mended fuch an experiment, that it would not appeafe the clamour of thofe who were loudeft in their calls for alterations. It ought, however, to be duely weighed whether the wisdom and dignity of parliament would not be beit confulted, by yielding, as far as it was fit to yield, and by withftanding afterwards what it was their duty to withstand; there was every poffible difference between firmness and obftinacy, the one being grounded in reafon and the fitnefs of things, the other in paflion and prejudice. So prudent and moderate a reform would tend greatly to increase the confidence of good men in their reprefentatives, and to difcourage, by a fort of proteft, that fpirit of innovation which had given fo juft an alarm. And that he might preclude the imputation of courting popularity, by appearing to efpoufe a plan of reform, whilft he took efpecial care that it should be fuch as would fecure to him the only intereft, which, as an individual, was fuppofed to bias his opinion, he concluded by offering his own borough (Old Sarum) as a voluntary facrifice at the fhrine of the conftitution. Lord North alked if aught but frenzy could excufe laying violent hands upon the conftitution, with no better foundation for fuch conduct, than the mere fancy of its being difordered, independent of any folid evidence of diftemper! The force of declamation had been exhausted on evils, which none could deplore more than he did. But thefe misfortunes, these calamities, were as little imputable to any defect in the conftitution, as the earthquake of Lisbon to the frame of government of that country. The Ame rican war had been undertaken for the express purpose of maintaining the juft rights of parliament; in other words, of the people of Great-Britain, over the dependencies of the empire. Hence it was popular at its commencement, and eagerly embraced both by people and parliament. And when at laft it became unpopular, had the conftitution been fo difordered as the reformers would perfuade the public, how came it to país that the public voice pre vailed against the influence of the crown? The policy of difcontinuing the war he would not then speak of, but that the House of Commons directed the measure no one could deny. Of course the influence of the crown, if it had ever been prevalent, was then no more. Had it fince broken beyond its bounds? Had it threatened any abufe of the conftitution? Neither the petitions, nor the arguments urged in fupport of them, ftated any fuch thing. How had the petitions been obtained? County meetings were advertised; projectors, with fet fpeeches, and ready framed petitions, were prepared to meet a number of prejudiced people, who came invited to fign what was ready for their fignature. The question was begged, or borrowed, or hofpitably ftolen to accommodate the craving appetites of fuch craving guefts. Thofe who liked neither the invitation nor the fare very prudently remained at home. Whom, therefore, was the House to refpect; the few reformers, or the contented multitude? To Mr. Beaufoy defended the refolutions, as an improvement perfectly confonant to the genius of our conftitution; as offering no violence to the rights of any defcription of men. obviate the charge of innovation, he entered into a detail of the gradations by which the Houfe of Commons had attained its prefent rank in the conftitution. Each fucceffive privilege, when firft afferted, was clearly an innovation; even the Speaker's office, nay, the freedom of debate came under the fame defcription. No conftitution could long remain unaltered that was not adapted to the circumftances of the times, and the general difpofition of the people; for as the people improved in the knowledge of the means and the ends of government, improvements in the conftitution would be demanded, and could not long be refufed. When the houfe of Stewart afcended the throne, it was their misfortune not to perceive what thofe circumitances and that difpofition had rendered effentially requifite. He, therefore, advifed the improvement propofed, as the only fecu4 D 2 rity rity against the profligacy of the times, the corruption of the people, and the ambition of the crown. Mr. Fox regarded, as one of the chief excellencies of the conftitution, that it involved a renovating principle in itself, and by being capable of repeated improvements, admitted the poffibility of being carried to a degree of perfection, beyond which no human idea could go. The people were for putting an end to the American war long before it was ended; the Houfe of Commons was therefore defective; it did not fpeak the fenfe of the people foon enough. He could by no means fee, that by adding more knights for the counties, the landed would overmatch the commercial intereft; commerce had now fpread itself fo univerfally, that the landed and commercial interefts