« السابقةمتابعة »
were disappointed, and thought themselves ne for my use and benefit, directly or indirectly, any glected and ill-used at court; or because they sum or sums of money, office, place, or employentertained a family animosity, or personal resent- ment, gift or reward, or any promise or security, ment, against the king, the favourite, or the minis- for any money, office, employment, or gift, in orter;—if any were induced to take up arms by der to give my vote at this election.” these motives, they added to the many crimes of The several contrivances to evade this oath, an unprovoked rebellion, that of wilful and cor- such as the electors accepting money under colour rupt perjury. If, in the late American war, the of borrowing it, and giving a promissory note, or same motives determined others to connect them- other security, for it, which is cancelled after the selves with that opposition, their part in it was election; receiving money from a stranger, or a chargeable with pertidy and falsehood to their oath, person in disguise, or out of a drawer, or purse, whatever was the justice of the opposition itself
, left open for the purpose; or promises of money or however well-founded their own complaints to be paid after the election; or stipulating for a might be of private injury.
place," living, or other private advantage of any We are next to consider what the oath of al- | kind, if they escape the legal penalties of perjury, legiance permits, or does not require.
incur the moral guilt; for they are manifestly 1. It permits resistance to the king, when his within the mischief and design of the statute ill behaviour or imbecility is such, as to make re- which imposes the oath, and within the terms insistance beneficial to the community. It may fairly deed of the oath itself; for the word “indirectly” be presumed that the Convention Parliament, is inserted on purpose to comprehend such cases which introduced the oath in its present form, did as these. not intend, by imposing it, to exclude all resistance, since the members of that legislature had, many of them, recently taken up arms against James the Second, and the very authority by
CHAPTER XX. which they sat together was itself'the effect of a successful opposition to an acknowledged sove
Oath against Simony. reign. Some resistance, therefore, was meant to From an imaginary resemblance between be allowed; and, if any, it must be that which the purchase of a benetice, and Simon Magus's has the public interest for its object.
attempt to purchase the gift of the Holy Ghost, 2. The oath does not require obedience to such (Acts viii. 19,) the obtaining of ecclesiastical precommands of the king as are unauthorized by law. ferment by pecuniary considerations has been No such obedience is implied by the terms of the termed Simony. oath; the fidelity there promised, is intended of The sale of advowsons is inseparable from fidelity in opposition to his enemies, and not in the allowance of private patronage; as patronage opposition to law; and allegiance, at the utmost, would otherwise devolve to the most indigent, and can only signify obedience to lawful commands. for that reason the most improper hands it could Therefore, if the king should issue a proclama- be placed in. Nor did the law ever intend to protion, levying money, or imposing any service or hibit the passing of advowsons from one patron restraint upon the subject beyond what the crown to another; but to restrain the patron, who posis empowered by law to enjoin, there would exist no sesses the right of presenting at the vacancy, sort of obligation to obey such a proclamation, in from being influenced, in the choice of his presenconsequence of having taken the oath of allegiance. tee, by a bribe, or benefit to himself. It is the same
3. The oath does not require that we should distinction with that which obtains in a freecontinue our allegiance to the king, after he is holder's vote for his representative in parliament. actually and absolutely deposed, driven into exile, The right of voting, that is, the freehold to which carried away captive, or otherwise rendered in the right pertains, may be bought and sold as capable of exercising the regal office, whether by freely as any other property; but the exercise his fault or without it. The promise of allegiance of that right, the vote itself, may not be purimplies, and is understood by all parties to sup chased, or influenced by money: pose, that the person to whom the promise is For this purpose, the law imposes upon the made, continues king; continues, that is, to ex- presentee, who is generally concerned in the siercise the power, and afford the protection which mony, if there be any, the following oath: “I do belongs to the office of king: for, it is the pos- swear, that I have made no simoniacal payment, session of this power, which makes such a par- contract, or promise, directly or indirectly, by myticular person the object of the oath; without it, self, or by any other to my knowledge, or with my why should I swear allegiance to this man, ra- consent, to any person or persons whatsoever, for ther than to any man in the kingdom? Beside or concerning the procuring and obtaining of this which, the contrary doctrine is burthened with ecclesiastical place, &c.; nor will, at any time herethis consequence, that every conquest, revolution after, perform, or satisfy, any such kind of payof government, or disaster which befals the per- ment, contract, or promise, made by any other son of the prince, must be followed by perpetual without my knowledge or consent: so help me and irremediable anarchy.
