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in the legislature, and partly because it has established this grand principle; that no interest, 'however definite and vested, can be 'respected if it be unlawful.'
A formidable obstruction to beneficial changes may arise, indeed, from existing interests which are lawful. No lawful interest, however, the Author of the pamphlet on National Property contends, can be considered property as against the public, unless it be capable of valuation. 'We affirm,' he says, 'not that every lawful 'interest which is capable of valuation is inviolable, but that no 'interest can be held inviolable as against the public, unless it be 'capable of valuation.' And he proceeds to shew that this principle, while it protects life interests, cannot be extended to corporate or state property.
'All property, so long as it has no lawful individual proprietor, must belong to the nation collectively, or, in other words, to the State. This is the case with respect to the fee-simple of all that property which is held in mortmain. The fees of bishops and chapters, of the universities, and their colleges and halls, and generally speaking of all corporations, have no owners beyond the life interests of the existing bishops and members of chapters and corporations. Those life interests the State is bound to protect. To affect them without the consent of their owners, would be spoliation in one of its most odious forms. But subject to those life interests, the State is not only justified, but absolutely bound, to employ the property in the way most conducive to the public interest. In many, indeed in the vast majority of cases, the existing application, or at least an application the same in kind, is on the whole the best that can be adopted. Few measures could be more mischievous than a diversion of the revenues of the universities from the purposes of education. Some modifications, indeed, of the statutes of the different colleges are necessary to enable them to perform still better their important offices; but no one who is aware of the extent of their present usefulness would think for an instant of making a total change in their destination. The same may be said of the episcopal and chapter property in England, and of the benefices, the advowsons of which do not belong to individuals, and which are therefore public property. A better distribution might perhaps be made of their revenues, but there is no mode in which they could be more beneficially employed, than as an ecclesiastical endowment.' p. 11.
This is a position which, we take leave to say, is not unquestionable; and to affirm that 'all whose minds are not blinded 'by party or sectarian spirit' must perceive the advantages produced by an endowed Church, is language unbecoming a liberal writer. Without denying the political advantages resulting from such an appropriation of property, the advantages to religion we must regard as at least problematical. 'But,' the Writer proceeds to say:—
'While, on the one hand, we deny the expediency of diverting the estates of the Universities from educational, and those of the sees and chapters and benefices in question from ecclesiastical purposes; while we affirm that such a diversion would be short-sighted and barbarous folly; on the other hand we equally deny that, supposing the existing life-interests to be untouched, and that the diversion could be proved to be expedient, it would be an injustice. In other words, if the expediency can be proved, we affirm the right. rather be devoted to the support of hospitals or other secular charities? Why, then, are the intentions of our Roman Catholic ancestors to be considered as binding in respect to the ecclesiastical application of the property, and yet not at all binding in reference to the form of religion they wished to perpetuate? Why should it be deemed less inconsistent with respect for the intentions and rights of the dead, to suppress a monastery or to alienate abbey lands, than to suppress a bishopric and secularize its revenues, as has been done without scruple by Roman Catholic governments?
'And not only must the expediency, on which alone the right is founded, be clearly proved, but it must be an expediency with reference to the nation as a permanent body. A violation of this last rule appears to be the only mode in which a nation can commit an injustice, although no assignable individual has a right to consider himself as unjustly treated. A nation, though it may act with the utmost imprudence or folly, cannot be said to be unjust to the whole of its existing members, any more than a man, however absurd, can be said to be unjust to himself. But if the existing members of the nation sacrifice the welfare of their successors to their own immediate interest, they may be said to be unjust to their successors; just as a man who wastes his inheritance, or sells it, and lays out the price in an annuity on his own life, is said to be unjust to his children. And this is a species of injustice to which every country is most mischievously tempted. It is as dangerous for a nation as it is for an individual, to have the power of promoting his own apparent immediate interests at the expense of those who are not yet in existence, with whom therefore it cannot sympathise, and who have no assigned protectors.'