were infeparable. Statement of the Writ of Error, which gave rife to the decision of the Ilaufe of Lords concerning the legality of refignation Bonds. (471.) On the 2d of January 1781, Lewis Difney Ffytche, Efq. the patron, prefented the Rev. John Eyre to the Bifhop of London, for inftitution into the rectory of the parish church of Woodham Walter, in Effex, in the diocefe of London, vacant by the death of the Rev. Foote Gower. The Bifhop, being informed that the faid John Eyre had given his patron a bond, in a large penalty, to refign the faid rectory at any time upon the patron's request; and the faid John Eyre acknowledging that he had given fuch a bond, the Bishop refufed to inftitute him to the living. Mr. Ffytche thereupon brought a writ of Quare Impedit, in the Court of Common-Pleas, and in Eafter term, 1781, delivered a declaration, ftating his right of prefentation to the faid living, &c. To this declaration, the Bifhop pleaded, ift. That a bond of refignation, under the penalty of three thoufand pounds, was fimoniacally and unlawfully executed and delivered by the faid John Eyre to Mr. Ffytche, which had been previously agreed upon as the condition of the prefentation; that fuch prefentation, therefore, became void in law. 2d. That by means of fuch bond Mr. Ffytche would have acquired an undue influence and controul over the faid John Eyre, as rector of the faid parith, and therefore the faid John Eyre became an unfit perfon to be inducted into the faid rectory and parish church of Woodham Walter, by virtue of fuch prefentation. In Hilary term 1782, the Court of Common Pleas gave judgement in favour of Mr. Flytche, which judgement the Court of King's Bench affirmed, in Michaelmas term, 1782. The Bishop of London, therefore, brought his writ of error before the Houfe of Peers, and ftated the following reafons for having the judgement reverfed: "I. Becaufe although there are feveral adjudged cafes upon the fubject of general bonds of refignation, none of them have arifen in the fame form, or between parties acting in the fame capacity, and under circumstances fimilar to the prefent; and, therefore, they ought not to be confidered as precedents by which this cafe is to be determined. "II. Because the bishop, or ordinary, is authorized by law to judge, in the firft inftance, of the fitness or unfitnefs of the perfon prefented to him for inftitution; and the Bishop of London has in this inftance exercifed his authority according to law. III. Because it is in the power of the patron, by means of a general bond, to establish two modes of felling a vacant living, which is fimony, either of which are equally certain and infallible: 1ft, The parties may make the penalty in the bond adequate to the price of the living; the prefentee when inftituted may refufe to fign, and pay the penalty without fuit: or may make known the execution of the bond, and then tender refignation to the bishop, which the bishop under thofe circumftances will probably refufe; upon his refufal the bond may be put in fuit; and thus alfo, by a circuity, the penalty may be paid, as the price of the living. ." The "The fecond mode of felling a living which is yacant, through the medium of a general bond of refignation, is equally obvious and practicable; the penalty of the bond of refignation may be made exceffive, much above the real value of the living; the patron may, during the incumbency of the prefentee, who executes the bond to refign, fell the next turn or right of prefentation, and at an advanced price, and after fuch fale require the incumbent to refign in terms of his bond. By this means the firft prefentation is fictitious, and the fale of the fecond prefentation, though made under the pretence of felling a right of prefentation to a full benefice, is in reality the fale of a vacant living. "IV. Becaufe a general bond to refign puts the perfon who enters into fuch bond under the power of the lay patron, inftead of being under the authority of the bishop, to whom he fwears canonical obedience, and whom by law he is obliged to obey, and is thus contrary to good policy, by creating an influence which tends to fubvert ecclefiaftical difcipline and fubordina tion. "V. Becaufe general bonds of refignation are contrary to law, by altering the tenure of the office of a beneficed clergyman; for every benefice being an office for life, the patron can grant it for life only he cannot grant it for years; he cannot grant it at the will of himfelf, for fuch grant in direct terms would be void, as contrary to the very tenure of the office; where there is a general bond of refignation entered into, the fame alteration of the tenure is effected by circuity too here: the patron grants, and the prefentee accepts, at the will of the patron, that benefice which the law intends to be conferred and holden for