God, through Jesus Christ !"
It is extraordinary that Bishop Gibson should have thought this oath to be against all promises
whatsoever, when the terms of the oath expressly CHAPTER XIX.
restrain it to simoniacal promises; and the law Oath against Bribery in the Election of Mem- alone must pronounce what promises, as well as bers of Parliament.
what payments and contracts, are simoniacal, anů
consequently come within the oath; and what do "I do swear, I have not received, or had, I my- not so. self, or any person whatsoever, in trust for me, Now the law adjudges to be simony,
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 älvowson of a void turn, by law, cannot be The animus imponentis, which is the meatransferred from one patron to another; there- sure of the juror's duty, seems to be satisfied, fore, if the void turn be procured by money, it when nothing is omitted, but what, from some must be by a pecuniary influence upon the then change in the circumstances under which it was subsisting patron in the choice of his presentee, prescribed, it may fairly be presumed that the which is the very practice the law condemns. founder himself would have dispensed with.
2. A clergyman's purchasing of the nert turn To bring a case within this rule, the inconte. for a benefice for himself, “ directly or indirectly," niency mustthat is, by himself
, or by another person with his 1. Be manifest; concerning which there is no money. It does not appear that the law prohibits doubt. a clergyman from purchasing the perpetuity of 2. It must arise from some change in the cira patronage, more than any other person : but pur- cumstances of the institution: for, let the inconeliasing the perpetuity, and forthwith selling it veniency be what it will, if it existed at the time again with the reservation of the next turn, and of the foundation, it must be presumed that the with no other design than to possess himself of founder did not deem the avoiding of it of sufthe next turn, is in fraudem legis, and inconsis- ficient importance to alter his plan. tent with the oath.
3. The direction of the statute must not only 3. The procuring of a piece of preferment, by be inconvenient in the general (for so may the celing to the patron any rights, or probable rights, institution itself be,) but prejudicial to the particubelonging to it. This is simony of the worst kind; lar end proposed by the institution: for, it is this for it is not only buying preferment, but robbing last circumstance which proves that the founder the succession to pay for it.
would have dispensed with it in pursuance of his 4. Promises to the patron of a portion of the own purpose. profit, of a remission of tithes and 'dues, or other The statutes of some colleges forbid the speak. advantage out of the produce of the benefice; ing of any language but Latin, within the walls which kind of compact is a pernicious conde- of the college ; direct that a certain number, and scension in the clergy, independent of the oath; not fewer than that number, be allowed the use of for it tends to introduce a practice, which may an apartment amongst them; that so many hours very soon become general, of giving the revenue of each day be employed in public exercises, lecof churches to the lay patrons, and supplying the tures, or disputations, and some other articles of duty by indigent stipendiaries.
discipline adapted to the tender years of the stu5. General bonds of resignation, that is, bonds dents who in former times resorted to universito resign upon demand.
ties. 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: hecause from them may be ex- subversive of their own designs. pected some regard to the qualifications of the persons whom they promote. But the oath lays å snare for the integrity of the clergy; and I do not perceive, that the requiring of it in cases of
CHAPTER XXII. private patronage, produces any good effect sufficient to compensate for this danger.
