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utmost, can only signify obedience to lawful commands. Therefore, if the king should issue a proclamation, levying money, or imposing any service or restraint upon the subject beyond what the crown is empowered by law to enjoin, there would exist no sort of obligation to obey such a proclamation, in consequence of having taken the oath of allegiance.
3. The oath does not require that we should continue our allegiance to the king, after he is actually and absolutely deposed, driven into exile, carried away captive, or otherwise rendered incapable of exercising the regal office, whether by his fault or without it. The promise of allegiance implies, and is understood by all parties to suppose, that the person to whom the promise is made continues king; continues, that is, to exercise the power, and afford the protection, which belongs to the office of king: for it is the possession of this power, which makes such a particular person the object of the oath; without it, why should I swear allegiance to this man, rather than to any man in the kingdom 1 Beside which, the contrary doctrine is burdened with this consequence, that every conquest, revolution of government, or disaster which befalls the person of the prince, must be followed by perpetual and irremediable anarchy.
OATH AGAINST BRIBERY IN THE ELECTION OF MEMBERS OF PARLIAMENT.
I Do swear, I have not received, or had, by myself, or any person whatsoever in trust for me, or for my use and benefit, directly or indirectly, any sum or sums of money, office, place, or employment, gift, or reward, or any promise or security, for any money, office, employment, or gift, in order to give my vote at this election."
The several contrivances to evade this oath, such as the electors accepting money under colour of borrowing it, and giving a promissory-note, or other security, for it, which is cancelled after the election, receiving money from a stranger, or a person in disguise, or out of a drawer, or purse, left open for the purpose; or promises of money to be paid after the election; or stipulating for a place, living, or other private advantage of any kind; if they
escape the legal penalties of perjury, incur the moral guilt: for they are manifestly within the mischief and design of the statute which imposes the oath, and within the terms indeed of the oath itself: for the word " indirectly" is inserted on purpose to comprehend such cases as these. , / 1
OATH AGAINST SIMONY.
From an imaginary resemblance between the purchase of a benefice, and Simon Magus's attempt to purchase the gift of the Holy Ghost (Acts viii. 19.), the obtaining of ecclesiastical preferment by pecuniary considerations has been termed Simony.
The sale of advowsons is inseparable from the allowance of private patronage; as patronage would otherwise devolve to the most indigent, and for that reason the most improper hands it could be placed in. Nor did the law ever intend to prohibit the passing of advowsons from one patron to another; but to restrain the patron, who possesses the right of presenting at the vacancy, from being influenced, in the choice of his presentee, by a bribe or benefit to himself. It is the same distinction with that which obtains in a freeholder's vote for his representative in parliament. The right of voting, that is, the freehold to which the right pertains, may be bought and sold as freely as any other property; but the exercise of that right, the vote itself, may not be purchased, or influenced by money.
For this purpose, the law imposes upon the presentee, who is generally concerned in the simony, if there be any, the following oath: " I do swear, that I have made no simoniacal payment, contract, or promise, directly or indirectly, by myself, or by any other to my knowledge, or with my consent, to any person or persons whatsoever, for or concerning the procuring and obtaining of this ecclesiastical place, &c.; nor will, at any time hereafter, perform, or satisfy, any such kind of payment, contract, or promise, made by any other without my knowledge or consent: So help me 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 restrain it to simoniacal promises; and the law alone must pronounce what promises, as well as what payments and contracts, are simoniacal, and consequently come within the oath; and what do not so. Now the law adjudges to be simony,—
1. All payments, contracts, or promises, made by any person. for a benefice already vacant. 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 tum 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 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 peraicious 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 requiring 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 arc 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.
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 member; of these societies may take upon themselves to judge of the inconveniency of any particular direction, and make that a reasou 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 himselt 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 ailowed 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 oc 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 connection 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 dimVuit 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 1
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.
The fundamental question upon this subject is, whether Wills are of natural or of adventitious right 1 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 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, further 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; 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 discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to the heirat-law 1
Generally speaking* the heir-at-law is not bound by the intention of the testator: for the intention 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 property. The will is so much waste paper, from the defect of right in the person who made it. Nor is this catching at an expression of law to pervert the substantial design of it: for I apprehend it to be the deliberate mind of the legislature, that no will should take effect upon real estates, unless authenticated in the precise manner which the statute describes. Had testamentary dispositions been founded in any natural right, independent of positive constitutions, I should have thought differently of this question: for then I should have 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.
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 whom he will: the same blood, proximity of blood, and the like, are merely modes of speech, implying nothing real, nor any obligation of themselves.
There is always, however, a reason for providing for our poor relations, in preference to others who may be equally necessitous, which is, that 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.
The not making a will, is a very culpable omission, where it is attended with the following effects: where it leaves daughters, or younger children, at the mercy of the oldest son; where it distributes a personal fortune equally amongst the children, although there be no equality in their exigences or situations; where it leaves an opening for litigation; or lastly, and prin
cipally, where it defrauds creditors; for, by a defect in our laws, which has been long and strangely overlooked, real estates are not subject to the payment of debts by simple contract, unless made so by will; although credit is, in fact, generally given to the possession of such estates; he, therefore, who neglects to make the necessary appointments for the payment of his debts, as far as his effects extend, sins, as it has been justly said, in his grave; and if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.
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 cases 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 law.
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 law 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 rule 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 lineal 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.