'Some (persons) deny the right of the State to deal with the income of the property held in mortmain, on the ground that, what they call the Church, as distinct from the existing clergymen, is the owner of what they call church property; that the episcopal lands belong to the bench of bishops, not for the lives of the existing bishops, but for ever; and that to declare that no bishop shall in future be appointed, and that the revenues of the sees as they become vacant shall be applied to the support of hospitals, would be an act of spoliation, even although it could be demonstrated that such an application would be more useful, not only at present, but permanently, than the present one. The answer to these reasoners is, that to every spoliation there must be two parties, the spoiler and the person despoiled. Now who, under these circumstances, would be the persons despoiled? Our posterity? No: for the argument assumes that they would be benefited. The existing bishops? No: for they are untouched. The persons who now have the power to appoint bishops? Their consent must of course be obtained. If the bishoprick of Sodor and Man had still belonged to the Athol family, their right to appoint a bishop could not have been suppressed without compensation. But, in the present case, the persons who have the right to appoint bishops are the government, and their consent is presupposed. The persons who might hope to be made bishops? They have no vested interest susceptible of valuation; and, therefore, on the grounds already laid down, cannot be heard. They have no more right to protest against the suppression of bishopricks than subalterns have to oppose a reduction of the number of fieldofficers. Bishopricks no more belong to the church, as an imaginary entity, distinct from the existing churchmen, than pay and allowances
Vol. xIII. n.S. n
belong to the army as an equally imaginary entity, distinct from the existing soldiers.
'Others again contend, that this property, having been originally given to ecclesiastical purposes, cannot be diverted from them without improperly violating the wills of those deceased persons who so dedicated it. In Scotland, where a right of perpetual entail is admitted, this argument might have some plausibility. In England and Ireland, where the law 'abhors perpetuities,' it is almost too absurd for refutation. Our ancestors have had their full swing of posthumous power. Their wills have been obeyed for centuries; in some cases, without doubt, most beneficially; in others, more or less mischievously. And will any one, out of a sentimental regard to their memory, maintain that we have not now the right, or that having that right, we are not now bound to inquire how far this obedience is now beneficial, how far it is mischievous? or that we have not now the right, or that, having that right, it is not our duty to make such changes as may augment the benefit and remove the mischief? If this argument were successful, the land would indeed belong not to the living, but to the dead.'
Testamentary rights are altogether the creation of law, and limited by it. In the early times of the feudal system, no such rights were recognised. The Scotch law denies testamentary power, except by means of an evasion. The English law is full of inconsistencies in relation to this subject; but its absolute prohibition of devises in mortmain, and the restrictions it lays upon conveyances in mortmain, shew that the spirit of our laws is opposed to indefinite testamentary power, and that the State or the legislature has always deemed itself competent to interfere with such settlements. It is, indeed, remarkable, that 'by Magna 'Charta and divers other wholesome laws,' alienations of lands and hereditaments in mortmain are prohibited or restrained, as 'prejudicial to or against the common utility;' and yet, this public mischief, as the preamble to the mortmain act styles it, the advocates of Establishments would have us regard as the greatest of all possible political benefits!
Of all the arguments that can be urged against interfering with ecclesiastical property, that which is founded upon respect for the wills and conveyances of parties who died some centuries ago, is the weakest. By the application of that property to the support of the Protestant faith, the intentions of the original testators are, for the most part, as completely frustrated as they would be by its total alienation from ecclesiastical purposes. Nay, greater violence is done in such cases to the will of the testator. Where is the Protestant who would not prefer that his property should fall to the Crown, rather than go to the support of Popery? Nay, what High-churchman would not shudder at the idea that his bequests should by possibility fall into the hands of Dissenters? Would he not wish that it should
'When the property now possessed by the Episcopal Church 'of Ireland was appropriated to ecclesiastical purposes, the reli'gion, the professors of which were thus endowed, was the religion 'of the whole population.' And what was that religion? That same corrupt form of Christianity which Protestants deny to be the Christian religion, but the professors of which would have regarded Protestantism as damnable heresy. Upon what other ground than the right of conquest, the right of the strongest, has the property of the Romish Church been transferred to the Protestant hierarchy? We do not dispute the competency of the Supreme Government so to deal with it; but we ask, what, in this transfer, becomes of the principle of respect for the intentions of the original donors? The Author of the pamphlet before us, being, as already intimated, a warm admirer of ecclesiastical Establishments, favours us with the following curious particulars as to the feelings and motives which led our unknown predecessors to found their scheme of public instruction.
