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2. The oath does not require obedience to such commands of the king, as are unauthorized by law. No such obedience is implied by the terms of the oath the fidelity there promised, is intended of fidelity in opposition to his enemies, and not in opposition to law; and allegiance, at the utmost, can only signify obedience to lawful commands. Therefore, if the king should issue a proclamation, levying money, or imposing any service or restraint upon the subject, beyond what the crown is impowered by law to enjoin, there would exist no sort of obligation to obey such a proclamation, in consequence of having taken the oath of allegiance.

3. The oath does not require that we should continue our allegiance to the king, after he is actually and absolutely deposed, driven into exile, carried away captive, or otherwise rendered incapable of exercising the regal office, whether by his fault or without it. The promise of allegiance implies, and is understood by all parties to suppose, that the person to whom the promise is made continues king; continues, that is, to exercise the power and afford the protection, which belongs to the office of king for it is the possession of this power, which makes such a particular person the object of the oath; without it, why should I swear allegiance to this man, rather than to any man in the kingdom? Beside which, the contrary doctrine is burthened with this consequence, that every conquest, revolution of government, or disaster which befals the person of the prince, must be followed by perpetual and irremediable anarchy.

CHAPTER XIX.

OATH AGAINST BRIBERY IN THE ELEC TION OF MEMBERS OF PARLIAMENT.

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I DO swear I have not received, or had, by myself, or any person whatsoever, in trust for me,

or for my use and benefit, directly or indirectly, any sum or sums of money, office, place, or employment, gift, or reward, or any promise or security for any money, office, employment, or gift, in order to give my vote at this election."

The several contrivances to evade this oath, such as the electors accepting money under colour of borrowing it, and giving a promisory 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,

FROM an imaginary resemblance between the purchase of a benefice and Simon Magus' attempt to purchase the gift of the Holy Ghost, Acts viii. 19. the obtaining of ecclesiastical preferment by pecuniary considerations has been called 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 him.

self. It is the same distinction with that which ob tains 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 procureing 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.

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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 transfer. red 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 clergy

man from purchasing the perpetuity of a patronage, more than any other person; but purchasing the per petuity, 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 tythes 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 be come 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.

CHAPTER XXI.

OATHS TO OBSERVE LOCAL STATUTES.

MEMBERS 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 observation 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

must,

1. 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 institu

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