would have deferved weight in the prefent cafe; but there was not one precedent of the kind to be met with on their journals; fo that whatever might be thought as to the novelty of the cafe in the courts below, it was undoubtedly new in that House, free and unfhackled by precedent. Their Lordfhips' decifion would on this day establish a precedent which their pofterity would revere and follow; it behoved them then -he begged pardon, he did not mean to inform them of their duty, but to attend to his own; it concerned him at least, to weigh the matter with caution, to give judgment on the legal merits of the queftion, as if it had never been decided in the courts below. And here, he said, he was fully conscious of his inability, and acknowledged it with humility; he was not equal to the full legal investigation of the merits of the queftion. But as it was fometimes of use, to know how the perufal of a statute ftruck a plain unprofeffional man, he would briefly state to the Houfe, how the ftatutes in queftion, namely, that paffed in the 31ft of Elizabeth, and that in the 12th of Queen Anne, to prevent corrupt prefentations to benefices, had ftruck him. He was fenfible that the words "general bonds of refignation" were not to be found in either of the ftatutes, and confequently fuch bonds were not exprefsly totidem verbis prohibited by the ftatutes; and if every thing that was not totidem verbis prohibited by an act of Parliament, was to be confidered as allowed by that act, then unquestionably, general bonds of refignation were legal. But he begged leave to confider the fubject in another way. During the fhort time in which he had had the honour of a feat in that Houfe, he had heard many diffufe and elegant orations on different fides of the fame question, by which his understanding had been fo bewildered, and his judgment fo perplexed, that he had not been able to come at any conclufion, till he had divested the debate of all its ornament, and examined the matter by the dry principles of fcholaftic reafoning. Would their Lordhips allow him, instead of dilating on the scope of the ftatutes in queftion, to fum up what he had to obferve upon them in that dry way? A fyllogifm, he acknowledged it, was not a figure of rhetoric much ufed in that House, nor much calculated to conciliate its attention, but it ferved to comprefs much matter into a little compafs, and to inveftigate truth with certainty. The fyllogifin which he would propound to their Lordships' confideration was fimply thisThat practice cannot be conformable to the spirit and meaning of an act of Parliament, which entirely fruftrates the very very end and purpofe for which the act was originally made: -but general bonds of refignation intirely frustrate the very end and purpose for which both the ftatutes were made: therefore general bonds of refignation cannot be conformable to the fpirit and meaning of thofe ftatutes. How general bonds of refignation fruftrated the ends of thofe acts would appear by a fingle example. Suppose a living to be now vacant, the value of the next prefentation to be five thousand pounds; the patron, by the 31ft of Elizabeth, cannot fell this prefentation: the clerk, by the 12th of Queen Anne, cannot buy it a general bond of refignation puts both parties much at their eafe; the clerk in confequence of it gets full poffeffion of his living; the patron the next day fues his bond, or, without a fuit, gets poffeffion of his money; and thus the vacant prefentation is virtually fold by the patron, and virtually purchafed by the clerk, and the legal end and intention of both ftatutes is legally, if general bonds of refignation be legal, eluded and defeated. This, he faid, was the way in which the matter ftruck him; yet he was not quite certain whether he was not out of his depth; fometimes he thought that he touched the ground, at other times he feemed to himfelf to be afloat: the caufe of his uncertainty was fimply this; he did not know in what degree we were to be guided by the letter, in what by the fpirit and meaning of an act of Par. liament; he was not fully acquainted with the doctrine con▾ cerning the legal latitude of the interpretation of ftatutes; he would leave, he faid, that point to be difcuffed by abler judges, and proceed to trouble their Lordships with an observation or two on the oath against fimony, and on the form of refignation. He meant not in what he fhould fay on thefe heads to caft the flighteft imputation on the moral character of the clerk in queftion; he knew nothing of him farther than this tranfaction taught him; and it was very poffible for him to have thought, and he queftioned not he did think, that he was not engaged in an improper tranfaction. In the first place, it was to be obferved, that every clerk before inftitution, fwore that he had not made any fimoniacal contract for, or concerning the procuring of his benefice." The force of this oath, he faid, depended on the construction of the two terms "fimoniacal contract." The term fimony was a very complex term; it extended to more cafes than had been enumerated in any law book; but thus much, he thought, it would be allowed on all hands, was included in the idea of fimony. Every pecuniary contract entered into Dd 2 by by a clerk, by means of which he procured a prefentation to a vacant benefice, and without which he would not have procured a prefentation to it at all, was a fimoniacal contract-but a general bond of refignation was a pecuniary contract entered into by a clerk, by means of which he procured a prefentation to a vacant benefice, and without which he would not have procured a prefentation to it at all, and therefore a general bond of refignation (he protefted that he had not acutenefs enough to fee any falacy in the conclufion) was a fimoniacal contract. Here, faid he, it may be remarked with apparent fubtilty, that a bond to refign a benefice is not a bond to procure a benefice, and the affertion may afford matter of ridicule to thofe who are difpofed to perplex the argument; but ridicule was not the teft of truth, it was a cobweb fpread by artful men to entangle weak understandings; and he did maintain, that though a bond to refign a benefice, and a bond to procure a benefice, were not in words the fame thing, they were the fame in purpose and effect. The caufe of any effect, he conceived to be that, which being taken away, the effect itself would not take place; but a general bond of refignation was the caufa fine qua non, the immediate efficient caufe of