We are next to confider what the oath of allegi ance permits, or does not require.

1. It permits refiftance to the king when his ill behaviour, or imbecility is fuch, as to make refiftance beneficial to the community. It may fairly be prefumed, that the convention Parliament, which introduced the oath in its prefent form, did not intend, by impofing it, to exclude all refiftance; fince the members of that legislature had many of them recently taken up arms against James the Second; and the very authority by which they fat together, was itself the effect of a fuccefsful oppofition to an acknowledged fovereign. Some refiftance, therefore, was meant to be allowed; and if any, it must be that which has the public intereft for its object.

2. The oath does not require obedience to fuch commands of the king, as are unauthorized by law. No fuch obedience is implied by the terms of the oath the fidelity there promifed, is intended of fidelity in oppofition to his enemies, and not in oppofition to law; and allegiance, at the utmoft, fignifies only obedience to lawful commands. Therefore, if the king fhould iffue a proclamation, levying money, or impofing any fervice or restraint upon the fubject, beyond what the crown is impowered by law to enjoin, there would exift no fort of obligation to obey fuch a proclamation, in confequence of having taken the oath of allegiance.

3. The oath does not require that we fhould continue our allegiance to the king, after he is actually and abfolutely depofed, driven into exile, carried away captive, or otherwife rendered incapable of exercifing the regal office, whether by his fault or without it. The promife of allegiance implies, and is underftood by all parties to fuppofe, that the perfon to whom the promife is made continues king; continues, that is, to exercife the power, and afford the proteЯion which belongs to the office of king: for it is the poffeffion of this power, which makes fuch a particular perfon the object of the oath; without it,

why

why should I swear allegiance to this man, rather than to any other man in the kingdom? Befides, the contrary doctrine is burthened with this confequence, that every conqueft, revolution of government, or difafter which befalls the perfon of the prince, must be followed by perpetual and irremediable anarchy.

CHA P. XIX.

OATH AGAINST BRIBERY IN THE ELECTION OF MEMBERS OF PARLIAMENT.

I DO fwear, I have not received, or had, by

myfelf, or any perfon whatsoever, in truft for "me, or for my ufe and benefit, directly or indirectly, any fum or fums of money, office, place, or employment, gift, or reward, or any promife or fecurity, for any money, office, employment, or gift, in order to give my vote at this election." The feveral contrivances to evade this oath, fuch as the electors accepting money under colour of borrowing, and giving a promiffory note, or other fecu rity for it, which is cancelled after the election; receiving money from a ftranger, or a perfon in difguife, or out of a drawer, or purfe, left open for the purpose; or promifes of money, to be paid after the election; or ftipulating for a place, living, or other private advantage of any kind; if they efcape the legal penalties of perjury, incur the moral guilt: for they are manifeftly within the mifchief and defign of the ftatute which impofes the oath; and within the terms indeed of the oath itfelf; for the word "indirectly" is inferted on purpose to comprehend fuck cafes as these.

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СНА Р.

CHA P. XX.

ОАТН AGAINST SIMON Y..

FROM an imaginary resemblance between the

purchase of a benefice and Simon Magus's attempt to purchafe the gift of the Holy Ghoft, As viii. 19, the obtaining of a prefentation by pecuniary confiderations has been called Simony.

The fale of advowfons is infeparable from the right. of private patronage; as patronage would otherwife devolve to the moft indigent, and for that reafon, the most improper hands it could be placed in. Nor did the law ever intend to prohibit the paffing of advowfons from one patron to another; but to restrain the patron, who poffeffes the right af prefenting at the vacancy, from being influenced, in the choice of his prefentee, by a bribe, or benefit to himfelf. It is the fame diftinction with that which obtains in a freeholder's vote for his reprefentative in parliament. The right of voting, that is the freehold, to which the right pertains, may be bought and fold, as freely as any other property; but the exercife of that right, the vote itself, may not be purchased, or influenced by money.

**

For this purpose, the law impofes upon the prefentee, who is generally concerned in the fimony, if there be any, the following oath: "I do fwear, that "I have made no fimoniacal payment, contract, or promife, directly or indirectly, by myself, or by any other to my knowledge, or with my confent, "to any perfon or perfons whatfoever, for or concerning the procuring and obtaining of this eccle"fiaftical place, &c. nor will, at any time hereafter, perform, or fatisfy, any fuch kind of payment, contract, or promife, made by any other without

*

"my

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my knowledge or confent: So help me God, through Jefus Chrift."

It is extraordinary, that Bishop Gibfon fhould have thought this oath to be against all promises whatsoever, when the terms of the oath exprefsly reftrain it to fimoniacal promifes; and the law alone muft pronounce what promifes, as well as what payments, and contracts, are fimoniacal, and, confequently, come within the oath; and what are not fo.

Now the law adjudges to be fimony,

1. All payments, contracts, or promises, made by any person, for a benefice already vacant, The advowfon 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 fubfifting patron in the choice of his prefentee; which is the very practice the law condemns.

2. A clergyman's purchafing of the next turn of a benefice for himself, "directly or indirectly," that 'is, by himself, or by another perfon with his money, It does not appear, that the law prohibits a clergyman from purchafing the perpetuity of a patronage, more than any other perfon; but purchafing the perpetuity, and forthwith felling it again, with a refervation of the next turn, and with no other defign than to poffefs himself of the next turn, is in fraudem legis, and inconfiftent 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 fimony of the worst kind; for it is not only buying preferment, but robbing fucceffor to pay your

for it.

4. Promises to the patron of a portion of the profit, of a remiffion of tythes and dues, or other advan tage out of the produce of the benefice: which kind of compact is a pernicious condefcenfion in the clergy, independent of the oath; for it tends to introduce a practice which may very foon become general, of giving the revenues of churches to the lay

patrons,