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conceived and propagated, from inattention to their origin or source. When the state estab.

lithes a religion, it clothes or invests the : clergy of that religion with certain political · qualities; one of which is a corporate capa

city, by which they are made perpetual bodies, always represented by successors. By this quality of perpetuity, whatever property is once acquired by a clergyman in his corporate capacity, it is rendered unalienable for ever, and was therefore formerly expressed by our ancestors, by the term Mortmain ; which imported, that the hands, into which the property had passed, poffeffed no active power nor capacity of transferring it to others. Now the right of holding, modelling, and transferring property, is given and regulated by the fovereign power of every state ; and therefore the civil power alone could enable individuals to vest the land, which by the state they were permitted to enjoy to the exclusion of others, in these corporations; or, to use the words of the statute (7 Ed. I.) per quod in manum mortuam devenerint. Whatever land was given by the state, or by the municipal law was permitted to be given by individuals to the church, was to most pur. poses divested of those transferable and descendible, or inheritable qualities, with which

the the general landed property of the nation was endowed. But the state still retained its general power or controul over it, even after it had arrived into the dead possession of the church; for although aliens might be, and were often, in fact, bishops, abbots, and other spiritual corporations in this country, yet the law never permitted them to hold, enjoy, and defend the lands belonging or appropriated to them, even in their corporate capacity, in the same manner as natural-born subjects *; which could not be, if the property so given to, or vested in these spiritual corporations, were from that moment taken out of the controul of the civil power.

The pious dispositions of our ancestors rendered them often lavish in their donations to the church; whether to procure their fupplications during life, or, according to their religious belief, to insure their intercessions with God after their death, to , shorten of alleviate their sufferings in purgatory, is immaterial to consider; for if this sort of property could be given to, and be enjoyed by these spiritual corporations independently of the state, then could not the state any more prevent the donation or investiture of the property, than new-model, alter, or alienate it,

* Vide the case of the Prior of Chelsey and other cases in the year books. H4


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when once made; but we have repeated instances of both in this country; therefore it will be generally adınitted, that all church livings, benefices, possessions, or temporalities, are but appendages of the civil establishment of religion, and consequently subject to the controul of that power of the state, which could alone institute such an establishment. Having already said so much of the nature of real spiritual powers, which of themselves cannot produce any civil effect, consequently cannot give the legal dominion of any landed property, it will be useless to say, that the Bishop of Rome, even whilst our ancestors acknowledged his spiritual supremacy, could not dispose of, nor possess one inch of land within the kingdom of England; for it is a matter of notoriery, that although in former times the Popes appointed sometimes even foreigners, and generally confirmed the appointments made by the king to bishoprics, yet the admission to, and enjoyment of their teniporalities or landed poffeffions depended entirely upon the civil usages and fanctions of the state. Church lands have at all times been looked upon as a trust-fund for the edification and benefit of the country, where they were situated; and as the benefit and advantages of each country must essentially be the objects of the care and duty of


the sovereign power of the state ; fo the appropriation of such trust-funds must ultimately rest with the state.

Although every act of the representatives of a community be uncontroulable by any superior human power, yet it does not follow, that every act, which they pass, is necessarily acceptable in the fight of God, or strictly consonant with the principles of justice or morality: thus, for example fake, suppose the legislature had, under a very unwarrantable influence of a prince, diverted a part of some public fund from the laudable intention of the donor or founder, to the unmerited reward of a court favourite, the act would be binding upon all mankind; nor would individuals be warranted in questioning its validity, for want of purity or uprightness of intention in the persons, who passed it. If this principle were once admitted, the obedience of the subject would be squared only by his arbitrary judgment of the conscientious obligations of his sovereign. The consequent confusion in a state would be unlimited. Hence appears the difference between the free power and the just right of acting. It may often be unjust in a sovereign to enjoin, what it will be the duty of a subject to perform. Yet no power whatever on earth can enact what is contrary



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to the law of God and reason, or what is com. monly called maluin in se.

As early as in the thirteenth century, our ancestors, judging that any further increase of opulence to the church would be prejudicial to the state, passed the statute of mortmain (18 Ed. I. c. 3.) to prevent any further donation of lands to a spiritual corporation, In the year 1307, (35 Ed. I.) the representatives of the nation gave the most unequivocal proof of their controul over the postersions of the church by enacting, that no religious house nor community should send any part of their revenue to their foreign superiors; though the very fame act authorized such foreign superiors of the different religious orders to visit their monasteries and convents in England, and to examine and regulate those things only, that belong to regular observation and the discipline of their order. The line of difference could not be more strongly marked between the spiritual and the civil power. For if the spiritual superiors of these religious houses had any right, power, or jurisdiction over their revenues or poffeffions, the parliament could not have prevented them from receiving them. And if these abbots, priors, or other superiors, had the free, full, uncontrouled power or right over the temporalities or revenues of

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