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1. All payments, contracts, or promises, made and make that a reason for laying aside the obby any person for a benefice already vacant.servation of it. 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 for a benetice 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 the 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.

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 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 I doubt not but that the oath against simony is now-a-days would come near them. They are binding upon the consciences of those who take laid aside therefore, though parts of the statutes, it, though I question much the expediency of re- and as such included within the oath, not merely quiring it. It is very fit to debar public patrons, because they are inconvenient, but because there such as the king, the lord chancellor, bishops, ec- is sufficient reason to believe, that the founders clesiastical corporations, and the like, from this themselves would have dispensed with them, as kind of traffic: because from them may be ex-subversive of their own designs. s.j pected 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 churchpreferment out of the hands of brokers. 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 inconventency of any particular direction,

CHAPTER XXII.

Subscription to Articles of Religion. SUBSCRIPTION 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 subscrip tion, any more than the framer or drawer up of a law is the person that enacts it.

The legislature of the 13th Eliz. is the imposer, whose intention the subscriber is bound to satisfy.

They who contend, that nothing less can jus tify subscription to the Thirty-nine Articles, than

the actual belief of each and every separate pro- further than as they become the first occupiers position contained in them, must suppose, that the after him, and succeed to the same want and use. legislature expected the consent of ten thousand Moreover, as natural rights cannot, like rights men, and that in perpetual succession, not to one created by act of parliament, expire at the end of controverted proposition, but to many hundreds. a certain number of years; if the testator have a It is difficult to conceive how this could be ex-right, by the law of nature, to dispose of his pected by any, who observed the incurable diver-property one moment after his death, he has the sity of human opinion upon all subjects short of same right to direct the disposition of it for a mildemonstration. lion of ages after him; which is absurd.

If the authors of the law did not intend this, what did they intend?

They intended to exclude from offices in the church,

1. All abettors of popery:

The ancient apprehensions of mankind upon the subject were conformable to this account of it: for, wills have been introduced into most countries by a positive act of the state; as by the Laws of Solon into Greece; by the Twelve Tables

2. Anabaptists; who were at that time a pow-into Rome; and that not till after a considerable erful party on the Continent.

3. The puritans; who were hostile to an episcopal constitution: and in general the members of such leading sects or foreign establishments as threatened to overthrow our own.

progress had been made in legislation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were disallowed; and what is more remarkable, in this country, since the Conquest, lands could not be devised by will, till within little more than two hundred years ago, when this privilege was restored to the subject, by an act of parliament, in the latter end of the reign of Henry the Eighth.

Whoever finds himself comprehended within these descriptions, ought not to subscribe. Nor can a subscriber to the Articles take advantage of any latitude which our rule may seem to allow, who is not first convinced that he is truly and No doubt, many beneficial purposes are atsubstantially satisfying the intention of the legis-tained by extending the owner's power over his lature. property beyond his life, and beyond his natural During the present state of ecclesiastical pa- right. It invites to industry; it encourages martronage, in which private individuals are per-riage; it secures the dutifulness and dependency mitted to impose teachers upon parishes with of children: but a limit must be assigned to the which they are often little or not at all connected, duration of this power. The utmost extent to some limitation of the patron's choice may be ne- which, in any case, entails are allowed by the cessary to prevent unedifying contentions between laws of England to operate, is during the lives in neighbouring teachers, or between the teachers, existence at the death of the testator, and one-andand their respective congregations. But this twenty years beyond these; after which, there danger, if it exist, may be provided against with are ways and means of setting them aside. equal effect, by converting the articles of faith into articles of peace.

CHAPTER XXIII.

Wills.

THE fundamental question upon this subject is, whether Wills are of natural or of adventitious right? that is, whether the right of directing the disposition of property after his death belongs to a man in a state of nature, and by the law of nature, or whether it be given him entirely by the positive regulations of the country he lives in?