life. "VI. Because, although a court of equity will grant relief in cafe the patron makes an improper ufe of a general bond to refign, yet from the extreme difficulty of difcovering the real purpofe for which they are ufed, it can feldom be poffible to procure fuch relief, or to guard by that means against the bad confequences that follow from fuch bonds being tolerated. The bad purpose not being discovered, cannot be prevented but by a folemn decifion, that general bonds of refignation are illegal. "VII. Because a general bond of refignation puts it in a great measure in the patron's power to convert a part of the profits of the living to his own ufe; and abfolutely puts it in the power of patron and incumbent together to make fuch partition of them as they can agree upon, whereby the revenues of the church may be alienated. VIII. Becaufe a general bond of refignation is an affurance of profit or benefit to the patron, and, therefore, contrary to the ftatute 31 Eliz. c. 6. and inconfiftent with the oath of fimony." May 9. The counfel having finished, Lord Thurlow rofe, and condemned. the idea of a clergyman's giving a bond to his patron for any confideration, on being prefented to a living; but as the decifion in a cafe of this nature was of fuch confequence, he wished the Houfe to confider it on the moft copious grounds, and, therefore, propofed the following queftions for the confideration of the judges: "1. Whether an agreement made between the incumbent on a benefice with the cure of fouls, and the patron thereof, whereby fuch incumbent undertakes to devoid the faid benefice, at the request of fuch patron, be not an agreement for a benefit to the said patron? "2. Whether if a patron fhall prefent any parfon to any benefice with cure of fouls, for or by reafon of any such agreement, fuch presentation will not be void? "3. Whether a bond given by the incumbent on a benefice with cure of fouls to the patron thereof, in the fum of 3000l. defeasible only by the faid incumbent devoiding the faid benefice at the request of the faid patron, whether the value of the incumbency be greater or less than the faid fum of 3000l. be not a bond for fecuring a benefit to the faid patron? 4. Whether if a patron fhall prefent any parfon to any benefice with cure of fouls, 5. Whether the ordinary of a diocefe wherein any benefice with cure of fouls lies, be compelled in law to accept the refignation of the incumbent thereof, in cafe where the refignation fhould appear not to be fpontaneous, but at the inftance of another, and under the coercion of a bond to pay money in cafe of a neglect or refufal to refign? 6. Whether a bond given by an incumbent on a benefice with cure of fouls, to the patron thereof in the fum of 3000l. defeasible only by fuch act, as afterwards to be done by the ordinary, be not a bond for the benefit of the faid patron, in refpect to the contingency which fuch incumbent cannot controul? 7. Whether, if a patron fhall prefent any parfon to any benefice with cure of fouls, for or by reafen of any fuch laft-mentioned bonds, fuch prefentation will not be void? 8. Whether the unfitnefs of the defendant in error in the fecond plea mentioned be alledged with fufficient certainty? "9. Whether the faid plea be fufficient in law to bar the defendant in error from maintaining his action? 10. Whether the unfitnefs of the faid plea fet forth is traversable?" Two more were added by Lord Mansfield: 11. Whether the excufe alledged upon this record for not admitting, inftituting, and inducting the clerk of the plaintiff is fufficient in law? 66 12. Whether the bond ftated in either of the pleas is good and valid, or corrupt and void in law?" May 26. The Judges gave their opinions on thefe queftions, which were as follow: Mr. Juftice Heath, Mr. Juftice Buller, Mr. Juftice Nares, Mr. Juftice Willes, Mr. Juttice Gould, and the Lord Chief Baron of the Court of Exchequer. 1. That the agreement ftated in this cafe is not an agreement for the benefit of the patron within the intent and meaning of the ftatute. "II. That if the patron prefent for, or by reafon of, fuch an agree ment, the presentation will not be void, "III. That giving fuch a bond does not fecure a corrupt or illegal benefit to the patron, being only intended to enforce the refignation of the benefice, and that the being obliged to have recourfe to the penalty of the bond will be no benefit to the patron within the intent and meaning of the ftatute. IV. That if the patron prefent to a benefice for, or by reafon of, fuch bond, fuch prefentation will not be void. "V. That it not being a queftion made in the courts below, nor ever argued at their lordships' bar, they beg leave to decline giving any opinion upon it. 66 VI. That whether the incumbent can compel the ordinary to accept of the refignation or not, it is not a corrupt benefit to the patron. 