the presentation; for if the bond was taken away, no prefentation would take place; the bond therefore was a contract for procuring the living; it was the one effential mean of procuring it; for without it the living would not have been procured at all. In the fecond place he would beg for a moment their Lordfhips' attention to the form of refignation. In the old Latin form, and the modern English one was, or ought to be, a tranilation of it, the clerk who tendered his refignation to the bifhop ufed thefe words-non vel metu coalus, vel finiftra aliqua machinatione motus, fed ex fpontanea voluntate, purè, ac fimpliciter renuncio et refigno. Now if there was any meaning in language, he contended, that a clerk who had given a general bond of refignation could not ufe that form. How was it .poffible for him to fay, that he was not metu coactus, when he was conftrained by the terrors of his bond; that he was not finiftra machinatione motus, when he was compelled to the action by all the untoward machinery of the law; that he did it ex Spontanea voluntate, purè, ac fimpliciter? no, there was no fimplicity, no purity, no fpontaneity in the cafe; or if any, it was that fort of fpontaneity which a man felt when he delivered his purfe to a robber; no, the refignation did not pro ceed ceed from the fpontaneous, intrinfic movement of his own mind, but from the compulfive, extrinfic energy of his bond. The Bishop concluded by faying, that he had detained their Lordships too long; that he had rifen fo early in the debate, not from any vanity of expectation that his opinion could have weight with any perfon but himfelf; but from a wifh to have the judgment which he had formed corrected if it was wrong; for he hoped that fome noble Lord would condefcend to inform him of the mistakes he had committed in his reasoning, as it was but too probable that, in fo novel a fubject, he had committed many. Gloucefter The Bishop of Gloucefter likewife, in corroboration of Bishop of what his learned brother had faid, went into an explanation of the oath taken by the clerk on his being inducted, and the impoffibility of his taking fuch an oath after giving a rèfignation bond, without being perjured. He likewife animadverted on the flavish ftate the clergy would be held in, if prefentations incumbered with fuch bonds were declared to be good and valid by that House. low. Lord Thurlow followed the learned prelates, and like them, Lord Thure condemned the practice of giving refignation bonds under any circumftance whatever; and after inveftigating, and dwelling for a confiderable time on the ill confequences that thefe bonds were likely to produce, he, in a moft able manner, went through every cafe that had been decided upon fince the paffing of the 31ft of Elizabeth to the prefent time, and drew from most of them a different conclufion to what had been done by the judges who gave their opinions on the queftions which were put by their Lordships, excepting Baron Eyre, who was the only judge who diffented from his learned brethren-he faid the learned bench had fought for precedents, where, in fact, although the cafes were fomewhat fimilar, the proceedings were entirely different; many of those caufes had been loft from inattention to the plea, traverse, or averment, and therefore, notwithstanding the many cafes that had been produced, and the many arguments ufed, he was of opinion, that the question whether thefe bonds were fimoniacal or not, had never been decided upon. How was it poffible they fhould, when their Lordships are told, that in the courts below they confidered the bonds as legal, where no proof could be produced that it was given for an unlawful purpose; and for the validity of the prefentation refer them to the court of Chancery, as if a court of equity could act upon the confciences of the parties, and make them confefs what motives E. of Manf field. motives had induced them to enter into fuch obligationshe had but little faith in the moral character of that man, who could take the oath prescribed, upon being inducted by the bishop into a living, after entering into fuch a bond; but fhould ftrongly fufpect him capable of fuftaining a falfe plea with falfe affidavits-when the right of patronage was firft granted, it was granted under certain reftrictions; they could only prefent to the bishop; and he upon proper grounds was vefted with a right to refufe fuch clerks fo prefented: but that he fhould not refufe from any private diflike, an appeal was allowable to the metropolitan: but the bishop could not confirm for any number of years; no fuch thing was ever heard of; he could not turn that clerk out of his prefentation, while he acted according to the laws and regulations of the church; it was futile then to fuppofe that the patron was meant to enjoy a greater prerogative than the fee, to whom he was obliged to apply for a confirmation of his choice. It was the fame, his Lordship obferved, with refpect to the appointment of mafters in chancery; their appointment was in the breaft of the Chancellor; but, being appointed, they were totally independent of him, while they performed their avocations with attention and integrity. His Lordship fuppofed a variety of cafes, and drew inferences from them to the point in queftion, but in the enumeration of which he traversed fo large a field of legal inveftigation, that we find ourselves unable to the task of following him; in the course of his fpeech he took occafion to remark that he had been greatly disappointed by all but one of the learned bench, having availed themselves of the indulgence granted by that House, and under that indulgence declined giving an anfwer to his fifth queftion, as he confidered it as containing matter of great importance, and fhould have been much indebted to them for their opinions upon it. His Lordship at length concluded his fpeech, which he was an hour and three quarters in delivering, by moving that the decree of the court of Common Pleas be reverfed. The Earl of Mansfield then left the woolfack, and obferved, that the Judges having been called upon by their Lordships to give their opinions upon certain queftions, by which that Houfe might be better enabled to decide upon the cause before them, they had of course attended, as it was their duty fo to do but fome had availed themfelves of that indulgence which their Lordships generally allowed; it was not to oblige thofe to give their opinions from whofe court the appeal had been made ;-there were many cafes, indeed, wherein they |