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William Paley.

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to it. If there were any who engaged in the re-
bellion of the year forty-five, with th;? expectation
of titles, estates, or preferment ; or because they

6



62



MORAL AND POLITICAL PHILOSOPHY.



<vere disappointed, and tliought tliemsclvcs ne-
glected and ill-used at court ; or because they
entertained a family animosity, or personal resent-
ment, against the king, the favourite, or the minis-
ter ; — it' any were induced to take up arms by
these motives, they added to the many crimes of
an unprovoked rebellion, that of wiltul and cor-
rupt perjury. If, in the late American war, the
same inotives determined others to connect them-
selves with that opposition, their part in it was
charireable 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.

VVe are next to consider what the oath of al-
legiance permits, or does not require.

1. it permits resistance to the king, when his
ill behaviour or imbecility is such, as to make re-
sistance 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 resist-
ance, since the members of that legislature had,
many of them, recently taken up arms against
James the Second, and the very autiiority by
which they sat together was itself the effect of a
successful opposition to an acknowledged sove-
reign. Some resistance, therefore, was meant to
be allowed ; and, if any, it must be that wliich
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 tlie 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 proclama-
tion, 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 in-
capable of exercising the regal office, whether by
his fault or without it. The promise of allegiance
implies, and is understood by all parties to sup-
pose, that the person to whom the promise is
made, continues king ; continues, that is, to ex-
ercise the power, and afford the protection which
belongs to the office of king: for, it is the pos-
session of this power, which makes such a par-
ticular person the object of the oath ; without it,
why should I swear allegiance to this man, ra-
ther than to any man in the kingdom 1 Beside
which, the contrary doctrine is burthened with
this con.sequence, that every conquest, revolution
of government, or disaster which befals the per-
son of the prince, must be followed by perpetual
and irremediable anarchy.



CHAPTER XIX.

Oath against Bribery in the Election of Mem-
bers of Parliament.

" 1 DO swear. I have not received, or had, I my-
self, or any person whatsoever, in trust for me, or



for my use and benefit, directly or indirectly, an;
sum or sums of money, office, place, or employ-
ment, gift or reward, or any promise or security
for any money, office, employment, or gift, in or-
der to give my vote at tliis election.''

The several contrivances to evade this oath,
such as the electors accepting money under colour
of borrowing it, and gi\ing a promissory note, or
other security, for it, whicli 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 lor 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 manife.stly
within the mischief and design of the statute
whicli imposes the oath, and within the terms in-
deed of the oath itself; for the word "indirectly"
is inserted on purpose to comprehend such cases
as tliese.



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 pre-
ferment by pecuniary considerations has been
termed Simo7iy.

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 pro-
hibit the passing of advowsons from one patron
to another ; but to restrain the patron, who pos-
sesses the right of presenting at the vacancy,
from being influenced, in the choice of his presen-
tee, by a bribe, or benefit to himself It is the same
distinction with that which obtains in a free-
holder'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 pur-
chased, or influenced by money.

For this purpose, the law imposes upon the
presentee, who is generally concerned in the si-
mony, if there be any, the following oath : " 1 do
swear, that I have made no simoniacal payment,
contract, or promise, directly or indirectly, by my-
self, 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 tfiis
ecclesiastical place, &c. ; nor will, at any time here-
after, perform, or satisfy, any such kind of pay-
ment, 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 {)romises
whatsoever, when the terms of the oath expressly
restrain it to simoniacal promises; and the law
alone must pronounce what jiromises, 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 sunony,



SUBSCRIPTION TO ARTICLES OP RELIGION.



63



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 ; there-
fore, 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 ne.rt fnrn
for a benefice_/or himself, " directly or indirectly,"
that is, by himself, or by another person with his
monej'. It does not appear that the law prohibits
a clergyman from purchasing the perpetuity of
a patronage, more than any other person : but pur-
chasing the perpetuity, and forthwith selling it
again with the reservation of the next turn, and
with no other design than to possess himself of
the next turn, is injraudem legis, and inconsis-
tent 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;
foi it is not only bu3'ing 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 conde-
scension in the clergy, independent of the oath ;
for it tends to introduce a practice, which rnaj"
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 ujjon the consciences of those who take
it, though I question much the expediency of re-
quiring it. It is very tit to debar public patrons,
such as the king, the lord chancellor, bishops, ec-
clesiastical corporations, and the like, from this
kind of traffic : because from them may be ex-
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 suf-
ficient to compensate for this danger.

Where advowsons are holden along with ma-
nors, or other principal estates, it would be an easy
regulation to forbid that they should ever hereafter
be se[)arated; and would, at least, keep church-
preferment out of the hands of brokers.



CHAPTER XXI.

Oatlis 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 un-
lawful, 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,



and make that a reason for laying aside the ob-
servation of it.

The animus imponentis, which is the mea-
sure 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. It must arise from some change in the cir-
cumstances of the institution : for, let the incon-
veniency be what it will, if it existed at the time
of the foundation, it must be ])resumcd that the
founder did not deem tlie avoiding of it of suf-
ficient 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 particu-
lar 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 nXmiber, be allowed the use of
an apartment amongst them ; that so many hours
of each day be employed in public exercises, lec-
tures, or disputations ; and some other articles of
discipline adapted to the tender years of the stu-
dents who in former times resorted to uni\ersi-
ties. Were colleges to I'etain 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.