From the consideration that wills are the creatures of the municipal law which gives them their efficacy, may be deduced a determination of the question, whether the intention of the testator in an informal will, be binding upon the conscience of those, who, by operation of law, succeed to his estate. By an informal will, I mean a will void in law for want of some requisite formality, though no doubt be entertained of its meaning or authenticity: as, suppose a man make his will, devising his freehold estate to his sister's son, and the will be attested by two only, instead of three, subscribing witnesses; would the brother's son, who is heir at law to the testator, be bound in conscience to resign his claim to the estate, out of deference to his uncle's intention? or, on the contrary, would not the devisee under the will be bound, upon discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to the heir at law?

The immediate produce of each man's personal labour, as the tools, weapons, and utensils, which he manufactures, the tent or hut that he builds, and perhaps the flocks and herds which he breeds and rears, are as much his own as the labour was which he employed upon them; that is, are his Generally speaking, the heir at law is not bound property naturally and absolutely; and conse-by the intention of the testator: for the intention quently he may give or leave them to whom he pleases, there being nothing to limit the continuance of his right, or to restrain the alienation

of it.

But every other species of property, especially property in land, stands upon a different foundation.

We have seen, in the Chapter upon Property, that, in a state of nature, a man's right to a particular spot of ground arises from his using it and his wanting it; consequently ceases with the use and want: so that at his death the estate reverts to the community, without any regard to the last owner's will, or even any preference of his family,

can signify nothing, unless the person intending have a right to govern the descent of the estate. That is the first question. Now this right the testator can only derive from the law of the land: but the law confers the right upon certain conditions, with which conditions he has not complied; therefore, the testator can lay no claim to the power which he pretends to exercise, as he hath not entitled himself to the benefit of that law, by virtue of which alone the estate ought to attend his disposal. Consequently, the devisee under the will, who, by concealing this flaw in it, keeps possession of the estate, is in the situation of any other person who avails himself of his

neighbour's Ignorance to detain from him his pro- it defrauds creditors; for, by a defect in our laws, perty. The will is so much waste paper, from the which has been long and strangely overlooked, defect of right in the person who made it. Nor is real estates are not subject to the payment of this catching at an expression of law to pervert the debts by simple contract, unless made so by will; substantial design of it: for I apprehend it to be although credit is, in fact, generally given to the the deliberate mind of the legislature, that no will possession of such estates: he, therefore, who neshould take effect upon real estates, unless au- glects to make the necessary appointments for the thenticated in the precise manner which the sta-payment of his debts, as far as his effects extend, tute describes. Had testamentary dispositions sins, as it has been justly said, in his grave; and been founded in any natural right, independent if he omits this on purpose to defeat the demands of positive constitutions I should have thought of his creditors, he dies with a deliberate fraud in diferently of this question: for then I should have his heart. considered the law rather as refusing its assistance to enforce the right of the devisee, than as extinguishing or working any alteration in the right itself./

And after all, I should choose to propose a case, where no consideration of pity to distress, of duty to a parent, or of gratitude to a benefactor, interfered with the general rule of justice.

The regard due to kindred in the disposal of our fortune (except the case of lineal kindred, which is different) arises either from the respect we owe to the presumed intention of the ancestor from whom we received our fortunes, or from the expectations which we have encouraged. The intention of the ancestor is presumed with greater certainty, as well as entitled to more respect, the fewer degrees he is removed from us; which makes the difference in the different degrees of kindred. For instance, it may be presumed to be a father's intention and desire, that the inheritance which he leaves, after it has served the turn and generation of one son, should remain a provision for the families of his other children, equally related and dear to him as the oldest. Whoever, therefore, without cause, gives away his patrimony from his brother's or sister's family, is guilty not so much of an injury to them, as of ingratitude to his parent. The deference due from the possessor of a fortune to the presumed desire of his ancestor, will also vary with this circumstance: whether the ancestor earned the fortune by his personal industry, acquired it by accidental successes, or only transmitted the inheritance which he received.

