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and that not till after a considerable 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.

No doubt many beneficial purposes are attained by extending the owner's power over his property beyond his life, and beyond his natural right. It invites to industry; it encourages marriage; it secures the dutifulness and dependency of children; but a limit must be assigned to the duration of this power. The utmost extent to which, in any case, entails are allowed by the laws of England to operate, is during the lives in existence at the death of the testator, and one-and-twenty years beyond these; after which, there are ways and means of setting them aside.

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 the discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to the heir at law?

Generally speaking, the heir-at-law is not bound by the intention of the testator: for the intention an signify nothing, unless the person intending

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.

CHAP. 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 subscription, any more than the framer or drawer up of a Jaw 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 ledgislature 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.

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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 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,

12

CHAP. 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?

.

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, will's 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

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and that not till after a considerable 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.

No doubt many beneficial purposes are attained by extending the owner's power over his property beyond his life, and beyond his natural right. It invites to industry; it encourages marriage; it secures the dutifulness and dependency of children; but a limit must be assigned to the duration of this power. The utmost extent to which, in any case, entails are allowed by the laws of England to operate, is during the lives in existence at the death of the testator, and one-and-twenty years beyond these; after which, there are ways and means of setting them aside.

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 the discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to the heir at law?

Generally speaking, the heir-at-law is not bound by the intention of the testator: for the intention an signify nothing, unless the person intending

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