Page images

tron 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 clergyman from purchasing the perpetuity of a patronage, more than any other person: but purchasing the perpetuity, 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 inc tent with the


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.

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 requir ing 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.

[ocr errors][merged small][ocr errors]


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 what 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


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 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 now-a-days would come near them. They are laid aside therefore, though parts of the statutes, and as such included within the oath, not merely because they are inconvenient, but because there is sufficient reason to believe, that the founders themselves would have dispensed with them as subversive of their own designs.


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 subscription, 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 justify subscription to the Thirty-nine Articles, than the actual belief of each and every separate proposition contained in them, must suppose, that the legislature expected the consent of ten thousand men, and that in perpetual succession, not to one controverted proposition, but to many hundreds. It is difficult to conceive how this could be expected by any, who observed the incurable diversity of human opinion upon all subjects short of demonstration.

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 :

2. Anabaptists; who were at that time a powerful 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.

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 substantially satisfying the intention of the legislature.


During the present state of ecclesiastical patronage, in which private individuals are permitted to impose teachers upon parishes with which they t are often little or not at all connected, some limitation of the patron's choice may be necessary to prevent unedifying contentions between neighbouring teachers, or between the teachers and their respective congregations. But this danger, if it exist, may be provided against with equal effect, by converting the articles of faith into articles of peace,



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?

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 property naturally and absolutely; and consequently 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 founda tion.

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, farther than as they become the first occupiers, after him, and succeed to the same want and use.

Moreover, as natural rights cannot, like rights created by act of parliament, expire at the end of a certain number of years; if the testator have a right, by the law of nature, to dispose of his property one moment after his death, he has the same right to direct the disposition of it for a million of ages after him; which is absurd.

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 into Rome

« PreviousContinue »