Anciently, when any one died without a will, the bishop of the diocese took possession of his personal fortune, in order to dispose of it for the benefit of his soul, that is, to pious or charitable uses. It became necessary, therefore, that the bishop should be satisfied of the authenticity of the will, when there was any, before he resigned the right which he had to take possession of the dead man's fortune in case of intestacy. In this way wills and controversies relating to wills, came within the cognizance of ecclesiastical courts; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though in truth, no more now-a-days connected with religion, than any other instruments of conveyance. This is a peculiarity in the English laws.

Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion of the different claimants: not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the laws of nature.

These regulations should be guided by the duty and presumed inclination of the deceased, so far as these considerations can be consulted by general rules. The statutes of Charles the Second, commonly called the Statutes of Distribution, which adopt the rules of the Roman law in the distribution of personals, are sufficiently equitable. They assign one-third to the widow, and twothirds to the children; in case of no children, one half to the widow, and the other half to the next of kin; where neither widow nor lincal descendants survive, the whole to the next of kin, and to be equally divided amongst kindred of equal degree, without distinction of whole blood and half blood, or of consanguinity by the father's or mother's side.

Where a man's fortune is acquired by himself, and he has done nothing to excite expectation, but rather has refrained from those particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above reasons, and at liberty to leave his fortune to his friends, to charitable or public purposes, or to The descent of real estates, of houses, that is, whom he will: the same blood, proximity of and land, having been settled in more remote and blood, and the like, are merely modes of speech, in ruder times, is less reasonable. There never izplying nothing real, nor any obligation of them-can be much to complain of in a rule which every Nives.

There is always, however, a reason for providing for our poor relations, in preference to thers who may be equally necessitous, which is, hat if we do not, no one else will; mankind, by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliances.

person may avoid, by so easy a provision as that of making his will: otherwise, our law in this respect is chargeable with some flagrant absurdities; such as, that an estate shall in no wise go to the brother or sister of the half blood, though it came to the deceased from the common parent; that it shall go to the remotest relation the intestate has in the world, rather than to his own father or mother; or even be forfeited for want of an heir, though both parents survive; that the most distant paternal relation shall be preferred to an uncle, or own cousin, by the mother's side, notwithstanding the estate was purchased and acquired by the intestate himself.

The not making a will, is a very culpable smission, where it is attended with the following effects: where it leaves daughters, or younger chikiren, at the mercy of the oldest son; where it distributes a personal fortune equally amongst the chibiren, although there be no equality in their exigences or situations; where it leaves an open- Land not being so divisible as money, may be a ing for litigation; or lastly, and principally, where | reason for making a difference in the course of

inheritance: but there ought to be no difference but what is founded upon that reason. The Roman law made none.

BOOK HI.

PART II.

former is, that our obligation to them is much greater than theirs to us. It is a mistake to suppose, that the rich man maintains his servants, tradesmen, tenants, and labourers: the truth is, they maintain him. It is their industry which supplies his table, furnishes his wardrobe, builds his houses, adorns his equipage, provides his amusements. It is not the estate, but the labour employed upon it, that pays his rent. All that he does, is to distribute what others produce; which is the least part of the business.

Nor do I perceive any foundation for an opinion, which is often handed round in genteel company, that good usage is thrown away upon low and

OF RELATIVE DUTIES WHICH ARE INDETER-ordinary minds; that they are insensible of kind

MINATE.

CHAPTER I.
Charity.

I USE the term Charity neither in the common sense of bounty to the poor, nor in St. Paul's sense of benevolence to all mankind: but I apply it at present, in a sense more commodious to my purpose, to signify the promoting the happiness of our inferiors.

Charity, in this sense, I take to be the principal province of virtue and religion: for, whilst worldly prudence will direct our behaviour towards our superiors, and politeness towards our equals, there is little beside the consideration of duty, or an habitual humanity which comes into the place of consideration, to produce a proper conduct towards those who are beneath us, and dependant upon us.

