonds to resign upon. demand.

I doubt not but that the oath against simony is binding upon the consciences of those who take it, though I question much the expediency of requiring it. It is very fit to debar public patrons, such as the king, the lord chancellor, bishops, ecclesiastical corporations, and the like, from this kind of traffic: because from them may be expected some regard to the qualifications of the persons whom they promote. But the oath lays a snare for the integrity of the clergy; and I do not perceive, that the requiring of it in cases of private patronage produces any good effect, sufficient to compensate for this danger.

Where advowsons are holden along with manors, or other principal estates, it would be an easy regulation to forbid that they should ever hereafter be separated; and would, at least, keep church preferment out of the hands of brokers.

ANNOTATION.

I question much the expediency of requiring it' [the oath against simony].

If in this matter, and also in several others, a distinct statement were published of what it is that the law requires or forbids, and of the penalty against infringement, this would be as good a security as is attainable, and far preferable to the multiplication of Oaths.

But in the case of Simony, perhaps a relaxation of the law is in one point desirable. If A has a living of 400l. per annum in the midst of the friends and connexions of B, who has a living of 500l. or 60ol., in the midst of A's friends, they would be glad to exchange, if they could be allowed to make an arrangement such that neither should gain or lose in income. This surely ought to be allowed, under the consent and approbation of their respective Patrons and Bishops.

If it be said that this might lead to abuses, if the parties were unscrupulous, one might answer that those same parties would evade the present law.

M

CHAPTER XXI.

OATHS TO OBSERVE LOCAL STATUTES.

EMBERS of Colleges in the Universities, and of other ancient foundations, are required to swear to the observance of their respective statutes; which observance is become in some cases unlawful, in others impracticable, in others useless, in others inconvenient.

Unlawful directions are countermanded by the authority which made them unlawful.

Impracticable directions are dispensed with by the necessity of the case.

The only question is, how far the members of these societies may take upon themselves to judge of the inconveniency of any particular direction, and make that a reason for laying aside the observance of it.

The animus imponentis, which is the measure of the juror's duty, seems to be satisfied, when nothing is omitted, but what, from some change in the circumstances under which it was prescribed, it may fairly be presumed that the founder himself would have dispensed with.

To bring a case within this rule, the inconveniency must1. Be manifest; concerning which there is no doubt.

2. It must arise from some change in the circumstances of the institution: for, let the inconveniency be what it will, if it existed at the time of the foundation, it must be presumed that the founder did not deem the avoiding of it of sufficient importance to alter his plan.

3. The direction of the statute must not only be inconvenient in the general (for so may the institution itself be), but prejudicial to the particular end proposed by the institution: for, it is this last circumstance which proves that the founder would have dispensed with it in pursuance of his own purpose.

The statutes of some colleges forbid the speaking of any language but Latin, within the walls of the college; direct that a certain number, and not fewer than that number, be allowed the use of an apartment amongst them; that so many hours of each day be employed in public exercises, lectures, or disputations; and some other articles of discipline adapted to the tender years

of the students who in former times resorted to universities. Were colleges to retain such rules, nobody now-a-days would come near them. They are laid aside, therefore, though parts of the statutes, and as such included within the oath, not merely because they are inconvenient, but because there is sufficient reason to believe that the founders themselves would have dispensed with them, as subversive of their own designs.

Many such oaths as are here treated of are now abolished. They are a snare to the conscience, and do much harm in many ways, and effect no good purpose that might not be better effected in other modes.

CHAPTER XXII.

SUBS

SUBSCRIPTION TO ARTICLES OF RELIGION.

UBSCRIPTION to articles of religion, though no more than a declaration of the subscriber's assent, may properly enough be considered in connexion with the subject of oaths, because it is governed by the same rule of interpretation :

Which rule is the animus imponentis.

The inquiry, therefore, concerning subscription will be, quis imposuit, et quo animo?

The bishop who receives the subscription, is not the imposer, any more than the crier of a court, who administers the oath to the jury and witnesses, is the person that imposes it; nor, consequently, is the private opinion or interpretation of the bishop of any signification to the subscriber, one way or other.

The compilers of the Thirty-nine Articles are not to be considered as the imposers of subscription, any more than the framer or drawer up of a law is the person that enacts it.