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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. Anabaptifts, who were at that time a powerful party on the continent.

3. The Puritans, who were hoftile to an epifcopal conftitution; and in general the members of fuch leading fects or foreign establishments, as threatened

to overturn our own.

Whoever finds himself comprehended within thefe defcriptions ought not to fubfcribe.

During the prefent ftate of ecclefiaftical patronage, in which private individuals are permitted to impose teachers upon parishes, with which they are often little or not at all connected, fome limitation of the patron's choice may be neceffary, 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.

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WILL S.

HE fundamental queftion upon this fubject is, whether Wills are of natural or of adventitious right? that is, whether the right of directing the difpofition of property after his death belongs to a man in a ftate of nature, and by the law of nature, or whether it be given him entirely by the politive regulations of the country he lives in?

The immediate produce of each man's perfonal labour, as the tools, weapons, and utenfils, which he manufactures, the tent or hut 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 abfolutely; and confequently he may give or leave them to whom he pleases, there being nothing to limit the continuance of his right, or to reftrain the alienation of it.

But every other fpecies of property, especially property in land, ftands 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 arifes from his ufing it, and wanting it; confequently ceafes with the ufe and want; fo that at his death the eftate reverts to the community, without any regard to the laft owner's will, or even any preference of his family, farther than as they become the first occupiers after him, and fucceed to the fame want and use.

Moreover,

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

The ancient apprehenfions of mankind upon the fubject were conformable to this account of it: for wills have been introduced into moft countries by a pofitive act of the ftate, as by the laws of Solon into Greece, by the twelve tables into Rome; and that, not till after a confiderable progrefs had been made in legiflation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were dilallowed; and, what is more remarkable, in this country, fince the conqueft, lands could not be devifed by will, till within little more than two hundred years ago, when this privilege was reftored to the fubject, by an act of parliament in the latter end of the reign of Henry the Eighth.

No doubt many beneficial purpofes are attained by extending the owner's power over his property beyond his life, and beyond his natural right. It invites to induftry; it encourages marriage; it fecures the dutifulness and dependency of children, But a limit must be affigned to the duration of this power. The utmost extent to which, in any cafe, entails are allowed by the laws of England to operate, is during the lives in exiftence at the death of the teftator, and one and twenty years beyond thefe after which, there are ways and means of fetting them afide.

From the confideration that wills are the creatures of the municipal law which gives them their efficacy, may be deduced a determination of the queftion, whether the intention of the teftator in an informal will be binding upon the confcience of thofe, who, by operation of law, fucceed to his

eftate,

eftate. By an informal will, I mean a will void in law, for want of fome requifite formality, though no doubt be entertained of its meaning or authenticity as fuppofe a man make his will, devifing his freehold eftate to his fifter's fon, and the will be attested by two only, inftead of three fubfcribing witneffes; would the brother's fon, who is heir at law to the teftator, be bound in confcience to refign his claim to the eftate, out of deference to his uncle's intention? Or, on the contrary, would not the devifee under the will be bound, upon difcovery of this flaw in it, to furrender the estate, fuppofe he had gained poffeffion of it, to the heir at law?

Generally fpeaking, the heir at law is not bound by the intention of the teftator. For the intention can fignify nothing, unless the perfon intending have a right to govern the defcent of the estate. That is the first question. Now this right the tefs tator 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 teftator can lay no claim to the power which he pretends to exercife, as he hath not entitled himself to the benefit of that law, by virtue of which alone the eftate ought to attend his dif pofal. Confequently, the devifee under the will, who, by concealing this flaw in it, keeps poffeffion of the eftate, is in the fituation of any other perfon, who avails himfelf of his neighbour's ignorance to detain from him his property. The will is fo much wafte paper, from the defect of right in the perfon who made it. Nor is this catching at an expreffion of law to pervert the fubftantial design of it, for I apprehend it to be the deliberate mind of the legislature, that no will fhould take effect upon real eftates, unlefs authenticated in the precife manner which the ftatute defcribes. Had teftamentary difpofitions been founded in any natural

right,

right, independent of pofitive conftitutions, I fhould have thought differently of this question. For then I fhould have confidered the law, rather as refufing its affiftance to enforce the right of the devifee, than as extinguishing, or working any alteration in the right itself.

And after all, I fhould choose to propose a cafe, where no confideration of pity to diftrefs, 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 difpofal of our fortune (except the cafe of lineal kindred, which is different) arifes, either from the refpect we owe to the prefumed intention of the ancestor from whom we receive our fortunes, or from the expectations which we have encouraged. The intention of the ancestor is prefumed with greater certainty, as well as entitled to more refpect, the fewer degrees he is removed from us, which makes the difference in the different degrees of kindred. It may be prefumed to be a father's intention and defire, that the inheritance which he leaves, after it has ferved the turn and generation of one fon, fhould remain a provifion for the families of his other children, equally related and dear to him as the eldest. Whoever therefore, without caufe, gives away his patrimony from his brother's or fifter's family, is guilty not fo much of an injury to them, as of ingratitude to his parent. The deference due from the poffeffor of a fortune to the prefumed defire of his ancestor will also vary with this circumftance, whether the anceftor earned the fortune by his perfonal industry, acquired it by accidental fucceffes, 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 thofe particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above rea

fons,

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