There are three principal methods of promoting the happiness of our inferiors.

1. By the treatment of our domestics and dependants.

2. By professional assistance.

3. By pecuniary bounty.

ness, and incapable of gratitude. If by "low and ordinary minds" are meant the minds of men in low and ordinary stations, they seem to be affected by benefits in the same way that all others are, and to be no less ready to requite them: and it would be a very unaccountable law of nature if it were otherwise.

Whatever uneasiness we occasion to our domes

tics, which neither promotes our service, nor anwrong; were it only upon the general principle swers the just ends of punishment, is manifestly of diminishing the sum of human happiness.

By which rule we are forbidden,

ment from the mere love and wantonness of domi1. To enjoin unnecessary labour or confine

nation.

2. To insult our servants by harsh, scornful, or opprobrious language.

3. To refuse thein any harmless pleasures. causeless or immoderate anger, habitual peevishAnd, by the same principle, are also forbidden ness, and groundless suspicion.

1

CHAPTER II.
Charity.

THE TREATMENT OF OUR DOMESTICS AND DE-
PENDANTS.

CHAPTER III.
Slavery.

THE prohibitions of the last chapter extend to the treatment of slaves, being founded upon a principle independent of the contract between masters and servants.

I define slavery to be "an obligation to labour for the benefit of the master, without the contract or consent of the servant."

This obligation may arise, consistently with the law of nature, from three causes:

1. From crimes.

2. From captivity.
3. From debt.

In the first case, the continuance of the slavery, as of any other punishment, ought to be proportioned to the crime; in the second and third cases, it ought to cease, as soon as the demand of the injured nation, or private creditor, is satisfied.

The slave-trade upon the coast of Africa is not

(A PARTY of friends setting out together upon a journey, soon find it to be the best for all sides, that while they are upon the road, one of the company should wait upon the rest; another ride forward to seek out lodging and entertainment; a third carry the portmanteau; a fourth take charge of the horses; a fifth bear the purse, conduct and direct the route; not forgetting, however, that, as they were equal and independent when they set out, so they are all to return to a level again at their journey's end. The same regard and re-excused by these principles. When slaves in that spect; the same forbearance, lenity, and reserve in using their service; the same mildness in delivering commands; the same study to make their journey comfortable and pleasant, which he whose lot it was to direct the rest, would in common decency think himself bound to observe towards them; ought we to show to those who, in the casting of the parts of human society, happen to be placed within our power, or to depend upon us. Another reflection of a like tendency with the

country are brought to market, no questions, I believe, are asked about the origin or justice of the vendor's title. It may be presumed, therefore, that this title is not always, if it be ever, founded in any of the causes above assigned.

But defect of right in the first purchase, is the least crime with which this traffic is chargeable. The natives are excited to war and mutual de predation, for the sake of supplying their contracts, or furnishing the market with slaves. With this

the wickedness begins. The slaves, torn away man slavery, and since these, the feudal tyranny, from parents, wives, children, from their friends has declined before it. And we trust that, as the and companions, their fields and flocks, their knowledge and authority of the same religion adhome and country, are transported to the Eu-vance in the world, they will banish what remains ropean settlements in America, with no other ac- of this odious institution.

commodation on shipboard than what is provided for brutes. This is the second stage of cruelty; from which the miserable exiles are delivered, only to be placed, and that for life, in subjection to a dominion and system of laws, the most mercuess and tyrannical that ever were tolerated upon the face of the earth; and from all that can be learned by the accounts of the people upon the spot, the inordinate authority which the plantation-laws confer upon the slave-holder is exercised, by the English slave-holder especially, with rigour and brutality.

But necessity is pretended; the name under which every enormity is attempted to be justified. And, after all, what is the necessity? It has never been proved that the land could not be cultivated there, as it is here, by hired servants. It is said that it could not be cultivated with quite the same conveniency and cheapness, as by the labour of slaves: by which means, a pound of sugar, which the planter now sells for sixpence, could not be afforded under sixpence-halfpenny;-and this is the necessity.

