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 epuitable. They assign one-third to the widow, and two-thirds 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 degrees, without distinction of whole blood and half blood, or of consanguinity by the father's or mother's side.

The descent of real estates, that is, of houses, 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 nowise 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 prefered to an uncle, or own cousin, by the mother's side, notwithstanding the estate was purchased and acquired by the intestate himself.

Land not being so divisible as money, may be a 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,

because there is sufficient reason to believe, that the founders themselves would have dispensed with them as subversive of their own designs.

CHAPTER

SUBSCRIPTION TO ARTICLES OF RELIGION.

SUBSCRIPTION to articles of religion, though no more than a declaration to 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, qui ́s imposuit, et quo animo?

The bishop who receives the subscription is not the imposer, any more than the cryer 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 the 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 propsition 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:

2. Anabaptists, who were at that time a powerful party on the Continent:

3. The Puritans, who were hostile to the 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.

During the present state of ecclesiastical patronage, in which prívate 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.

THE 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 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 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 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 proper

ty 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, since the Conquest, lands in this country 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 The utmost extent to be assigned to the duration of this power. 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 ofit, to the heir at law?

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 esThat 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, which conditions he has not complied

tate.

with; 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. It may be presumed to be a father's intention and desire, that the inheritance 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 eldest. 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 success, 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 per