1 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 resentment, 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 an unprovoked rebellion, that of wilful and corrupt perjury. If, in the late American war, the same motives determined others to connect themselves with that opposition, their part in it was chargeable with perfidy and falsehood to their oath, whatever was the justice of the opposition itself, or however well-founded their own complaints might be of private injury. 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 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. 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. 1. It permits resistance to the king, when his ill behaviour or imbecility is such, as to make resistance beneficial to the community. It may fairly be presumed that the Convention Parliament, which introduced the oath in its present form, did 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 which they sat together was itself the effect of a successful opposition to an acknowledged sovereign. Some resistance, therefore, was meant to be allowed; and, if any, it must be that which has the public interest for its object. 2. The oath does not require obedience to such commands of the king as are unauthorized by law. No such obedience is implied by the terms of the oath; the fidelity there promised, is intended of fidelity in opposition to his enemies, and not in opposition to law; and allegiance, at the 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? Beside which, the contrary doctrine is burthened with this consequence, that every conquest, revolution of government, or disaster which befals the person of the prince, must be followed by perpetual and irremediable anarchy. CHAPTER XIX. CHAPTER XX. 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 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, and 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, or 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. 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 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 inconve niency must 1. Be manifest; concerning which there is no doubt. 2. A clergyman's purchasing of the next turn for 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 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 inconchasing 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 procuring of a piece of preferment, by coding 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. 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 speak ing 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 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 ex-subversive of their own designs. 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. 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 inconveniency 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 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: 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 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. 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. CHAPTER XXIII. Wills. 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-andtwenty 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 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 positive regulations of the country he lives in? 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. 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 con But every other species of property, especially property in land, stands upon a different founda-ditions, with which conditions he has not com 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, plied; 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 detect 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 Eo 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. 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 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 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. The descent of real estates, of houses, that is, and land, having been settled in more remote and in ruder times, is less reasonable. There never can be much to complain of in a rule which every 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 emission, 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 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 III. 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. 1 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 answers the just ends of punishment, is manifestly wrong; were it only upon the general principle 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 them any harmless pleasures. causeless or immoderate anger, habitual peevishAnd, by the same principle, are also forbidden ness, and groundless suspicion. CHAPTER II. Charity. 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 THE TREATMENT OF OUR DOMESTICS AND DE- or consent of the servant." PENDANTS. 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 respect; 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 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 excused by these principles. When slaves in that 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 depredation, for the sake of supplying their contracts, or furnishing the market with slaves. With this |