'Our predecessors in England and Ireland knew that religion was not one of those things which may be safely left to be regulated by the ordinary principles of demand and supply. They knew that the religious instruction which is afforded only so far as it is paid for, is not likely to be the best of its kind; that the priest who is to live by supplying information and advice, is likely to sell that information and that advice which are most to the taste of his customers; to flatter their prejudices, inflame their animosities, and prescribe those conventional duties and observances, which soothe the consciences and gratify the spiritual pride of his hearers, but leave their worst passions uncontrolled. And they felt, also, that as religious instruction, though necessary to all, is most necessary, or to speak more correctly, is necessary in a greater amount, to the poorest classes of the community, they ought not to be exposed to the alternative of going without it, or paying for it the same price as is paid by their wealthier neighbours. They felt that of all modes of taxation, a poll-tax is the least equitable; and that a clergy living by the sale of their services, must, in fact, be supported by a sort of poll-tax; that is, by a contribution bearing no reference to the ability of the contributors. Wisely, therefore, and justly, they gave to the religious instructors of the people an ample endowment; an endowment which enabled the teachers to speak with authority and independence, and the parishioners to demand their aid without feeling that spiritual improvement was to be obtained only at the sacrifice of wants less important, but more obvious and more urgent: and they supplied this endowment from the only sources which at that early period were disposable; partly by means of land, and partly by tithes. To the bishops and chapters, who were comparatively few, they gave large estates, which they could manage by their agents, and yet derive a considerable revenue. But such an endowment was unfit for the parochial clergy. At the early period to which we refer, farmers and rent were almost unknown. Every estate was cultivated at the expense and for the benefit of its proprietor; unless it was large enough to support the expense of a bailiff or a steward, he was forced to manage it himself. The number of the parochial clergy was necessarily so large, that if each priest had had his estate, it must have been too small to have been managed by any body but himself, and its management would have required his whole time. Instead of estates, therefore, they endowed the clergy with a portion of the produce of the soil, to be taken by them free from the expense of cultivation. In all this they followed the plan which was adopted, and for nearly one thousand years, retained over the whole of Europe.
'During the course, however, of centuries of ignorance, the Christianity of the gospel was deformed and distorted by a mass of superstitions. Among the most mischievous of these were the doctrines, that orthodox believers only are to be saved, and that it is the duty of government to force all its subjects to adopt that belief which it assumes to be the true one. And these were among the errors not detected by the early reformers. They were as intolerant as their adversaries; and, where they had the power, propagated their own opinions by persecution, as fiercely and as conscientiously as the church of Rome. In England, this conduct was successful. The Reformation began with the crown, and the people conformed to its will. The property of the church was placed in the hands of the professors of the reformed religion; and, as only a small minority rejected these doctrines, the endowments of the church of England were still devoted to their original purposes—the religious instruction of the mass of the people. • « The same course was attempted to be pursued in Ireland. The sees and the benefices were filled exclusively with Protestants; protestant forms of worship were enforced, and it was without doubt expected that the doctrines of the establishment would be adopted by the people. So preposterous an arrangement as a splendid endowment for the smallest of the three sects that divide the country, a very moderate endowment for the next in point of numbers, and none at all for the vast majority, was not contemplated by those who established the present church of Ireland; and indeed never could have been seriously contemplated by any judicious—we might say, by any sane—legislator.
'The experiment, however, failed; and probably failed in consequence of the very measures which were devised for its attainment. The protestant episcopal religion, associated in the minds of the people with defeat and taxation, instead of the progress for which it