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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 power. ful party on the continent.
3. The Puritans, who were hostile to an episcopal conftitution ; and in general che members of such leading sects or foreign establishments, as threatened to overturn our own.
Whoever finds himself comprehended within thefe descriptions ought not to subscribe.
During the present state of ecclefiaftical patron. age, 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 teach. ers, or between the teachers and their relpective congregations. But this danger, if it exist, may be provided against with equal effect, by converta ing the articles of faith into articles of peace.
whether Wills a whether the right
THE fundamental question upon this sub ea
is, whether Wills are of natural or of a. ventitious right? that is, whether the right of ci. recting the difpofition of property after his deas belongs to a man in a state of nature, and by the law of nature, or whether it be given him entire by the poitive regulations of the country he lives
The immediate produce of each man's perfonal labour, as the tools, weapons, and utensils, which he manufactures, the tent or hut he builds ar perlaps the flocks and herds which he breeds are rears, are as much his own as the labour was waca he employed upon them, that is, are his property naturally and ablolutely ; and conseque:itly hc ray give or leave them to whom he pleales, there be:"3 nothing to limit the continuance of his right, or ta reitrain the alienation of it.
But every other species of property, especiais property in land, Nands upon a different tous. dation.
We have seen in the Chapter upon Properer, that, in a fiate of nature, a man's right to a pa't). cular spot of ground arises from his uting it, and wanting it; confequently ceales with the vie ard want; fo that at his death the estate reverts to the community, without any regard to the lait owner's will, or even any preterence of his family, farther pan as they become the first occupiers after hil, and lucceed to the same want and uie.
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 abdurd.
The ancient apprehensions of mankind upon the fubject 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 law's of Solon into Greece, by the twelve tables into Rome; and that, not till afrer a considerable progress had been made in legislation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were dilallowed; and, what is more remarkable, in this country, since the conquest, lands could not be de. vised by will, till within little inore 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 whicli, there are ways and means of setting thein aside.
From the consideration that wills are the crea. 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 of those, who, by operation of law, succeed to his
eilare. By an informal will, I mean a will soidis law, for want of some requisite formality, thouge no doubt be entertained of its meaning or authe. ricity : as furpose a man make his uili, devliegts freenelů citate to bis fiter's son, and the will be a rented by two only, instead of three subcribir; witneles; nid the brother's son, who is Loir law to the terta:o:, be bound in conscience to retiga his claim to the eltare, out of deference to his uncle's intention ? Or, on the contrary, woulj c.ca the devilee under the will be bound, upon d.lcose. ty of this flaw in it, to 'urrender the ellale, fupprie Le had gained poil thion of is, to the beir a:
Generally (peaking, the heir at law is not bound by the intention of the testator. For the inte: 0.0 Con tigaity nothing, unleis the person intendig have a right to govern the descent of the ellac. Tnat is the first question. Nw this right the ici tator cun orly derive from the law of ihe land; but tie law cunters the right upon certain conjiniurs, wiib which conditions ne bas not complied. There. fure, the testator can lay no claim to the power which he prciends to exercise, as he hash not co. risis ilimit to the beliefit of that law, by virtue of which alone the citate ought to attend lisci. poial. Consequently, the device under te ning ud), by concealing this fiaw in it, keeps p l...a of the citate, is in the fituation of any other pete lun, who avails himicif of bis ncigi bour's 1:52). rance to derain fron liian lis property. Tie wis
cuch walle paper, troin the detect of patiesa the person who made it. Noris this catching daa expresion of law to pervert the substantial oiling of it, for I appreliend it to be the deliberate milici the legislature, that no will thould take citit up Icil cases, urlís authenticated in the prec.. malin; ulih ih. Halute de firibes. Had t o mcntary die polisions bucn founded in any Desind.al
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 à 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 anceitor from whom we receive 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. 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 provi, sion for the families of his other children, equally related and dear to him as the eldest. Whoever therefore, without cause, gives away his patrimony from his brother's or filter's family, is guilty riot 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 attenti. ons which tend to cherish expectation, he is perfectly disengaged from the force of the above rea