66 VII. Anfwered by what is faid to the 4th queftion. “VIII. That the unfitness of the defendant is not alledged with fufficient certainty. "IX. That the plea is not fufficient in law to bar the defendant in error. "X. That the unfitness, as fet forth in the plea, is not traversable. "XI. That the excufe alledged upon this record for not admitting, inftituting, and inducting the clerk, is not fufficient in law. "XII. That the bond stated in the pleas is good and valid in law." Mr. Baron Perryn. " I. It is a benefit, but not corrupt within ftat. of 31 Eliz. ch. 6. fect. 5. "II. Such prefentation will not be void within the intention and meaning of faid statute. "III. I think it is a bond for fecuring a benefit to the patron. "IV. I am of opinion, that notwithftanding a patron does prefent by reason of fuch bond, fuch prefentation will not be void. "V. I am of opinion the ordinary is compellable to accept the refignation in the cafe ftated, unlefs he can fhew a fimoniacal or corrupt agreement, or other fuflicient cause, to the contrary. "VI. Whether the incumbent can or cannot controul in the cases stated, I think fuch a bond is a benefit, but not a corrupt one, within the meaning of ftat. 31. Eliz. "VII. I am of opinion, if a patron does prefent for, or by reafon of fuch laft-mentioned bond, fuch prefentation will not be void. In answer to the 8th, oth, and 10th questions, on the fecond plea, I am of opinion that the unfitnefs of the defendant in error in the fecond plea mentioned, is not alledged with fufficient certainty in law to bar the defendant in error from maintaining his action, and that the unfitnefs in the faid plea fet forth is not traverfable. "In anfwer to the 11th and 12th queftions, I am of opinion that the excufe alledged upon this record for not admitting, inftituting, and inducting the clerk of the plaintiff is not fufcient in law; and that the bond ftated in the pleas is good and valid in law." Mr. Baron Eyre. "I. That it is an agreement for a benefit. "II. That it does devoid the presentation. "III. That the bond is a benefit. "IV. That it does devoid the prefentation. "V. Not answered. "VI. Affuming that the bishop may refufe it, is a benefit in refpect, &c. "VII. Affuming, &c. it does devoid the prefentation. "VIII. The unfitness not alledged with fufficient certainty. "IX. The plea not fufficient in law, &c. "X. The unfitnefs in the fecond plea fet forth, not traverfable." "XI. The excufe in the first plea is fufficient. "XII. The excufe in the fecond plea is not fufficient. Upon thefe pleadings it is not competent for the plaintiff in error to object to the validity of the bonds ftated in the plead ings, and therefore they are to be taken to be good and valid, and not corrupt and void in law." May 30. The Bishop of Eangor (Dr. J. Moore) faid that notwithstanding what had fallen from the learned Judges, he was diffatisfied with the judgement of the courts below. He had, on enquiry many years ago, formed an opinion that the determinations, one in the 8th of James I. and the other in the 5th of Charles I. were not fo well founded as they ought to have been, and yet they were the precedents which the courts had implicitly followed, whenever general bonds of refignation had been brought into queftion. Such bonds were directly contrary to the letter of the act of the 31ft of Eliz. as it was hard to conceive how a prefentee could give a bond of refignation to a patron, in any fum, by way of penalty, from which the patron muft not derive fome benefit, either directly or indirectly. But if not contrary to the letter, they were certainly contrary to the fpirit of the act, fince, if they were held good and valid in law, every part of the act might be evaded with the utmost ease. Such bonds placed the obligee in a fituation very improper for the minifter of a parish. They enabled the obligator to turn a man out of his freehold, without any trial or fentence whatever: and lastly, they might be made ufe of to the moft mifchievous purpofes, to the prejudice of religion, and difturbing the public peace. Great reverence was due to fuch decifions of our courts as had been uniform and long acquiefced in; but if, in after times, great inconveniences fhould arife from perfitting in fuch determinations, and none from departing from them, it was obvious what their lordships oughtto do. No inconveniences would arife from reverfing the judgement in the prefent cafe, or if any were apprehended, they might be obviated by a short bill; on the contrary, great advantages would be inftantly felt, as it would promote religion, learning, order, decency, difcipline. The Bishop of Salisbury (Dr. Barrington) alfo contended that bonds of refignation were acts of a fimoniacal nature and tendency, and confequently pernicious in the church. The Bishop of Llandaff (Dr. Wat son) |