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 7

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 wit-
nesses, is the person that imposes it ; nor, conse-
quently, 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 im-
poser, whose intention the subscriber is bound to
satisfy.

They who contend, that nothing less can jus-
tify subscription to the Thirty-nine Articles, than



64



MORAL AND POLITICAL PHILOSOPHY.



the actual belief of each and every separate pro-
position 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 diOicult to conceive how this could be ex-
pected l)y any, who observed tjie incurable diver-
sity of human opinion upon all subjects short of
demonstration.

If the autJiors of the law did not intend tliis,
what did they intend 1

Th(>y intended to exclude from oiBces in the
church,

1. AH abettors of popery :

2. Anabaptists ; who were at that time a pow-
erful party on the Continent.

3. Tlie puritans ; who were hostile to an epis-
copal 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 legis-
lature.

During the present state of ecclesiastical pa-
tronage, in winch private individuals are per-
mitted to impose teachers upon parishes with
wliich they are often little or not at all connected,
some limitation of the patron's choice may be ne-
cessary 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 cHijct, by converting the articles of faith
into articles of peace.



CHAPTER XXIII.

Wills.

Thr 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 na-
ture, or whether it be given him entirely by the
positive regulations of the country he lives in 1

The immediate piroduce 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 liis own as the labour was
which he employed upon them ; that is, are his
property naturally and absolutely ; and conse-
quently he may give or leave them to whom he
pleases, there being nothing to limit the con-
tinuance of his right, or to restrain the ahenation
of it.

But every other species of property, especially
property in land, stands upon a difi'erent fomida-
tion.

We have seen, in the Chapter upon Property,
that, in a stale of )iature, a man's right to a par-
ticular 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 liis family,



further than as they become the first occupier*
after him, and succeed to the same want and use.

Moreover, as natural rights caimot, 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 mil-
lion 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 coun-
tries 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 jears
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 at-
tained by extending the owner's power over his
property beyond his life, and beyond his natural
right. It invites to industry ; it encourages mar-
riage ; 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-
twcnty years beyond these ; after which, there
are ways and means of setting them 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
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 authen-
ticity : as, suppose a man make his will, devising
his freehold estate to his sister's so3i, and the
wiil be attested by two only, instead of three, sul>
scribing witnesses; would the brother's son, who
is heir at law to the testator, be bound in con-
science to resign his claim to the estate, out of
deference to his uncle's intention 1 or, on the con-
trary, would not the devisee under the will be
bound, upon discovery of this flaw in it, to sur-
render the estate, suppose he had gained posses-
sion of it, to the heir at 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 con-
ditions, with which conditions he has not com-
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 fliat
law, by virtue of which' alone the estate ought to
attend his disposal. Consequently, the devisee
under the will, who, by conceahng this flaw in it,
keeps possession of the estate, is in the situation
of any other person who avails himself of his



WILLS.



65



riC'ighbour's ignorance to detain from him his pro-
perty. The will is so much waste paper, from the
defect of right in the person who made it. Nor is
this catcliing at an expression of law to per\'ert the
substantial design of it : for I apprehend it to be
the deliberate mind of the legislature, that no will
should talve etiect upon real estates, unless au-
thenticated in the precise manner which the sta-
tute describes. Had testamentary dispositions
been founded in any natural right, independent
of positive constitutions I should have thought
diflerently of this question : for then I should ha\e
considered the law rather as refusing its assistance
t) enforce the right of the devisee, than as ex-
tinguisliing or working any alteration in the right
itself

And after all, I sliould 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 dilference in the diticrent degrees of
kindred. For instance, it may be prcsmncd 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 otiier children, equally re-
lated 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 pos-
sessor 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 suc-
cesses, or only transmitted the inheritance wliich
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 them-
selves.

There is always, however, a reason for pro-
viding for our poor relations, in preierence to
others who may be equally necessitous, which is,
that if we do not, no one else will; mankind,
by an established consent, leaving tlie 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 open-
ing for htigation; or lastly, and principally, where



it defrauds creditors ; for, by a defect in our laws
which has been long and strangely overiool^ed,
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, therelbre, who ne-
glects 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
liis heart.

Anciently, when any one died without a will,
the bishop of the diocese took possession of liis
personal fortune, in order to dispose of it for the
benefit of liis soul, that is, to pious or charitable
uses. It became necessarj', 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 tbjs
way wills and controversies relating to wills, came
within the cognizance of ecclesiastical courts ; un-
der the jurisdiction of which, wills of personals
(the only wills that were made formerly) still con-
tinue, though in truth, no more now-a-days con-
nected with religion, than any other instruments
of conveyance. Tliis is a peculiarity in the En-
glish laws.

Succession to intestates must be regulated by
positive rules of law, there being no principle of
natural justice whereby to ascertain the propor-
tion of the ditlerent claimants : not to mention
that the claim itself, especially of collateral kin-
dred, 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, com-



Online LibraryWilliam PaleyThe works of William Paley ... : containing his life, moral and political philosophy, evidences of christianity, natural theology, tracts, Horae Paulinae, clergyman's companion, and sermons, printed verbatim from the original editions, complete in one volume → online text (page 14 of 161)