The great revolution which has taken place in the Western world, may probably conduce (and who knows but that it was designed ?) to accelerate the fall of this abominable tyranny: and now that this contest, and the passions which attend it, are no more, there may succeed perhaps a season for reflecting, whether a legislature which had so long lent its assistance to the support of an institution replete with human misery, was fit to be trusted with an empire the most extensive that ever obtained in any age or quarter of the world. Slavery was a part of the civil constitution of most countries, when Christianity appeared; yet no passage is to be found in the Christian Scriptures, by which it is condemned or prohibited. This is true; for Christianity, soliciting admission into all nations of the world, abstained, as behoved it, from intermeddling with the civil institutions of any. But does it follow, from the ale of Scripture concerning them, that all the Civil Lastitutions which then prevailed were right? or that the bad should not be exchanged for better?

Besides this, the discharging of slaves from all obligation to obey their masters, which is the consequence of pronouncing slavery to be unlawful, would have had no better effect than to let loose one half of mankind upon the other. Slaves would have been tempted to embrace a religion, which asserted their right to freedom; masters would hardly have been persuaded to consent to chins founded upon such authority; the most calamitous of all contests, a bellum servile, might bably have ensued, to the reproach, if not the extinction, of the Christian name.

The truth is, the emancipation of slaves should be gradual and be carried on by provisions of law, and under the protection of civil government. Christianity can only operate as an alterative. By the mild diffusion of its light and influence, the minds of men are insensibly prepared to perceive and correct the enormities, which folly, or wickedLess or accident, have introduced into their public establishments. In this way the Greek and Ro

CHAPTER IV.
Charity.

PROFESSIONAL ASSISTANCE.

THIS kind of beneficence is chiefly to be expected from members of the legislature, magistrates, medical, legal, and sacerdotal professions.

1. The care of the poor ought to be the principal object of all laws; for this plain reason, that the rich are able to take care of themselves.

Much has been, and more might be, done by the laws of this country, towards the relief of the impotent, and the protection and encouragement of the industrious poor. Whoever applies himself to collect observations upon the state and operation of the poor laws, and to contrive remedies for the imperfections and abuses which he observes, and digests these remedies into acts of parliament; and conducts them, by argument or influence, through the two branches of the legislature, or communicates his ideas to those who are more likely to carry them into effect, deserves well of a class of the community so numerous, that their happiness forms a principal part of the whole. The study and activity thus employed, is charity, in the most meritorious sense of the word.

2. The application of parochial relief is intrusted, in the first instance, to overseers and contractors, who have an interest in opposition to that of the poor, inasmuch as whatever they allow them comes in part out of their own pocket. For this reason, the law has deposited with justices of the peace a power of superintendence and control; and the judicious interposition of this power is a most useful exertion of charity, and oft-times within the ability of those who have no other way of serving their generation. A country gentleman of very moderate education, and who has little to spare from his fortune, by learning so much of the poor-law as is to be found in Dr. Burn's Justice, and by furnishing himself with a knowledge of the prices of labour and provision, so as to be able to estimate the exigencies of a family, and what is to be expected from their industry, may, in this way, place out the one talent committed to him, to great account.

3. Of all private professions, that of medicine puts it in a man's power to do the most good at the least expense. Health, which is precious to all, is to the poor invaluable: and their complaints, as agues, rheumatisms, &c. are often such as yield to medicine. And, with respect to the expense, drugs at first hand cost little, and advice costs nothing, where it is only bestowed upon those who could not afford to pay for it.

4. The rights of the poor are not so important or intricate, as their contentions are violent and ruinous. A lawyer or attorney, of tolerable knowledge in his profession, has commonly judg ment enough to adjust these disputes, with all the effect, and without the expense, of a law-suit; and he may be said to give a poor man twenty pounds

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