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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 to, or vested in these fpiritual 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 supplications during life, or, according to their religious belief, to insure their intercessions with God after their death, to shorten or alleviate their fufferings in purgatory, is immaterial to consider ; for if this sort of proper
could be given to, and be enjoyed by these spiritual corporations independently of the ftate, 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.
when once made; but we have repeated in stances of both in this country; therefore ir will be generally admitted, that all church livings, benefices, poffeffions, 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 ane inch of land within the kingdom of England; for it is a matter of notoriety, 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 temporalities or landed possessions de. pended entirely upon the civil usages and sanctions 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'; so 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 light of God, or strictly confonant 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 bind. ing 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
to the law of God and reason, or what is com, monly called malum 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 poffeffions of the church by enacting, that no religious house nor community should send
any part of their revenue to their foreign fuperiors; though the very fame act authorized such foreign fuperiors of the different religious orders to visit their monasteries and convents in England, and to examine and regulate bose thisīgs 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 fuperiors, had the free, full, uncontrouled power or right over the temporalities or revenues of
their convents, they could not have been
prevented by parliament from disposing of them, as they might think proper; for the only full test of perfect dominion in property is the absolute freedom of disposing of it. Moreover, if these church lands were not then looked upon as a part of the national truftfund, parliament would not have enacted, that they should be forfeited to the state by such convents, as permitted their alien spiritual superiors to interfere with or take away any part of their revenues or possesions.
The church lands and revenues, which in the reign of king Henry VIII. were given to or vested in lay persons by parliament, were confirmed to the lay proprietors by the first and second Phil. & Mary, c. 8. Now if the act of divesting them out of the spiritual corporations, and vesting them in lay perfons, were facrilegious and against the law of God, or malum in se, then was it out of the power of parliament to enact it, and the act was of itself invalid, and an invalid act can receive no confirmation, for confirmare est id, quod eft, firmum facere. No length of time could induce an obligation of complying with an act of parliament, that enacted malum in fe; but in this case, barely twenty years had intervened between the passing of the acts and their fonfirmation. It appears evident, that the