Subscription to Articles of Religion. Where adsowsons are holden along with ma SUBSCRIPTION to articles of religion, though no nors, or other principal estates, it would be an easy more than a declaration of the subscriber's assent, Tegulation to forbid that they should ever hereafter may properly enough be considered in connexion be separated; and would, at least, keep church with the subject of oaths, because it is governed preferment out of the hands of brokers.
by the same rule of interpretation:
The inquiry, therefore, concerning subscription,
will be, quis imposuit, et quo animo? CHAPTER XXI.
The bishop who receives the subscription, is Oaths to Obserce Local Statutes.
not the imposer, any more than the crier of a court,
who administers the oath to the jury and witMEMBERS of colleges in the Universities, and nesses, is the person that imposes it; nor, conseof other ancient foundations, are required to swear quently, is the private opinion or interpretation of to the observance of their respective statutes; the bishop of any signification to the subscriber, which observance is become in some cases un
one way or other. lawful, in others impracticable, in others useless, The compilers of the Thirty-nine Articles are in others inconvenient.
not to be considered as the imposers of subscrip Unlawful directions are countermanded by the tion, any more than the framer or drawer up of a authority which made them unlawful.
law is the person that enacts it. Impracticable directions are dispensed with by The legislature of the 13th Eliz. is the imthe necessity of the case.
poser, whose intention the subscriber is bound to The only question is, how far the members of satisfy. these societies may take upon themselves to judge They who contend, that nothing less can jusof the inconveniency of any particular direction, I 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 et 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, The ancient apprehensions
mankind upon what did they intend ?
the subject were conformable to this account of it: They intended to exclude from offices in the for, wills have been introduced into most counchurch,
tries by a positive act of the state; as hy the Laws 1. All abettors of popery:
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.
progress had been made in_legislation, and in 3. 'The puritans; who were hostile to an epis- the economy of civil life. Tacitus relates, that copal constitution : and in general the members amongst the Germans they were disallowed; and of such leading sects or foreign establishments as what is more remarkable, in this country, since threatened to overthrow our own.
the Conquest, lands could not be devised by will, Whoever finds himself comprehended within till within little more than two hundred years these descriptions, ought not to subscribe. Nor ago, when this privilege was restored to the can a subscriber to the Articles take advantage of subject, by an act of parliament, in the latter end any latitude which our rule may seem to allow, of the reign of Henry the Eighth. 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 From the consideration that wills are the creainto articles of peace.
tures 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 CHAPTER XXIII.
of those, who, by operation of law, succeed to his Wills.
estate. By an informal will, I mean a will void in
law for want of some requisite formality, though The fundamental question upon this subject is, no doubt be entertained of its meaning or authenwhether Wills are of natural or of adventitious ticity: as, suppose a man make his will, devising right? that is, whether the right of directing the his freehold estate to his sister's son, and the disposition of property after his death belongs to will be attested by two only, instead of three, suba man in a state of nature, and by the law of na- scribing witnesses; would the brother's son, who ture, or whether it be given him entirely by the is heir at law to the testator, be bound in conpositive regulations of the country he lives in? science to resign his claim to the estate, out of
The immediate produce of each man's personal deference to his uncle's intention? or, on the conlabour, as the tools, weapons, and utensils, which trary, would not the devisee under the will be he manufactures, the tent or hut that he builds, bound, upon discovery of this flaw in it, to surand perhaps the flocks and herds which he breeds render the estate, suppose he had gained posses and rears, are as much his own as the labour was sion of it, to the heir at law? 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 can signify nothing, unless the person intending pleases, there being nothing to limit the con- have a right to govern the descent of the estate. tinuance of his right, or to restrain the alienation That is the first question. Now this right the of it.
testator can only derive from the law of the land: property in land, stands upon a different founda- ditions, with which conditions he has not comtion.
plied; therefore, the testator can lay no claim to We have seen in the Chapter upon Property, the power which he pretends to exercise, as he that, in a state of nature, a man's right to a par- hath not entitled himself to the benefit of that ticular spot of ground arises from his using it and law, by virtue of which alone the estate ought to his wanting it; consequently ceases with the use attend his disposal. Consequently, the devisee and want: so that at his death the estate reverts under the will, who, hy concealing this flaw in it, to the community, without any regard to the last keeps possession of the estate, is in the situation owner's will
, or even any preference of his family, Tof any other person who avails himself of his
bothbour'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, detect 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 différently of this question : for then I should have his heart. considered the law rather as refusing its assistance Anciently, when any one died without a will, to enforce the right of the devisee, than as ex- the bishop of the diocese took possession of his tinguishing or working any alteration in the right personal fortune, in order to dispose of it for the itself.
benefit of his soul, that is, to pious or charitable And after all, I should choose to propose a It became necessary, therefore, that the case, where no consideration of pity to distress, bishop should be satisfied of the authenticity of of duty to a parent, or of gratitude to a benefactor, the will
, when there was any, before he resigned interfered with the general rule of justice. the right which he had to take possession of the
The regard due to kindred in the disposal of dead man's fortune in case of intestacy. In this our fortune (except the case of lineal kindred, way wills and controversies relating to wills, came which is different) arises either from the respect within the cognizance of ecclesiastical courts; unwe owe to the presumed intention of the ancestor der the jurisdiction of which, wills of personals from whom we received our fortunes, or from the (the only wills that were made formerly) still conexpectations which we have encouraged. The tinue, though in truth, no more now-a-days conintention of the ancestor is presumed with greater nected with religion, than any other instruments certainty, as well as entitled to more respect, the of conveyance. This is a peculiarity in the Enfewer degrees he is removed from us; which glish laws. makes the difference in the different degrees of Succession to intestates must be regulated by kindred. For instance, it may be presumed to be positive rules of law, there being no principle of a father's intention and desire, that the inheritance natural justice whereby to ascertain the proporwhich he leaves, after it has served the turn and tion of the different claimants: not to mention generation of one son, should remain a provision that the claim itself, especially of collateral kinfor the families of his other children, equally re- dred, seems to have little foundation in the laws lated and dear to him as the oldest. Whoever, of nature. therefore, without cause, gives away his patrimony These regulations should be guided by the duty from his brother's or sister's family, is guilty not and presumed inclination of the deceased, so far as so much of an injury to them, as of ingratitude these considerations can be consulted by general to his parent. The deference due from the pos-rules. The statutes of Charles the Second, comsessor of a fortune to the presumed desire of his monly called the Statutes of Distribution, which ancestor, will also vary with this circumstance : adopt the rules of the Roman law in the dise whether the ancestor earned the fortune by his tribution of personals, are sufficiently equitable. personal industry, acquired it by accidental suc- They assign one-third to the widow, and twocesses, or only transmitted the inheritance which thirds to the children; in case of no children, one he received.
half to the widow, and the other half to the next of Where a man's fortune is acquired by himself
, kin; where neither widow nor lineal descendants and he has done nothing to excite expectation, survive, the whole to the next of kin, and to be but rather has refrained from those particular equally divided amongst kindred of equal degree, attentions which tend to cherish expectation, he without distinction of whole blood and half blood, is perfectly disengaged from the force of the above or of consanguinity by the father's or mother's reasons, and at liberty to leave his fortune to his side. 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 implying nothing real, nor any obligation of them- can be much to complain of in a rule which every selres.
person may avoid, by so easy a provision as that There is always, however, a reason for proof making his will : otherwise, our law in this reviding for our poor relations, in preference to spect is chargeable with some flagrant absurdities; others who may be equally necessitous, which is, such as, that an estate shall in no wise go to the that if we do not, no one else will; mankind, brother or sister of the half blood, though it came by an established consent, leav the reduced to the deceased from the common parent; that it branches of good families to the bounty of their shall go to the remotest relation the intestate has wealthy alliances.
in the world, rather than to his own father or Thé not making a will, is a very culpable mother; or even be forfeited for want of an heir, emission, where it is attended with the following though both parents survive; that the most diseffects: where it leaves daughters, or younger tant paternal relation shall be preferred to an unchildren, at the mercy of the oldest son; where it cle, or own cousin, by the mother's side, notwithdistributes a personal fortune equally amongst the standing the estate was purchased and acquired children, although there be no equality in their by the intestate himself. erigences 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 former is, that our obligation to them is much but what is founded upon that reason. The Ro- greater than theirs to us. It is a mistake to supman law made none.
pose, 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 BOOK III.
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. PART II.
Nor do I perceive any foundation for an opinion,
which is often handed round in genteel company, OF RELATIVE DUTIES WHICH ARE INDETER. ordinary minds; that they are insensible of kind,
that good usage is thrown away upon low and 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 affect
ed by benefits in the same way that all others are, CHAPTER I.
and to be no less ready to requite them: and it Charity.
would be a very unaccountable law of nature if it
were otherwise. I use the term Charity neither in the common sense of bounty to the poor, nor in St. Paul's tics, which neither promotes our service, nor an
Whatever uneasiness we occasion to our domessense of benevolence to all mankind: but I apply swers the just ends of punishment, is manifestly it at present, in a sense more commodious to my wrong; were it only upon the general principle purpose, to signify the promoting the happiness of diminishing the sum of human happiness. of our inferiors.
By which rule we are forbidden, Charity, in this sense, I take to be the principal province of virtue and religion: for, whilst ment from the mere love and wantonnėss of domi
1. To enjoin unnecessary labour or confineworldly prudence will direct our behaviour to
nation. wards our superiors, and politeness towards our
2. To insult our servants by harsh, scornful, or equals, there is little beside the consideration of duty, or an habitual humanity which comes into opprobrious language. the place of consideration, to produce a proper
3. To refuse them any harmless pleasures, conduct towards those who are beneath us, and causeless or immoderate anger, habitual peevish
And, by the same principle, are also forbidden dependant upon us.
There are three principal methods of promoting ness, and groundless suspicion. the happiness of our inferiors.
1. By the treatment of our domestics and dependants.
the treatment of slaves, being founded upon a CHAPTER II.
principle independent of the contract between
masters and servants. Charity.
I define slavery to be "an obligation to labour
for the benefit of the master, without the contract THE TREATMENT OF OUR DOMESTICS AND DE
or consent of the servant."
This obligation may arise, consistently with the A PARTY of friends setting out together upon law of nature, from three causes: a journey, soon find it to be the best for all sides, 1. From crimes. that while they are upon the road, one of the com 2. From captivity. pany should wait upon the rest; another ride for 3. From debt. ward to seek out lodging and entertainment; a In the first case, the continuance of the slavery, third carry the portmanteau; a fourth take charge as of any other punishment, ought to be proporof the horses ; a fifth bear the purse, conduct and tioned to the crime; in the second and third cases, direct the route ; not forgetting, however, that, as it ought to cease, as soon as the demand of the inthey were equal and independent when they set jured nation, or private creditor, is satisfied. out, so they are all to return to a level again at The slave-trade upon the coast of Africa is not their journey's end. The same regard and re-excused by these principles. When slaves in that spect; the same forbearance, lenity, and reserve country are brought to market, no questions, I in using their service; the same mildness in de- believe, are asked about the origin or justice of the livering commands; the same study to make their vendor's title. It may be presumed, therefore, journey comfortable and pleasant, which he whose that this title is not always, if it be ever, founded lot it was to direct the rest, would in common in any of the causes above assigned. decency think himself bound to observe towards But defect of right in the first purchase, is the them; ought we to show to those who, in the least crime with which this traffic is chargeable. casting of the parts of human society, happen to The natives are excited to war and mutual deprebe placed within our power, or to depend upon us. dation, for the sake of supplying their contracts,
Another reflection of a like tendency with the or furnishing the market with slaves. With this